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HIV/AIDS and the law
Study unit 1: Introduction to HIV/AIDS and the law 1

1.1 Introduction 1
1.2 HIV and AIDS 2
1.3 Stages of HIV and AIDS infection 5
1.4 AIDS 6
1.5 Diagnosing HIV/AIDS 7
1.6 Treatment options for HIV and AIDS 11
1.7 Conclusion 11
1.8 Self-assessment 11
Study unit 2: HIV/AIDS and the Bill of Rights 13

2.1 Introduction 13
2.2 The Bill of Rights 14
2.3 Human dignity 17
2.4 Privacy 18
2.5 Freedom and security of person 20
2.6 Limitation of rights 21
2.7 Remedies 23
2.8 Conclusion 24
Study unit 3: HIV/AIDS and the right to health under the

Constitution 25
3.1 Introduction 25
3.2 The right to health under the Constitution 26
3.3 Conclusion 30
Study unit 4: Rights of specific individuals 32

4.1 Introduction 32
4.2 Rights of women 32
4.3 Victims of sexual offences 37
4.4 Children’s rights 40
4.5 The rights of gay and lesbian people 43
4.6 The rights of prisoners 44
HIL3705/1/2014–2018(iii)
Study unit 5: Rights at work or HIV/AIDS and the law in the
workplace 48
5.1 Introduction 48
5.2 The Constitution 49
5.3 The Employment Equity Act 50
5.4 The Labour Relations Act 53
5.5 The Employment Equity Act, Code of Good Practice on Key
Aspects of HIV/Aids and Employment 56
5.6 Other applicable legislation 57
BIBLIOGRAPHY 60
(iv)
Dear Student
Welcome to the module, HID/AIDS and the law (HIL3705).
We hope that you are pleased with your decision to become a paralegal. This module
is aimed at providing you with advanced knowledge of how the law relates to people
living with HIV/AIDS in various spheres, such as the workplace and communities.
It is recommended that you complete the ILW1501 and SCL1501 courses before
enrolling for this module.
You probably fall into one of the following three groups:
•• you work at a non-governmental organisation that deals with HIV and AIDS
and you want to acquire more knowledge on the subject
or
•• you have worked in a community-based organisation where HIV/AIDS is prevalent
and want to be able to provide legal advice on HIV/AIDS-related cases
or
•• you are a paralegal and wish to empower yourself in this field so that you will be
able to provide legal assistance on HIV/AIDS-related cases
or
•• you are a student who is studying towards becoming a paralegal.
Before you study this module, it is important for you to understand what HIV and
AIDS are and how the law relates to these conditions. In this regard, it is important
that you consider the following questions first:
•• What are HIV and AIDS?

•• Does HIV cause AIDS?
•• Are there any legal implications to intentionally infecting someone with HIV?
•• What are the constitutional provisions protecting the rights of those living with
HIV and AIDS?
•• Are people living with HIV and AIDS entitled to social security? If so, at what
stage?
In South Africa, paralegal practice is a fairly new career and is still in its infancy.
This means that some of these questions still need to be answered. In this module
we will try to answer all these questions and inform you about the various on-going
debates and the issues on which there are still no answers.
HIL3705 consists of the following study units:
•• Study unit 1: Introduction to HIV/AIDS and the law

In this study unit we will look at the definition of HIV/AIDS and at the
question whether HIV causes AIDS. We will also look at the nature of consent
required when one wishes to undergo an HIV/AIDS test and the stages of HIV/
AIDS and social assistance in general.
•• Study unit 2: HIV/AIDS and the Bill of Rights

In this study unit we will look at the South African Constitution, specifically
the Bill of Rights, which guarantees various rights to everyone, irrespective of their
HIL3705/1 (v)

HIV/AIDS status, equality before the law, privacy and human dignity. We will also
look at how these rights may be limited.
•• Study unit 3: Health and medical rights

In this study unit we will look at the right to health as provided for in the
Constitution and the duty of the state to ensure that everyone is able to access health
care services. We will also look at some factors that may limit the enjoyment of the
right to health.
•• Study unit 4: Rights of specific individuals

