Our government could – and should – take steps to compel vaccinations in South Africa for the greater good

To end the global Covid-19 pandemic, an overwhelming majority of people across the globe would speedily have to get vaccinated with one of the effective Covid-19 vaccines. However, anti-vaxxing beliefs and vaccine hesitancy among a significant number of South Africans, may hamper vaccination efforts in South Africa. This raises the question of whether measures to pressure or encourage individuals to get vaccinated would pass constitutional muster.

Chief Justice Mogoeng Mogoeng is not the only South African who worries that some of the Covid-19 vaccines might be physically or spiritually harmful. While few would embrace the conspiracy theory (first raised by Trump-supporting evangelical Christians in the USA) that a Covid-19 vaccine would implant the mark of the beast – or a Bill Gates directed microchip – into one’s body, a sizeable number of South Africans are hesitant to get vaccinated against Covid-19, largely because of (often exaggerated or misplaced) safety concerns.

Unfortunately, the decision by an individual not to get vaccinated against Covid-19 may pose a deadly threat to the lives and well-being of others. If a significant number of individuals refuse to get vaccinated, the virus will continue to spread among the unvaccinated, which may allow the virus to mutate into new strains against which the existing vaccines may no longer be effective. If this happens, the lives of many more people in South Africans and across the world may be lost. Whether to get vaccinated could therefore be a life-or-death decision – not only for yourself, but also for others.

Given this potential threat, the South African government has a critical responsibility to take effective and speedy steps to ensure that a critical mass of the population get vaccinated against Covid-19. Short of imposing a duty on all qualifying South Africans to get vaccinated, there are various less drastic measures available to the government to persuade individuals to get vaccinated.

For example, legislation could require individuals to be vaccinated to be able to perform certain high-risk jobs or to take part in high-risk or super-spreader activities. Such legislation could, for arguments sake, require health workers, teachers and lecturers, public transport workers, people employed in the service industry or in retail, and government employees serving the public, to be vaccinated.

It could also require people to be vaccinated before they are permitted to attend large indoor gatherings such as church services, concerts, or conferences, or before they are allowed on an aeroplane or a cruise ship. Legislation could also permit employers to require employees to get vaccinated, or to permit other private institutions such as medical aids or life insurance companies to require its members or beneficiaries to be vaccinated.

There is no question that the measures described above would impose a limitation on the right to bodily and psychological integrity (which includes the right to security in and control over their body) guaranteed in section 12(2) of the Constitution. The protection of this right is of particular importance in South Africa, given the manner in which apartheid laws often allowed for the encroachment on (and regulation of) particular types of bodies – the bodies of women, gays and lesbians, intersex and transgender individuals and black people.

Legal measures that force someone to choose between their personal beliefs about what is good for their own bodies (no matter how scientifically misguided those beliefs may be), on the one hand, and their ability to participate fully in the world, on the other, would thus obviously limit the individual’s autonomy over their bodies in conflict with section 12(2) of the Bill of Rights.

But this is not the end of the matter. One must proceed to ask whether the limitation imposed on section 12(2) would nevertheless be reasonable and justifiable in an open and democratic society in accordance with section 36 of the Bill of Rights, and thus constitutionally valid. The Constitutional Court summarised its approach in S v Manamela, explaining that the court must in each case “engage in a balancing exercise and arrive at a global judgment on proportionality and not adhere mechanically to a sequential check-list”

It may be helpful to think of this “balancing” exercise by imagining the court using one of those old-fashioned scales – much like the scale depicted in the well-known illustration of the scales of justice – on which it balances the competing interests to see which way the scale should tip.

First, the court will evaluate the interests of those complaining that their right is being infringed, by asking: how important is the right; how serious is the limitation of the right and how serious does it impact on the complainants; and are less invasive measures available to achieve the goal pursued by the measures? The more serious the infringement, the heavier the weight placed on this side of the scales will be.

Measures that require individuals to get vaccinated in order to be able to do certain jobs or to take part in certain activities would significantly limit the ability of individuals to make decisions about their own bodies. However, it would not extinguish their ability to choose and would therefore not place an absolute limitation on the right. Moreover, unlike  many other choices one may need to make about one’s own body (to take contraception, to terminate a pregnancy, to decide whether to undergo chemotherapy), the choice to get vaccinated is not likely to have a significant negative impact on one’s body, one’s health or one’s general well-being. This means the impact of such indirectly coercive measures on the complainants’ right will be significant, but not severe.

Our courts have, in fact, authorised far more radical limitations on the right to bodily integrity, than that posed by vaccination. For example, in  2002 in Minister of Safety and Security and Another v Gaqa the Western Cape High Court (in a judgement authored by recently retired judge Siraj Desai) authorised a police officer “to use reasonable force, including any necessary surgical procedure performed by duly qualified medical doctors and paramedical personnel in consultation with the superintendent of the Tygerberg Hospital”, to remove a bullet from the leg of a criminal suspect implicated in the killing of two people during a botched robbery.

The bullet had lodged in the suspect’s leg and the police was eager to have the bullet surgically removed for the purpose of ballistic tests. The court found that there was little danger of any harm to the respondent when the bullet is removed, thus reducing the seriousness of the impact on his rights. On the other hand, not allowing the bullet to be removed might have resulted “in serious crimes remaining unsolved, law enforcement stymied, and justice diminished in the eyes of the public who have a direct and substantial interest in the resolution of such crime”.

Second, the court will evaluate the broader societal and governmental interests, by asking: what is the purpose of the limitation and how important is the purpose; and is there a sufficient link between the limitation and its purpose. Obviously, the more pressing the purpose of the measures, and the more precisely tailored they are to achieve the purpose, the heavier the weight placed on the other side of the scales will be.

A court will surely find that the purpose of the measures are to encourage or pressurise South Africans to get vaccinated against Covid-19 with the aim of ending the global pandemic and potentially saving the lives of hundreds of thousands of individuals. It is hard to imagine a more serious or important purpose than this.

As courts make decisions on how important the purpose of a measure is based on relevant scientific facts (and not based on unsubstantiated and unscientific beliefs), the court will accept the scientific evidence that there is a direct causal link between the speedy and widespread vaccination of the overwhelming majority of the population against Covid-19, on the one hand, and the saving of lives on the other. Given the importance of saving lives, the scales will necessarily tip in favour of the vaccine measures, which will be constitutionally compliant.

Such a finding would be in line with existing precedent as developed in a series of judgments in which the court allowed medical personnel to administer a blood transfusions for a minor child, despite the religious objections of the child’s Jehovah’s Witness parents. For example, in Life Health Care Group and Another v JMS and Another,the Gauteng High Court held that the parents’ “right to religion is not unfettered, that the right to life is an inviolable right and to the extent that the parents’ right potentially violates the child’s right to life, it is in the best interest of the child that the child’s right to life” trump the parent’s right.

One caveat: to pass constitutional muster the measures may have to include narrowly tailored exceptions to ensure the measures restrict the right to bodily integrity (or perhaps freedom of religion) as little as possible. For example, an exception might have to be made for individuals in high-risk categories who may suffer adverse effects from a vaccine. Such exceptions will have to be based on medical evidence and not on unscientific beliefs or fears. But there would be no need to exempt individuals from the vaccination requirements merely because they are anti-vaxxers, are vaccine hesitant, or hold strong but false beliefs about vaccines or about the danger posed by Covid-19.

It is not clear what measures our government may take to persuade the vast majority of South Africans to get vaccinated against Covid-19. But from the above it must be clear that if it chooses to do so, it has a wide array of constitutionally valid options at its disposal to persuade individuals to act in the public interest and not in their narrow self-interest.

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