”Every doctor or nurse in both the public and private health sector who diagnoses a patient with a notifiable condition has to report it to the National Institute of Communicable Diseases — failure to do so is a criminal offense.”
Those are the views of public health lawyer and senior researcher at the Wits School of Public Health, Safura Abdool Karim as she was explaining the balancing act of dealing with constitutional human rights and Covid 19 protective responsibilities.
Most private companies introducing these policies are relying on the Occupational Health and Safety Act, which requires employers to provide a working environment that is safe and without a health risk.
The department of labour also issued a directive that supports the introduction of workplace vaccine mandates for employees who are at high risk for developing severe Covid-19, or at a high risk to transmit SARS-CoV-2, the virus that causes Covid-19.
Karim said South Africa’s laws allow the government to implement mandatory Covid vaccinations but, if it chooses this path, it must do so responsibly.
According to Health Minister Joe Phaahla, the health department will issue vaccine certificates or passports to fully vaccinated people by the end of September, which businesses will be able to use to restrict access to venues based on people’s vaccination status.
Forced Or Voluntary Health Guiding Framework
According to the senior researcher at the Wits School of Public Health, when South African authorities want to make a new or maintain the same legal framework that will determine if the country will adopt the compulsory vaccination.
”In 2020, Covid-19 became a notifiable condition under the notifiable medical conditions regulations, which have long been in place and are updated from time to time.
A notifiable condition is a disease that poses a considerable public health risk because it can lead to outbreaks that are fatal or severely affect many people.
Examples of other notifiable diseases in South Africa are cholera, listeriosis and tuberculosis.”
In simple terms, under the prevailing notifiable medical conditions regulations, a healthcare provider would be allowed to administer a vaccine even if a person refuses to accept it.
According to Karim, another route that could be used to justify mandatory vaccination is the regulations issued under the state of disaster declared in March 2020, which are used to regulate South Africa’s Covid-19 response.
”Under these regulations, a person can be compelled to undergo Covid-19 testing, isolate if infected — and potentially also be vaccinated.
It would still have to involve a court order, but the process is slightly easier because such an application can be lodged by people from a wider range of sectors — for example, healthcare workers, government officials or certain ranks of police officers — and the order can be granted by a magistrate’s court.”
Both these avenues have been used in the past to institute mandatory isolation and quarantine or even to enforce treatment for conditions that pose a significant public health risk. But in the context of making Covid-19 vaccination compulsory, they are unlikely to be feasible options.
The constitution vs Covid: A balancing act of rights
Some legal commentary argues that making the Covid-19 vaccine compulsory would be a violation of constitutional rights, including the rights to bodily integrity, freedom of religion, and dignity. However, Karim said although it is true that mandatory vaccination may limit these rights, it is important to recognise the flip side: no constitutional right is absolute.
This means that any right in the bill of rights can be limited if justified under section 36 of the constitution.
In the end, decisions about mandatory Covid-19 vaccination may ultimately be informed by our individual actions. Because with every right also comes a responsibility.