SANDF court ruling victory for rule of law

The high court in Pretoria was asked to consider the case brought by Dwenga as well as another applicant who was HIV-positive against the South African National Defence Force, the Minister of Defence and the President of South Africa.

Dwenga and her colleague (referred to only as Applicant X) complained that they were refused employment in the defence force, despite passing entrance tests, simply because they tested HIV-positive, and they wanted to know what the court had to say about it.

The court’s answer was short and punchy. What part of ‘No’, don’t you understand? the court asked the defence force.

Judge PA Meyer said that the Dwenga case concerned the ‘continued blanket ban’ by the defence force on ‘the recruitment of anyone and everyone who is living with HIV’. He reminded the defence force that as recently as 2008 the high court made it absolutely clear that employment policies discriminating against HIV-positive candidates just because of their HIV status were unconstitutional and illegal.

And yet here was the defence force trying to re-argue the old dispute in Dwenga’s case. Given the history of the matter there was no way that the court would allow the defence force to come and argue the same case all over again, said Judge Meyer. The court had already said no, such policies were not lawful, and it was ‘vexatious and frivolous and an abuse of process’ for the defence force to try to argue the same disputed matter that had been settled by the courts more than six years ago.

He said that since the 2008 case a new directive and instruction had been issued by the defence force said to be taking the court ruling into account. But the way the new policies were being carried out was ‘no different’ from the policy that the courts had previously found to be unconstitutional.

This was because the defence force had decided that it would only employ or promote people with a G1K1 health rating – and if you were HIV-positive you were automatically excluded from that health rating, regardless of the actual state of your health or fitness.

In the papers filed by the defence force for the Dwenga case it said it ‘accepts’ that making a G1K1 classification the basis for employment discriminated against everyone not reaching this classification including ‘all candidates with HIV or other chronic ailments and diseases as well as persons with debilitating physical and mental handicaps’.

The defence force tried to justify this policy by saying that there were too many people wanting to join the defence than there were posts available and they had to find a way of ‘excluding all but the very best’.

The defence force also said that it knew it had to obey court orders but, its lawyers argued, the defence force was entitled to apply its interpretation of the court’s order. Commenting on this proposition the judge said it was ‘an amazingly brazen attitude’ to adopt.

The defence force itself recognised that someone with HIV may ‘remain fit and healthy’ and it put up no evidence to suggest that the required health standards couldn’t be achieved by someone with HIV.

As to the ‘budget problems’ that the defence force complained about, and the ‘burden’ put on it by people needing chronic medication, the court said this was ‘no good reason’ for its refusal to recruit people with HIV: The state had accepted its duty to provide access to HIV medication in the public health system and it therefore covered the costs whether the medicine was obtained via the public health system or the defence force itself.

The judge said the exclusion by the defence force of everyone who was HIV-positive, regardless of their health, fitness and ability to perform their duties, was ‘an assault on their dignity’.

What was the court to do about the situation of Dwenga and her colleague? Judge Meyer made an order that they both had to be offered employment by the defence force of the same kind of work as they would have been contracted to perform if they were not HIV-positive.

The court also ordered that the G1K1 classification as a basis for employment and promotion had to be scrapped. Instead the defence force must apply a different policy: people who are HIV positive cannot be refused employment simply because of their HIV status. Each one who is HIV-positive must be individually assessed to determine the state of his or her health.

And then came another serious ‘klap’: the court awarded a punitive costs order against the defence force. Because it didn’t comply with the 2008 court order and had in addition been ‘vexatious and frivolous’ by trying to re-argue the whole matter, the defence force was ordered to pay the costs of the case – both of Dwenga and of the defence force itself.

Among these costs will be the costs of six advocates – three hired by the defence force and three by Dwenga on the other side – and everyone knows that advocates don’t come cheap.

Will this case finally be enough to make the defence force change its practice rather than paying lip service to the constitution? Expect even more judicial fireworks if there isn’t an immediate, radical change along the lines spelled out by the court in 2008 and again in this matter.

As for the future: this case will be quoted not just on whether discrimination against people with HIV is allowed; it will also be quoted in completely different cases where a party has not obeyed a court order - and then tries to justify its continued disobedience. There’s a very clear warning in the Dwenga case that if this happens a court will not allow the ‘disobedient’ party to re-argue a matter that has been settled, and that there will be dire financial consequences too.

See also People with HIV should be able to fight for their country.