Liesl Hager
LLB, LLM, LLD
Lecturer, Department of Private law, University of Pretoria
Volume 58 2025 pp 342 - 259
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SUMMARY
In this article I explore if parents are dutybound to vaccinate their children with specific reference to section 28 of the Constitution and the relevant provisions of the Children’s Act that give effect to section 28. To determine if parents are duty-bound to vaccinate their children, I first briefly inspect if there are any laws in South Africa expressly mandating childhood vaccination. The focus of this article centres around the question of whether parents have a duty to vaccinate their children, as inferred or implied from the body of existing and legally recognised children’s rights and in conjunction with parental rights (and correlating duties). I investigate whether vaccination is a basic health care service, and if parents are then dutybound to realise the child’s right to basic health care services; if non-vaccination possibly amounts to child abuse and/or neglect; and the best interests of the child in the context of vaccination. The article also considers the cultural and religious rights and freedoms of parents and how these interplay with a possible parental duty to vaccinate. It further offer avenues for further research and the need for legislative reform on this issue.
1 Introduction
Vaccines are hailed as one of the most successful public health interventions1 and one of modern medicine’s greatest achievements.2 Despite the advancements in modern medicine, non-vaccination is still a global health threat,3 and anti-vaccine sentiments have recently gained greater traction due to the roll-out of COVID-19 vaccines.4 While vaccines may prevent serious illness, disability, or even death, the converse is as true: non-vaccination may cause serious harm like illness, disability, or even death.5 Despite scientific consensus on the benefits of childhood vaccines,6 and circulars from the National Department of Health that suggest that vaccination is a ‘must’,7 there are no laws in South Africa expressly mandating childhood vaccination. Hence, there is no express clear-cut parental duty to vaccinate one’s child - as to state legislated or mandated vaccination duties.8 Furthermore, there exists no case law expressly dealing with the issue of whether a child must be vaccinated or if a failure to do so, which results in harm, may ultimately result in criminal or delictual liability.
In this article, I explore if there is a parental duty to vaccinate one’s child. This investigation may ultimately assist courts when navigating the common-law delictual element of wrongfulness,9 and it may inspire legislative reform on vaccination mandates as well as legal certainty on the rights and duties of non-vaccinating parents. To understand the need for legal certainty on the possible parental duty to vaccinate, it is apt to first explore the current state of affairs regarding vaccine mandates --or the lack thereof-- in the South African context.
2 The current state of affairs
Children10 do not have an express constitutional right to vaccination, and there is no express constitutional provision that states: ‘a child has the right to vaccination’. There are also no provisions in the Children’s Act11 or the National Health Act12 that expressly protect children’s right to vaccination. Seeing as there are no statutory provisions expressly stating a right to vaccination, there is similarly no corresponding express duty linked to an express right to vaccination.
On the other hand, one may suggest that children have an implied right to vaccination as inferred from the collective of other rights,13 and a duty can then be linked to that implied right. There is currently no local case law confirming that a child’s constitutional rights extend to an implied right to be vaccinated. Hence, even if an inferred or implied right to vaccination does theoretically exist (as I have argued elsewhere), 14 it has not yet been accepted or confirmed by our courts, nor has any duty to vaccinate been linked to an implied right to vaccination.
Instead of linking a parental duty to vaccinate to an inferred or implied right (which is yet to be acknowledged), the duty to vaccinate can be inspected and deduced from existing (and legally recognised) rights and duties. Hence, the focus here shifts from the more objective question of whether the child has a ‘right to be vaccinated’ to the overarching question of whether parents have a ‘duty to vaccinate’ their child, as inferred or implied from the body of existing (and legally recognised) children’s and parental rights (and correlating duties).
As rights are by nature competitive, contextual, and relational, 15 it is necessary to explore section 28 of the Constitution within this context and the competing parental rights (of autonomous decision making as to how to raise children), which cannot be divorced from any discussion on children’s rights.
3 Section 28 and the parental duty to vaccinate
Legislation (such as the Constitution and the Children’s Act) and the common law impose obligations on parents to care for their child.16 Generally, children’s rights can be characterised as rights of protection and rights of autonomy.17 Section 28 of the Constitution ‘is not the only section that confers constitutional rights on children’, 18 and children also enjoy, for example, the right to dignity (s 10), equality (s 9), 19 the right to bodily and psychological integrity (s 12), access to health care services (s 27), and privacy (s 14). 20 However, section 28 deals exclusively with the rights of children and is the primary source of children’s rights in the South African context. 21 It requires close inspection to see if this section could infer a parental duty to vaccinate. Section 28 reads as follows:
(1) Every child has the right --
(b) to family care or parental care, or to appropriate alternative care when removed from the family environment;
(c) to basic nutrition, shelter, basic health care services and social services;
(d) to be protected from maltreatment, neglect, abuse or degradation
(2) A child’s best interests are of paramount importance in every matter concerning the child.22
Section 28 dictates four focus-points to investigate if the child’s rights (in ss 28(1)-(2)) lend themselves to a correlating parental duty to vaccinate:
(a) Is vaccination a basic health care service?
(b) Are parents dutybound to realise the child’s right to basic health care services?
(c) Does non-vaccination amount to child abuse or neglect?
(d) Does the ‘best interests of the child’ (s 28(2)) lend itself to a parental duty to vaccinate?
