Public participation platform Dear SA has asked the minister of Employment and Labour, Thulas Nxesi, to set aside workplace regulations that could be used to force employers to impose mandatory vaccine policies at the risk of incurring criminal sanctions.

In a letter addressed to the minister, Dear SA legal representative , Daniël Eloff, says unless the regulations are withdrawn and reconsidered in their entirety, Dear SA reserves the right to take the matter to court.

Dear SA has also requested copies of all documentation used is support of the decision to introduce the Code of Practice: Managing Exposure to SARS-COV-2 in the workplace, 2022.

The department issued a press release on 15 March 2022 stating that the minister will, in due course, “issue Occupational Health and Safety (OHS) regulations to supplement the Code”. The government’s stated reason for introducing the proposed regulations is to “prevent and mitigate the risks associated with SARS-CoV-2 exposure in the workplace” once the national state of disaster is lifted.

The Code of Practice will effectively coerce employers into enforcing mandatory vaccination policies in the workplace and will employ OHS regulations – and the criminal sanctions that come with it – to do so.

This not only defeats the government’s stated aim of increasing employment in SA, but also runs counter to President Cyril Ramaphosa’s promise, given on 1 February 2021: “I want to be clear, nobody will be forced to take this vaccine, I want to repeat, nobody will be forced to take this vaccine. … Nobody will be given this vaccine against their will.”

At a time when several countries are reversing or suspending their vaccine mandates, South Africa appears to be tilting in the opposite direction by attempting to mandate vaccines using other legislative tools.

“Furthermore, given the widely circulated reports that a very large percentage of South Africans already have immunity to Covid-19, due to having been previously infected, the mandating of vaccination at this stage of the pandemic is even more questionable,” says Eloff.

The new Code of Practice took effect on the lapsing of the Declaration of a National State of Disaster, which was midnight, 4 April 2022. This is an attempt to replace the State of Disaster regulations with a system of permanent workplace measures under the guise of health and safety.

This will allow the minister to evade the legal and political consequences of a mandate by plausibly passing the blame to employers – a deplorable devolution of power to employers that is the antithesis of good governance and accountability. Employers then run the risk of legal consequences for failing to enforce mandates on workers.

This is also an abuse of the OHS Act which was never intended for use in the management of a pandemic.

The preamble to the OHS Act states its scope and purpose: “To provide for the health and safety of persons at work and for the health and safety of persons in connection with the use of plant and machinery; the protection of persons … against hazards to health and safety arising out of or in connection with the activities of persons at work.”

The proposed incorporation of Biohazard regulations into the Code is likewise irrational and unlawful, as the purpose of these regulations is to prevent workplaces from being the source of spreading an infection to the community, rather than a vehicle to prevent a nationwide pandemic.

The Code of Practice will infringe numerous rights, including the right to privacy, the right to bodily integrity, the right to trade and occupation, as well as the rights to freedom of religion, belief and opinion.

Section 36 of the Constitution imposes strict limitations on government’s ability to curtail basic human rights. Any party infringing these rights must show good reason to do so, having considered less restrictive means of achieving the same objectives.

The current Code of Practice and any future vaccine mandate regulations fall outside the purposes of the OHS and Labour Relations Act and were never intended to fight a pandemic.

DearSA is currently hosting a public participation campaign that has attracted over 200,000 comments, at this link; https://dearsouthafrica.co.za/health-act-amendment/

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