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Army’s HIV policy unconstitutional, court hears

Resource type: News

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Pretoria, South Africa

It is impossible to have an HIV-free South African National Defence Force (SANDF) and a defence-force policy discriminating against people with HIV is unconstitutional, the Pretoria High Court heard on Thursday.

The Aids Law Project, acting on behalf of the South African Security Forces Union (SASFU) and individual members of the SANDF, brought an application to force the SANDF to change its policy preventing HIV-positive persons from being hired, deployed externally or being promoted in the armed forces.

“It is simply impossible to have an HIV-free SANDF,” advocate Gilbert Marcus, SC, acting for the applicants, told the court.

He asked the court to declare the blanket exclusion of HIV-positive people unconstitutional, order the appointment and promotion of individuals adversely affected by the policy, and order the SANDF to devise a new policy within six months.

He argued that people should be assessed individually, since someone who was HIV-positive was not necessarily sick.

“HIV should not be the benchmark — the benchmark should be how healthy you are,” he said.

“The stance of the SANDF is that people who are HIV-positive are by definition unfit and therefore excluded,” he added.

Marcus said the SANDF’s current policy was shot through with contradictions and anomalies.

“It assumes that HIV-positive status alone means that an HIV-positive person can, by definition, never be combat ready. This flies in the face of both the medical science and the SANDF’s own approach to, for example, internal deployment where those who are HIV-positive must also be combat ready.”

He said the policy also contradicted Cabinet and even SANDF instructions on the matter.

Following Marcus’ arguments, the office of President Thabo Mbeki, one of the respondents in the matter, indicated that the presidency no longer opposed the application and would abide by the court’s ruling.

This leaves the Surgeon General, Minister of Defence and the chief of the SANDF as the only respondents.

Their legal counsel was due to resume argument when the trail resumes on Friday.

The SANDF admits that its policy discriminates against HIVpositive persons but contends that the discrimination is fair, based on the special nature of the military.

A few hundred members of the Treatment Action Campaign were protesting outside the court on Thursday. They were demonstrating in support of an application saying implementation of SANDF policies was “irrational, unlawful and unconstitutional”. – Sapa

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South Africa


AIDS, AIDS Law Project, HIV, TAC, Treatment Action Campaign