South African Security Forces Union v. Surgeon General AO

The parties to the dispute settled out of court based on the stipulation that the policies of the South African National Defence Force (SANDF) concerning the recruitment, deployment and promotion of people living with HIV were unconstitutional. The SANDF was given six months to set aside these policies.

In this decision, the Court considered the request of one of the Applicants. The Applicant was a well-qualified musician who had passed all the necessary medical tests for admission to the SANDF. However, he was refused entry because he tested positive for HIV. The Applicant requested that he be immediately admitted into the SANDF, rather than having to wait until the impugned policies were set aside. The SANDF objected. It claimed that admitting the Applicant would open the floodgates to other applicants wanting to be admitted without submitting to the new health and testing policies that had yet to be formulated.

The Court stated that every case must be considered individually and granted the applicant’s petition to not have to wait six months but only for him. It noted that the “whole basis of [the] application was to the effect that people like [the Applicant] should be able to join the military.” The Court thus held that the Applicant should be immediately admitted to the SANDF, but the exception only applies to the applicant.

The Court agreed with the out of court settlement that stated the prohibition of hiring HIV-positive people was unconstitutional. It held that the policy violated the right to be free from discrimination, the right to privacy and the right to dignity in sections 9(3), 14 and 10 of the Constitution. The Court further held that the policy violated fair labour practices and the right to administrative justice in sections 23(1) and 33 of the Constitution. The Court directed the Respondent to formulate “a new health classification policy” within six months of the date of the judgment.

"I definitely do not want to prejudice the Defence Force in their general health policy and recruitment and deployment and other operations, but every case has to be looked at individually. For the reasons I have stated, regarding the third applicant, one is obviously very sympathetic to his situation and in a sense, the whole basis of this application was to the effect that people like him should be able to join the military because they are not and will not be expected to be in the forefront of a physical war or battle and their health situations obviously would differ greatly from people like the "parabats" and the infantry, etcetera.

Because of that I am persuaded to make an exception as far as he is concerned and specifically order that he specifically and without creating a precedent as far as other people are concerned, should be allowed to join the Defence Force forthwith." (p. 3)