In this study unit we will look at the rights of specific individuals such as the
rights of children, women and prisoners.
•• Study unit 5: Rights at work

In this study unit we will look at the rights of people living with HIV/AIDS
in the workplace and the relevant laws, such as the Labour Relations Act 66 of 1995
and the Employment Equity Act 55 of 1998, which protect their rights.
How to use this study guide:
1. There is no prescribed textbook for this module. You must study this study guide together with
the tutorial letters. In addition you must study the prescribed academic articles and YouTube
videos for this module.
2. At the beginning of each study unit there is a heading “Learning outcomes”. The contents of
the learning outcomes set out the important aspects covered in that study unit. At the end of
each study unit you should refer back to the learning outcomes in order to determine whether
you have achieved them. If you cannot answer all the learning outcomes, it means that there
are some aspects that you may not have understood and therefore you need to revise them
until you have achieved the learning outcomes.
3. You will notice that various activities are set out in this study guide. You will need to work
through all these on your own. We will provide feedback in Tutorial Letter 201 so that you can
assess whether you have answered the activities completely and correctly. It is very important
that you complete all the activities before you look at Tutorial Letter 201 so that you can see
what you understand and what you do not understand about the work covered in this module.
Keep all your answers to the activities so that you can refer back to them when working through
Tutorial Letter 201.
4. At the bottom of each page, there are footnotes which acknowledge the sources used to
compile this module. There is also a bibliography at the end of this study guide which lists all the
sources consulted during the preparation of this module. You do not have to study the sources
given in the footnotes and bibliography for assignment or examination purposes. Of course, you
are welcome to look at these sources if you would like to know more about any specific subject.
We trust that you will enjoy this module and wish you success in your studies!
The lecturers responsible for this module are Mr MR Phooko and Mr R Mabobo.
All telephonic and e-mail enquiries that are NOT of a purely administrative
nature but are about the contents of this module should be directed to:
(vi)

Mr R Mabobo (module leader)

Brooklyn House, 2nd Floor, Office S 32
Veale Street, Brooklyn
E-mail: mabobr@unisa.ac.za
Tel: +27 433 9495
Fax: +27 86 763 4501
Mr MR Phooko
Brooklyn House, 2nd Floor, Office S 29
Veale Street, Brooklyn
E-mail: phookmr@unisa.ac.za
Tel: +27 12 433 9517
Fax: +27 86 763 4501
HIL3705/1 (vii)

viii
STUDY UNIT 1: Introduction to hiv/aids and the law
2 STUDY UNIT 1
1 Introduction to HIV/AIDS and the law
LEARNING OUTCOMES
On completion of this study unit you should be able to:
•• define HIV
•• identify the means of infection
•• distinguish the stages of HIV/AIDS
•• discuss the concepts of voluntary testing and informed consent
•• identify and discuss the specific constitutional provisions protecting the rights
of those living with HIV and AIDS in given scenarios such as the violation
of privacy
1.1 INTRODUCTION
What does the red ribbon above represent? Do you understand the meaning of
HIV/AIDS? Are you aware of the prevalence of HIV/AIDS in South Africa? In the
world? What are the rights of those living with HIV/AIDS in South Africa? These
are questions that a paralegal should be able to answer because as a paralegal you
might be approached for legal assistance on matters related to HIV/AIDS.
According to Cameron, “AIDS is perhaps the most frightening natural catastrophe

South Africa has ever faced”.1 As increasingly more resources are spent in an
attempt to prevent the spread of the disease, this has the potential to cripple the South
African economy.2 This is a grave cause for concern and cannot be taken lightly.
Despite the high HIV prevalence in South Africa, people living with HIV and AIDS
continue to face discrimination and stigma. This is against the law. It is because of
this vulnerability that people living with HIV and AIDS require the protection of
the law.
This section of the study guide starts by outlining what HIV/AIDS is. It then
considers the modes of transmission, the manner of diagnoses, the stages of the
infection and the treatment options for the disease. The nature of consent required
for HIV/AIDS testing and specific constitutional provisions protecting the rights of
those living with HIV/AIDS are identified, discussed and applied in given scenarios.
1 Cameron E “Some Problems in Employment Law” 1991 (12) Industrial Law Journal 193; Sacco SF
“A comparative study of the implementation in Zimbabwe and South Africa of the international law
rules that allow compulsory licensing and parallel importation for HIV/AIDS drugs” 2005 (5) African
Human Rights Law Journal 105.
2 Cameron E 1991 (12) Industrial Law Journal 193.
HIL3705/11

