Pretoria - The SA National Defence Force has been accused of brazenly ignoring a court order granted six years ago and their own regulations which declare any discrimination against HIV-positive applicants unconstitutional.
Two women recruits whose contracts were cancelled because they tested HIV-positive joined forces with civil rights organisation Section27, the SA Security Forces Union and SA National Defence Union in taking the SANDF to court for unfair discrimination.
The two women had undergone two years of training before their contracts were cancelled because of their HIV status.
The SANDF's present policy excludes candidates with HIV or other chronic health conditions from qualifying for the military's health classification, which automatically denies them admission into the SANDF's Core Service System and Military Skills Development System without taking into account individuals' actual state of health or competency to perform their jobs.
Three Defence Force members in 2008 successfully took the SANDF to court for failing to promote, externally deploy or recruit them because of their HIV-positive status.
The court then found that the SANDF policy unreasonably and unjustifiably infringed on the rights of aspirant and current HIV-positive members and ordered the SANDF to rectify its policy and reinstate one of the applicants.
The order was granted by consent after a settlement and the SANDF never tried to lodge an appeal and had no option than to comply.
The SANDF in court papers admitted the discriminatory practice but claimed it was justifiable.
Counsel for the applicants, Gilbert Marcus SC, argued that the SANDF was trying to re-litigate a 2008 case they had already lost, which was a clear abuse of the court process.
He said the previous court order was quite unambiguous and required the SANDF to formulate a new HIV policy because its existing policy not to recruit, deploy or promote anyone with HIV was unconstitutional.
He said the SANDF had simply not set out sufficient reasons to justify its continued blanket exclusion policy against HIV-positive recruits.
While the health status and fitness of candidates were relevant for certain military positions, the exclusion simply based on HIV unfairly discriminated against persons living with HIV and was not based on scientific facts about HIV and the treatment thereof.
It assumed without proof that all persons with HIV could not work under harsh conditions, he added.
Marcus said the SANDF unashamedly adopted the policy that HIV automatically excluded one from the required health classification.
It was in striking contradiction to the SANDF's own policy because they did not dismiss HIV-positive members and recognised that they could be healthy and could be deployed.
He said the irony was that one of the applicants in the 2008
application was the actual trainer who trained others to be deployed and was extremely fit, yet was denied employment.
One struggled to be polite about the SANDF's contention that there were circumstances which justified a departure from a court order and putting one's own interpretation on it, he argued.
Judge Piet Meyer remarked that it did not seem as if the SANDF had formulated a new HIV-policy in terms of the court order.
Meyer said it made sense that a cook, for example, did not need to be as fit as a foot soldier.
Marcus argued that prejudices against HIV still existed and that this fresh instance of discrimination flouted the Constitution and had a devastating impact as it denied people living with HIV the right to earn a living.
Counsel for the SANDF Danie Preis SC argued that the discrimination was justifiable.
“An army cannot function in a vacuum, nor is it there to placate the masses and stroke the bristling feathers of those who feel they have been slighted.
“The defence force of any country has the singular and sometimes unenviable task of standing in the frontline and defending a country against those who wish to do it evil.
“To this end, it is quite appropriate to state that any defence force must consist of the fittest, the healthiest and the best that a country has,” he said.
Preis said subsequent to the 2008 judgment, the SANDF now deployed HIV-positive persons and they were being promoted, giving effect to the court order.
He said because of changing circumstances, the defence force now had more applicants than posts and could pick and choose among the fittest.
“They (HIV-positive persons) have an incurable disease for which they must take medication regularly.
“Because of the downsizing of the SANDF there are fewer positions available and the defence force is obliged to turn away people who have no illnesses at all.
“Persons with an underlying difficulty, who are not completely healthy, are turned away.
“The SANDF can pick and choose. It does not have to choose someone who may be defective in some way,” he said.
Judge Meyer wanted to know if he was suggesting that “a most brilliant lawyer” with HIV ought to stand back for a far inferior lawyer and if it was suggested that people with HIV could not be the fittest.
Preis said this was not so, but argued that people with HIV were “more expensive” as their treatment was expensive.
“It is a problem for the budget of the SANDF.... An analysis on the causes of death in the SANDF shows that 33.4 percent of deaths are HIV or Aids related.
“At the end of the day we know it's an incurable disease. We know it often becomes full blown Aids. These people must be cared for and become prohibitively expensive to care for.
“The defence force wanted to avoid the problem, which may only manifest itself years later.
“That's as good as it gets with regards to justification,” he said.
Judge Meyer reserved judgment.