In exploring these questions, I refer to the relevant provisions of the Children’s Act, as the Children’s Act was adopted to give effect to various children’s rights guaranteed in the Constitution, and it has ‘codified the common law regarding parental authority’.23 Under the indirect application of the Bill of Rights, there is a duty to interpret legislation (such as the Children’s Act) in conformity with the Bill of Rights.24 In the following sections, I address the four focus points as outlined above in (a)-(d). The first issue under inspection is whether vaccination is a basic health care service. Thereafter, I turn my attention to: (b) if parents are duty-bound to realise the child’s right to basic health care services; (c) if non-vaccination amounts to child abuse or neglect; and (d) if the best interests of the child principle lends itself to a parental duty to vaccinate.
3 1 Is vaccination a basic health care service?
Section 28(1)(b) of the Constitution protects the child’s right to parental care and is essentially aimed at ensuring that parents care properly for their children.25 Section 28(1)(b) defines those responsible to care for the child, and section 28(1)(c) lists the various facets of the care entitlement.26
In the context of vaccination, the first issue under inspection is whether vaccination (vaccine administration or immunisation) is included in the scope of ‘basic health care services’ (s 28(1)(c)). The Constitutional Court has largely avoided basing its decisions directly on section 28(1)(c) of the Constitution,27 and as a result, the judicial authority on the interpretation of the child’s right to health care is scarce.28 Despite a lack of case law on whether vaccinations are included in the scope of ‘basic health care services’, the Department of Health’s website states that:
[a]ll children have a right to basic health care. NB. Immunisation is one of the health care components. 29
Furthermore, the Western Cape Education Policy includes vaccination in the scope of ‘free primary health care’.30 Hence, it appears that vaccination may be regarded as a basic health care component and that vaccination thus forms part of the basic health care services guaranteed to children. Foreign law considerations also suggest that vaccination forms part of a child’s health care components.31 The next issue under inspection is whether parents are duty-bound to realise the child’s right to basic health care services.
3 2 Are parents duty-bound to realise the child’s right to basic health care services?
Friedman, Pantazis, and Skelton suggest that parental care (s 28(1)(b)) must not be defined narrowly and support the ‘generous and flexible standards’ approach.32 The right to parental care (s 28(1)(b)) falls on the parent, and the state has the responsibility to ‘ensure that there are legal obligations to compel parents (and family) to fulfil their responsibilities in relation to their children’.33 In Grootboom, the Constitutional Court explained that:
It follows from subsection 1(b) that the Constitution contemplates that a child has the right to parental or family care in the first place, and the right to alternative appropriate care only where that is lacking. 34
Friedman et al continue to explain that
[i]f a parent can afford medicine and the other components of health care [i.e., vaccines], then it is his or her duty to provide them. If the parent cannot, then the child can turn to the state for support, assuming the state has sufficient available resources.35
For the purposes of this article, I assume that vaccines are readily accessible and available to all individuals free of charge from public healthcare officials, inter alia, at public clinics,36 and state liability is excluded from this discussion.
The Children’s Act gives expression to the constitutional right (and duty) of parental care (s 28(1)(b) of the Constitution)37 through the parental responsibilities and rights provisions in section 18 of the Children’s Act. 38 The Children’s Act (s 1) defines ‘care’ and includes the duty to safeguard and promote the child’s wellbeing and to protect the child from harm,39 and parental care must be exercised in a way that does not harm the child. 40 Section 12(1) of the Children’s Act states that the child has the right to not be ‘subjected to social, cultural and religious practices which are detrimental to his or her well-being’. If non-vaccination is thus regarded as a ‘social, cultural or religious practice’, it must not be detrimental to the well-being of the child. Although the Children’s Act recognises the right of children to be involved in the decision-making process on issues relevant to them, 41 it only offers children limited protection regarding healthcare services.42 Furthermore, children who have reached a certain age and level of maturity are allowed to access particular health services independently. 43 On the other hand, section 129(4)(a) states that the parent must consent to the medical treatment of the child if the child is under the age of twelve years.44
Although a child has the right to participate in decisions affecting his or her personal health,45 this may not apply to the issue of non-vaccination, as routine vaccinations are generally administered at a very early stage in the child’s life.46 Hence, the provision made for a child to consent to their own medical treatment is irrelevant in the context of early childhood (non-)vaccination. Accordingly, the choice of routine infant vaccinations lies with the parent and not the child.47
In South Africa, the child’s right to basic healthcare creates a duty, which rests on the parents and caregivers, to consent to and present the child for immunisation once the immunisation becomes necessary and available to children (generally on the basis of age).48 Parents thus have a duty to care for and provide for the health needs of the child. This duty on parents is further qualified by section 129(10) of the Children’s Act:
No parent, guardian or care-giver of a child may [...] withhold consent in terms of subsections (4) and (5) by reason only of religious or other beliefs, unless that parent or guardian can show that there is a medically accepted alternative choice to the medical treatment or surgical operation concerned.49 (My emphasis.)
This section states that a parent may not withhold consent to the medical treatment of the child based solely on religious or other beliefs, unless that parent or guardian can show that there is a medically accepted alternative to the medical treatment or surgical operation involved.50
These religious grounds may not be a sufficient (legally accepted) exemption to the vaccination administration, as a medically accepted alternative must be proven in terms of section 129(10).51
When a parent unreasonably objects to the medical treatment (e.g., vaccine administration) of a child, a conflict of interest (and competing rights) arises between the child and the parent. To address this unreasonable refusal of treatment, sections 129(6)-(9) of the Children’s Act provide for ministerial or court-ordered consent.52
The superintendent of a hospital or the person in charge of the hospital in the absence of the superintendent may consent to the medical treatment of or a surgical operation on a child if -
(a) the treatment or operation is necessary to preserve the life of the child or to save the child from serious or lasting physical injury or disability.53 (My emphasis.)
