SANDF refuses to march to court tune

The South African National Defence Force will continue to reject applicants who are HIV positive until an appeal on the matter is decided.

The SANDF has decided to appeal a judgment made in the Pretoria high court last month, in which Judge Meyer Joffe ruled that the discriminatory practice was unlawful.

He condemned the SANDF’s continued blanket ban on recruiting “anyone and everyone who is living with the human immunodeficiency virus” despite a court-sanctioned agreement with the SANDF six years ago that found this practice unconstitutional.

Section27 and two defence force unions took the SANDF, the surgeon general, the South African Military Health Service and several other respondents to court in a bid to have what it views as unconstitutional practices overturned.

Mark Heywood, executive director of Section27, told the Mail & Guardian that HIV was treatable, which gave the SANDF no grounds to discriminate against recruits.

He said the SANDF’s decision to appeal the ruling was a waste of taxpayers’ money because it was bound to lose. The SANDF was repeatedly asked for comment, but failed to respond.

“We are shocked by the SANDF’s intentions to appeal this matter, particularly in light of its own policy and the existing jurisprudence.

“This clearly demonstrates a complete disregard for the rights of people living with HIV,” Heywood said.

Judge Joffe said the SANDF had issued new internal policies that were in line with the Constitution, and stipulated that when deploying HIV-positive members the most vital criteria was his or her fitness to perform duties, without any additional risk to health.

“It is clear from the new policy that new recruits who are HIV positive are not thereby automatically excluded,” according to the judgment.

In its answering affidavit, the SANDF argued that, because it was able to choose between applications, it eliminated those unsuitable to posts, and the starting point was the health examination.

Judge Joffe said it was “vexatious and frivolous and an abuse of process” for the SANDF to seek to argue the same issues that had been thrown out in the previous court order.

He said there was no evidence to suggest that its requirement of recruiting the best staff required a blanket exclusion of all HIV-positive candidates.

In his decision, Judge Joffe said the SANDF had to appoint two applicants, Andisiwe Dwenga and an unnamed person.

A punitive cost order was also ordered against the SANDF.

Heywood said Section27 did not oppose HIV testing, as long as this was just one aspect of health assessments, and was required in risky situations, such as surgery.

He argued the SANDF should assume that everyone was HIV positive and treat each case with equal caution.

Section27 is also pursuing a similar case involving SAA.

Discrimination against people with HIV was not specific to public departments, he said. They were also seeing more of these cases in the private sector.

“More importantly, following the the SANDF case, more people have come forward with their cases,” said Heywood.

“This has largely been as a result of the exposure from the case and the success in court.”

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