CHAPTER THREE
3.2 The Constitution of the Republic of South Africa
3.2.1 The Right to Equality
According to De Waal et aI (2000), equality is a difficult and deeply controversial social ideal. At its most basic and abstract, the idea of equality is a moral idea that people who are similarly situated in relevant ways should be treated similarly. Its logical correlative is the idea that people who are not similarly situated should not be
33 Section 9, Section 10, Section 14, Section 23 (1) and Section 27 <I) (a) of Act No. 108 of 1996 respectively.
treated alike. This 'social ideal' on which the right to equality is based does not apply well in the case of people with HTV I AIDS in South Africa.
1t is not the basic and abstract idea of equality that is so difficult and controversial.
Instead, it is the two issues ancillary to the idea of similar treatment for similar people that proves so challenging, particularly when it comes to HIV I AIDS. The first is the issue of what counts as relevant when it comes to detennining the similarity of peoples' situation and the second issue is what constitutes similar treatment of people who are similarly situated. The Constitution requires one to grapple with these difficult issues. With the advent ofHIV/AIDS litigation and the fact that the majority of people affected by the epidemic are marginalised, these issues will be further confounded. For example, whether the actual social and economic disparities between groups and individuals will be taken into account in relation to HIV I AIDS has not been demonstrated as yet. Nevertheless, the Constitution commits the State to the goal of achieving equality and asserts that the type of society that it wishes to create is based on equality, dignity and freedom. This comprises a guarantee that the law will protect and benefit people equally and prohibit unfair discrimination. Thus equality is an overarching, straddling and underlying constitutional value and a hwnan rights and freedoms concept. It is distinct and at the same time runs in the veins of all other rights and freedoms: civil; political; economic; social; and cultural (Hepplc, 2000).
Section 9 of the equality clause contains five subsectjons. The first provides for the principle of equality before the law and confers the right to equal protection and benefit of the law. The second deals with affirmative action. The third contains a prohibition of unfair discrimination on listed grounds. The fourth extends the prohibition of unfair discrimination to the horizontal level. The final subsection presumes State or private discrimination on the listed grounds to be unfair.4 It is the third subsection that is of importance here. This states that, 'The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.' By referring to 'unfair discrimination' this section implicitly sanctions fair
4 Section 9 (I), (2), (3), (4) and (5) respectively
discrimination. Furthermore, HIV/AlDS status is not included therefore discrimination on a ground that is not on the list of presumptively illegitimate grounds of differentiation will constitute discrimination if it can be shown to be analogous to the listed grounds. The Constitutional Court has held that the listed grounds relate to attributes or characteristics that impact on human dignity. Analogous grounds will therefore have a similar relationship and impact. This was illustrated in the case of Hoffmann v South African Airways. 5
Hoffmann v South African AilWayS concerned a person, Hoffmann, who applied to the Airways (SAA) for the position of cabin attendant. At the end of the selection process Hoffmann was one of 12 selected as suitable candidates for appointment.
Although he was on medical examination found to be medically fit a blood test showed him to be HIV positive. His medical report was thereupon altered to read 'HIV positive' and 'unsuitable.' He was informed by SAA that he could not be employed as a cabin attendant because of his HIV positive status. It was SAA's practice (0 exclude from employment as cabin attendants all persons who were HIV positive, a practice which it justified on safety, medical and operational grounds.
Hoffmann challenged the constitutionality of SAA's refusal to employ him in terms of unfair discrimination on the basis of his 'disability' (section 9(3) of the Bill of Rights). He failed in the Witwatersrand Local Division. On appeal to the Constitutional Court it was held (per Ngcobo J) that an asymptomatic HIV-positive person, as Hoffmann was could perform the work of a cabin attendant competently and that any hazards to which an immuno-competent cabin attendant might be exposed could be managed by counselling, monitoring, vaccination and the administration of appropriate antibiotic prophylaxis if necessary. The risks to passengers and other third parties were therefore inconsequential and if necessary, well-established universal precautions could be utilised.
After finding that SAA was an 'organ of State' and thus bound by the provisions of the Bill of Rights by virtue of section 8(1),' read with section 239 of the
, 200t (I) SA 1 (CC)
6 This section states that 'The Bill of Rjghts applies to all law, and binds the legislature, the executive,
Constitution, the court held that SAA was thus expressly prohibited by s 9(3) of the
equality clause from discriminating unfairly. The Court went on to hold that there was no doubt that SAA had discriminated against Hoffmann because of his HIV/AlDS status aDd that neither the purpose of the discrimjnation nor the objective medical evidence justified such discrimination. Its practice judged and treated all persons living with HIV/AIDS as unfit for employment as cabin attendants on the basis of assumptions true only for an identifiable group of HIV-positive persons.
SAA's practice of excluding from employment as cabin attendants all HIV/AIDS
infected persons meant that persons who were infected would never have the opportunity to have their medical condition evaluated for a determination to be made as to whether they were suitable for employment as cabin attendants. They would be vulnerable to discrimination on the basis of prejudice and unfounded assumptions, precisely the type of injury which the Constitution sought to prevent.
Furthermore the Court held that although legitimate commercial requirements were an important consideration in determining whether or not to employ an individual, to allow stereotyping and prejudice to creep in under the guise of commercial interests had to be guarded against. The greater interests of society required the recognition of the inherent dignity of every human being and the elimination of all forms of discrimination. The need to promote the health and safety of passengers and crew was important as was the fact that if SAA were not perceived to be promoting the health and safety of its passengers and crew, the public's perception of it might be undermined. This notwithstanding, fear and ignorance could never justify the denial to all people who had HIV / AIDS the fundamental right to be
judged on their merits and on the basis of reasoned and medically sound judgments. The Court accordingly held that the denial of employmem to Hoffmann because he was living with
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had impaired his dignity and constituted unfair discrimination:it violated his right to equality guaranteed by section 9 of the Constitution. The decision of SAA not to employ Hoffmann was set aside and SAA was ordered to offer employment as a cabin attendant to him provided that should he fail to accept the offer, the order would lapse.
This ruling in Hoffmann follows an earlier case against the airline raising the same issue. Early in 2000, SAA settled a case brought before the Labour Court by the AIDS Law Project on behalf of' A,'7 who was found suitable for the position of cabin attendant but denied employment on the basis that he was HfV -positive. On the third day of trial, SAA admitted that it had in the course of a pre-employment medical examination, tested 'A' for HfV I AIDS without his informed consent by failing to provide either pre- or post-test counselling. SAA also admitted failing to properly assess A's fitness for the job and that denying him employment because of his HIV status was 'unjustified.' The case was settled when 'A' accepted SAA's offer of RIOO 000 in compensation. In an even earlier case, the AIDS Law Project had assisted a woman denied employment as a cabin attendant because she was HIV-positive and pregnant. That case settled for only RSOOO.
According to Ngwena (1999), there is sufficient evidence to illustrate that HIV/AIDS discrimination is practiced on a significant scale. As the epidemic began to establish itself as a major threat many employers began to institute policies that were aimed at excluding HfV/AIDS employees, with HIV/AIDS testing as an adjunct. This was not limited to the private sector employers. For example in 1990, the Pretoria and Bloemfontein City Councils announced a policy of testing job applicants and excluding those who had HIV/AlDS. Until March 1997. when the government announced a policy to prohibit pre-employment testing in the public sector, the Department of Correctional Services, the South African National Defence Force and the South African Police Services routinely tested job applicants (Ngwena, 1999).