The Constitutional Case Against the Mandatory Vaccine Policy — An Interdisciplinary South African Perspective


  • Casper Lӧtter North-West University



mandatory vaccine policy, constitutionality, curative medicine, critical public health, social sciences complementarity, preventive strategies, erroneous approach


In this article, I rethink the perceived/received wisdom of the mandatory vaccine policy which has been punted so ardently, largely uncritically, in South Africa. I investigate whether this line of argument could be justified from a comparative South African constitutional perspective. It became evident in the early stages of my research that the legal perspective is too narrow and constricting to allow for a proper understanding of the puzzle. Following Friedman's suggestion of the schism between Western-based curative medicine and preventive strategies, I employ a critical public health theoretical framework complemented by insights from the social sciences. Given that the vaccine is a product of an outdated paradigm, South Africa's erroneous approach to the pandemic led to disastrous consequences and fared less favourably than the rest of Africa. It is concluded that a mandatory vaccine policy is both unconstitutional and unjustifiable, in the wider view.


Download data is not yet available.


Metrics Loading ...

Author Biography

Casper Lӧtter , North-West University

Post-doctoral research fellow in the School of Philosophy North-West University, Potchefstroom Campus, South Africa.




Braithwaite J "Inequality and Republican Criminology" in Hagan J and Peterson R (eds) Crime and Inequality (Stanford University Press Stanford 1995) 277-305 DOI:

Christie N Crime Control as Industry: Towards Gulags Western Style 3rd edn (Routledge London 2017) DOI:

Classen JB "US COVID-19 Vaccines Proven to Cause More Harm than Good Based on Pivotal Clinical Trial Data Analyzed Using the Proper Scientific Endpoint, 'All Cause Severe Morbidity'" 2021 Trends Int Med 1-6 DOI:

Crouch C Post-Democracy (Polity Press Cambridge 2004)

Davis AY Is the Prison Obsolete? (Seven Stories Press New York 2003)

Doshi P "Pandemrix Vaccine: Why was the Public not Told of Early Warning Signs?" 2018 BMJ k3948 DOI: DOI:

Duckworth A Grit: The Power of Passion and Perseverance (Scribner New York 2017)

Friedman S One Virus, Two Countries: What Covid-19 Tells Us About South Africa (Wits University Press Johannesburg 2021) DOI:

Habermas J "On Systematically Distorted Communication" 1970 Inquiry: An Interdisciplinary Journal of Philosophy 205-218 DOI:

Habermas J Between Facts and Norms: A Contribution to the Discourse on Law and Morality (Polity/Blackwell Cambridge/Oxford 1996) DOI:

Habermas J Knowledge and Human Interests (Heinemann London 1971)

Habermas J Legitimation Crisis (Beacon Press Boston 1975) DOI:

Hurst AM Thinking about Research: Methodology and Hermeneutics in the Social Sciences (PE Technikon Gqeberha/Port Elizabeth 2004)

Jureidini J and McHenry LB The Illusion of Evidence-Based Medicine: Exposing the Crisis of Credibility in Clinical Research (Wakefield Press Adelaide 2020)

Klein N This Changes Everything: Capitalism vs the Climate (Penguin London 2015)

Leys C "The Cynical State" (essay) in Leys C Total Capitalism: Market Politics, Market State (Merlin Press Monmouth 2008) 111-144

Lötter C "Does Economic Restructuring During Covid-19 in South Africa Amount to Disaster Capitalism?" 2022 Phronimon 1-25 DOI:

Lötter C The Reintegration of Ex-offenders in South Africa Based on the Contemporary Chinese Model: An Interdisciplinary Study (PhD-thesis University of the Free State 2018)

Lyotard J-F The Differend: Phrases in Dispute (Manchester University Press Manchester 1988)

McCarthy T The Critical Theory of Jürgen Habermas (Hutchinson London 1978)

McLaughlin E "Critical Criminology" in McLaughlin E and Newburn T (eds) The Sage Handbook of Criminological Theory (Sage London 2010) 153-174 DOI:

