KHOPOTSO: The founding affidavit in the case lists four applicants, which include the South African Security Forces Union (SASFU) as well as three military members. To protect their identities from the public the three are referred to using code names. They are SM, TCM and ZSM. Taking up their case is the AIDS Law Project. Nonkosi Khumalo is the litigating team’€™s spokesperson on the matter.

 

NONKOSI KHUMALO: We have an application of a comrade’€¦ SM’€¦ He is the combat readiness corporal in one base in KwaZulu-Natal. He actually trains soldiers who will be deployed. So, he’€™s the man responsible for making sure that they run, they do push-ups, they know how to carry a gun and shoot and those kinds of things’€¦ But he has, over time, been denied opportunities of being deployed. So, you can train people to go, but you can’€™t go because you’€™re defined as a person who has a chronic illness and cannot carry out responsibilities on deployment. We have another applicant’€¦ TCM. He wanted to be employed in the SANDF as a trumpeter, last year. He went to the auditions (and) qualified. He went to the interview (and) did well. (He) had to go for an HIV test (and the) results came back positive. He was then denied employment in the SANDF. But he had all the other skills and qualifications needed. The only thing that was considered to be amiss was his HIV status. We have an applicant, ZSM’€¦ He works at the HR department in one base in Durban. He has had recommendation letters for promotion. But (for) the fact that he is HIV-positive, he has been denied promotional vacancies within the SANDF.              

 

KHOPOTSO: Deputy General-Secretary of SASFU, Themba Hlatshwayo, says the three cases are examples of how one’€™s HIV status unfairly determines their chances of employability, deployment or promotion within the SANDF ‘€“ the very basis of the union’€™s litigation.    

 

THEMBA HLATSHWAYO: I think’€¦ what makes a soldier feel like he’€™s contributing meaningfully in this country is his promotion, it’€™s going and giving support to the front-line states or any other war-torn country to bring about peace, it is going on courses to accumulate military knowledge. Now what we basically are challenging is the fact that the HI virus in the Department of Defence is used as a stumbling block towards soldiers from achieving that innate need of contributing meaningfully in the country.          

 

KHOPOTSO: The union seeks to challenge five SANDF policies which it says discriminate against HIV-positive soldiers. These are implemented through what is known as the Comprehensive Health Assessment programme ‘€“ an annual medical examination – which includes physical, mental and audiometric tests to determine members’€™ levels of fitness. The assessment also requires that members should undergo an HIV test. Khumalo lists some of these policies.

 

NONKOSI KHUMALO: The SAMS Order of 1998, part of it basically says that’€¦ people who test HIV-positive’€¦ are, by definition, unfit for appointment as uniformed members; and then there’€™s the Civil Aviation Authority HIV/AIDS Guidelines’€¦ It basically says that you can be part of the Air-force and if you happen to test HIV-positive you’€™ll be given support and you will go on treatment, and these are the guidelines relating to that. But the practice is the opposite.  

 

KHOPOTSO: Another policy being challenged is the National Defence Force’€™s Manual of Medical Standards, which SASFU argues in court papers that it fails to take into account any medical and scientific advances in relation to HIV and AIDS. For over 13 years, SASFU and the AIDS Law Project have engaged the SANDF on the impact of its HIV policies on potential and existing military members. But talks haven’€™t led to the resolution of the matter.          

 

THEMBA HLATSHWAYO: The result is a blanket exclusion of HIV-positive people from employment, foreign deployments and promotions, regardless of their actual level of fitness, state of health and their job category or mustering’€¦ There is no basis for the assumption that HIV infection in itself renders a person physically unfit or mentally unstable.

                         

KHOPOTSO: Hlatshwayo says the case seeks to demonstrate that the policies are unconstitutional in that they violate rights to fair labour practices, privacy, dignity, administrative justice and that they unfairly discriminate against people living with HIV.

 

THEMBA HLATSHWAYO: The relief being sought by SASFU in this case is that the policies are reviewed and set aside on the grounds that they are unconstitutional; the court grants specific relief for the individual applicants with regard to employment, deployment and/or promotion; the court interdicts the SANDF from denying employment, deployment and/or promotion opportunities to candidates for employment or current members of the SANDF based solely on their HIV status; the SANDF immediately issues a directive to all military bases and relevant personnel to stop denying employment, deployment and promotion opportunities to candidates based on (their) HIV status only.          

 

                         

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