The law remains silent on what happens when refusal causes harm
Across South Africa, a quiet erosion of immunisation coverage is forcing a reckoning with an ancient tension between individual freedom and collective responsibility. As vaccination rates fall in Gauteng and the Western Cape, legal scholars are beginning to ask whether a parent's right to refuse a vaccine for their child ends where another child's vulnerability begins. The law has not yet answered this question, but the declining numbers suggest the moment of reckoning may not be far off.
- Vaccination rates in two of South Africa's most populous provinces have dropped sharply enough to meaningfully weaken herd immunity, leaving infants and immunocompromised children exposed to diseases that were once nearly eradicated.
- Legal scholar Dr Liesl Hager has raised the uncomfortable possibility that parents who refuse vaccination could, under South Africa's law of delicts, bear civil liability if their unvaccinated child infects a vulnerable person — a legal theory the country's courts have never tested.
- The central obstacle is causation: proving in court that one specific unvaccinated child was the source of another person's infection demands a chain of scientific evidence that is extraordinarily difficult to establish with legal certainty.
- Rather than waiting for a real family to become a test case, experts are calling for proactive legislative or judicial guidance — but the government, wary of enforcement challenges and political backlash, has stopped well short of mandating vaccination.
- The country now occupies an uneasy middle ground: falling coverage, rising vulnerability, and a legal silence that grows louder with every percentage point lost.
The question arrived without fanfare: what happens when a parent's choice not to vaccinate their child ends up harming someone else? South African law has no answer yet, and as immunisation rates slip across the country, the silence is beginning to feel consequential.
In Gauteng, vaccination coverage for infants under twelve months fell from 83 percent to 75 percent. In the Western Cape, it dropped further, to 67.4 percent. These are not marginal shifts — they represent thousands of children moving through their first year without protection against diseases that once killed routinely.
Dr Liesl Hager, a legal scholar at the University of Pretoria, has examined what the law might say. Her conclusion is measured: parental autonomy gives parents the right to refuse vaccination, but that right is not absolute. If an unvaccinated child infects an immunocompromised child who cannot be vaccinated for medical reasons, the parents could theoretically face a civil delict claim. In practice, however, the hurdle of causation is formidable — a claimant would need to prove, with legal certainty, that this specific child caused this specific harm. No South African court has ever ruled on such facts.
Hager's deeper concern is the absence of clarity before any case arrives. She would rather see legal guidance emerge through legislation or judicial clarification than through the slow, painful process of real families becoming test cases.
Dr Lesley Bamford of the national health department frames the same problem in epidemiological terms. High vaccination coverage creates a community shield; when it falls, that shield weakens, and unvaccinated children become both vulnerable and potential vectors for others — infants too young to be vaccinated, people whose immune systems cannot tolerate vaccines. Bamford notes a bitter irony: the very success of immunisation programmes breeds complacency, because the diseases they prevent have largely vanished from living memory.
The government has not moved toward mandatory vaccination, citing enforcement difficulties, unequal access, and the political costs of a debate that could distract from the practical work of maintaining effective programmes. And so South Africa waits — vaccination rates falling, legal questions unanswered, experts hoping that clarity arrives before necessity forces it.
The question arrived quietly, without fanfare: what happens when a parent's choice not to vaccinate their child harms someone else? It is a question South African law has not yet answered, and as immunisation rates slip across the country, the gap between that question and its legal resolution is beginning to feel urgent.
Vaccination coverage has fallen sharply in two of the country's most populous provinces. In Gauteng, the rate for infants under twelve months dropped from 83 percent to 75 percent. In the Western Cape, it fell further still, to 67.4 percent. These are not marginal declines. They represent thousands of children now moving through their first year of life without the protection that routine immunisation provides against diseases that once killed routinely and indiscriminately.