Merchant HA "CoViD Vaccines and Thrombotic Events: EMA Issued Warning to Patients and Healthcare Professionals" 2021 J Pharm Policy Pract 1-2 DOI:

Olivier B "The Tacit Influences on One's Ways of Teaching and Doing Research" 2015 Alternation Special Edition 346-371

Olivier B "The "Pandemic and the Differend" 2021 Phronimon 1-35 DOI:

Patterson AS and Balogun E "African Responses to COVID-19: The Reckoning of Agency?" 2021 African Studies Review 144-167 DOI:

Payne M "Introduction" in Bowie M (ed) Psychoanalysis and the Future of Theory (Blackwell Oxford 1993) 1-10

Popper K The Logic of Scientific Discovery (Routledge London 1992)

Schafer A "Biomedical Conflicts of Interest: A Defense of the Sequestration Thesis: Learning from the Cases of Nancy Olivieri and David Healy" 2004 Journal of Medical Ethics 8-24 DOI:

Willen SS et al "Rethinking Flourishing: Critical Insights and Qualitative Perspectives from the US Midwest" 2022 SSM - Mental Health 1-13 DOI:

Žižek S Pandemic! COVID-19 Shakes the World (Wiley Hoboken 2020) DOI:

Case law

Bessick v Baroque Medical (Pty) Ltd (WECT 13083 of 21) [2022] ZACCMA 1 (9 May 2022)

Biden v Missouri (Supreme Court of the United States) Case No 21A240 (13 January 2022)

Four Midwives NZDSOS and NZTSOS v Minister for COVID-19 Response [2021] NZHC 3064 (12 November 2021)

GF v Minister of COVID-19 Response [2021] NZHC 2526 (24 September 2021)

KBLN v Minister of COVID-19 Response [2021] NZHC 3012 (8 November 2021)

National Federation of Independent Business v Department of Labor (Supreme Court of the United States) Case No 21A244 (13 January 2022)

Nga Kaitiaki Tuku Iho Medical Action Society v Minister of Health [2021] NZHC 1107 (18 May 2021)

NZDSOS Inc & NZTSOS v Minister for COVID-19 Response & Attorney General [2022] NZHC 716 (8 April 2022)


Constitution of the Republic of South Africa, 1996

New Zealand Bill of Rights Act, 1990

Internet sources

Anonymous 2021 South Africa's Ramaphosa Dlams COVID-19 'Health Apartheid' accessed 18 April 2022

Anonymous 2022 The Covid-19 Pandemic: Latest Updates accessed 29 April 2022

Bank L 2021 The Sociology of Ground Zero: The South African Variant and Colonial Prejudice accessed 24 April 2022

Bank L 2021 Ground Zero: Deep-Seated Colonial-Era Prejudice Fueled the Pandemic in Rural Eastern Cape accessed 24 April 2022

Bernault F 2020 Some Lessons from the History of Pandemics in Africa accessed 24 April 2022

Bhargava A 2021 Is the Shot Safe and Effective as Advertised? [Interview] accessed 18 April 2022

Breaking News-CA 2021 1,000 Lawyers and 10,000 Doctors have Filed a Lawsuit for Violations of the Nuremberg Code accessed 25 April 2022

Canadian Physicians 2021 Declaration of Canadian Physicians for Science and Truth accessed 25 April 2022

Centers for Disease Control and Prevention 2021 What You Should Know About the Possibility of Covid-19 Illness After Vaccination accessed 4 November 2021

Center for Critical Public Health date unknown What is Critical Public Health? accessed 23 April 2022

Chen S 2021 Big Pharma's COVID-19 Reputation Boost May Not Last - Here's Why accessed 28 April 2022

Erdbrink T et al 2021 A Christmas Party in Norway Becomes a Possible Omnicron-Spreading Event, and Other International News &instance_id=46990&nl=evening-brie accessed 21 April 2022

