After facing legal action, the SANDF decided to re-employ a recruit who was denied employment solely on the basis of her HIV status.
In 2021, Section27 was approached by a client seeking assistance after the SANDF denied her employment because of her HIV status.
After engaging with the SANDF for more than two years to resolve the matter and a court application that was eventually withdrawn after the SANDF capitulated, the recruit was finally re-employed in December.
In welcoming the decision, Section27 said the SANDF discriminating against people living with HIV had been a long-standing issue.
Together with their partners, Section27 and the Aids Law Project have been campaigning and litigating against the practice since the early 2000s.
“Despite court judgments, our advocacy efforts and the availability of medical evidence on HIV, the discrimination persists,” the public interest law centre said.
It said that initially, the client had been recruited into the Military Skills Development System (MSDS) under a two-year fixed term contract in 2017. In 2018, during a comprehensive health assessment, which had included an HIV test, she had received a positive test result.
Despite years of diligently taking her antiretroviral treatment, maintaining good physical health and doing well in her training, she was not offered a contract in the Core Service System (CSS) after the completion of the MSDS training in December 2018.
All the other recruits who, like her, completed the MSDS programme and maintained a good disciplinary record were offered a contract.
In September 2021, the woman approached Section27 for assistance in asserting her rights and obtaining a contract in orderto work in the CSS.
From then onwards, they engaged with the SANDF on the matter. In April 2023, the SANDF finally made an undertaking to re-employ her but there was a prolonged delay before she was offered a contract.
Section27 said it had to threaten litigation before its client was finally offered an employment contract in the CSS in December.
HIV discrimination by the SANDF is not a new issue. In the 2008 South African Security Forces Union and Others versus Surgeon General and Others case, the Gauteng High Court, Pretoria held that the SANDF’s health classification policy which excluded people living with HIV from recruitment, deployment and promotion was unconstitutional.
The policy was reviewed and set aside. Yet six years later, in 2014, SANDF members living with HIV had to take the SANDF to court again, this time in the Dwenga and Others versus Surgeon General of the South African Military Health Service and Others case, for unfair discrimination.
The court held that while the SANDF’s policy had been changed, the way it was being implemented amounted to the same discrimination that was held to be unconstitutional and a violation of the rights to dignity and equality.
Despite the two judgments declaring that the SANDF’s blanket exclusion of people living with HIV from recruitment, deployment and promotion was unconstitutional, the SANDF appeared to persist in its unfair discrimination against people living with HIV, infringing on their rights to dignity and fair labour practices, Section27 said.
“While we welcome the decision of the SANDF to re-employ our client in this case, she should not have had to spend five years unemployed because of the SANDF’s disregard for the law and her rights.”
It added that the SANDF was bound by the law that prohibited discrimination against people living with HIV.
Section27 called on the SANDF to comply with its obligations and immediately stop the unfair discrimination against people living with HIV.