On 6 January 2022, the media reported that the National Black Consumer Council (NBCC) had launched an urgent application in the Constitutional Court (Court). The purpose of the application, according to the report, it to seek clarity from the Court as to whether the Consolidated Direction on Occupational Health and Safety in Certain Workplaces (Direction) issued by the Minister of Employment and Labour on 11 June 2021, which permits employers to implement mandatory vaccination policies, is ultra vires and infringes upon non-derogable rights. 

According to the media report, the NBCC alleges urgency on the basis that certain employers are implementing mandatory vaccination policies with effect from 1 January 2022. The NBCC appears to claim that the right to human dignity, which is a non-derogable right, will be infringed in the event that mandatory vaccinations in the workplace are introduced. 

The NBCC also alleges that the concealment of the contents of Covid-19 vaccines violates the fundamental rights enshrined in section 12 of the Constitution, which deals with the freedom and security of the person and refers to the right to bodily integrity. Whilst it is not evident that the contents of the vaccines have been concealed (because any person may apply for a medical exemption based on medical grounds which are defined as including a known severe allergy to one or more of the components of the vaccine, the Direction does refer to the right to bodily integrity as a basis of objection by employees). 

In the event that the Court accepts that the NBCC is entitled to approach it directly for relief, and in the event that it agrees that the application ought to be heard and adjudicated upon on an urgent basis, it appears as though the Court will be required to determine two issues, namely:

• whether mandatory vaccination policies in the workplace constitute an infringement of the constitutional right to human dignity which is a non-derogable right; and / or
• whether mandatory vaccination policies in the workplace constitute an infringement of the constitutional right to bodily integrity.  

The Direction provides that when implementing a mandatory vaccination policy in the workplace, the employee should be made aware of the right to object to vaccination on medical or constitutional grounds. The Direction defines "constitutional grounds" to include the right to bodily integrity. It does not make reference to the right to dignity. 

In most constitutional jurisprudence, dignity has been deemed a value because there has been a more specific right which was directly relied on. Therefore, dignity as a value is often attached to a constitutional claim of infringement of a more direct right. It seems that the NBCC may argue that it will constitute an infringement on a person's dignity in the event that their right to bodily integrity is limited in terms of section 36 of the Constitution.

The right to bodily integrity is a right which may be limited by section 36 of the Constitution whilst the right to human dignity is entirely protected and may not be limited. 

When conducting a legal analysis as to whether a mandatory vaccination policy in the workplace constitutes an infringement on the right to bodily integrity is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, the following needs to be considered:

• the nature of the right;
• the importance of the purpose of the limitation;
• the nature and extent of the limitation;
• the relation between the limitation and its purpose; and
• less restrictive means to achieve the purpose. 

Possible arguments which support the view that mandatory vaccination policies do pass constitutional muster could include the following:

• the purpose of the limitation of the right to a person's bodily integrity is to protect vulnerable employees from infection as the data indicates that those who are not vaccinated have a higher viral load than those who are not vaccinated and are therefore more likely to transmit the virus;
• vaccination is not only in the interests of fellow employees but also communities at large and is therefore of paramount importance;
• the limitation is not ongoing nor is it particularly invasive and, in most instances, does not result in any severe side effects;
• the data shows that the overwhelming majority of those who suffer from severe illness, hospitalisations and death are not vaccinated. In the event that people are not vaccinated, they may need to be hospitalised which may affect the ability of other persons to access critical health care such as cancer treatment; and
• there are no less restrictive means to control the spread of COVID-19 which are as effective as the vaccine. 

Arguments which oppose the implementation of mandatory vaccinations in the workplace may include:

• the purpose of the limitation of the right to a person's bodily integrity is not particularly effective in light of the high transmissibility of the Omicron variant which is evidenced from the exponential increase in positive test results and admissions amongst those who are vaccinated in Europe and the United Kingdom;
• whilst the data shows that the vaccine is safe for most people, some may suffer from a severe adverse vaccine event which may impact upon their ability to work;
• the limitation is invasive and may result in severe side effects;
• employees are entitled to choose whether to expose themselves to the risk of severe illness, hospitalisation or death and should not be denied that entitlement by their employer; and
• all of the non-pharmaceutical interventions such as mandatory mask wearing, regular sanitising and hand washing and social distancing remain effective tools in the fight against COVID-19. 

These are some of the arguments that the Court may be required to consider in determining whether implementing mandatory vaccinations in the workplace constitutes a reasonable and justifiable limitation upon the constitutional right to bodily integrity. 

However, in the event that the Court is satisfied that the right to bodily integrity is intrinsically linked to human dignity or that the constitutional right to human dignity itself is infringed when implementing a mandatory vaccination policy at the workplace, it may conclude that such policies are, in fact, unconstitutional. This is because the right to dignity may not be limited. 

Whilst the media report indicates that government departments and particular officials (including President Cyril Ramaphosa) have been cited as respondents in the application, it will be interesting to see if the various business associations which promote mandatory vaccination will seek to be admitted as interested parties.

Written by Jacqui Reed, Employment lawyer and Senior Associate at law firm Herbert Smith Freehills