The South African government may introduce “vaccine passports”, following moves by authorities in other jurisdictions, and the limitation of constitutional rights is arguably justifiable

On 12 September 2021, President Cyril Ramaphosa announced that government will be "providing further information on an approach to ‘vaccine passports’, which can be used as evidence of vaccination for various purposes and events".  This followed an announcement by Minister of Sport, Arts and Culture, Nathi Mthethwa, last week that South Africans will have to be vaccinated to be allowed back into sporting arenas and other entertainment venues. There had also been an earlier statement by Minister of Health, Joe Phaahla, speaking to the National Council of Provinces, that the use of public amenities may be limited to those who have been vaccinated.  

Deputy President David Mabuza has also stated that “If we so desire to return to our stadiums, to our theatres, to our concerts, to our fashion shows, it lies with us to go out and mobilise our people, our communities, to vaccinate”. He also said, “A vaccinated nation is what it will take to again open the stadiums for the popular Soweto derby we know, our Cape Town Jazz Festival, to go back to Macufe, the Joy of Jazz, the Durban July”. 

Countries around the world have been grappling with the issue of whether access to public amenities and venues such as restaurants, bars, stadiums, cinemas and even liquor stores can be restricted for the unvaccinated.  New York City requires that all people over the age of 12 show proof of at least one dose of a Covid-19 vaccine to access indoor dining, indoor fitness or indoor entertainment facilities. On 9 September 2021, President Joe Biden announced vaccine requirements for federal employees that would affect as many as 100 million people in the USA, where mandatory Covid-19 vaccinations have withstood the scrutiny of the courts in at least two cases.  In Indiana, the court refused to block Indiana University from implementing a vaccine mandate when students return this year.  In Texas, the court dismissed a challenge by hospital employees to a policy which required them to be vaccinated as a condition of continued employment.  The court's reasons included that vaccine mandates do not violate public policy.  

France has implemented a Covid-19 pass, which demonstrates proof of vaccination or a recent negative Covid-19 test to allow entry into movie theatres, museums, theme parks, restaurants, cafes, visiting a hospital, and for all passengers on domestic flights and long-distance trains. From the end of September, these requirements will apply to all people over the age of 12.  Also, employees who are required to produce a Covid-19 pass but fail to do so can be suspended without pay.  France's Constitutional Council has accepted that Covid-19 regulations represent a "balanced trade-off" between public health concerns and personal freedoms. 

Other countries have taken a different approach.  For example, UK Secretary of State for Health and Social Care, Sajid Javid, announced on 12 September 2021 that plans for an England vaccine passport have been ditched for the time being.  According to earlier proposals, people would have been required to show proof of double vaccination or a negative Covid-19 test to enter crowded events.   

Restricting access to public spaces or employment to those who have been vaccinated raises important and complex constitutional questions.  Such a restriction may be imposed directly on individuals by government through legislation, or legislation may be enacted to empower public venues to lawfully restrict entrance to those who can demonstrate that they have been fully vaccinated.  While the method of restriction is still uncertain, it is clear that this restriction will infringe certain constitutional rights.  These rights include:

• the right to equality, which includes the right not to be unfairly discriminated against;
• the right to bodily integrity, which includes the right to security in and control over one's body;
• the right to privacy, which includes the right to have one's personal medical information remain private and the right to decide whether to disclose such information; and 
• the right to freedom of thought, belief and opinion. 

These rights are indeed important.  But no right is absolute.  Under section 36 of the Constitution, rights may be limited in terms of a law of general application if it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.  

The test for determining whether a limitation is justified requires an overall assessment of the particular circumstances of a case and a balancing exercise of the implicated rights.  Our Constitution provides that limitations on constitutional rights will pass constitutional muster if, considering the nature and importance of the right and the extent to which it is limited, this is justified in relation to the purpose, importance and effect of the limiting provision, taking into account the availability of less restrictive means to achieve this purpose. 

In this instance, the rights of those who choose not to be vaccinated must be weighed against the government’s obligation to take steps to protect its citizens from the continuous spread of Covid-19. 

Scientific evidence shows that, when more people in a community are vaccinated, it is difficult for the disease to spread. Restricting access to public venues for the vaccinated could be argued to be a reasonable and justifiable limitation of constitutional rights as this limitation would be in the broader public interest.  Public interest is a consideration that our courts use to balance competing interests and rights.  What constitutes the public interest is decided on a case-by-case basis and the meaning attributed to the concept depends on the context in which it is applied.  Restrictions which are taken in the interests of public health and safety are patently in the public interest.  The intention of such restrictions would be to prevent the spread of Covid-19 and protect the health and safety of the public.  In addition, the limitation on rights in this instance would be proportionate in the circumstances.  The alternative (i.e., restricting access to public entertainment and leisure venues entirely to contain the spread of the virus) would be a far more restrictive measure.

While the restriction of constitutional rights is a controversial topic which rightly raises concern, the seemingly never-ending spread of Covid-19 infections and the development of newer and possibly more hazardous variants of the virus necessarily require drastic interventions by governments to save lives.  When the rights of non-vaccinated individuals to access public entertainment venues are weighed against the public health considerations at stake, these rights must, in our view, give way. The seriousness of the pandemic far outweighs the interests of unvaccinated persons in accessing public entertainment venues and amenities.  Those who choose not to be vaccinated should be prepared to sacrifice their access to such amenities in the interests of saving lives, as long as the limitation on their rights is as minimal and proportionate as possible.

Written by Dario Milo, Lavanya Pillay & Bernadette Lotter from Webber Wentzel