The South African courts have not yet had the opportunity to decide on the issue of compulsory vaccinations, but it has made several other judicial pronouncements on section 12. Drawing on the above, it is evident that there is no absolute limitation of the right envisaged in section 12 and that the courts ought to consider broader societal and governmental interests when balancing competing rights. In S v Makwanyane and Another ZACC 3 it was further held that a right should not be taken away altogether under the guise of limitation and should be limited as little as possible. The test of reasonableness involves the weighing up of competing rights and values based on proportionality. First, it needs to be determined whether there has been a contravention of a guaranteed right in the Constitution and secondly, whether the contravention is justified under section 36 (the limitation clause). The two-stage approach is set out in the case of S v Zuma ZACC 1. The right to bodily and psychological integrity can thus be limited by legislation which passes the stringent test of being both “reasonable” and “justifiable”. The courts are encouraged to conduct an overall assessment in order to arrive at a judgment based on proportionality. In S v Manamela and Another (Director-General of Justice Intervening) ZACC 5 it was held that these five factors do not form an exhaustive list or automatic checklist. Section 36 of the Constitution provides for the limitation of constitutional rights in so far as it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, and having regard to: (i) the nature of the right (ii) the importance of the purpose of the limitation (iii) the nature and extent of the limitation (iv) the relation between the limitation and its purpose and (v) less restrictive means to achieve the purpose. 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). However, constitutional rights are never one dimensional and rights may be limited when there are justifiable grounds for doing so.
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. No person shall be denied the protection that section 12 offers. 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. The right to freedom and security of a person is enshrined in section 12 of the Constitution. In some circumstances, the rejection of mandatory vaccinations in the workplace can constitute constructive dismissal. Compulsory immunisation must be considered alongside employment legislation and regulations such as the Labour Relations Act 66 of 1995 the Occupational Health and Safety Act 95 of 1993 the Employment Equity Act 55 of 1998 and the Basic Conditions of Employment Act 75 of 1997 where employers may introduce mandatory vaccine policies in the workplace, which some employees may reject. Without adequate legislation which mandates compulsory immunisation of the South African population against COVID-19, the country could be placed at serious risk of further transmission, and the number of deaths could spike again. But when and as the roll-out plan progresses, it is important to assess this question in light of constitutional rights and ethos enshrined in the Constitution of South Africa. At this stage, it is uncertain whether government can and will enact legislation or other governmental measures in order to compel COVID-19 vaccinations. The question that arises is whether receiving the vaccine can be legally mandated. The COVID-19 vaccine roll-out plan is well underway in South Africa, albeit with some fits and starts, but most healthcare workers have now received the Johnson & Johnson vaccine. Finally, after a long year with the ever-present threat of the COVID-19 virus, there is a glimpse of light at the end of a very dark tunnel, presenting itself as a vaccine.
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