Jacques Hoffman CCT17/00 versus
South African Airways (SAA)
Media Summary
On Friday 18 August 2000 the Constitutional Court will consider the constitutionality of an SAA policy not to employ prospective cabin attendants who are HIV positive.
Mr Hoffman, the appellant, was refused employment as a cabin attendant solely because he was HIV positive. He unsuccessfully challenged the constitutionality of the policy in the Witwatersrand High Court. He now appeals directly to the
Constitutional Court with the leave of this court.
In the High Court the appellant contended that the policy breached the following constitutional rights protected by the Bill of Rights: Equality (9(1) & (2)); non- discrimination (section 9(3)); dignity (section 10); and fair labour practice (section 23(1)). SAA, defended its policy as promoting the safety and health of its passengers and its own competitive capacity: individuals who are HIV positive are at risk of contracting (and transmitting) yellow fever because they might not react positively to vaccination against yellow fever, which is required for travel to certain countries.
SAA also contended that HIV positive persons are at greater risk of contracting other diseases and transmitting them to passengers and are an unsound training investment because of their limited life expectancy. In any event, its policy was not directed only at HIV positive persons, but was aimed at all kinds of disabilities that made
employment as a cabin attendant unsuitable.
The High Court held that SAA’s policy did not discriminate unfairly against the appellant nor was it directed specifically at persons infected with HIV. The policy was justified by SAA’s operational requirements in a highly competitive commercial undertaking, which would be disadvantaged if HIV infected flight-deck crew members had to be employed: it was an inherent requirement for cabin attendants to be HIV negative. Consequently the policy was not unconstitutional.
On appeal the parties repeat their contentions. However, the AIDS Law Project, and NGO that has been admitted as an amicus curiae in this case, attacks the
constitutionality of pre-employment HIV testing and has introduced additional
evidence which it contends shows that there is no well-founded medical support for a policy that all persons who are HIV positive are unable to be vaccinated for yellow fever. It further argues that it is clear that SAA’s policy has no regard to
developments in the field of HIV treatment and management and is over-broad in its
application. Appellant and the amicus claim that the risks involved are remote and that the exclusion of the appellant, who is as yet asymptomatic, is unjustified.