Dr Liesl Hager, a legal scholar at the University of Pretoria's department of private law, has spent time thinking through what the law might say about this situation. Her conclusion is measured but significant: parents do have the right to refuse vaccination for their children. That right sits within the broader scope of parental autonomy, the legal space in which parents make medical decisions on behalf of minors. But that right, she argues, is not absolute. It carries consequences if the decision to refuse vaccination results in harm to another person—another child, an adult, someone whose own medical circumstances make vaccination impossible.
Consider a concrete scenario: an immunocompromised child who cannot be vaccinated for medical reasons contracts a preventable disease from an unvaccinated child whose parents made an active choice against immunisation. Under South African law of delicts—the civil law governing wrongful harm—could the parents of the unvaccinated child be held liable? In theory, Hager says, yes. If all the legal requirements for civil liability were present, a claim could be brought. But theory and courtroom reality are not the same thing. The barrier is causation. A claimant would need to present scientific evidence proving that the unvaccinated child was the source of infection, that this specific child caused this specific harm. The chain of transmission would need to be established with legal certainty. South African courts have never ruled on a case with these exact facts. The law remains silent.
Hager's concern is not primarily about litigation itself but about the absence of clarity before litigation arrives. She would prefer that legal guidance emerge proactively, through legislative or judicial clarification, rather than through the grinding process of contested cases. Waiting for courts to rule means waiting for real people to be harmed, for real families to become test cases.
Dr Lesley Bamford, a child health specialist at the national health department, frames the problem in epidemiological terms. When vaccination coverage is high, herd immunity functions as a community shield. Diseases cannot circulate easily because most children are protected. When coverage falls, that shield weakens. Unvaccinated children become vulnerable to infection, and they become vectors for transmission to others—to infants too young to be vaccinated, to people whose immune systems cannot tolerate vaccines, to the broader community. The success of vaccination programmes, Bamford notes, contains the seeds of complacency. Because polio and measles and other serious childhood illnesses have largely disappeared from view, people forget why they were feared. The programmes become victims of their own success.
Yet the government has not moved toward mandatory vaccination, and Bamford outlined the reasoning. Enforcement would be difficult. Access remains unequal across communities, and making vaccination compulsory would not solve that underlying problem. There is also a political calculation: mandatory vaccination invites legal challenge and public debate that can distract from the actual work of building and maintaining an effective immunisation programme.
So the country sits in a legal and epidemiological space that is increasingly uncomfortable. Vaccination rates are falling. The vulnerability of unvaccinated children is rising. The law offers no clear answer about what happens when that vulnerability results in harm to others. And the experts are watching, waiting, hoping that clarity comes before necessity forces it.
Notable Quotes
Parents have both the right and the responsibility to make medical decisions on behalf of their minor children, but that right is not without consequences if it causes legally recognised harm to others.— Dr Liesl Hager, University of Pretoria
When vaccination coverage declines, not only does the risk to individual children increase, but diseases are also more likely to spread throughout the community.— Dr Lesley Bamford, national health department
The Hearth Conversation Another angle on the story
Why does it matter whether the law is silent on this? Couldn't parents already be sued for negligence if their child infects someone?
The silence matters because it means there's no established legal framework. A parent might argue they were exercising legitimate parental rights. A court would have to decide whether that right extends to knowingly exposing others to preventable disease. That's not settled law.
But surely if you knowingly do something that harms someone, that's always actionable?
In principle, yes. But you have to prove the harm was foreseeable, that the parent acted negligently, and crucially—that this specific unvaccinated child caused this specific infection. That last part is the wall. How do you prove which child gave measles to which other child?
So it's almost impossible to win such a case?
Not impossible, but very difficult. You'd need epidemiological evidence, contact tracing, genetic sequencing of the virus itself. It's technically possible but practically hard. That's why Hager wants legal guidance now, before someone has to go through that.
What does the government actually want to happen?
They want high vaccination rates, but they don't want to mandate it. They're worried that forcing it creates legal battles and public resistance that actually undermines the programme. They're betting on persuasion rather than compulsion.
And is that working?
No. The rates are falling. So there's a gap between what the government wants and what's actually happening on the ground.