Less than two weeks after the government signalled urgency in boosting the take-up of Covid-19 jabs, it has left the important task to businesses after saying it would await a court order before making vaccination mandatory for access to certain places and activities.
This means that businesses who have already moved to enforce compulsory vaccinations for those in the workplace are on their own, with some support from organised labour but no support from the government.
A vaccination mandate is effectively a requirement that a person be vaccinated to access the workplace, travel or attend public events such as music festivals and soccer matches.
Delivering the keynote address at the National Economic Development and Labour Council’s (Nedlac’s) annual summit held virtually on Tuesday, employment and labour minister Thulas Nxesi said one of the areas that remained a priority for Nedlac, the country’s policy formulating body, was the finalisation of discussions around mandatory vaccination.
“While, the social partners believe that vaccine mandates will pass constitutional scrutiny, they support the work of Busa [Business Unity SA] to get a declarator from the Constitutional Court in the New Year,” Nxesi said, quoting from Nedlac’s input into the economic reconstruction and recovery plan.
Busa legal advisor Halton Cheadle told Business Day that they wanted the apex court to "end the discussion" that implementing a vaccine mandate would infringe on people's rights to bodily integrity. "That's the essence of the declarator," he said.
“No right is absolute. Rights are always limited in one way or another. For instance, in lockdown, our freedom of movement was limited. We have these limitations all the time.” Cheadle said a right could be limited by a law and the question was “how important is the purpose of the limitation” because no right was absolute.
Constitutional law expert Pierre de Vos said it would be interesting to see if the Concourt would agree to hear Busa's matter.
"The constitutional issue is that: if you require people to be vaccinated to take part in certain activities, it might impose some limits on their rights: freedom of movement, religion, and so the question is: is this a justifiable limitation. If the mandate is carefully crafted it’s likely to be constitutionally viable," said De Vos.
"Unless they have a detailed plan and they want the court to declare that the plan is constitutionally compliant, even then, it’s a bit unorthodox to go that route."
The issue of vaccine mandates has been on the agenda for months at Nedlac, with even Cosatu and Fedusa coming out to say that they were no longer against it as a result of negotiations there.
Covid-19 has battered the SA economy, which contracted 6.4% and led to a loss of about 1.4-million jobs in 2020. The identification of the highly infectious Omicron variant in the country has led to a surge in the number of people getting inoculated.
The country’s blue-chip companies including Standard Bank and insurance and investment group Old Mutual have moved to make it mandatory for their employees to get vaccinated. MTN, Africa’s largest mobile operator by subscribers, will enforce mandatory vaccination policies for staff from 2022.
Insurer Discovery has reportedly said 94% of its staff are now vaccinated, less than three months after it implemented a mandatory vaccination policy.
In his weekly newsletter on Monday, President Cyril Ramaphosa said as the country entered the fourth Covid-19 wave, and as it geared up for the festive period, the priority was for more people to get vaccinated.
In his address, Nxesi said social partners at Nedlac, including the government, labour, business and community constituencies, had taken up the issue of workplace initiatives to vaccinate employees, “while also taking forward the debate on mandatory vaccination”.
“Indeed, the cabinet referred this matter to Nedlac for input from the social partners. The point must be made that the issue of health and vaccinations goes far beyond the workplace, affecting all communities,” said Nxesi.
Update: December 7 2021
This article has been updated with new information
Correction: December 8 2021
An earlier version of this article incorrectly said that labour minister Thulas Nxesi had instructed Nedlac to join the legal process. Business Day regrets the error.
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