During his latest so-called "family meeting" on 30 September President Cyril Ramaphosa told the nation that:
"The Department of Health should be rolling out a vaccination certificate which will provide a secure and a verifiable proof of vaccination, which can be used to facilitate travel to access establishments and gatherings and other forms of activity that require proof of vaccination".
The Department of Health has promised that some people will start to receive their vaccination certificates within weeks. It has been suggested that the organisers of events and conveners of gatherings will be able to choose to admit only persons who are in possession of a certificate.
Predictably, the suggestion has attracted a backlash in some quarters, with suggestions that such a measure would infringe certain rights in terms of the Constitution. Amongst the rights it has been suggested may be infringed are:
- The right to equality before the law, and equal protection and benefit of the law, in terms of section 9
- The right to control over one's own body, in terms of section 12 and in particular to determine the medical procedures to which one is subjected
- The right to privacy, in terms of section 14. This right has been given effect to in the Protection of Personal Information Act, 4 of 2013 ("POPIA"), which entrenches the right of every person to keep details of his or her health or medical history confidential
- Freedom of association, in terms of section 18
In the case of faith-based institutions, such as churches, mosques, synagogues and temples, other constitutional principles apply, in addition to those mentioned above:
- Section 15 guarantees every person's freedom of "conscience, religion, thought, belief and opinion".
- Section 31 states that persons belonging to a cultural, religious or linguistic community may not be denied the right to practise their religion with other members of that community
So, with some religious institutions suggesting that they are considering restricting access to services and other gatherings to congregants who are in possession of vaccination certificates, many may argue that, in doing so, they will be denying worshippers their rights in terms of the constitutional provisions listed above. Who is on the side of the angels?
To answer the question, section 36 of the Constitution becomes relevant. This section allows the rights in the Constitution to be limited "to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—
- 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
- less restrictive means to achieve the purpose."
The limitation, in appropriate circumstances of the rights of an individual to participate at will in religious observances was recognised by the High Court in Taylor v Kurtstag NO and Others. The case dealt with different facts (the right of a religious body to exclude a member from certain activities according to its own disciplinary rules). However, the principle laid down by the court that "the holding of a specific religious belief is perhaps 'inviolable' because a person cannot be constitutionally required to adhere to or foreswear any specific religion or belief ... The free exercise of religion, however, can clearly be limited". One of the examples of an instance where the right to practice a religion might be limited, said the court, was where "the rights to freedom of religion may ... conflict with other protected rights ...".
I do not presume to pronounce an opinion on the efficacy of vaccines or the statistical likelihood of the virus being transmitted where unvaccinated persons share a venue with vaccinated ones, as opposed to a group where all are vaccinated. I will leave that to the appropriately qualified experts. As a general principle, though, it seems to be accepted that the more people in a community that are vaccinated, the more difficult it is for the virus to spread.
That being the case, the community leaders must balance the rights of congregants who choose not to be vaccinated against the rights of those others in their community. The latter group are equally entitled to freely exercise their religious rights. In addition to this, they enjoy the right to life by virtue of section 11 of the Constitution. It is recognised that this right does not only encompass the right not to be intentionally deprived of life, but, as has been recognised by the Office of the High Commissioner for Human Rights of the United Nations, also includes the right "to be free from acts and omissions that are intended or may be expected to cause their unnatural or premature death". They also enjoy the right, in terms of section 24 of the Constitution, to an environment that is not harmful to their health or well-being. The leaders of the community must give equal regard to those rights in addition to the others mentioned.
Taking all the above considerations into account, and having regard to the seriousness and duration of the pandemic, it is very arguable that restricting access to public venues (including places of worship) for the unvaccinated is a reasonable and justifiable limitation of their constitutional rights, in the interests and for the protection of the community at large and that the leaders of a community are not only entitled, but indeed obliged to give effect to measures that will protect the bodily integrity and indeed the lives, of the members they serve. If insisting on proof of vaccination before allowing worshippers to attend services will achieve that purpose, the limitation of rights of those who choose not to take precautions for their own and the safety of others seems justifiable.
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