Justin Pearce
The South African Police Services are to face a court=20 challenge over the exclusion of people with HIV=20 infection from the force. Police unions and human=20 rights law organisations have filed papers in the=20 Transvaal Supreme Court arguing that SAPS policy of=20 pre-employment HIV testing is discriminatory in that it=20 excludes people with HIV from performing work which is=20 within their capabilities.
The applicants — who include both the Police and=20 Prisons Civil Rights Union and the South African Police=20 Union — are to contest the case on the basis of the=20 anti-discrimination provisions of the Constitution.=20 Other applicants are the Aids Law Project of the=20 University of the Witwatersrand, Lawyers for Human=20 Rights, and the Black Lawyers’ Association. Both the=20 Minister of Safety and Security and the Commissioner of=20 Safety and Security are named as respondents.
While SAPS policy on HIV has previously been vague, a=20 proposed new regulation seeks to clarify the situation=20 — and does so by requiring that new recruits to the=20 force have tested negative for HIV. This requirement is=20 lumped together with a general requirement that a=20 recruit “be free from any mental or physical defect,=20 disease or infirmity which will probably interfere with=20 the proper execution of his duties or necessitate=20 retirement from the service before reaching a=20 pensionable age”.
The applicants argue that HIV infection itself does=20 not prevent employees from carrying out normal duties.=20 They also make the point that an uninfected recruit=20 could well retire voluntarily before reaching=20 pensionable age — and argue that it is therefore=20 discriminatory to assume that people with HIV are=20 likely to retire sooner.
The applicants also present medical evidence to the=20 effect that HIV cannot be transmitted in the course of=20 normal police duties.
The documents filed in response by the SAPS contain all=20 the force’s policy directives on Aids and HIV since=20 1988. The first document — a memorandum from the then=20 Commissioner of Police RTJ van Vuuren to the then=20 minister, Adriaan Vlok — does not consider the=20 possibility of police employees having HIV, but=20 concerns itself with the problem of “Vigs-besmette=20 terroriste (Aids-infected terrorists)” infiltrating=20 South Africa.
At the bottom of the typed document is Vlok’s=20 handwritten comment: “Baie dankie — dit is goed=20 gedoen! Hoeveel van die terros wat ons tans aankeer het=20 Vigs? (Thank you and well done! How many of the terros=20 whom we are now apprehending have Aids?)”
A 1990 SAP document indicates that when a member of the=20 force is found to have HIV, there should be enquiries=20 into the kind of behaviour which caused the person to=20 become infected. If there is reason to believe that the=20 infected person has been guilty of “onsedelike gedrag=20 (sexually immoral behaviour)” or drug abuse, a=20 disciplinary enquiry may be initiated. If, however, the=20 member of the force does not appear to have contracted=20 the virus as a result of “wangedrag (misbehaviour)”, a=20 medical enquiry should determine whether the person is=20 fit to remain in the force.
More recent SAPS documents state that discrimination=20 against people with HIV is unacceptable. The applicants=20 in the court case contend that the SAPS’ policy of pre- employment testing runs contrary to this principle of=20