UCT’s senate is set to consider a motion today requesting that the university council institute a mandate requiring all staff and students – not exempted on medical or constitutional grounds – to provide acceptable proof of having been vaccinated against Covid-19.

Constitutional law expert Professor Pierre de Vos says when assessing whether this limitation on the right to bodily integrity guaranteed by section 12(2) of the Constitution would pass constitutional muster, it is instructive to look at some of the other ways the law already allows for the limitation of this right.

‘Such a mandate will limit the right to freedom and security of the person, but will almost certainly pass constitutional muster,’ he says, adding the Occupational Health and Safety Act – read with the relevant provisions of Covid-19 regulations issued in terms of the Disaster Management Act – ‘provide legal authority for such a move’.

Writing on his Constitutionally Speaking blog, De Vos notes that section 12(2)(b) of the Bill of Rights states that ‘everyone has the right to bodily and psychological integrity, which includes the right to security in and control over their body’.

The UCT mandate, if passed, will interfere with staff and students' right to freely make decisions about their own bodies.

‘The question then is whether this limitation would be reasonable and justifiable (and therefore constitutionally compliant) in terms of section 36 of the Constitution. This section requires a weighing up of competing interests when deciding whether a limitation of the right to bodily integrity is justifiable or not.

One must consider the interests of staff and students whose right to bodily integrity will be limited by a vaccine mandate, and also weigh this against the interests of the broader university community, and of the society it serves, by asking three questions: How important is the purpose of the envisaged measure? How likely is it that the measure will achieve its purpose? Are other effective but less invasive measures available to achieve the same purpose?’

The imposition of a tailored vaccine mandate at UCT will serve a variety of ‘extremely important’ purposes.

De Vos says we therefore need to question whether the envisaged measure would impose such an unprecedented and extreme limitation on the right to bodily integrity that it could not be constitutionally justified.

He offers some of the other ways in which the law already allows for the limitation of the right to bodily integrity.

* In State v Orrie, the High Court held that section 37(3)(a)-(b) of the Criminal Procedure Act – authorising the taking of a blood sample from an accused in order to determine the state of that accused’s health or for the purposes of compiling a DNA profile – was a justifiable limitation on the right to bodily integrity.

* Section 30 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act allows a victim of a sexual offence to seek a court order compelling the alleged offender to undergo HIV testing and to allow the results of such test to be disclosed to the victim. The consent of the alleged offender is not required – despite the fact that this provision represents an infringement of the right to bodily integrity of the offender.

* The High Court in Minister of Health v Goliath relied on section 7(1)(d) of the National Health Act – which allows for the forced treatment of a patient where a failure to treat the patient (or group of patients) would lead to a serious public health or safety risk – to order the detention of contagious XDR-TB patients in a specialist tuberculosis hospital to receive treatment. The court held that although this limited their section 12 rights, this was necessary and constitutionally justified.

* In Life Health Care Group and Another v JMS and Another, the High Court allowed medical personnel to administer a blood transfusions for a minor child, despite the religious objections of the child’s Jehovah’s Witness parents. It ruled that the parents’ ‘right to religion is not unfettered; that the right to life is an inviolable right; and to the extent that the parents’ right potentially violates the child’s right to life, it is in the best interest of the child that the child’s right to life trumps the parent’s right.

* Section two of the Choice on Termination of Pregnancy Act limits the right of everyone to make decisions concerning reproduction, as it limits the circumstances in which (and conditions under which pregnancy) may be terminated.

De Vos says these all show that a mandate requiring (non-exempted) staff and students at a university to show proof of Covid-19 vaccination may not – in the eyes of the law – be nearly as drastic as some people might believe.

‘Given the variety of (extremely important) purposes served by the imposition of such a vaccine mandate at a university, our courts are therefore very likely to hold that the limitation imposed on the right to bodily integrity was reasonable and justifiable, given the pointed but not drastic nature of the limitation.’

Full analysis on the Constitutionally Speaking blog