SECTION27 welcomes the decision by the South African National Defence Force (SANDF) to re-employ a recruit who was denied employment solely on the basis of her HIV status. In 2021, SECTION27 was approached by a client seeking assistance after she was denied employment by the SANDF because of her HIV status. After over two years of engaging with the SANDF to resolve the matter and a court application that was eventually withdrawn after the SANDF capitulated, our client was finally re-employed in December 2023.
Discrimination against people living with HIV by the SANDF has been a longstanding issue in South Africa. Together with partners, SECTION27 and the AIDS Law Project have been campaigning and litigating against this practice since the early 2000s. Despite court judgments, our advocacy efforts and the availability of medical evidence on HIV, the discrimination persists.
Our client was initially recruited into the Military Skills Development System (MSDS) in terms of a two-year fixed term contract in 2017. In 2018, during a comprehensive health assessment, which included an HIV test, our client received a positive test result.
Despite years of diligently taking her antiretroviral treatment, maintaining good physical health, and doing well in her training our client was not offered a contract in the Core Service System (CSS) after the completion of the MSDS training in December 2018. All the other recruits who, like her, completed the MSDS program and maintained a good disciplinary record were offered a contract.
In September 2021, the client approached us for assistance in asserting her rights and obtaining a contract in the CSS. From then, we engaged with the SANDF on the matter. In April 2023, the SANDF finally made an undertaking to re-employ our client but there was a prolonged delay before our client was offered a contract. SECTION27 had to threaten litigation before our client was finally offered an employment contract in the CSS in December 2023.
HIV discrimination by the SANDF is not a new issue. In the 2008 South African Security Forces Union & Others v Surgeon General & Others (SASFU) case, the Gauteng High Court, Pretoria held that the SANDF’s health classification policy which excluded people living with HIV from recruitment, deployment and promotion was unconstitutional. The SANDFs’ policy was reviewed and set aside. Yet six years later, in 2014, SANDF members living with HIV had to take the SANDF to court again in the Dwenga & Others v Surgeon General of the South African Military Health Service & Others case for unfair discrimination. The court held that while the SANDF’s policy had been changed, the way it was being implemented amounted to the same discrimination which was held to be unconstitutional and a violation of the rights to dignity and equality, amongst others, in SASFU.
Despite the two judgments declaring that the SANDF’s blanket exclusion of people living with HIV from recruitment, deployment and promotion is unconstitutional, the SANDF appears to persist in its unfair discrimination against people living with HIV, infringing on their rights to dignity and fair labour practices. While we welcome the decision of the SANDF to re-employ our client in this case, she should not have had to spend five years unemployed because of the SANDF’s disregard for the law and her rights.
The SANDF is bound by the law, which prohibits discrimination against people living with HIV. We call upon the SANDF to comply with its obligations and immediately stop the unfair discrimination against people living with HIV.
For media queries, contact:
SECTION27: Pearl Nicodemus | nicodemus@section27.org.za | 082 298 2636
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