On 15 and 16 May 2008, a ground breaking case on the constitutionality of HIV testing policies that are used to exclude ALL people with HIV from recruitment to, promotion or foreign deployment in the SA National Defence Force was heard in the Pretoria High Court.
The court was asked to declare the blanket exclusion unconstitutional, order the appointment or promotion of individual’s adversely affected by the policy and to order the SANDF to devise a new policy within six months.
In the case the AIDS Law Project (ALP) is acting on behalf of the SA Security Forces Union (SASFU) and three individual people with HIV who have been denied recruitment or promotion in the SANDF.
The case is the culmination of more than a decade in which the ALP has tried to engage with the SANDF on the fairness and legality of their policies on HIV. Despite this, in terms of the existing policy, anyone who tests HIV-positive – regardless of their actual health and qualifications — is automatically excluded from being employed, deployed or promoted within the SANDF.
Over the years, the SANDF has justified its HIV exclusion policy on grounds such as the following:-
- The military has a legal duty to protect the Republic and people with HIV undermine its ability to fulfill this responsibility;
- That people living with HIV are not suited medically or mentally and will therefore be unable to tolerate stress, physical exercise or adverse weather conditions.
- There is a need to keep HIV prevalence low in the military;
- HIV-positive people pose a risk to other soldiers;
- The need to comply with the United Nations regulations that they allege prohibit the deployment of people with HIV as peacekeepers.
Gilbert Marcus, SC, argued on behalf of SASFU that these stereotype and unfairly discriminate against people with HIV. The case showed that there is no medical evidence to justify a blanket ban on all people with HIV. Instead the effect of the policy is to stigmatize people and undermine HIV prevention, treatment, care and support within the SANDF. Finally, we argued that the policy is contrary to the National Strategic Plan of HIV&AIDS and STIs 2007-2011 and United Nations policy.
Court’s order, affidavits and both parties’ heads of argument (PDF versions)
Judgment– 16 May, 2008
Applicants’ Founding Papers – 14 May 2007
- Notice of Motion
- Founding affidavit of John Ndimande Hlatshwayo
- Affidavit of Mark James Heywood
- Affidavit of Sipho Mthethwa
- Affidavit of TCM
- Affidavit of ZSM
- Affidavit of AKM
- Affidavit of WDF Venter
- Affidavit of Leslie London
- Affidavit of Shuaib Ismail Manjra
- Affidavit of Dr. Brian Brink
- Affidavit of Philip Lehotla Moshokoa
- Affidavit of XM
- Affidavit of TMS
Applicants’ Supplementary Papers – 4 December 2007
Respondents’ Answering Papers
- Answering Affidavit of Lieutenant General Ramlakan
- Affidavit of Lieutenant Colonel Hallatt
- Affidavit of Corporal Goboza
- Affidavit of P N
- Affidavit of Prof. Viljoen
- Affidavit of Rupiya
- Affidavit of Brigadier General Dhlomo
- Affidavit of Baker
- Affidavit of Reynolds
Applicants’ Replying Affidavit
- Replying Affidavit of Mmagare
- Affidavit of Mthethwa
- Affidavit of T.C.M.
- Affidavit of Z.S.M.
- Affidavit of Dr Venter
- Affidavit of Prof. London
- Affidavit of Prof. Jenkins
- Affidavit of Greef
- Affidavit of Mvovo
- Affidavit of Elliott
- Affidavit of Schooley
- Affidavit of Banda
- Affidavit of A.K.M.
Respondents’ Supplementary Affidavit
Heads of Argument