South Africa: Letter to a University Council about Mandatory Vaccinations
26 October 2021

1. Background

1.1   On [insert date], the University announced, presumably on instruction of the Council, that it intended to adopt a mandatory vaccination policy (the “Policy”) which would require that all students and staff at the University would need to be vaccinated by [insert date], unless that student or staff member was exempted from doing so.

1.2   The Policy also referred to the fact that the Minister of Employment and Labour has issued a direction in terms of regulations made under the Disaster Management Act (the “Direction”) which deals with measures designed to address, prevent and combat the spread of COVID-19 in certain workplaces.

1.3   Amongst other things, the Direction requires that Employers, such as the University, develop a plan (the “Plan”) outlining the measures that they intend to implement in respect of the vaccination of employees/staff of the University. The Direction requires Employers to consult in relation to the Plan. The Direction does not require Employers to adopt a plan for the vaccination of any employees and the Employer is entitled to conclude that it will not adopt any mandatory vaccination policy. The Direction also entitles any employee to refuse to be vaccinated on constitutional or medical grounds.

1.4   It would appear to me that the Council of the University is relying on the Direction to similarly implement a mandatory vaccination policy for students. Throughout my letter I will refer to the policy for either employees or students simply as the “Policy” because it is clear that they are one and the same thing. In other words, the Council intends to implement a Policy for both employees and students, and unless exempted on either constitutional or medical grounds, that employee or student would be barred from accessing the University unless they are vaccinated.

1.5   The Policy is defective in law including for the reasons set out in this letter. Notably, the Council has failed to comply with the Direction in that it has failed to conduct a proper risk assessment, including by failing to supply employees and students with references to the science that the Council relied upon, and by failing to properly consult with the employees or students, if even consulting at all. Alternatively, the Council has acted irrationally in implementing the Policy given the information set out below.

Photo by Nathan Dumlao on Unsplash

Publisher’s note: The opinions and findings expressed in articles, reports and interviews on this website are not necessarily the opinions of PANDA, its directors or associates.

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