The question of whether vaccines serve as a treatment necessary to preserve life or ‘to save the child from serious or lasting physical injury or disability’ is neither stipulated in the Act nor in any South African case law. For this reason, it is not clear whether a vaccine may be administered in a hospital with the consent of the superintendent (or the person in charge) only if it is for the sake of preserving the child’s life or ‘to save the child from serious or lasting physical injury or disability’.
Despite this uncertainty, a strong scientific (medical) consensus exists that vaccines do preserve life and definitely save children from serious or lasting physical injury, disability, or even death.54 For this reason, it may be argued that vaccines may be administered in a hospital with only the consent of the superintendent (or the person in charge) if it is for the sake of preserving the child’s life or to save the child from serious or lasting physical injury or disability.
Section 129(9) of the Act is an important section to consider in the context of non-vaccination. Although this section has not yet been tested in this context, its potential application is striking. Section 129(9) states that,
[a] High Court or children’s court may consent to the medical treatment of or a surgical operation on a child in all instances where another person that may give consent in terms of this section refuses or is unable to give such consent.
This section holds the potential for the High Court or Children’s Court to consent to the medical treatment (i.e., vaccine administration) where consent to this medical treatment has been refused. Unlike section 129(6), section 129(9) does not require the preservation of life or ‘to save the child from serious or lasting physical injury or disability’, and the High Court or Children’s Court may intervene in ‘all circumstances’ where the consent cannot be obtained or is refused.
Furthermore, this section does not require the refusal (or withholding) of consent to be ‘unreasonable’ and the High Court or Children’s Court has the discretion to make an order that it considers appropriate and in the best interests of the child. Although this section does not automatically interdict the parents from consenting to the treatment, it is useful to note that it offers an avenue for securing substitute consent (in the best interests of the child), as opposed to mandating that the parent consent to the treatment (i.e., vaccine administration).55 The second last part under this section 28 inspection is whether non-vaccination amounts to child abuse and/or neglect in terms of section 28(1)(d) of the Constitution. If non-vaccination amounts to child neglect or abuse, the existence of a parental duty to vaccinate is proven, as the duty to protect the child from abuse or neglect is breached.
3 3 Does non-vaccination amount to child abuse and/or neglect?
Section 28(1)(d) of the Constitution refers to the protection of children against abuse and neglect, so reiterating the parental duty to protect the child against abuse and neglect.56 The question of non-vaccination in the context of child neglect cannot be overlooked as the protection against child neglect is a constitutionally protected right. Children’s rights create parental duties and the protection against child neglect is a parental duty.57
To investigate the meaning of ‘abuse’ and ‘neglect’, the Children’s Act is the appropriate point of departure. The term ‘abuse’ is defined in the Children’s Act (s 1) and in relation to a child,
means any form of harm or ill-treatment deliberately inflicted on a child, and includes -
(a) assaulting a child or inflicting any other form of deliberate injury to a child;
(b) sexually abusing a child or allowing a child to be sexually abused;
(c) bullying by another child;
(d) a labour practice that exploits a child; or
(e) exposing or subjecting a child to behaviour that may harm the child psychologically or emotionally.
From a reading of section 1 of the Act, it is clear that specific forms of ‘child abuse’ are listed, although the section also provides that ‘any form of harm or ill-treatment’ that is ‘deliberately inflicted on a child’ is child abuse. Hence, in the context of non-vaccination and child abuse, the deliberate infliction of harm on a child is required.
Furthermore, subsection (e) refers only to the ‘psychological’ or ‘emotional’ harm a child may suffer as a result of being exposed (or subjected) to certain behaviour -- there is no mention of ‘physical harm’, probably because it is seen to fall under ‘assault’ in subsection (a). Even if ‘physical injury’ were listed here, it would still need to be ‘deliberate’. It is for this reason that it is unlikely that non-vaccination automatically amounts to child abuse in the South African context. This conclusion is based on a close reading of the definition of ‘abuse’ in section 1 of the Act.
Although this article is not directly concerned with criminal-law matters such as child abuse, it remains important in evaluating the duties of parents in the context of vaccination.58 The question of whether non-vaccination can amount to child neglect has not yet served before the South African courts. The Children’s Act (s 1) defines neglect in relation to a child as ‘a failure in the exercise of parental responsibilities to provide for the child’s basic physical, intellectual, emotional or social needs’. It is interesting to note that the child’s health needs are not mentioned in the definition of child neglect. Although an argument can be made for the extension of ‘basic physical, intellectual, emotional or social needs’ to health needs, the legislature has not expressly included ‘health needs’ as a parental responsibility in the context of child neglect.
It may be argued that the failure to perform the duty of parental care and provide for the health needs of the child (vaccination) may potentially constitute child neglect, conflicting with the child’s right to be protected against any form of neglect.59 This notion is supported by foreign case law with the caveat that it applies only in the context of an outbreak (or epidemic). For example, in In re Christine M,60 the Family Court of the City of New York, Kings County, ruled that the non-vaccination of a child during a measles outbreak amounted to child neglect. The court stated that
a parent’s knowing failure to have a child immunised against measles in the midst of a measles epidemic or outbreak clearly places that child’s physical condition in imminent danger of becoming impaired. 61
It is yet to be decided whether the refusal of a COVID-19 vaccine in the face of a global pandemic may qualify as ‘child neglect’ in that it may place the child’s physical being in imminent danger of being impaired.62 In Re H,63 the Court of Appeal (Civil Division), on appeal from the High Court of Justice (Family Division), stated:
It goes without saying that the giving of consent to having one’s child vaccinated is an exercise of parental responsibility. It cannot be doubted that it is both reasonable and responsible parental behaviour to arrange for one’s child to be vaccinated in accordance with the Public Health England guidelines, there is at present no legal requirement in this country for a child to be vaccinated. By contrast, a failure by parents to obtain vaccinations for their children may feature as one of a series of wider threshold allegations in support of a more generalised case of neglect.64 (My emphasis.)
