Monday 17 June

On the 8th of June 2011 the Kwazulu-Natal High Court handed down judgment in the case of Langalakhe Ncengokwakhe Njoko v Minister of Safety and Security. In the judgment the court accepted evidence of Professor Francois Venter, President of the HIV/AIDS Clinicians Society, on the life expectancy of people living with HIV who are on anti-retroviral treatment.

This case was brought before Lopes J to assess the amount of damages that should be awarded to Mr Njoko as a result of him having been unlawfully shot by a police officer acting in the course and scope of his employment for the South African Police Service. Mr Njoko was seriously injured, and effectively left without the use of his right arm. He therefore claimed compensation for future medical expenses and loss of past and future income.

In quantifying the compensation that could be awarded to Mr Njoko for his loss of future earnings, the court had to consider his life expectancy. Accepting Professor Venter’s evidence the court found that:  “… the effect of [Mr Njoko’s] HIV positive status would not have a negative effect on the plaintiff’s life expectancy and loss of future loss of earnings.  The plaintiff is presently 30 years old, and if one accepts the evidence of Professor Venter one would expect him to live for a period of 30 or 40 more years…”

The Court also acknowledged the evidence presented by  Professor Venter that: “the biggest danger to [Mr Njoko] is if he should, for any reason discontinue taking his medication.”

In his opening address at the South African National AIDS Conference held in Durban in June this year, Chief Justice Ngcobo commented that the fight against HIV/AIDS in South Africa has often been a fight against irrationality and an unwillingness of those in power to accept scientific evidence. In this light, this case is another reminder of how the climate around HIV has change.

SECTION27 believes that this case, while not setting any new precedents, may have important implications for other areas of law. In particular, it clearly brings into question the rationale behind the life insurance industry’s continued insistence to contract with HIV positive patients on markedly different terms to HIV negative patients, if at all. This is an issue that we believe requires on-going scrutiny and challenge.

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