‘Nothing new’ about vaccine mandates, say experts

Experts have welcomed the discussion around vaccination mandates following President Cyril Ramaphosa’s announcement on Sunday night, with some calling it “absolutely critical”.

“In fact, it should have been implemented months ago,” said Prof Keymanthri Moodley, the director of the Centre for Medical Ethics and Law at the University of Stellenbosch, on Monday.

Moodley said there was “every ethical, legal and scientific reason” to put vaccine mandates in place and that government had been dragging its heels so far – pointing to, for example, universities that had already established policies.

Last week, South African scientists announced they had identified the new omicron variant, since declared a “variant of concern” by the World Health Organisation.

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This news also coincided with a sharp increase in positive Covid cases across the country – and in Gauteng, in particular – with the proportion of positive tests shooting from about 2% to 9% in a matter of days.

During his “family meeting” on Sunday night, Ramaphosa said if cases continued to climb, South Africa’s predicted fourth wave could hit within weeks – “if not sooner”.

He made it clear that with just over a third of adult South Africans fully vaccinated, the country’s jab uptake still wasn’t where it needed to be.

He said government had set up a task team to “undertake broad consultations on making vaccination mandatory for specific activities and locations” and that this task team would report to the inter-ministerial committee on vaccination which would, in turn, make recommendations to Cabinet “on a fair and sustainable approach to vaccine mandates”.

The topic is a controversial one and has divided the country, with civil rights organisation AfriForum already having written to the president to say it would oppose vaccine mandates implemented by government.

But Moodley yesterday emphasised vaccine mandates would not see individuals forced to take the vaccine, but would rather focus on “access to specific environments where the risk is high for transmission of the virus” – such as movie theatres, restaurants, museums, gyms, nightclubs and, importantly, domestic flights.

Were vaccine mandates implemented, they would almost certainly wind up being challenged in the courts. And the issues to be determined would include whether the vaccine mandates limited any of the rights enshrined in the Bill of Rights.

If the courts found they did, they would then have to determine if this was in line with Section 36 of the constitution, which states that these rights may only be limited “to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors”.

But Moodley believed vaccine mandates met this test.

“A vaccine mandate is intended to protect the public, not harm them. It’s not punitive, it is in the best interest of those who are currently at risk and unvaccinated,” she said.

She also said there was “nothing new” about vaccine mandates.

“There’s been a vaccine mandate around for smallpox since the 1800s … And they are essential – as you can see today, we don’t have smallpox,” she said.

Constitutional expert and advocate Paul Hoffman echoed these sentiments, saying he believed vaccine mandates to access services in certain sectors – such as tourism and education – would be completely legal and agreed any limitations on individuals’ rights met the test in most instances.

“I can foresee in various sectors that it would be reasonable and justifiable to put in place limitations,” he said.

Opinion on the matter still remains split, though. AfriForum’s Ernst Roets in a statement issued by the group on Monday, maintained it was a matter of principle.

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“If we support state coercion with matters we personally agree on at the moment, we open the door for the state to be able to impose something on us in the future with which we ourselves may have a problem in principle,” he said, insisting vaccine mandates were “unjustifiable in a free society”.

And attorney Wesley Hayes, also a specialist in constitutional law, said implementing vaccine mandates would raise questions around “whose rights trump whose – the rights of the vaccinated to be protected against the virus or the rights of the unvaccinated not to be forced to take the vaccine”.

Section 36 of the constitution lists “less restrictive means to achieve the purpose” as one of the “relevant factors” to be taken into account when determining whether a limitation on a right is “reasonable and justifiable”.

And Hayes believed government would face a challenge trying to show there were not “less restrictive means to achieve the purpose” of vaccine mandates.

He also said vaccine mandates ran the risk of unfairly discriminating against certain groups and believed this would prove difficult to defend.

– bernadettew@citizen.co.za