According to this case, although vaccination is not compulsory it remains a parental responsibility and duty, and the failure to vaccinate may very well support a case of child neglect. The existence of neglect implies the breach of a duty and supports the existence of a parental duty to vaccinate the child.
The next topic under inspection is the best interests of the child in terms of section 28(2) and how this right and overarching principle or standard ties into the issue of a parental duty to vaccinate.
3 4 The best interests of the child and vaccination
The constitutional ‘best interests of the child’ standard as stated in section 28(2) applies in ‘every matter concerning the child’ and the wording of this section indicates that in section 28(2) the best interests of the child are not limited to the matters in section 28(1).65
It is suggested that section 28(2) of the Constitution is an independent right,66 and that it may be used to interpret section 28(1) of the Constitution or vice versa as sections 28(1)-(2) are read together.67 Some may accept that section 28(2) is not only a guiding principle or standard, but that it is an independent right, as Goldstone J stated in Minister for Welfare & Population Development v Fitzpatrick.68
The Children’s Act provides that all decisions affecting children must protect, respect, and fulfil the children’s rights as set out in the Bill of Rights.69 Like section 28(2) of the Constitution, the Children’s Act provides that the best interests of the child are paramount.70
Hence, section 28(2) of the Constitution echoes the common-law standard of the best interests of the child, and this common-law standard is applied by the ‘High Court in its position as the upper guardian of minor children’.71 Currently, there exists no local case law expressly ruling that vaccination serves the best interests of the child in the context of non-vaccination and parental duties. On the other hand, foreign case law indicates that vaccination is usually in the child’s best interests, and has often ruled in favour of children being vaccinated despite parental objection, as it is in their best interests.72
In essence, section 28(2) of the Constitution may be used to ‘determine the ambit of another right in the Bill of Rights’ and may be relevant during the ‘limitation stage of application analysis of this other right’.73 For example, in S v M,74 the Constitutional Court ‘declared that the best interests injunction is capable of limitation’,75 and ‘that section 28(2) cannot be said to assume dominance over other constitutional rights’.76 The Court continued to explain that
the fact that the best interests of the child are paramount does not mean that they are absolute. Like all rights in the Bill of Rights their operation has to take account of their relationship to other rights, which might require that their ambit be limited. 77
This means that when the other (perhaps competing) constitutional rights of the child and the parents are explored and eventually balanced, section 28(2) comes into play.78
Below, I turn my attention to other (perhaps competing) constitutional rights of the parent that may come into play when determining a parental duty to vaccinate.
4 ‘My child, my choice’: the role of parental rights in determining if there is a parental duty to vaccinate
It is worth noting that even if a child has a constitutional right to vaccination, it is by no means axiomatic that every person has a duty to ensure that the right of the child is realised. Generally, this duty will fall on the state 79 or possibly the parents which is debatable given the number of rights parents already have. In essence, rights can often be absolute, while the correlating duties are merely relative to specific people. Essentially, parental rights play a role in delineating their duties. Here, I explore some of the constitutional rights that may come to the fore in the context of non-vaccination and the parental duty to vaccinate.
Section 15(1) of the Constitution states that ‘[e]veryone has the right to freedom of conscience, religion, thought, belief and opinion’. Section 15 has two components: (1) free exercise; and (2) equal treatment, 80 and forms part of the discussion on non-vaccination in the context of parental rights in that parents may decide not to vaccinate their child based on exercising their constitutionally protected right to freedom of conscience, religion, thought, belief, and opinion. It has been said that section 15 protects ‘an extremely wide range of world-views’.81 This is relevant to non-vaccination as many non-vaccinating parents’ decisions are rooted in religious or philosophical reasons. 82 Notably, section 15 may potentially be
outweighed by other constitutionally protected rights. Religious freedom will conflict with and sometimes give way to rights such as the rights of the child (s 28), the right to freedom of expression (s 16), the right to dignity (s 10), the right to freedom and security of the person (s 12), and the right to equality (s 9).83 (Footnotes omitted.)
