TAC Electronic Newsletter
24 October 2003
Contents
ALP STATEMENT ON HIV/AIDS IN THE SANDF
23
October 2003
The AIDS Law Project was pleased to note the comments made
by Cabinet yesterday about the SANDF's position on HIV/AIDS. In particular
the ALP was pleased to note that there is no government policy to exclude
individuals from the SANDF solely on the basis of their HIV status.
The ALP is however extremely concerned to note that despite this
pronouncement, the SANDF has however excluded and continues to exclude job
applicants with HIV from employment in the SANDF. The ALP is currently
dealing with a number of cases where this has occurred:
- Two soldiers who applied for employment in 1999, who fulfilled all other
requirements, including fitness tests, but who were refused employment solely
on the basis of their HIV status. In correspondence from the State
Attorney, acting on the instructions of the SANDF, the ALP was advised that
its clients had "tested sero-positive and therefore could not be considered
for employment in the South African National Defence Force". The ALP has
given the required statutory notice to the SANDF, indicating that it intends
to bring an application on behalf of the two men challenging their exclusion
on the grounds of their HIV status amounts to unfair discrimination;
- A young woman who applied for a position as a chaplain in the SANDF was
required to undergo an HIV test, and was refused employment solely on the
basis of her HIV status. The ALP has issued the required statutory
notice to the SANDF indicating that it intends to challenge the decision not
to employ her.
- A young woman applied for a position as a nurse in the SANDF and was
required to undergo an HIV test. The test result indicated a false
positive. The client has subsequently undergone two further HIV tests,
both of which are negative, but the SANDF has continued to refuse to employ
her on the basis of her HIV status. The ALP is also challenging this
case.
It is clear that, despite the Cabinet position, the SANDF
continues to practice a blanket policy of excluding job applicants with
HIV. The official policy of the SANDF on sexually transmitted diseases
including HIV, issued by the Surgeon-General, Lt Gen D P Knobel, explicitly
states that "sero-positive cases ? are by definition unfit for employment as
uniformed members?"
The ALP hopes that the statement by Cabinet will
clarify the confusion that appears to exist between Cabinet and the SANDF. The
ALP calls on Cabinet to instruct the SANDF to resolve the cases referred to
above without litigation and to ensure that its policies are immediately brought
into line with the Cabinet position.
[END OF SANDF STATEMENT - BACK TO CONTENTS]
ALP STATEMENT ON JUDGMENT IN KAREN PERREIRA V BUCCLEUCH
MONTESSORI NURSERY SCHOOL
22 October 2003
Judgement in
this matter was handed down today by Judge Lucy Mailula in the Johannesburg High
Court. The matter was argued fifteen months ago.
The facts
Karen Perreira applied to enrol her foster daughter,
Tholakele, at the Buccleuch Montessori Nursery School in January 2001. At
the time she made the application, she informed the principal of the school,
Lesley Heywood, that Tholakele is living with HIV. Although Ms Perreira
was advised that the school had three vacancies, she was told that a teachers'
meeting had taken place to discuss the possible enrolment of Tholakele, and that
serious concerns had been expressed about the readiness of the school to deal
with learners with HIV and also with concerns about the risks of HIV
transmission in the school setting. The school indicated that they wished
to defer Tholakele's application until she was three years old and "past the
biting stage".
The case
The AIDS Law Project, acting on behalf of Ms Perreira, took the
matter to the High Court on the basis that the failure to admit Tholakele on the
basis of her HIV status amounted to unfair discrimination in terms of section 9
of the Constitution. The matter was argued in September 2002.
The judgement
The court found that the school had indeed expressed
concerns about its readiness to deal with learners with HIV and the lack of
training undergone by its teachers in this regard. The court also found
that the school had therefore recommended that Tholakele's enrolment be deferred
for at least six months when she would be "past the biting stage". On this
basis, the court found that the school had not taken a final decision to exclude
Tholakele. The court therefore dismissed the application with
costs.
It is of deep concern to the AIDS Law Project and Ms Perreira that
this judgement seems to suggest that it is permissible for nursery schools to
use a lack of preparedness as a justification to defer the enrolment of children
with HIV. The judgement fails to give any guidance to what nursery schools
need to do to ensure that they are able to admit children with HIV and further,
fails to comment on and deal with the fact that it is unreasonable for any
school in South Africa to consider themselves unequipped to admit children with
HIV. The judgement acknowledges that the school raised concerns
about the risks of HIV transmission through biting. Again the judgement
fails to deal with the reasonableness of this fear, despite the expert evidence
adduced by the ALP that unequivocally indicated that it is extremely unlikely
that a child will contract HIV as a result of a bite from another child.
To date, there are no recorded cases of transmission between children as a
result of biting.
The judgement fails to consider the implications of the
deferral of the enrolment and impact of this on Tholakele. As a result of the
deferral, Ms Perreira was forced to seek an alternative school.
It is the
view of the ALP that the mere fact that school recommended that Tholakele's
enrolment be deferred amounted to unfair discrimination This discrimination is
unquestionably linked to her HIV status. As such, the ALP had hoped that
the court would send a strong message to nursery schools that a failure to admit
children with HIV is unconstitutional and unlawful.
The ALP intends to
appeal against the decision.
FOR FURTHER INFORMATION PLEASE CONTACT LIESL
GERNTHOLTZ ON 083 600 3592 OR MARK HEYWOOD ON 083 634
8806
[END OF KAREN PERREIRA STATEMENT - BACK TO
CONTENTS]
[END OF NEWSLETTER]