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Bill of Rights will be South Africa’s tragedy of the commons should vaccine mandates be rejected by government


Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

It is highly problematic when individuals care for themselves and their immediate families only and do not care about the wellbeing of the entire community in which they live during the pandemic.

Cometh the hour, cometh the man. Will President Cyril Ramaphosa be the person who introduces a paradigm shift in South Africa’s fight against Covid-19 and vaccine hesitancy? All eyes and ears are on the urgent meeting called by the President this Wednesday, 8 December 2021. One is awaiting the leadership that will come out of the meeting towards combating rising Covid-19 prevalence.

Perhaps it will be an announcement of the vaccine mandate? Perhaps it will be moving the country to a higher-level lockdown? Or a combination of the two?

The impact of the leadership of Ramaphosa and his Cabinet during the Covid-19 crisis can only be compared to and rivalled by the country’s leadership during the 1918 Spanish flu epidemic that saw about 300,000 people in South Africa losing their lives in the first six weeks of the epidemic. It would be devastating for our government to make the elementary mistakes that were made in 1918.

As reported by The Conversation, during the 1918 epidemic the Cape Times wrote that the Department of Public Health “lamentably failed in rising promptly and effectively to the emergency… Instead of showing itself the provident and well-prepared authority that we have a right to expect… it showed a lack of imagination and initiative that were wholly deplorable.”

Fifty years ago, when he coined the phrase “paradigm shift”, little did Thomas Kuhn know that his attempt at changing the way the world looks at science would be relevant to the debate about vaccine mandates and combating Covid-19 globally, in particular the way people look at the medical science of vaccines.

Kuhn’s 1962 book, The Structure of Scientific Revolutions, may not have been written for discussions around vaccines, but his look at how science develops is appropriate to how South African society is developing with regard to the acceptance and introduction of vaccine mandates to save lives.

Interestingly, the debate on vaccination mandates is met with antagonism, turmoil and the use of revolutionary phrases. The South Africa Union of Students (SAUS) has told a joint meeting of the Portfolio Committee on Higher Education, Science and Innovation and the Portfolio Committee on Police that it is “expecting students and university management to be at ‘loggerheads’ at the start of the next academic year because of mandatory vaccination policies, which could lead to violent protests”.

Anti-vax and anti-mandates protests by students have been seen in other countries. SAUS has always made its position against vaccine mandates clear, as evidenced in some reports.  

As a country, we have entered a clear moment captured by the title of Garrett Hardin’s 1968 classic essay, The Tragedy of the Commons. If you have not read the essay, it discusses, among other things, the concept of “community disease prevention”.

The Bill of Rights will be our South African tragedy of the commons should vaccine mandates be rejected at government level under the guise that the societal interest that mandatory vaccinations seek to promote conflicts with the individual’s interest. Particularly if such rejection is met by the violent protests that the SAUS alluded to, and which could lead to bodily injuries and loss of life.

Yes, the individualism-collectivism continuum discussed in The Tragedy of the Commons allows some degree to which individuals can see themselves as independent – versus interdependent – of the society in which they live. However, it is highly problematic when individuals care for themselves and their immediate families only and do not care about the wellbeing of the entire community in which they live during the pandemic.

In the context of labour law and employment, Judge Edwin Tlhotlhalemaje put it succinctly in the recent case of Eskort v Mogotsi, which saw an employee being dismissed for not declaring being Covid-19 positive and being grossly negligent, reckless and dishonest, and mingling with fellow employees without wearing a mask: “[The situation is indicative] of the need for more to be done at both the workplace and in our communities, in ensuring that employers, employees, and the general populace are sensitised to the realities of this pandemic, and to further reinforce the obligations of employers and employees in the face of, or event of an exposure to Covid-19.”

In that case, Stuurman Mogotsi just seemed not to care for the health of fellow employees. If people don’t care, the state must help them to care or to grow a caring bone. Using the allegory of a community mingled in a common pasture, Hardin notes that the community interest in maximising food production can be achieved only by placing controls on the interests of the individual owners in favour of those of the community.

Something must be done to curb the spread of Covid-19 in South Africa or we must face the prospect of another incapacitating lockdown.

The paradigm shift is upon our approach to human rights claims. The basis for this shift is that an open and democratic society must experience, observe and appreciate a shift from what used to be about the protection of rights, to what it ought to be.

In this case, what ought to be is the introduction of mandatory vaccine policies for the protection of both the individual and community right to health. It is now or never!

On the other hand, when viewed from the tragedy in the perspective of the commons, the actions of anti-vaxxers and anti-mandate groups are in contradiction to the public health obligations placed on the state by the Constitution of the Republic of South Africa.

Perhaps we should all die from Covid-19 to learn our lesson that placing more emphasis on short-term self-interest and placing less emphasis on the long-term common good will forever be our undoing as a country, and its Achilles heel. DM

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  • Rudi van der Merwe says:

    What a dreadful concept, that the rights of the community trump those of the individual! The person who knows best what is appropriate for the individual, is by definition the individual. If you accept the argument made in the article it would mean that no dissent with the commonly shared viewpoint is allowed under any circumstances, this is horrific! It would mean the end of human progress, how often is a novel idea or new technology happened upon by the common view? If we had taken this approach people would still believe the earth is flat! If I decide to move to a new community and it so happens that they decide that it is in their interest to eat children I would need to comply. Think again before rushing to deny individual autonomy!

    • Eulalie Spamer says:

      This response is clearly nonsensical and when the individual wants to engage in his personal nonsense putting an entire nation at risk, his rights override the common good. Please. Give me a break from such k*k!

  • Rory Macnamara says:

    The individual exercised his/her right or choice not to be vaccinated. such an individual has no right or choice to put others at risk. so human progress is still safe and secure. the unvaccinated, by their own choice, will now be similar to the ways lepers were treated. Human progress survived that and will survive this!

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