How to effectively apply our constitution in the midst of a pandemic

The issue of vaccination could bring the country’s supreme legal document into frequent play

South Africans are justifiably proud of our constitution. Since its promulgation in 1996 the country’s supreme legal document has been recognised as one of the most progressive in the world. It is designed to protect the rights of every South African, particularly the most vulnerable. 

That is not to say it is perfect. The constitution is a living document and has been amended at various points in its quarter-century history as the need has arisen. There have been times over the past 25 years when the limits of the constitution have been tested. The past 10 years in particular have been challenging in that regard. 

As the country tries to free itself from the Covid-19 pandemic through an extensive vaccine programme, the constitution and the Constitutional Court, the highest in the land, which adjudicates how it should be applied, are likely to face a fresh wave of challenges. As some companies mandate vaccines for their employees and the government rolls out digital vaccine passports, some people are bound to argue that their constitutional rights are being infringed. 

The preamble to the constitution declares, among other things, that SA as a country belongs to all who live in it, and that we are united in our diversity. The constitution holds high the prioritisation and protection of human dignity, the achievement of equality, and the promotion of human rights and freedoms. In a Covid-19-induced environment where the viable solution to a return to normal life is mass vaccination, how should the constitution be effectively applied so that even in our diverse opinions about the vaccine the country moves forward in unity?

The rights contained in the Bill of Rights of the constitution are not absolute and may be limited in terms of law of general application, to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Your right to privacy might, for instance, be justifiably limited if it is found to impinge on someone else’s rights to health and life. 

Specifically, the constitution contains a limitation clause, which states that rights may be limited by a law of general application that is “reasonable and justifiable in an open and democratic society based on human dignity, freedom, and equality”.

Anyone approaching a court claiming that their rights have been violated will therefore have to consider whether such a violation or limitation of a right is not limited by a reasonable and justifiable law of general application based on human dignity, equality and freedom. In the case of vaccines, that is going to be true on both sides of the divide. 

In the case of employers enacting vaccine mandates, the likely argument will be that they have an obligation to provide a safe workplace that does not put at risk their employees’ rights to health and life. These two rights, it will argue, will supersede its employees’ right to privacy when it comes to disclosing whether they have been vaccinated. 

Some companies have stated that their mandatory vaccination policy recognises employees’ “right to object to the vaccination”, and will include a process to consider the employee’s health, religious and other legal rights and seek to balance these with the rights of all employees across the group. 

The accommodations being made in this instance for those who refuse to be vaccinated include allowing them to work from home where possible, further protecting companies from claims that they are being discriminatory and infringing on employee rights. 

Unfair dismissal

Where things might get tricky is if a company decides to dismiss an employee on the basis that they are unvaccinated. In that instance such an employee might claim unfair dismissal, or that their right to privacy has been violated. It is worth noting that those arguments would have to go through the various lower courts before ending up in front of the Constitutional Court for final adjudication, unless such an applicant is able to gain direct access to the Constitutional Court. 

Right now, however, the legal situation around vaccines and vaccination mandates is not clear cut. As such, the best solution for ensuring widespread vaccination in SA may not be a legal one but rather a clear policy drive to prevail over those who are antivaccination to realise the greater good achieved through a fully vaccinated nation. 

There will always be someone who says, “Over my dead body”, but the more people there are who are vaccinated the less impact such objections will have.