This means that when section 15 competes with other rights (e.g., ss 9, 10, 12, 16, and 28 of the Constitution), the latter may outweigh section 15. Furthermore, section 15 may also be limited in accordance with section 36 of the Constitution.84 The limitation of this right in the context of non-vaccination often features in the context of mandatory vaccination exemptions as dictated by foreign law.85
Regrettably, there is no local case law on the issue of whether mandatory vaccinations (or those mandated via interdict) may justifiably limit the right to freedom of conscience, religion, thought, belief, and opinion.86 There is also no local case law indicating the interplay and limitation of section 15 of the Constitution in the context of non-vaccination and other competing rights (e.g., to life, bodily integrity, and dignity). There are, however, indications that the right to life (s 11) is more important than the right to freedom of conscience, religion, thought, belief, and opinion. For example, Carstens and Pearmain term the right to life the ‘most fundamental of all human rights.’87 Despite the guarantees in section 15 of the Constitution and the law’s general acknowledgement of the parental right to act on behalf of a child, the Witwatersrand Local Division (per Jajbhay J) held in Hay88 that the interests of the child are always paramount and the child’s right to life (s 11) should be protected in an emergency situation.89 The court granted the application to administer a life-saving blood transfusion to the infant.90 Although the Hay case illustrates the balancing process of the parents’ rights against those of the child, it must be distinguished from scenarios where a child’s life is in immediate danger versus a healthy unvaccinated child.91
Section 30 of the Constitution states that everyone has the right to participate in the cultural life of their choice with the caveat that no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights -- particularly, equality and dignity.92 Although ‘culture’ is often difficult to define, Albertyn and Goldblatt suggest that it refers to the practices, values, rules, and behaviour of different social groups.93 Non-vaccinating parents may thus rely on section 30, in addition to their other constitutionally protected rights to protect their non-vaccination decision(s). Similarly, this right (s 30) may be limited if it is exercised -- including by cultural, religious, and linguistic communities -- in a manner inconsistent with the Bill of Rights.94
Section 31 of the Constitution states that persons belonging to a cultural, religious, or linguistic community may not be denied this right. Section 31(2) of the Constitution functions as an ‘internal modifier’ and prohibits ‘a person or a group from practising their religion in a manner inconsistent with other provisions of the [...] Constitution’.95 For example, if section 28(1)(d) of the Constitution is violated, section 31 cannot also be violated.96
The constitutional rights of parents (ss 15, 30, and 31 of the Constitution) as outlined above may theoretically be used to counter a parental duty to vaccinate; however, our courts are yet to adjudicate this issue. It may be cumbersome to successfully justify non-vaccination based on freedom of conscience, religion, thought, belief and opinion, as indicated by the discussion on the Children’s Act, specifically section 129(10)).
Seeing as vaccination is a proven and usually free (or cost-effective) method for controlling and eliminating life-threatening infectious diseases,97 one could argue that non-vaccination based on ‘personal reasons’ may conflict with the child’s right to parental care and protection from harm.98 Furthermore, foreign courts have often ruled in favour of vaccination being in the child’s best interests and ordered that the child’s rights be preferred to parental rights and parental autonomy, especially when it comes to vaccination. 99
5 Conclusions and avenues for further research
Children’s rights have received a lot of judicial and legislative attention in recent years, and the constitutional protection of children’s rights in South Africa is extensive. Although the Children’s Act is regarded as one of the most important pieces of legislation protecting and promoting children’s rights, it does have shortcomings.
The Children’s Act does not expressly state that vaccination is in the best interests of the child or expressly impose a duty on parents or guardians to vaccinate their children. Furthermore, this Act does not mandate childhood vaccinations, penalise non-vaccination, or regulate vaccination exemptions.
As highlighted in this article, there is neither an express statutory nor an express constitutional right to vaccination in South Africa. Despite there being no express right to vaccination, there may still be an implied parental duty to vaccinate one’s child -- based on an inspection of section 28 of the Constitution, and the relevant sections in the Children’s Act. Similarly, a parental duty to vaccinate may be inferred as forming part of a parent’s general responsibilities to care for the child, protect the child, and ensure that the child’s health needs are met.
It may thus be suggested that a parental duty to vaccinate exists, as inferred or implied from the body of existing and legally recognised children’s rights in conjunction with parental rights (and correlating duties). However, this implied parental duty to vaccinate is subject to important qualifications and further research. For example, the need for legislative reform and legal certainty on the issue of the parental duty to present one’s child for vaccination; the rights of parents to refuse vaccinations (e.g., valid medical-, religious-, and philosophical vaccination exemptions); the duties of parents that refuse vaccination (i.e., duties coupled to exercising the right to non-vaccination); the best interests of the child in the context of vaccination; parental autonomy and decision making in the context of vaccination; and the role of the state in this conundrum.
1. DR Walwyn & AT Nkolele ‘An evaluation of South Africa’s public-private partnership for the localisation of vaccine research, manufacture and distribution’ (2018) Health Research Policy and Systems 31; EO Oduwole et al ‘Current tools available for investigating vaccine hesitancy: a scoping review protocol’ (2019) BMJ Open 1.
2. See WHO ‘Immunisation’ 5 December 2019, https://www.who.int/news-room/facts-in-pictures/detail/immunization (accessed 7 February 2024).
3. WHO ‘Ten threats to global health in 2019’ 2019, https://www.who.int/news-room/spotlight/ten-threats-to-global-health-in-2019 (accessed 7 Feb-ruary 2024).
4. Monama ‘ACDP takes health department to court over COVID-19 vaccine for children’ 2021, https://www.news24.com/news24/southafrica/news/acdp-takes-health-department-to-court-over-covid-19-vaccine-for-children-20211109 (accessed 7 February 2024).
5. See Centers for Disease Control and Prevention ‘Benefits of Getting a COVID-19 Vaccine’ 19 June 2022, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/vaccine-benefits.html#:~:text=COVID%2D19%20vacci nation%20helps%20protect,have%20mild%20or%20severe%20illness (accessed 7 February 2024).
6. Cancer Association of South Africa ‘Fact sheet and position statement on vaccines and vaccination’ August 2021, https://cansa.org.za/files/2021/08/Fact-Sheet-and-Position-Statement-on-Vaccines-and-Vaccination-August-2021-Final.pdf (accessed 7 February 2024) at 6.
