Johannesburg - The SANDF is being dragged to court for allegedly failing to comply with a court order that prohibits it from discriminating against HIV-positive employees.
The SANDF’s old health classification policy excluded people living with HIV from recruitment, external deployment and promotion in the military.
In 2008, the Pretoria High Court declared the force’s HIV-testing policy unreasonably and “unjustifiably” infringed on the rights of aspirant members and existing HIV-positive members.
The Aids Law Project (now part of the NGO Section27) had challenged the SANDF’s blanket exclusion, regardless of a member’s fitness levels and actual ability to do the job.
This led to the adoption of a new and improved policy in 2009 which was meant to discontinue the blanket discriminatory policy.
On Tuesday, the North Gauteng High Court in Pretoria will hear arguments from lawyers representing three new applicants, joined by the SA Security Forces Union and the SA National Defence Union. They are challenging the alleged continuing discrimination of HIV-positive members within the navy.
Section27 is acting on behalf of the applicants.
The case is against the SANDF and surgeon-general of the military health service.
According to the applicants’ heads of argument, six years after the 2008 order the SANDF continues to exclude new recruits solely on the basis of their HIV status.
“It does so regardless of the applicant’s actual state of health, the job to be performed, and regardless of the order of the court,” the papers state.
The applicants have labelled the SANDF’s conduct “unlawful” and want to put an end to it through the court action.
According to the 2008 order, the SANDF was no longer allowed to refuse to recruit, deploy externally or promote any person solely on the basis of their HIV-positive status.
The applicants also argue the SANDF’s insistence on the use of the G1K1 health prerequisite for admission to the Military Skills Development System (MSDS) and the Core Services System could be considered a breach of the 2008 order.
G1K1 is a health classification used to show one has no underlying medical condition, and is therefore ready to be deployed locally and internationally.
In responding papers, the military accepts that in prescribing the G1K1 classification as a prerequisite for admission to the MSDS and the CSS, there is discrimination for those who don’t qualify.
“At present this means all candidates with HIV or other chronic ailments and diseases, as well as persons with debilitating physical or mental handicaps,” their responding papers state.
They argue that for the past six years, the SANDF has been “oversubscribed”, with more applicants than posts available.
“The respondents have therefore been in the position for the past six years of being able to pick and choose from, quite literally, the very best candidates…
“The respondents therefore have to start eliminating recruits and the starting point is their health examination.”
They also state that the G1K1 classification is classified and a G2K1 classification is given to any person suffering from, for example, hearing loss and is not solely reserved for people with HIV.
The applicants argue that the military fails to deal with evidence that an adult with HIV, on antiretroviral (ARV) treatment when their CD4 count is above 200 and has been adherent for more than 24 months, has a “near-normal life expectancy”, compared to an HIV-negative person of the same age.
They also argue that the SANDF’s use of HIV status as an indicator of fitness is inconsistent with international policy for UN peacekeeping forces.
Andisiwe Dwenge, the first applicant in the matter, left the force last year after her contract wasn’t renewed. She contracted HIV in November 2011 and was due to progress from the MSDS to the CSS. She wants justice to be done.
“I was fit then, I am fit now and not on ARVs.”