May estates and complexes institute mandatory vaccine requirements?
Trustees seeking to implement vaccine mandates may find support in the Sectional Titles Schemes Management Act 8 of 2011 (the “Act”) . Section 7 of the Act stipulates that trustees must act in the best interests of the body corporate and benefit the owners of units in the scheme. Since the Act does not define “best interests”, it is open to interpretation.
The members are the communal owners of the property. Therefore, every owner owns an undivided share of the complex’s joint property, and no policy may preclude them from using their property.
No legislation or case law exists to prescribe any precedent in favour of such policies.
Consequently, there would be no grounds for sectional title trustees or homeowners association directors to enforce mandated vaccination among residents and visitors.
Moreover, considering the impact of and applicability of the Protection of the Personal Information Act 4 of 2013 (“POPIA”); whether individuals are vaccinated or not could be construed as personal information, which can only be collected and processed if there is consent from the owner. As such, if a person refuses to disclose whether they are vaccinated or not, the provisions of POPIA would apply.
The discussion is therefore by no means settled and therefore legal advice should be obtained before considering to implement a mandatory vaccination policy.