Forgive them for they know not what they do

As a follow-up to last month’s article, I can confirm that the National Employers Association of South Africa (NEASA) has filed a new application in the High Court seeking the following relief:

• That the second Code of Practice: Managing Exposure to SARS-CoV-2 in the Workplace 2022 (GG 46596) (dated 22 June 2022), and alluded to in last month’s article, be declared ultra vires, unlawful, unconstitutional, and consequently, be reviewed and set aside. NEASA avers that the National Economic Development and Labour Council (NEDLAC) acted beyond the scope of its powers as it was not within its purview to issue codes, such codes essentially being regulations, in essence, legislative action, which is reserved for Parliament.

• That section 203 of the Labour Relations Act 66 of 1995 be declared unconstitutional and invalid, alternatively, that sections 203(3) and 203(4) be declared unconstitutional and invalid, to the extent that the latter subsections allow a decision made by NEDLAC to have a legislative effect, which is not a function of NEDLAC.

• That it be declared that various sections of the second Code are in contravention of the Occupational Health and Safety Act, 1993 (‘OHSA’) and/or that they, collectively or individually, are declared to be ultra vires, unlawful, unconstitutional and be reviewed and set aside. The OHSA is not intended to deal with hazards emanating from outside the workplace and cannot be utilised for this purpose. The Hazardous Biological Agents (‘HBA’) regulations, incorporated into OHSA, are not fit for this purpose.

Alternatively, if the second Code is not reviewed and set aside, either in toto or in part, it be declared that:

• the second Code neither confers an ex lege right upon, nor imposes an obligation on employers to compel employees to submit to mandatory vaccination against SARS-CoV-2 and/or Covid-19. This type of intervention can only be done by way of legislation or a ‘law of general application’. It is a function of Government, and thus cannot be ceded to employers, and cannot confer powers upon them to infringe upon constitutional rights, seemingly at a whim;

• it be declared that an employer who fails or refuses to implement or enforce against an employee a scheme of mandatory vaccination, employment policy or risk assessment plan that seeks to compel vaccination against SARS-CoV-2 and/or Covid-19, is not in breach of its duties to ensure a safe and healthy workplace. The OHSA requires reasonable measures to ensure a safe and healthy workplace. ‘Vaccinations’ are neither reasonable nor effective in the creation of a safe workplace and the OHSA does not expect employers to mitigate against risks outside of their workplaces;

• it be declared that any scheme of mandatory vaccination, employment policy or risk assessment plan ostensibly authorising any private person or entity to compel an employee to vaccinate against SARS-CoV-2 and/or Covid-19, under threat of loss of employment or under threat of any adverse change of employment conditions, and absent the voluntary and informed consent of the employee, is unconstitutional, unlawful, and invalid.

Whilst it is generally accepted that the scourge of Covid-19 is well and truly behind us, there are a number of enterprises in South Africa who remain steadfast in the implementation and application of mandatory vaccination policies at their respective workplaces - this against the backdrop of the South African Government itself not compelling its own employees to be vaccinated. Rather, Government has created a regulatory framework that not only allows private sector employers to infringe on the constitutional rights of their employees, it also encourages employers to engage in mandatory conduct by creating a Code that aims at corralling employers towards the mandatory option. ‘This worthless and entirely counter-productive policy by Government has divided society and allowed for one citizen (an employer), to discriminate against another citizen (an employee), without an enabling law of general application being passed by the National Assembly in this regard’, asserts NEASA ‘The entire scheme, as it stands, is an infringement on numerous constitutional rights, including equality, privacy, bodily integrity and the right of opinion and belief. There is no law of general application permitting this, which is a requirement to limit constitutional rights. Furthermore, the limitation does not achieve its purpose, as ‘vaccinations’ do not create a safer workplace, nor do they prevent transmission. It is not a workplace issue, Covid can be acquired anywhere outside of the workplace’, concludes NEASA

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