7. See South African Government, Department of Health ‘What you need to know about vaccinations’ http://www.kznhealth.gov.za/vaccinations.pdf (accessed 7 February 2024) at 3; South African Government, Department of Health ‘Immunisation’ https://www.health.gov.za/immunization/ (accessed 7 February 2024).
8. Germany has mandated childhood vaccinations since 2020, see Masernschutzgesetz (Measles Protection Act) of 10 February 2020. MJ Mehlman & MM Lederman ‘Compulsory immunization protects against infection: what law and society can do’ (2020) 5(1) Pathogens and Immunity 3: The Canadian provinces of Ontario and New Brunswick require immunisations for school attendance. See Australian Public Health Act of 2005 and Federal Register of Legislation ‘Social Services Legislation Amendment (No Jab, No Pay) Act 2015’ https://www.legislation.gov.au/Details/C2015A00158 (accessed 7 February 2024).
9. Le Roux v Dey 2011 6 BCLR 577 (CC) para 122; Loureiro v Imvula Quality Protection 2014 (3) SA 394 (CC) para 53.
13. I.e., bodily integrity (s 12(2)), life (s 11), dignity (s 10), to be cared for (s 28(1)(b)), the best interests of the child (28(2)), etc.
14. L Hager ‘The potential delictual liability of non-vaccinating parents in South Africa’ LLD Thesis, University of Pretoria, 2023 available at https://repository.up.ac.za/items/d2ed0148-00dc-456a-8747-6f181f6f6e10 (last accessed 23 September 2025) 66, 71, 115-117, 120, 132: ‘As has been shown, there is neither an express statutory nor an express constitutional right to vaccination in South Africa. [...]. I argue that there is indeed an implied right to vaccination implicit in the collective effect of the best interests of the child and the rights to dignity, bodily integrity, and life. The existence of this right to vaccination as inferred from the collective of other rights imposes a corresponding duty, as rights and duties are relational.’
15. M Loubser & R Midgley (eds) The law of delict in South Africa 3ed (2017) 43; C Albertyn & B Goldblatt ‘Chapter 35: equality’ in S Woolman & M Bishop (eds) Constitutional law of South Africa 2ed (2014) 3; I Currie & J De Waal The Bill of Rights Handbook 6ed (2013) 41, 143, & 565 (see fn 6 on 565).
16. A Friedman et al ‘Chapter 47 Children’s Rights’ in Woolman & Bishop (n 15) 9; Currie & De Waal (n 15) 600.
17. See MEC for Education, KZN v Pillay 2008 (1) SA 474 (CC) [56]; Antonie v Governing Body, Settlers High School 2002 4 SA 738 (C); see also Friedman et al (n 16) 2; Currie & De Waal (n 15) 601.
19. As above with reference to Christian Lawyers Association v National Minister of Health 2005 1 SA 509 (T). See also Currie & De Waal (n 15) 601.
22. Friedman et al (n 16) 2: ‘[s] 28(1) encompasses rights that are predominantly protective in nature’. See also PA Carstens & D Pearmain Foundational principles of South African medical law (207) 497-500; Currie & De Waal (n 15) 601.
23. The Child Care Act 74 of 1983 was repealed by the Children’s Act. See Currie & De Waal (n 15) 600 and Friedman et al (n 16) 8.
24. See s 39 of the Constitution (Interpretation of Bill of Rights); Currie & De Waal (n 15) 57; L Du Plessis ‘Chapter 32: interpretation’ in Woolman & Bishop (n 15) 138.
26. As above. S 28(1)(c) places a duty on the state and the parents. See also Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) para 76: ‘They [ss 28(1)(b)&(c)] must be read together... [ss] (1)(b) defines those responsible for giving care while [ss] (1)(c) lists various aspects of the care entitlement.’. See also Minister of Health v Treatment Action Campaign (No 2) 2002 5 SA 721 (CC) paras 74 & 75; S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) para 32; National Health Act 61 of 2003, s 2(c)(iii).
27. See Minister of Health v Treatment Action Campaign (n 26) paras 74 & 75; Friedman et al (n 16) 13-14 with reference to Khosa v Minister of Social Development 2004 6 SA 505 (CC); Büchner - Eveleigh ‘Children’s rights of access to health care services and to basic health care services: a critical analysis of case law, legislation and policy’ (2016) De Jure Law Journal 308.
29. South Afrrican Government, Department of Health ‘ Facts about immunisation, EPI (SA) fact sheet’ http://www.health.gov.za/index.php/component/phocadownload/category/165 (accessed 7 February 2024).
33. See Grootboom (n 26) paras 79-79; Minister of Health v Treatment Action Campaign (n 26) paras 74 & 75; Friedman et al (n 16) 9 & 15-17; Currie & De Waal (n 15) 600.
36. See National Institute for Communicable Diseases ‘COVID-19 vaccine rollout strategy FAQ’ https://www.nicd.ac.za/covid-19-vaccine-rollout-strategy-faq/#:~:text=DO%20INDIVIDUALS%20HAVE%20TO%20PAY,at %20the%20point%20of%20service (accessed 10 December 2022); South African Government ‘Child immunisation’ https://www.gov.za/services/ser vices-residents/parenting/child-care/child-immunisation (accessed 7 Feb-ruary 2024).
38. See s 18(2)(a) of the Children’s Act (‘Responsibility and the right to care for the child’); P Mahery & W Slemming ‘Mandatory childhood immunisation in South Africa: what are the legal options?’ (2019) South African Journal of Bioethics and Law 77; Friedman et al (n 16) 8: ‘these responsibilities and rights are acquired automatically [...]. Once such responsibilities and rights are acquired, they must be exercised in accordance with the best interests of the child.’
