The wait is finally over! South Africa’s vaccination roll-out plan is expected to go into overdrive shortly.
However, in recent weeks it has been widely reported in the media that people have experienced severe side-effects, ranging from allergic reactions to blood clots, after receiving Covid-19 vaccines.
Legal Position Elsewhere
But who is to blame if someone develops side-effects to the Covid-19 vaccines? Countries around the world have already given the big pharmaceutical companies immunity should something go unintentionally wrong with their vaccines. Many of these countries, including England, have in place state compensation schemes. The structure of schemes vary across jurisdictions. Some are “no-fault”, meaning the first hurdle in proving the state was negligent in providing the vaccine is removed.
Legal Position in South Africa
What is the position in South Africa? Cooperative Governance and Traditional Affairs (CoGTA) Minister, Dr Nkosazana Dlamini-Zuma, has invited the public to comment on the draft regulations of the COVID-19 Vaccine Injury No-Fault Compensation Scheme. The purpose of the scheme is to provide expeditious and easy access to compensation for persons who suffer vaccine injury as a consequence of a Covid-19 vaccine being administered. Only persons who have suffered a vaccine injury caused by the administration of a Covid-19 vaccine, that is registered or approved by the South African Health Products Regulatory Authority and administered at a facility in South Africa, will be eligible for compensation.
In line with a Cabinet decision, an adjudication panel and an appeal panel to deal with the adjudication of claims will be established. The adjudication and appeal panels are expected to have suitably qualified medical and any other relevant experts to assess claims under the scheme.
The Cabinet member responsible for Health, in consultation with the Cabinet member responsible for Finance, must issue directions specifying the amounts and structure of compensation that will be provided under the scheme.
A person who claims to have suffered harm, loss or damage arising from a vaccine injury may not institute a claim through a court process against the National Government or any Provincial Government—
(a) until the claim has been adjudicated by the relevant panel; and
(b) unless the person is dissatisfied with the outcome of the adjudication or the amount awarded, and the person has lodged an appeal and the appeal has been determined by the relevant decision-maker.
A claim for damages through a court process arising from a vaccine injury may not be brought against the vaccine manufacturer but only against the National Government and to the extent that the National Government granted an indemnity to the manufacturer of the vaccine under the vaccine procurement agreement in terms of which the vaccine dose that was provided to the person was obtained.
Problems With State Compensation Schemes
Historically we have seen that compensation awarded under state compensation schemes has been very low compared to court awarded compensation, following actions instituted against government arising from their common law duty of care.
Many state compensation schemes are also poorly administered. We should look no further than the Workers’ Compensation Fund (“the Fund”) for proof of this. The Fund has regularly received the worst possible findings by the Auditor General. Injured and sick workers have to wait long periods, usually years, for their claims to be settled and payments to begin.
The limited time afforded to comment on the draft COVID-19 Vaccine Injury No-Fault Compensation Scheme has already lapsed and the Bill is expected to be gazetted shortly.
Only once further regulations have been published, will South Africans have clarity on the amount and structure of compensation that will be provided under the Scheme.