On a Media briefing that was held on the August 27th Health Minister Dr Joe Phaahla said the Health Department is now discussing the conditions under which mandatory vaccines may be possible.
Addressing media He said that no official determination has yet been made. Phaahla said that in his personal view it is unlikely that an official regulation will be introduced which states that everyone must vaccinate.
However, he said it is possible that certain jobs such as the services sector and the entertainment sector could require mandatory vaccines.
The Minister mentioned that South Africa may limit the use of public amenities to the people who have been vaccinated against Covid-19.
“While a decision hasn’t been taken it is being discussed by the governmentThe Department of Labour and Employment has already given directives allowing employers to make the decision on whether to make vaccination a requirement, he “ said the Health Minister Joe Phaahla
According to the South African Human Rights Council (SAHRC) On 11 June 2021, the employment and labour minister gazetted a directive on COVID-19 vaccination in certain workplaces, in the new consolidated direction on occupational health and safety measures.
It stipulates that employers are required to come up with reasonable resolutions so that all parties are accommodated should employees refuse COVID-19 vaccinations on medical and constitutional grounds.
The principle espoused by the directive is that employers and employees should treat each other with mutual respect. Essential considerations are public health imperatives, employees’ constitutional rights and efficient business operations.
The directive, further stipulates on section 3(1)(a)(ii), that employers must undertake a risk assessment to determine whether or not they intend to ‘make vaccination mandatory’.
This should be in accordance with sections 8 and 9 of the Occupational Health and Safety Act No. 85 of 1993 (OHSA), and should take into account the operational requirements of the workplace.
Employers are obliged to identify those employees who need to be vaccinated by ‘virtue of the risk of transmission through their work or their risk for severe COVID-19 disease or death due to their age or comorbidities.’
Medical grounds for an employee not agreeing to take a vaccine as stated in Annexure 3 of the directive are ‘an immediate allergic reaction of any severity to a previous dose or a known (diagnosed) allergy to a component of the COVID-19 vaccines’.
On the face of it, this means that the directive does not make the vaccine mandatory, but places the onus on the employer to take into account its general duties under the OHSA, which mandates the provision of a working environment that is safe and without risk to the health of employees and persons other than those employed who may be directly affected.
According to the bill of rights, the freedom and security of a person are enshrined in section 12 of the Constitution.
More specifically, section 12(2) provides that every person has the right to bodily and psychological integrity, which includes the right to make decisions concerning reproduction; to security in and control over their body; and not to be subjected to medical or scientific experiments without their informed consent.
No person shall be denied the protection that section 12 offers. A plain reading of section 12(2) makes it evident that every person has the preponderant right to make decisions on health and medical interventions and treatment, which undoubtedly includes the acceptance or rejection of the vaccine.
However, constitutional rights are never dimensional and rights may be limited when there are justifiable grounds for doing so. Moreover, the National Health Act 61 of 2003 contains clear provisions for emergency treatment (section 5), consent (sections 7 and 9), and participation in decisions of a medical nature (section 8).
By Siphoakzi Mnyobe
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