Defence force’s HIV policy challenged
PRETORIA: The policy of the SANDF to exclude people who are HIV-positive from obtaining employment in the force, is unconstitutional, the North Gauteng High Court has been told.
The Aids Law Project (now part of the NGO Section 27), a former member of the SANDF whose contract was not renewed because she contracted HIV, and the South African Security Forces Union, turned to court to force the SANDF to comply with a previous court order prohibiting it from discriminating against HIV-positive employees.
In 2008 the court handed down an order declaring that the SANDF’s HIV testing policy at the time – in terms of which no person who is HIVpositive could be recruited, deployed externally or promoted – was unreasonable.
Advocate Gilbert Marcus SC, argued that, six years later, the SANDF continued to exclude new recruits solely on their HIV status. He said this is done regardless of their actual state of health, the job performed and contrary to the previous court order.
“The main purpose of this application is to put an end to this unlawful conduct once and for all,” he told Judge Piet Meyer.
He argued that the SANDF required every new recruit to undergo the G1K1 health classification as a prerequisite for admission to the military skills development system and the core service system.
There is no dispute as to the effect of this requirement on job applicants with HIV, Marcus said. He added that the blanket ban on the employment of people with HIV was unlawful and in breach of the previous court order.
He added that the SANDF discriminated against these people without establishing whether they could do their jobs as well as anyone else.
“An organ of state, such as the SANDF, has to respect the Bill of Rights. Yet, what you are seeing is a flouting of these principles.”
The SANDF, on the other hand, said while it did discriminate against such prospective recruits, this was admissible. Judge Meyer was told that not only do ill soldiers cost the SANDF money, the latter can now pick and choose who it wants to employ and it would thus choose the healthiest and fittest.
Advocate Danie Preis SC, admitted that in prescribing the G1K1 classification as a prerequisite for admission, there is discrimination against those who do not qualify. This will include not only HIV candidates, but everyone else with chronic ailments and those with physical or mental handicaps.
In the past six years, the SANDF had received more applications than there were posts, and it could “choose from the very best candidates”.
This prompted Judge Meyer to say that the SANDF had many disciplines, such as employing lawyers, clerks and mechanics. He said while he could understand a foot soldier had to be fit, there were other spheres of the army where other people could be used.
Preis responded that people with HIV cost more and the SANDF does not want to incur this expense.
Preis concluded that the SANDF is complying with most of its obligations, as it deployed HIV-infected soldiers already in its employ as well as promoted them.
The case continues.