Ghebreyesus 2020


Ghebreyesus TA 2020 WHO Director-General's Opening Remarks at the Media Briefing on COVID-19 - 11 March 2020 accessed 25 April 2022

Hdogar 2021

Hdogar O 2021 Black Death — Pandemic That Killed 200 Million People accessed 28 April 2022

Hodge 2022

Hodge M 2022 Deadly Virus: How Many People Died from the Spanish Flu Pandemic? accessed 29 April 2022

HPCSA 2016


Health Professions Council of South Africa 2016 Guidelines for Good Practice in the Health Care Professions - Seeking Patients' Informed Consent: The Ethical Considerations

Uploads/Professional_Practice/Conduct%20%26%20Ethics/Booklet%204%20Informed%20Consent%20September%20%202016.pdf?msclkid=ba7b9b31ba4111ecb1e22c378c715614 accessed 12 April 2022

Johns Hopkins University Coronavirus Resource Center 2021

Johns Hopkins University Coronavirus Resource Center 2021 Covid-19 Map accessed 25 April 2022

Kent 2021


Kent J 2021 Thousands Have Been Refused Funding to Self-Isolate - No Wonder Covid is Rampant

commentisfree/2021/jan/22/funding-self-isolate-covid-rampant accessed 30 April 2022

Khoza 2022

Khoza A Covid-19 Vaccine Compensation Scheme Investigating 55 Claims accessed 15 April 2022

Kormann 2021

Kormann C 2021 The Mysterious Case of the COVID-19 Lab-Leak Theory: Did the Virus Spring from Nature or from Human Error? accessed 12 October 2021

Li 2022

Li Y 2022 China's "Zero Covid" Mess Proves Autocracy Hurts Everyone accessed 28 April 2022

Liptak 2022

Liptak A 2022 Supreme Court Blocks Biden's Virus Mandate for Large Employers accessed 28 April 2022

Lister and Shukla 2020

Lister T and Shukla S 2020. Sweden Challenges Trump and Scientific Mainstream by Refusing to Lock Down

/04/10/europe/sweden-lockdown-turmp-intl/index.html accessed 25 April 2022

Lovelace 2021

Lovelace B Jr 2021 CDC Study Shows 74% of People Infected in Massachusetts Covid Outbreak Were Fully Vaccinated accessed 21 April 2022

Mark 2020

Mark JJ 2020 Medieval Cures for the Black Death accessed 29 April 2022

Merriam-Webster Online Dictionary date unknown

Merriam-Webster Online Dictionary date unknown Pandemic vs Epidemic — How They Overlap and Where They Differ accessed 29 June 2021

Moynihan 2021

Moynihan R 2021 COVID Vaccines Offer the Pharma Industry a Once-in-a-Generation Opportunity to Reset its Reputation. But it's After Decades of Big Profits and Scandals accessed 28 April 2021

Ross and Klompas 2010


Ross L and Klompas M 2010 Electronic Support for Public Health – Vaccine Adverse Event Reporting System (ESP:VAERS)

sites/default/files/docs/publication/r18hs017045-lazarus-final-report-2011.pdf accessed 18 April 2022

Sayer 2021

Sayer F 2021 Nigerian Museums Must Tell Stories of Slavery with More Complexity and Nuance accessed 30 October 2021

Shipman 2014

Shipman PL 2014 The Bright Side of the Black Death accessed 29 April 2022 DOI:

Staff Writer 2022 Vaccine Mandates in South African Workplaces – Where We are Heading accessed 28 April 2022

Weijer C 2020 How Pharma Can Build Trust in COVID-19 Vaccines: Transparency on Trials and Side-Effects accessed 29 September 2022



How to Cite

Lӧtter C. (2024). The Constitutional Case Against the Mandatory Vaccine Policy — An Interdisciplinary South African Perspective. Potchefstroom Electronic Law Journal, 27, (Published on 22 March 2024) pp 1–38.




Similar Articles

1 2 3 4 5 6 7 8 9 10 > >> 

You may also start an advanced similarity search for this article.