Parents could face civil suits for vaccine refusal if harm occurs, legal expert warns

The question is not whether parents have the right to refuse vaccines for their children—South African law grants them that autonomy. The question is what happens when that refusal harms someone else.

Vaccination rates across the country have fallen sharply in recent months. In Gauteng, infant immunisation coverage dropped from 83% to roughly 75% for children under 12 months. In the Western Cape, the decline was steeper still: rates fell to 67.4%. The numbers matter because they measure a threshold. Below a certain level of coverage, diseases that had nearly vanished begin to circulate again. Thousands of children now lack protection against measles and other preventable illnesses.

Dr Liesl Hager, a legal scholar at the University of Pretoria's department of private law, has been examining what recourse exists if an unvaccinated child transmits disease to another person. Her research suggests that under South African law, parents could theoretically face civil liability—a lawsuit seeking damages—if their decision not to vaccinate results in documented harm to someone else. The scenario is concrete: an immunocompromised child, unable to receive vaccines for medical reasons, contracts measles from a child whose parents refused vaccination. If all the legal elements align, Hager says, a civil claim could follow.

But theory and practice diverge sharply. Hager emphasizes that such a case would encounter formidable obstacles, chief among them the burden of proof. A claimant would need to present scientific evidence demonstrating not just that the unvaccinated child carried the disease, but that this specific child was the factual source of infection. Causation in disease transmission is rarely straightforward. And South African courts have never ruled on a case with these facts. The law remains silent on mandatory childhood vaccination, leaving both parents and potential plaintiffs in legal uncertainty.

"Ideally, we do not want these issues to reach the courts before we have legal certainty," Hager said. "It would be better to provide guidance rather than waiting for litigation to arise proactively." The implication is clear: the country may be approaching a moment when legal clarity becomes necessary.

Dr Lesley Bamford, a child health specialist at the national health department, frames the decline in vaccination coverage as a public health emergency in slow motion. When coverage is high, herd immunity—the collective protection that emerges when enough people are vaccinated—prevents diseases from taking hold in communities. As coverage falls, that shield weakens. Unvaccinated children become vulnerable, and they become vectors for transmission to infants and to people who cannot be vaccinated for medical reasons. "Because we no longer see large outbreaks of diseases such as polio and other serious childhood illnesses, people become complacent," Bamford observed. "Vaccination programmes can become victims of their own success."

Yet the government has resisted making vaccination mandatory, despite the risks. The reasoning is pragmatic: mandatory vaccination is difficult to enforce, access barriers still exist in some communities, and legal challenges to compulsion could distract from the work of delivering an effective immunisation programme. It is a calculation that prioritizes implementation over coercion.

For now, the question remains theoretical. But as coverage continues to fall, the gap between what the law permits and what public health requires may become impossible to ignore.