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Constitutional Court could have final say on mandatory Covid-19 vaccination

President Cyril Ramaphosa after receiving his Johnson & Johnson Covid-19 vaccine at Khayelitsha District Hospital in February 2021. He has now been cited as an interested party in a non-profit organisation’s urgent Constitutional Court application to determine the constitutionality of mandatory vaccination. Picture: Henk Kruger/African News Agency (ANA) Archives

President Cyril Ramaphosa after receiving his Johnson & Johnson Covid-19 vaccine at Khayelitsha District Hospital in February 2021. He has now been cited as an interested party in a non-profit organisation’s urgent Constitutional Court application to determine the constitutionality of mandatory vaccination. Picture: Henk Kruger/African News Agency (ANA) Archives

Published Jan 6, 2022

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Gauteng – The Constitutional Court (ConCourt) has been approached to urgently decide whether or not the implementation of mandatory Covid-19 vaccines is ultra vires (beyond the powers) and derogates non-derogable constitutional rights.

The non-profit organisation, the National Black Consumer Council (NBCC), which says it is not anti-vaccine but pro-choice, has filed an urgent application at the apex court and has also issued a stern warning to companies forcing their employees to get vaccinated.

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In the application served on the Presidency’s legal and executive services unit on Monday, NBCC secretary-general Dr Raynauld Russon told the ConCourt that the urgency is based on the fact that certain employers are introducing mandatory vaccination from January 1, 2022.

President Cyril Ramaphosa is cited as an interested party.

The NBCC wants the apex court to interpret and define legal clarity and certainty on whether the non-derogable rights enshrined in the Constitution and the National Health Act can be diminished or derogated through a directive issued by Employment and Labour Minister Thulas Nxesi in June last year, paving the way for employers to make vaccination mandatory.

According to the consumer council, the country’s highest court must state whether informed consent can be mandatory and whether the implementation of mandatory vaccine policy is ultra vires (beyond the powers) and derogates non-derogable rights enshrined in the Constitution.

The NBCC, which has 60 000 members and supporters, also wants the Constitutional Court to provide interpretation of the Constitution based on the will of the people expressed in its preamble, human dignity expressed in its finding provisions, the bill of rights, non-derogable rights and the Disaster Management Act.

”What is the legal status of a direction (issued by Nxesi) as it relates to the supremacy of the Constitution?” asks the council.

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The NBCC believes 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.

In his founding affidavit, Russon said the NBCC holds the strong view that will provide clarity by considering and interpreting whether or not mandatory vaccination promote or diminish the rights of citizens as protected in the Constitution in an open and democratic society.

The NBCC warned that mandatory vaccines will create divisions among South Africans akin to the apartheid era.

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”Manufacturers of vaccines have been given indemnity and have refused to take liability for their products but employers are exposing their companies and our government to possible civil liabilities and possible class action,” Russon explained.

He added that employers enforcing mandatory vaccines have not signed liability commitments to cover any adverse effects that may occur after employees have taken the vaccines.

Russon accused the government of being grossly negligent in its management and administration of Covid-19 vaccines in the country.

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Last month, Nedlac (National Economic Development and Labour Council) said it would ask the Constitutional Court for a declaratory order enforcing mandatory Covid-19 vaccines in the workplace.

At the time, Nxesi said Nedlac’s social partners believe that vaccine mandates will pass constitutional scrutiny and supported Business Unity SA’s bid to get a declaratory order from the Constitutional Court this year.

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Political Bureau

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