Opinion: The limitations of a vaccine dompas on SA’s events industry

DJ Tira received swift social media backlash after announcing that fans would require a vaccination card to enter his Fact Durban Rocks event this December. He later backpedalled on the post and wrote: “I’m looking at ways to keep you safe. So maybe let me rather ask. Good or bad idea?”

South Africans are largely divided on vaccinations, much like Americans. On 20 August, Times Live published the results from a poll that asked readers what they thought about the “no vax, no entry” rule at events, with 42.54% of participants in favour of the policy and 37% saying “no” to a mandatory jab. Some 20% of those polled said ‘anti-vaxxers’ are posing a huge risk.

More than 10 million vaccines have been administered in South Africa, with almost 6 million constituting full vaccinations. The extension of the national vaccination programme to the younger cohort in August was supported by a statement from Parliament: “Scientific evidence confirms that vaccinated people stand a better chance of surviving from COVID-19 than unvaccinated people.”

But many South Africans have doubts about the efficacy of the vaccine, and some believe that it is an infringement on their rights to make vaccines mandatory under any circumstance. Others want to know the extent of harm that unvaccinated people pose to vaccinated individuals attending an event. There are also discrepancies when it comes to the right to not disclose one’s health status, as is the case of TB and HIV/AIDS. What’s also happening is that anti-vaxxers, who are categorical about their rights regardless of the context, are being vilified as backward and non-conforming by the media and those in favour of inoculations against COVID-19. This is creating yet another social rift between people in a country with a long history of classism.

Unlike Ticketmaster’s proposed three-tiered system in 2020, which only requires concertgoers to show proof of vaccination, Live Nation, which owns Ticketmaster, and AEG Presents’ latest policy subjects workers to the prerequisite, and could put many unvaccinated employees out of a job amid a destitute global live music sector. Live Nation and AEG Presents represent hundreds of thousands of employees and a long list of entertainment platforms under their umbrellas, including Live Nation’s leading South African concert promoter Big Concerts International.

It is worth noting that some individuals are not able to take the injection based on medical conditions like potential allergic reactions. What’s also concerning, according to experts, is that hesitancy about the vaccine is more about getting access to it and less about avoiding it, with barriers to transportation to vaccine sites and education among the poor.

So why the growing tension?

The simple answer is that democratic constitutions protect the right to exercise personal autonomy. Questioning the jab stems from people who refuse to surrender that right by being forced to get vaccinated against their will, or by having restrictions on their attendance at public events. Although mandatory vaccines may be intended to protect the well-being of society by achieving herd immunity, many people want to be able to make their own decisions about the risks they’re willing to take without being pilloried for them. The growing divide between people is becoming increasingly apparent with widespread resistance, which was recently witnessed with ongoing protests in France over restrictive vaccine passports requiring citizens to produce proof of immunity at any time.

Similarly, the introduction of a vaccine passport in South Africa would hark back to the apartheid pass laws, which required black South Africans above 16 years of age to carry a passbook known as a ‘dompas’, and led to the incarceration of many who failed to produce it upon request.

It is unsurprising why many individuals are reluctant to get vaccinated: there seems to be a lack of will or capacity on behalf of the government to actively educate the public through nationwide campaigns about how the vaccine works, its possible symptoms and long-term effects – although the latter are still largely unknown and contribute significantly to vaccine hesitancy. A lack of clarity and mistrust has left people consuming information coming from all directions, with many resorting to misleading conspiracy outlets to educate themselves. For many, the current vaccination drive seems hasty and plagued by unanswered questions.

Limits of legislation on South Africa’s workforce

The South African Constitution is the supreme law of the country and views its citizens as autonomous moral agents, thus protecting their individual right to personal freedoms. Although the Basic Conditions of Employment Act 75 of 1997 gives provision for employers to “introduce mandatory vaccine policies in the workplace”, such policies can only be enacted in specific instances and on a “reasonable basis”. Employers are required to take a risk assessment to determine if they need to make vaccines mandatory, after which they must follow a three-step enquiry to identify which employees should be required to be vaccinated based on risk of transmission or risk of severe disease or death.

The government’s latest directive clearly states that legally mandating a policy to make vaccines compulsory violates the rights of individuals who refuse to take the vaccine on medical and constitutional grounds with reference to Section 12 of the Constitution, which includes the right to bodily and psychological integrity, and, in Section 13, the right to freedom of religion, belief and opinion. This means employers in South Africa, including those in the entertainment industry, who effect a blanket mandatory vaccine policy would be acting against individuals’ rights.

In the same breath, it’s not unknown for local courts to disregard the personal integrity of individuals in the interest of the public. For instance, in the case of Minister of Health of the Province of the Western Cape v Goliath and Others in 2009, the high court obliged the surviving defendants to get treatment for TB against their will.

In the current context, although taking the vaccine could aid in achieving herd immunity and drastically reducing COVID-19 fatalities, the matter of human rights infringements is destined to be a bone of contention and a dividing force in a country desperately trying to realise citizen-led nation-building and social unity.

The views expressed in this article are the author’s and do not necessarily reflect those of Music In Africa.