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jurisprundence law
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this is an assignment that elaborates on how south African courts would deal with compulsory vaccination in a pandemic crisis
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WALTER SISULU UNIVERSITYDEPARTMENT OF LEGAL STUDIES
Initial: K
Surname: Sifo
Student No: 204614619
Module: Jurisprudence
Lecturer: Prof O.J Olowu
TOPIC
Considering the cardinal principles espoused by the South African
Constitution and weighing the core tenets of at least two ideological
persuasions in your jurisprudence module, how do you envisage that the
courts in South Africa will deal with the determination of legal tussles arising
out of compulsory vaccination in time of an epidemiological crisis? Your
response must be built around copious reference, illustrations and
extrapolations from the case law of South African courts since the advent of
constitutional democracy.
, Introduction
A person’s decision to receive a vaccine must always be voluntary and made without any
undue influence. Our Constitution undoubtedly respects and protects such a decision.
In the following assignment, I have been given a mandate to envisage on how the South
African courts will deal with the determination of legal tussles arising out of compulsory
vaccination in time of an epidemiological crisis.
As broad as this topic is, my approach will be an analysis on the constitution section 12(2)
and 361 to be precise, Labour Relations Act2, Occupational Health and Safety Act3 and also
the National Health Act4.
As a conclusion, my focus will be on the South African debate on legal realism concerning
the matter at hand, considering the case of R v Saider5, where it was stated that where the
statute under consideration in clear terms confers on the Executive autocratic powers over
individuals, courts of law have no option but give effect to the will of the legislature as
expressed in the statute.
Also, natural law especially the words of former president of South Africa (Nelson
Rholihlahla Mandela) who claimed that the duty to respect this natural law is higher than
the duty to obey the positive law of the state and his defence council, who stated that when
the laws themselves become immoral, then a higher duty arises. This compels one to refuse
to recognise such laws6.
Lastly is there an adequate legislation which mandates compulsory immunisation of the
South African population against COVID-19.
1
Constitution of the Republic of South Africa Act 108 of 1996.
2
Act 66 of 1995.
3
Act 95 of 1993.
4
ACT 61 of 2003.
5
1952(4) SA 392(A) of 399 H.
6
Quoted in S Clingman Bram Fischer: Afrikaner Revolutionary (1998) 409-410
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