Halton Cheadle is Professor Emeritus at the University of Cape Town,  and practising attorney at BCHC Attorneys. Glenda Gray is the President & CEO of the South African Medical Research Council (SAMRC) and is on the Board of Directors for the Global Antibiotic R&D Partnership (GARDP) 

Read Part One and Part Two

The answer is that they can. And for very similar reasons that we have argued in the first two parts of this series on mandatory vaccinations, namely that the government can do so on grounds of public health and that employers must do so to comply with the Occupational Health and Safety Act, 1993. The issue that we now wish to address is whether those in charge of universities, stadiums, gyms, shebeens, pubs, restaurants, airlines, taxis, trains and buses can themselves require or whether a law can require proof of vaccination or proof of a negative test for entry or boarding. 

We italicise can deliberately to emphasise that although those in charge of these facilities can constitutionally impose proof of vaccination or proof of a negative test as a condition of entry to their premises or of boarding their vehicles, they are not obliged to do so. This is so that we can have a rational debate on what is the best way to defeat the coronavirus, free from the shibboleths of a violation of constitutional rights and unscientific based objections to Covid-19 vaccinations — in other words, to free up a rational debate on how to best protect public health and the economy.

It is also intended to bring home that private owners of these facilities do not have to wait on the government and legislation to take measures to protect their workers and their customers. Of course, as we argue below, the government can create real incentives like relaxing the number cap on gatherings and other restrictions.

Let us recap on the reasons, for the purposes of this part of our series of articles in Daily Maverick, because those reasons provide the justifications for why those in charge of universities, schools, stadiums, gyms, shebeens, pubs and restaurants can require proof of vaccinations or negative tests for entry and why airlines, taxis, trains and public transport can require proof of vaccination or negative tests to travel. The standard period of validity for a test is 72 hours.

Vaccines in general have proven to be remarkably effective in limiting if not eradicating infectious diseases such as smallpox, polio, measles and meningitis. South Africa has participated in the World Health Organisation’s Expanded Programme of Immunisation targeting six preventable diseases for more than 20 years and most young South Africans have been vaccinated under that programme and in that process, vaccines have contributed to saving more than 2.5 million lives a year. 

The Covid-19 vaccines have demonstrated that, although they do not provide complete protection, they do prevent severe illness in those infected and may also reduce the risk of transmission to others. Requiring proof of vaccination is to provide protection to both those who work on the premises and customers from being exposed to infection from the unvaccinated. Similarly, it will protect travellers who have to sit or stand next to one another from similar exposure.

Let us also recap on the constitutional argument. No right is absolute. A right can be limited by law if there is a compelling public interest in doing so. As we have argued in the previous two articles, mandatory vaccination is justifiable taking into account the importance of the limitation (the compelling public health reasons) in limiting the interests protected by the rights to bodily integrity and religious belief and that the limitation is the least restrictive means to achieve that purpose given that compulsory wearing of masks and social distancing do not have the same potential for limiting the likelihood of severe illness and fatality and ending the pandemic.

As a starting point of the analysis to follow, it is important to recognise that there are different laws that can permit institutions such as universities and schools on the one hand and stadiums, gyms, shebeens, pubs, restaurants, airlines, taxis, trains and buses on the other to impose proof of vaccination to enter premises or board a vehicle.

Each has to be dealt with separately and, in respect of each, we must first determine the source of the institution’s legal power to control entry to and presence on its premises or vehicle. Then we have to ask the constitutional question as to whether the exclusion of those who are not vaccinated or tested is unconstitutional. So, we begin first with an analysis of the source of each of the institutions to control entry to and presence on their premises or vehicles. We will then deal with the constitutional issue of whether the exercise of that power to exclude constitutes unfair discrimination.

Universities and schools

Can a South African university or school do what the University of Indiana in the US has done and require all members of staff and students who come on to its premises to be vaccinated? To answer that question, it is necessary to source the power to make such a rule in respect of our universities.

Universities are governed by the Higher Education Act, 1997 and by their own individual institutional statutes. The act and institutional statutes confer the power on a university council to govern the university and to make rules binding on its staff and students. This is the legal source for the power to make a rule, if it chooses to do so, requiring all members, staff and students who come onto its premises to be vaccinated.

We do not have to deal specifically with schools in respect of pupils because the national Covid-19 vaccination programme does not extend to people under 18. It is, accordingly, moot for the time being, but the power to make a rule to require pupils to vaccinate in the future flows from the powers conferred on the governing bodies of schools under the South African Schools Act, 1996. But the governing bodies have a statutory obligation to do so in respect of their staff as we explained in the second part of this series of articles.