42. Büchner - Eveleigh (n 27) 320: the main text of the Children’s Act does not specifically refer to the child’s right to basic health care services. The Act also does not define the standard of healthcare of children or the concept ‘basic health care services’. The Children’s Act does not define the term ‘medical treatment’. According to foreign law cases (ECLI:NL:RBGRO:2009; BK7384;ECLI:NL:GHARL:2019:9402; ECLI:NL:GHARL:2019:1763) medical treatment includes vaccine administration. Although vaccines aim to prevent (as opposed to treat), it is still regarded as a medical procedure, and included in the scope of ‘medical treatment’.
43. Ss 129(2)(a)-(b) of the Act provide that a child over the age of twelve who has a sufficient understanding of the benefits, risks, and other social implications of the proposed treatment or operation, may consent to his or her own medical treatment (such as vaccination). The assistance of the parent is not required in terms of s 129(2). See D McQuoid Mason ‘Provisions for consent by children to medical treatment and surgical operations, and duties to report child and aged persons abuse: 1 April 2010’ (2010) South African Medical Journal 646. The requirements of ‘sufficient maturity’ and ‘mental capacity’ indicate that age alone is not the only deciding factor on whether a child may consent to medical treatment. The child must still be sufficiently mature to give informed consent. See also Albertyn & Goldblatt (n 15) 69-70; Friedman et al (n 16) 3; Currie & De Waal (n 15) 601 (fn 14).
44. See, e.g., the Canadian case of OMS v EJS 2021 SKQB 243 paras 81-82 for a discussion of a ‘mature minor’.
46. See South African Government, Department of Health ‘ Facts about immunisation, EPI (SA) fact sheet’ http://www.health.gov.za/index.php/component/phocadownload/category/165 (accessed 7 February 2024) at 3; National Institute for Communicable Diseases ‘Vaccine information for parents and caregivers’ 2016, https://www.nicd.ac.za/wp-content/uploads/2017/08/NICD_Vaccine_Booklet_D132_FINAL.pdf (accessed 7 February 2024). Children may consent to their own vaccinations at a certain age (and level of maturity) if they did not receive those vaccinations earlier.
47. The National Health Act 61 of 2003 (NHA) refers to the informed consent of a ‘user’ in s 7. ‘User’ (defined in s 1) means ‘the person receiving treatment in a health establishment, including receiving blood or blood products, or using a health service, and if the person receiving treatment or using a health service is (a) below the age contemplated in [s] 39(4) of the Child Care Act [74 of 1983], ‘user’ includes the person’s parent or guardian or another person authorised by law to act on the firstmentioned person’s behalf’. See M Bishop & S Woolman ‘Chapter 40: freedom and security of the person’ in Woolman & Bishop (n 15) 96 for the forms of knowledge that are required to constitute informed consent in terms of the NHA.
49. The NHA does not make the same provisions for consent on behalf of the child by the High Court, Minister, and superintendent of a hospital or the person in charge of the hospital in the absence of the superintendent, as stipulated in s 129 of the Children’s Act. See also Mahery & Slemming (n 38) 77; McQuoid Mason (n 43) 646.
51. Reference is often made to ‘complementary and alternative medicine’ (CAM). CAMs are often only used to treat the symptoms, and do not as effectively as the vaccine aim to prevent infection and hamper trans-mission. See SR Jeon et al ‘Complementary and alternative medicine (CAM) interventions for COVID-19: an overview of systematic reviews’ (2022) Integrative Medicine Research 100842. See US Department of Health & Human Services, NCCIH ‘COVID-19 and ‘alternative’ treatments: what you need to know’ ( last updated March 2025) https://www.nccih.nih.gov/health/covid-19-and-alternative-treatments-what-you-need-to-know (accessed 29 September 2025).
52. McQuoid Mason (n 43) 646: ‘however, the High Court as the upper guardian of all minors may overrule a refusal to consent by children if it is in ‘the best interests’ of a child patient -- but is likely to use this power sparingly. The Minister of Social Development can consent to medical treatment or a surgical operation where the child unreasonably refuses to give consent’.
53. In terms of s 129(7)(a), the Minister may consent if the parent or guardian of the child unreasonably refuses to give consent.
54. CANSA ‘Fact sheet and position statement on vaccines and vaccination’ August 2021, https://cansa.org.za/files/2021/08/Fact-Sheet-and-Position-Statement-on-Vaccines-and-Vaccination-August-2021-Final.pdf (accessed 7 February 2024) at 13.
55. See foreign law discussion on substitute consent, e.g., C (Looked After Child) (COVID-19 Vaccination) (2021) EWHC 2993 (Fam); and the Dutch cases of ECLI:NL:GHARL:2019:1763; ECLI:NL:GHDHA:2020:257; ECLI:NL:GHARL:20 19:1763; ECLI:NL:RBGEL:2020:3699; ECLI:NL:RBOBR:2018:4218; ECLI:NL:R BOBR:2018:6742; ECLI:NL:RBROT:2019:693.
56. Friedman et al (n 17) 24: s 28(1)(d) ‘clearly imposes a positive obligation on the state to prevent harm to children’; e.g., the South African Schools Act 84 of 1996 gives effect to s 28(1)(d) in the context of bans on corporal punishment in schools.
