Hurry Up and Wait

It would appear that the old army adage of ‘hurry up and wait’ continues to prevail in the legal corridors of the State.

As articulated in previous articles, the National Employers Association of South Africa (NEASA) instituted legal proceedings against the National Economic Development and Labour Council (NEDLAC), the Minister of Employment and Labour, the Advisory Council for Occupational Health and Safety, and the President of the Republic of South Africa (collectively referred to as the ‘Respondent’ in this article), in August 2022, in order to review, and to set aside the decision by NEDLAC of enforcing the “Code of Practice: Managing Exposure to SARS-COV-2 in the Workplace, 2022” (‘the Code’), as implemented by the Minister of Employment and Labour.

The introduction of the Code effectively required employers to implement mandatory vaccination policies at the workplace. This, despite the fact that the State of Disaster has been lifted, and all other restrictions have been removed by the Department of Health. Notwithstanding the above, the Respondent continues to persist with the enforcement of the Code, irrespective of the decision taken by Government not to enforce mandatory vaccinations on the general public.

The Respondent delivered the records on which the decision to implement the Code was premised to the court. The content of the record is as illuminating as it is alarming. What follows is what has been gleaned from the record lodged with the court:

• the decision was made by a substructure of NEDLAC which was not empowered to do so;

• no Minutes exist of the meeting where the actual decision was taken;

• the decision was not based on any form of scientific data or expert opinion;

• the decision was made on the incorrect assumption that vaccines prevent the spread of the virus;

• no public, or indeed proper consultation with any parties was conducted in respect of a matter that infringes on the constitutional rights of a large portion of the population; and

• no reasons were provided as to why the Code had to be implemented.

NEASA contends that in light of these fundamental shortcomings (to read glaring omissions and gross irregularities) it is difficult to see how the Respondent will be able to convince a court that their decision to implement the Code, (and in so doing restrict the constitutional rights of South African citizens) was in any shape, manner, or form rational, or indeed legal.

NEASA has filed its supplementary affidavit in this matter based on the contents of the records, and will continue to fight for the abolishment of the Code, which infringes on the rights of employees and places impossible and potentially disastrous legal obligations on employers. In the meantime, and in the continued absence of any clear and unambiguous direction from the courts as to the legality thereof, employers are strongly advised not to implement mandatory vaccination policies. To do so could potentially expose employers to serious liability, according to NEASA.

It is highly unlikely that this matter will be heard (resolved) before the end of the year. We remain hopeful, however, that the matter will be heard early in the New Year, and that the courts will arrive at a judicial decision in this regard. In the meantime the saying ‘hurry up and wait’ will be resonating in our collective ears!

This will be my last article for the year. I will be taking a break until the middle of January and will be publishing my next article at the end of January 2023. May I take this opportunity to wish all my readers a very Joyous Festive Season, and a safe, healthy, and happy 2023.

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