Former Constitutional Court Justice Edwin Cameron has suggested there is consensus among legal experts that Covid-19 vaccine mandates are constitutionally permissible, but former Chief Justice Mogoeng Mogoeng has made it plain he disagrees. Lawyers say court challenges are inevitable as private entities move to adopt vaccine mandates and the state mulls the same for certain sectors of the public service. Legal writer Emsie Ferreira, in a Mail & Guardian report, notes trade unions have signaled concern about the introduction of mandatory vaccinations, meaning a test case looms that may well start in the Equality Court before heading for the Constitutional Court.
At issue will be the constitutional rights to bodily integrity, privacy, to protection against unfair discrimination and to freedom of thought, religion, conscience and opinion. ‘If vaccine mandates are going to be debated, one then has to see are the limitations to those rights justifiable with reference to section 36 of the Constitution,’ Alan Dodson SC said during the October round of interviews with candidates for vacancies at the Constitutional Court, after cautioning that legal challenges were inevitable. Ferreira notes seasoned counsel have been briefed by companies, and universities are drafting their vaccine policies to ensure that these survive procedural attack and pass the proportionality test enshrined in section 36. It states that rights may be limited by laws of general application, but only insofar as this is ‘reasonable and justifiable in an open and democratic society based on dignity, freedom and equality’. Last year this section proved fatal to draconian restrictions imposed by the state in response to the pandemic, including a ban on tobacco sales.
Such is the consensus that the planned measures will pass constitutional muster that those involved in drafting vaccine policy say they are more concerned about procedural challenges. ‘The companies and institutions I advise are more concerned about procedural challenges; about getting the process right to adopt the mandate or policy, rather than the substance of it, because I think you are almost definitely going to win the debate on the substance,’ an unnamed lawyer is quoted as saying in the M&G report. ‘There might be debates about the details, such as what your exemption process looks like, who exactly should be exempted and in what circumstances, but as to the general principle I feel very confident that the courts will uphold it.’
The most obvious constitutional debate, he said, may be whether mandatory vaccination imposes a justifiable limitation on the section 12 right to bodily integrity: ‘My own view is that the right to bodily integrity is not limited because you are not being forced to be vaccinated. Nobody is going to hold you down and stick a needle in your arm. What you are being told is that there are consequences if you make this free choice not to be vaccinated. But that is unclear in our law, whether that will be a limitation of your right or not,’ he conceded, adding that in the US the courts have accepted the argument that there is no rights limitation, although the issue had yet to reach the Supreme Court or the apex court of any other country.
A member of the Johannesburg Bar said a constitutional challenge was sure to fail. Advocate Kameel Premhid pointed out that it was accepted that government made mandatory decisions that affect ‘our bodily integrity but nonetheless allow us to make informed decisions on what we will or will not do’. ‘Similarly, my own view is that the right to bodily integrity is not limited because you are not being forced to be vaccinated. Nobody is going to hold you down … what you are being told is that there are consequences for your choice.’ Premhid added: ‘I think in this situation it is probably correct that the government creates the framework in which it acts in the interest of all people to protect all people, and so, yes, there is a negative consequence for people who are not vaccinated. They might lose their job, but remember they are not losing their job because they are being punished because of a view they hold or because they don’t believe in science. They are being punished – and I use that phrase loosely – because what they represent is a public health concern and a public health risk, not only to individuals, but to the ability to continue operating.’
According to the M&G, a prominent constitutional lawyer noted that section 12 placed an absolute prohibition on being forced to endure scientific experiments, but that, as a general right to bodily integrity, it was subject to the limitation clause in section 36. Here, public interest came into play because of the possibility of putting co-workers at risk. It was worth remembering, too, the lawyer said, that, for now, the country remained in a State of Disaster and that most rights, including those in section 12, were limited under the Disaster Management Act.