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PRESS RELEASE

16 AUGUST 2022

COVID-19
NEASA LAUNCHES FURTHER APPLICATION IN THE HIGH COURT

While reasonable-minded South Africans have truly put the Covid scare well behind them, certain corporates are persisting in terrorising their employees with mandatory ‘vaccination’ policies. 

Despite the fact that Government does not compel its own employees to be vaccinated, they have created a regulatory framework which not only allows private sector employers to infringe on the constitutional rights of their employees, but in fact, encourages employers to engage in despicable mandatory conduct, by creating a Code that aims to nudge employers towards the mandatory option, which will soon prove to be the worst possible decision.
 
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. 
 
As an organisation representing employers, it is our responsibility to take the strongest possible steps in order to prevent employers, in general, from being taken advantage of and used by Government to meet their objectives; to prevent employees who take a strong stance in this regard from being sacrificed, and their livelihood stripped from them as a result; and society from being torn apart by something which was supposed to unite it.
 
Following the promulgation of the Code in March 2022, NEASA launched an application in the Gauteng High Court to set it aside. On 23 June 2022, the Minister of Labour conceded that the initial promulgation was unlawful, but proceeded to immediately issue a new Code, this time under the auspices of NEDLAC. Instead of correcting the matter, the Minister’s second promulgation prejudiced his case even more.
 
Consequently, a few days ago, NEASA filed a new application in the High Court. In this application, the following relief is sought:

  • That the second Code of Practice: Managing Exposure to SARS-CoV-2 in the Workplace 2022 (GG 46596) (dated 22 June 2022), be declared to be ultra vires, unlawful, unconstitutional and be reviewed and set aside, as NEDLAC acted beyond the scope of its powers as it is not within its purview to issue codes which are essentially regulations, and therefore amount to 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 “law of general application”. It is a function of Government and 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 workplace; 
    • 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.  

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.

For these corporates to apply mandatory ‘vaccination’ policies, while the Minister of Health has declared that Covid-19 no longer poses a public health risk, is not only naïve, but sinister.

While this application is pending, we call on Government to do the right thing, to withdraw this Code in its entirety. While it serves no purpose, it continues to serve as a tool in the hands of unscrupulous employers to destroy the lives of their employees and places an immense punitive burden on employers who do not wish to implement such a policy.

ISSUED BY
Gerhard Papenfus
Chief Executive
NEASA

MEDIA CONTACT
Jeanne Boshoff
Media Liaison
NEASA
060 885 5612
media@neasa.co.za