Haindongo Nghidipohamba Nanditume v. Minister of Defense

The HIV/AIDS epidemic in Namibia prompted the Government of Namibia to issue Guidelines for the Implementation of a National Code on HIV/AIDS in Employment (Guidelines), which extended nondiscrimination provisions to enlistment procedures of the Namibian Defence Force (NDF). In part, the Guidelines aimed to counteract prejudices and ignorance surrounding the nature and cause of HIV/AIDS, as well as reinforce nondiscrimination obligations already established in the Labour Act 1992 (Labour Act).

In following with Section 65(2) of the Defence Act, the applicant underwent a medical examination as part of his application to serve in the NDF. The examination included an HIV test but did not include a CD4 count test or a viral load test, both of which were necessary to establish the actual physical status of the applicant’s health. Nevertheless, the NDF denied the applicant admission to the force based solely on a positive HIV test. The applicant, by way of a Notice of Motion, applied to the Labour Court of Namibia for relief, claiming that the NDF’s refusal to enlist him violated Namibia’s nondiscrimination obligations under section 107 of the Labour Act. Alternatively, he claimed that the NDF discriminated against him on the ground of disability, which also contravened section 107 of the Act. Specifically, the applicant requested an order directing the Government of Namibia to discontinue discriminating against the applicant by permitting him to enlist in the NDF, as well as directing the NDF to process his application without regard to his HIV status. The Permanent Secretary for the Ministry of Defense argued that the NDF’s rejection of the applicant based solely on his positive HIV test was not discriminatory because is was not done in an “unfair manner.” According to the Secretary, the decision was justified on the basis of recruiting personnel physically capable of completing a strenuous basic training and further military duties as may arise.

The Labour Court ruled that the NDF had an obligation to enlist the applicant if he reapplied for enlistment, as long as the applicant’s CD4 count was not below 200 and his viral load was not above 100,000. Furthermore, the NDF was ordered to include in all its medical examinations the HIV blood test, plus a CD4 count and the viral load test to obtain a more accurate bill of health of its applicants and to avoid discrimination resulting from denying applicants based solely on an HIV status test.

"Clause 6.2. 1. of the "Guidelines" provides:- Job Access: There should be neither direct nor indirect pre-employment tests for HIV. Employees should be given the normal medical tests of current fitness for work and these tests should not include testing for HIV."

"Clause 6.5 provides: HIV testing and training. In general, there should be no compulsory HIV testing for training. HIV testing for training should be governed by the principle of non-discrimination between individuals with HIV infection and those without and between HIV/AIDS and other comparable health/medical condition." Pages 6-7.

"Clause 6.6.2 provides:-Employees with HIV related illness should have access to medical treatment and should be entitled, without discrimination, to agreed existing sick leave provisions." Page 6.

"Clause 6.6.3 provides that HIV infected employees should work under normal conditions so long as they are fit do so and if they can no longer do so, they should be offered alternative employment "without prejudice to their benefits."" Page 7.

"While the aforegoing guidelines may well be implemented in certain instances, in others they could be economically impossible. As far as the military is concerned Section 65(2) of the Defence Act (Act 44 of 1957) requires recruits to undergo a medical examination." Page 7.