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2008 SERIES

EPISODE 26 - Human Rights

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Don't let HIV attack your Constitution.

The reaction to HIV/AIDS in our country has at its root been in contravention of many of the inalienable human rights defined in our constitution. Public health policies for the prevention, education and treatment of HIV/AIDS should take into account respect for human rights as core to the challenge of HIV/AIDS.  This week Siyayinqoba Beat It! tackles this issue of basic human rights within the framework of HIV/AIDS. One of these issues is the way people with HIV are treated in their work environments. Skhumbuzo Maphumolo from the AIDS Law Project joins the support group in the studio.

Our first insert takes us back to the year 2000 when Mr Hoffman was denied employment by SAA on the ground of his HIV positive status.  We hear Mr Hoffman's story and see what the Constitutional Court in our country has done to ensure that this sort of discrimination cannot happen again. The Employment Equity Act ensures that all workers have equal rights in terms of employment irrespective of their HIV statuses. Back in the studio Skhumbuzo takes us through the various legal details involved in the case and explains the impact this judgment has on other people living with HIV and what rights they have. Essentially an employer cannot insist that potential employees have to undergo an HIV test and then deny them a job based on the results of the test. The panel also discusses the various cases that can be put forward to the Constitutional Court.

The Pretoria High Court has recently ruled against the National Defense Force's policy of refusing to employ soldiers living with HIV and our next insert looks more in depth at this situation. The SANDF for years refused to change its policy until they were taken to the High Court.  We meet Sipho Mthethwa who joined the defense force in 1994 and contracted HIV in 1999 and the army still refuses to deploy him on an international basis.  This has had the effect that many soldiers won't go for an HIV test for fear of losing their livelihood. The military still refuses to deploy soldiers living with HIV beyond our borders but have no problem sending them to high-risk malaria areas within our country. Their case that HIV makes a soldier less effective in terms of his health seems flimsy at best and the struggle continues.  The bottom line is it is illegal and unconstitutional for your employer to discriminate against you for whatever reason including your HIV status, and everyone in this country must be aware of his or her rights in order to have those rights realized in the work place.

IT'S A FACT

SAA vaccinated against HIV discrimination

Sipho Mthethwa

Skhumbuzo Maphumulo

South African National Defence Force soldiers

 

 

 In a constitutional democracy like South Africa, the Constitution is the supreme law of the land.
This means that any law can be judged against the requirements of the Constitution.
Even Parliament and the state president are answerable to the Constitution.
If the Constitutional Court finds that a law or regulation does not comply with the Constitution, it can force an amendment.
The Constitution does not only apply between citizens and government, but also between other civil bodies such as companies and individuals.
In 2000, when Mr Hoffman was refused employment by South African Airways (SAA) on grounds of his HIV status, he fought the case all the way to the Constitutional Court.
The Court ruled that it was unfair discrimination to refuse employment on grounds of HIV status.
Section 27 of the South African constitution recognises the right for everyone to have "access to sufficient water". The government must take steps, within its available resources, to achieve "the progressive realisation" of rights to water.
If an employer feels that HIV status is relevant criteria in excluding someone from employment, the employer needs to obtain a special declaration from the Labour Court.
Very few such determinations have been made.
The South African National Defence Force (SANDF) and the National Intelligence Agency (NIA) were exempt from the non-discrimination provisions of the Labour Relations Act and the Employment Equity Act.
This meant that Mr Hoffman's victory, which ensured non-discrimination, did not apply to the SANDF and the NIA.
Due to their HIV status, many people were refused employment by the SANDF and many soldiers were refused deployment outside of South Africa's borders.
Using the Constitution, an HIV positive soldier challenged the SANDF. He claimed that their exemption from the provisions of the Labour Relations Act and the Employment Equity Act, in regards to HIV status, was illegal. The soldier won his case in the Pretoria High Court.

The SANDF declined to appeal the ruling, thus making the judge's order final.

In South Africa, no employer may require a pre-employment HIV test, nor exclude an employee from any benefit or promotion, on grounds of their HIV status.