Stadiums, gyms, shebeens, pubs and restaurants 

Those in charge of these entities acquire their power to determine who can enter their premises from the fact that, under the common law, they own the premises or have the powers of the owner under a lease or any other legal arrangement to do so. This is an incident of the right to property guaranteed in section 25 of the Constitution.

The exercise of this power is best illustrated by the ubiquitous signs at the entrance of premises: “Right of Admission Reserved” or “No mask, no entry”. The exercise of this power is forcefully brought home by the inconvenient and frustrating process we all have to go through when entering office blocks or government departments: having to give your personal details, your bags checked, and the serial numbers of your computer recorded.  Of course, the right to control entry is not absolute and must give way if the exercise of that right amounts to an infringement of another constitutional right, which for the purpose of this article, is the right to equality under section 9 of the Constitution, which we deal with below.

These facilities, though, remain subject to the Disaster Management Regulations which limit the number of people who can be on the premises even if they decide to permit access only to the vaccinated and the tested. We argue below that the regulations’ gathering rules should be relaxed in respect of those facilities if access is restricted to the vaccinated and the tested.

Airlines, taxis, trains and buses

These entities also acquire their power to determine who can board their vehicles from the right to property whether privately or publicly owned.  Anyone who travels by air will know the hoops that the traveller has to go through to board an aeroplane — separating the computer from the rest of the hand luggage, removing belts and shoes (in some airports) when passing through metal detectors and being subjected to body searches (in all airports). These invasive impositions all flow from an exercise of the right to property.

The constitutional issue

It is important to begin this discussion with first recognising that the only constitutional right implicated in restricting access to the vaccinated and the tested is the right to equality in section 9 of the Constitution. We say this because the fact that an airline requires a vaccination passport (as it does in respect of yellow fever if you return to South Africa from certain countries in Africa) or proof of a negative test does not itself infringe any right to bodily integrity or religion. But it is an exclusion that impacts indirectly on those who exercise those rights and that is what potentially makes it discrimination.

The right in section 9 of our Constitution is the right not to be unfairly discriminated against. The critical issue then is whether it is unfair to exclude those who are not vaccinated or tested from entry to university premises, a stadium, a shebeen, a restaurant or from boarding an airline, train, taxi or bus. 

The inquiry into fairness is similar to the inquiry into whether a right may be limited in terms of section 36 of our Constitution. It must be rational, it must be reasonable and it must be justified. It is rational because there is a clear link between the object of the exclusion and its effect.

It is reasonable because the exclusion is to protect others with little personal physical risk by being vaccinated (other than that tiny minority with medical conditions) or tested. The justification is to protect employees and others using the facilities from being infected by viruses, in particular variant ones carried by the unvaccinated.

The fairness equation is not bilateral — it does not involve only the rights and interests of the owner and the unvaccinated — it is multi-lateral because it also affects the employees of the owner and its vaccinated customers or users. It is the quintessential expression of ubuntu: I am because you are. 

Practices and laws in other democratic countries also benchmark an inquiry into fairness. New York has lifted its capacity measures in bars and restaurants for vaccinated customers. Gatherings of more than 250 indoors and 500 outdoors are only permitted if the participants are vaccinated or tested.

France has lifted its restrictions inside the country to fully vaccinated travellers and passed a law in July 2021 requiring restaurants, bars, trains and planes to permit access only with proof of vaccination in the form of a “health pass”. All venues accommodating more than 50 people require proof of vaccination or test such as museums, cinemas and swimming pools.

How government can incentivise the public to vaccinate

Everyone who watches rugby or soccer at our empty stadiums must miss the excitement and solidarity that comes with being there — rather than the solitary shouting at the television. For the reasons that we have advanced in all three parts of this series, there is no constitutional hurdle to pass Disaster Management Regulations that ease the restrictions on gatherings of the vaccinated.

Accordingly, it could for example allow 50% capacity at soccer or rugby stadiums (or any stadiums for that matter) if only vaccinated and tested are permitted entry and all other Covid-19 protocols are observed such as the wearing of masks and physical distancing in queuing and seating. The regulations could facilitate this by regulating proof of vaccination in the form of a vaccination card (as it does for yellow fever) and determining the kinds of Covid-19 tests as well as their period of validity.

Quite apart from its effect on inducing waverers to vaccinate, it will generate much-needed income to prevent closures as well as generate and protect employment. The limitations in the regulations on the number of customers in shebeens, bars and restaurants could be lifted if they adopt a policy of vaccinated or tested only. And why not? It stimulates the economy; it gets more workers back to work; and it’s not unconstitutional. DM/MC