Is the end of the State of Disaster the beginning of mandatory vaccines in South Africa?

The endless extensions to the State of Disaster, initially declared two years ago, has provoked criticism from medical experts and calls for its end from public-interest groups and an increasingly fed-up citizenry. Recently, the government announced that the restrictions were finally to be lifted. 

However, during this time, a draft amendment to the National Health Act was published, which transfers all the extraordinary powers of the Disaster Management Act to our health legislation. And in another sleight of hand, an amended labour legislation Code of Practice was gazetted on the same day, opening a back door for mandating vaccinations in the workplace. 

We at the ACB call on the organisations in our networks and fellow South Africans to oppose this grave threat to our human rights, as enshrined in the constitution, by submitting comments that reject the proposed amendments to both departments. The deadline is this Saturday 16 April. You can read our submission here.

In a press conference on Tuesday 29 March, the Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma announced that the State of Disaster would end on Tuesday 5 April 2022, with new regulations in effect for 30 days as a transitionary measure. 

Meanwhile, though, on 15 March, a draft amendment to the National Health Act [1] was published for comment, which intends to transfer all the extraordinary powers of the Disaster Management Act from the auspices of the Department of Cooperative Governance to the Department of Health, by inserting the Disaster Management provisions into our National Health Act.

Also, in another sneaky move, an amended Code of Practice[2] under the Labour Relations Act was gazetted by the Department of Employment and Labour, on the same day, which opens a back door for mandating vaccinations for the Covid-19 pandemic in the workplace. 

In the opinion of many local experts,[3] the threat of Covid-19 has passed. However, similar to the proposed amendment to the Health Act, this new labour legislation is also predicated on an alleged “ongoing need to prevent and mitigate the risks associated with SARS-CoV-2”, with the implication that measures enabled through the State of Disaster should be transferred into labour policies. 

“Essentially, what government is attempting to do, is granting itself permanent emergency powers that are only permissible during a State of Disaster – even when no State of Disaster exists.”[4]

The Minister of Health would be able to label a disease as a notifiable medical condition (NMC) without having to provide any justification or engage in any consultative process. Pandemic management protocols could then be implemented, which include being able to lockdown the nation at any time, institute curfews and arrest citizens that have been exposed to an alleged NMC, or even on suspicion of having contracted an NMC. People can be forced into quarantine at a state isolation facility for an indefinite period of time or forced to undergo medical examinations and take any treatment deemed necessary – including vaccinations – though government will bear no liability for ill effects caused. 

This extraordinary overreach of power could even be used to initiate surveillance and monitoring of citizens, based merely on suspicion, which would supersede the privacy laws enshrined in our constitutional rights. Non-compliance would be a punishable criminal offence that could result in arrest and undefined fines or up to 10 years in jail. 

A group of imminent infectious disease specialists, including members of the Ministerial Advisory Committee (MAC) on Covid-19, have lambasted the draft amendments as being “inconsistent, incoherent and illogical.”[5] In their view, immunity had likely increased above 80% during the so-called fourth wave, despite the low uptake of vaccinations by the end of 2021, and so the need for ongoing draconian disaster management measures is not justified. Thus, these experts concur that there is no current national health crisis. And, if a genuine national health crisis were to emerge, then the Disaster Management Act could be activated again, making the need for the amendment unnecessary.  Their expert opinion is echoed by other much large collectives of scientific and medical professionals globally.[6]

So, is this a way for government to continue pushing mandatory vaccinations, without using the Disaster Management Act to do so? It would appear so, especially when we take into account that another new policy also comes into force on the very day that the State of Disaster lapses, namely: “Code of Practice: Management of SARS-C0V-2 in the Workplace”,[7] which was gazetted by the Department of Employment and Labour on 15 March – the same day as the proposed Health Amendment.

This policy will require that any business undertakes “a risk assessment to give effect to its obligations under the OHSA [Occupational Health and Safety Act] and HBA [Hazardous Biological Agents] regulations” and the result should inform amendments to its plan that should include “any measures to be implemented in respect of the vaccination of its employees and, taking into account the intervals between vaccinations, the dates by which the employees must be fully vaccinated.”

Thus, government aims to require businesses to enforce mandatory vaccinations in the workplace, which is a direct violation of human rights and by extension workers’ rights. With no public health emergency, there is no need for vaccines.  Furthermore, since all the vaccinations are in phase three trials, citizens should be able to exercise their rights to reject experimental treatment, under international treaties such as the Nuremberg Code. 

We would also like to bring to the attention of the government views expressed about the efficacy of the vaccines. In this regard we point out respectfully that there is a growing body of scientific evidence that the Covid-19 vaccines neither prevent nor reduce transmission of disease. 

Since the amendment to the Health Act is for an existing piece of legislation, we are aware that it will neither go to parliament for scrutiny nor be debated before approval. Nevertheless, we would like to remind government of its constitutional mandate to consult the public, and thus to take seriously our submission, and those of our fellow citizens, to ensure that a proper public participation process is followed. 

Please join us in letting government know that we oppose the proposed Amendment to the Health Act and the attempt to entrench a policy for mandating vaccinations in the workplace through the new labour policy. We urge both the Department of Health and the Department of Employment and Labour to urgently review these proposed Amendments and bring them in line with our Constitution and international labour and human rights laws.

Have your say

We urge individuals and organisations to submit comments on these amendments and to share widely via your networks.

For the Department of Health, you can email Ms Tsakani Furumele, the Director-General, on  tsakani.furumele@health.gov.za

The Family Policy Institute has created a platform, SA Public Speaks, where you can input your comments: https://sapublicspeaks.co.za/proposed-amendment-to-the-national-health-act/

You can also input your comments via the Dear South Africa platform: https://dearsouthafrica.co.za/health-act-amendment/

In terms of the changes in labour policy you can write to the Director General of Employment and Labour Mr Thobile Lamati​, via:  Mr Francois Bosman-Booyzen on francois.bosman@labour.gov.za

Note: It is a good idea to use read receipt on these emails, to ensure they reach the respective departments.

Footnotes:

[1] https://www.gov.za/sites/default/files/gcis_document/202203/46048gon1882.pdf

[2] https://www.gov.za/sites/default/files/gcis_document/202203/46043rg11405gon1876.pdf

[3] https://www.dailymaverick.co.za/article/2022-03-22-the-incoherent-and-illogical-new-government-covid-19-regulations-are-the-real-state-of-disaster/

[4] https://sapublicspeaks.co.za/proposed-amendment-to-the-national-health-act/

[5] This was a joint op-ed in the Daily Maverick, by Prof Marc Mendelson, Prof Shabir A Madhi, Dr Jeremy Nel, Prof Glenda Gray, Dr Regina Osih and Prof Francois Venter. https://www.dailymaverick.co.za/article/2022-03-22-the-incoherent-and-illogical-new-government-covid-19-regulations-are-the-real-state-of-disaster/ 

[6] Among the many groups internationally that have also called for the lifting of emergency measures is a group of 17,000 scientists and doctors that criticised President Joe Biden’s extension of the national emergency in the US. https://globalcovidsummit.org/news/physicians-and-medical-scientists-de…

[7] https://www.gov.za/sites/default/files/gcis_document/202203/46043rg1140…