Can malls deny entry to unvaccinated people? Yes and No, says law expert

Durban – Can malls deny entry to unvaccinated people?

This was the question after a social media post that seemingly came from Durban mall that suggested they planned to implement a “no vaccination, no entry” policy.

The Galleria Mall, near Amanzimtoti, has since refuted the social media post as “categorically not true” and said they will not prevent entry to any customer into the mall.

This comes against a backdrop of an increasing number of instances where public and private individuals and institutions are refusing access to unvaccinated people.

Pierre de Vos, a constitutional law expert and head of the Department of Public Law at the University of Cape Town said that at face value, a mall being a private property could deny access to people as they have the right to reserve admission.

However, he said that this has to be qualified with other legislation such as the Equality Act.

“So in principle, it will satisfy the law (to deny unvaccinated people access to malls) but if it is going to be tested constitutionally, it will be on the basis that it is justified or it’s going to decide a justifiable limitation on the rights of individuals. The technical question is then, you can only do so if you’re authorised by the existing law. You can't just deny access if the law doesn’t allow you. In the case of malls, it will probably be authorised by the fact that you have a right to reserve permission. It is subject to restrictions that are imposed by other legislation. So you can’t discriminate for example against people on the basis of race and gender,” he said.

Private places that a frequented by the public will have to navigate a legal minefield if they are to impose restrictions on the unvaccinated.

De Vos said it becomes even more complicated when vaccination data is brought into the picture.

When one looks at access to vaccines or that access is based on your socio-economic status, or if it disproportionately impacts black people and so and on that basis it’s probably not going to be acceptable. So it depends on a lot of factors so it’s not so easy to just say, in principle, yes, but the qualification such as it cannot be discriminated,” he said.

This week, Durban High Court Judge Mahendra Chetty issued a directive that only people who had been vaccinated against Covid-19 or who could provide proof of a negative Covid-19 test result would be allowed to attend the court case involving KwaZulu-Natal ANC deputy chairperson and former MEC, Mike Mabuyakhulu.

The directive applied to lawyers, the media, court staff, and those on trial.

The office of the chief justice on Wednesday had defended Chetty’s decision, saying the directive was not lawful, but was applied to control the number of Mabuyakhulu’s supporters attending the case as there was not enough space to accommodate everyone.

Earlier this month, Dr Tafara Machiri from Mbombela made headlines when a notice on his door informing his patients that he would no longer be treating unvaccinated people went viral.

And, Mthokozisi Khathi, known as DJ Tira set social media alight when he announced on his Twitter account that patrons would require a Covid-19 vaccination card to gain entry to the Fact Durban Rocks December 2021 event.

IOL