57. This duty also falls on the state, but this is excluded from the scope of this article, see generally T Boezaart Child law in South Africa (2009) 253.
58. In South Africa, child neglect falls under the ambit of criminal law. The common law indirectly protects children against neglect and abuse by providing them with the actio iniuriarum (assault, where the harm is caused intentionally) or the Germanic action for pain and suffering (usually where the harm is caused negligently, though intentional harm causing is also accommodated).
66. Centre for Child Law v Director of Public Prosecutions, Johannesburg 2022 12 BCLR 1440 (CC) para 42; Centre for Child Law v T S 2023 9 BCLR 1027 (CC) para 48; LB v LAE [2023] ZAGPPHC 1915 para 24; Minister of Welfare & Population Development v Fitzpatrick 2000 (3) SA 422 (CC) para 17.
69. S 6 of the Children’s Act with specific reference to s 6(2)(a): ‘All [..] decisions in a matter concerning a child must- (a) respect, protect, promote and fulfil the child's rights set out in the Bill of Rights [...]’; see also Büchner - Eveleigh (n 27) 320.
72. German case law: ECLI:DE:BGH:2017:030517BXIIZB157.16.0 para a. Dutch case law: ECLI:NL:GHARL:2019:1763 paras 6-7; ECLI:NL:GHDHA:2019:331 para 6; ECLI:NL:GHDHA:2020:257; ECLI:NL:RBGEL:2020:3699 para 5.11. Australian case law: Mains v Redden (2011) FamCAFC 184 paras 106 & 127; Duke-Randall v Randall (2014) FamCA 126. UK case law: Re SL (Permission to Vaccinate) (2017) EWHC 125 (Fam) paras 45 & 50.
73. Friedman et al (n 16) 41. See Hager (n 14) 95: ‘In the context of non-vaccination, the rights of other children (“Y”) may also compete with those of the unvaccinated child (“XX”) and in this instance, the child’s best interests may be limited based on the best “interests of other children, or children generally, or of other parties, such as parents or the state”’.
79. See, i.e., S Woolman ‘Chapter 36: dignity’ in Woolman & Bishop (n 15) 31-32 with reference to K v Minister of Safety & Security 2005 6 SA 419 (CC); Currie & De Waal (n 15) 32 & 282.
80. Currie & De Waal (n 15) 315. See also P Farlam ‘Chapter 41: freedom of religion, belief and opinion’ in Woolman & Bishop (n 15) 29.
81. Currie & De Waal (n 15) 316: the right to religious freedom includes the right to reject religious beliefs. See Farlam (n 80) 13.
82. For purposes of s 15, it is irrelevant to debate the term ‘religion’ as different systems of belief (not centred on deity) is protected by s 15. See Currie & De Waal (n 15) 316.
85. See FF v State of New York No 53783 (18 March 2021) (order affirming trial court judgment). FF v State of New York No 4108-19 (3 December 2019): This shows that the revocation of religious exemption to compulsory vaccination is not unconstitutional and emphasises the importance of vaccines when weighed against the religious rights of parents. See also ECLI:NL:RBGEL:2020:3699: the Rechtbank Gelderland confirmed that the interests of minors prevail over the right to freedom of religion and that vaccinations serve the child’s best interests.
86. E.g., the reported cases on vaccines are: Afriforum v Minister of Police (2021) ZAGPPHC 882 (procurement and distribution of COVID-19 vaccines); Afriforum v Minister of Finance (2021) ZAGPPHC 730 (procurement and distribution of COVID-19 vaccines); Solidarity v Ernest Lowe (2022) 43 ILJ 1125 (LC) (labour related issues and vaccine mandates in the workplace); Electoral Commission v Minister of Cooperative Governance & Traditional Affairs 2022 5 BCLR 571 (CC) (postponement of local government election and vaccines); Makhanda against Mandates v Rhodes University (2022) ZAECMKHC 5 (application dismissed).
94. See Woolman (n 79) 42 with reference to s 31(2): ‘the [Constitution] makes it clear that cultural practices secure constitutional protection only where they do not interfere with the exercise of other fundamental rights.’ See also Currie & De Waal (n 15) 624-625.
95. See Christian Education South Africa v Minister of Education 1999 (4) SA 1092 (SE); Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC). See also Friedman et al (n 16) 22; Currie & De Waal (n 15) 323.
97. JR Steiner-Dillon ‘Sticking points: epistemic pluralism in legal challenges to mandatory vaccination policies’ (2019) 88(1) University of Cincinnati Law Review 172.
99. E.g., in ECLI:DE:BVerfG:2022:rs2022721.1bvr046920 paras 1-2: the Bundesverfassungsgericht ruled that parents have the right and duty to decide if and how their children are vaccinated . The Court continued that the decision to vaccinate is an essential element of parental health care and that when parents exercise this right, they are inhibited from opposing standards of medical reasonableness. See Re SL (Permission to vaccinate) (2017) EWHC 125 (Fam); BLO v LJB para 40; F v F (2013) EWHC 2683 (Fam); Kagen v Kagen No 318459 (Mich Ct App Jul 14 2015). See also ECLI:DE:BVerfG:2022:rs2022721.1bvr046920 paras 1-2; ECLI:NL:GHARL: 2019:9402; ECLI:NL:GHARL:2019:1763; ECLI:NL:GHDHA:2019:331. Similarly, in ECLI:NL:RBGEL:2020:3699, the Rechtbank Gelderland (Gelderland District Court) confirmed that the interests of minors prevail over the right to freedom of religion and that vaccination serves the child’s best interests.