1.2 HIV AND AIDS
1.2.1 What is HIV?

The terms HIV and AIDS are often confused. In addition to this, in the past there
was controversy regarding whether HIV causes AIDS. As a paralegal, it is imperative
that you understand the meaning of these terms and whether HIV causes AIDS.
After former President Thabo Mbeki became President in 1999, he established a

team of experts to advise him about South Africa’s HIV epidemic.3 The outcome
of this was that a large number of Thabo Mbeki’s panel of experts dismissed the
“causal link between HIV and AIDS”.4 In other words, the panel of experts was
of the view that HIV does not cause AIDS. This stance attracted a lot of public
criticism from civil society dealing with HIV and AIDS-related issues.5 In response
to the claim that HIV does not cause AIDS, over 5000 scientists signed the Durban
Declaration which stated that HIV causes AIDS.6 Those who signed the Durban
Declaration stressed that “the scientific evidence that AIDS is caused by HIV-1 or
HIV-2 is clear-cut, exhaustive and unambiguous, meeting the highest standards of
science”. The data providing proof that HIV is the cause of AIDS “fulfil exactly
the same criteria as for other viral diseases, such as polio, measles and smallpox”.7
It is therefore clear that the HIV virus is the cause of AIDS.
What is HIV then? HIV stands for Human Immune-Deficiency Virus.8 To gain a
better understanding of what HIV is, we need to examine these terms in detail and
define what each letter stands for:
H – Human – This means that the HIV virus can only infect human beings.
I – Immunodeficiency – The HIV virus attacks and weakens your immune system
because it destroys important cells that are supposed to fight disease and infection.
When your immune system has been damaged by the HIV virus, it no longer
protects you from infectious diseases.
V – Virus – A virus reproduces itself in your body’s cells and eventually destroys
the cells of your immune system.
The Human Immunodeficiency Virus is different from other viruses because it

eventually destroys the immune system of an infected person.9 When the Immune
3 Van Rijn K “The Politics of Uncertainty: The AIDS Debate, Thabo Mbeki and the South African
Government Response” 2006 (19) Social History of Medicine 521–538; Sacco SF 2005 (5) African Human
Rights Law Journal 124.
4 Van Rijn K 2006 (19) Social History of Medicine 522.
5 Treatment Action Campaign TAC Statement on President Mbeki’s AIDS Denialist Remarks in City
Press available at: http://www.tac.org.za/community/node/2226 (Date of use: 10 October 2012).
6 Van Rijn K 2006 (19) Social History of Medicine 124; the Durban Declaration, full text available at:
http://qpmpa.org/qpmpa-journal-2000/22-qpmpa-journal-august-2000/124-hivaids-the-durban-
declaration.html (Date of use: 10 October 2012).
7 Bauer HH “Questioning HIV/AIDS: Morally reprehensible or scientifically warranted?” 2007 (12)
Journal of American Physicians and Surgeons 110; the Durban Declaration, available at: http://qpmpa.org/
qpmpa-journal-2000/22-qpmpa-journal-august-2000/124-hivaids-the-durban-declaration.html (Date
of use: 10 October 2012).
8 Johnson R “The Model Law on HIV in Southern Africa: Third World Approaches to International
Law insights into a human rights-based approach” 2009 (9) African Human Rights Law Journal 130.
9 Al-Jabri AA “Mechanisms of Host Resistance Against HIV Infection and Progression to AIDS” 2007
(2) Sultan Qaboos University Medical Journal 82.
2
STUDYUNIT
STUDY UNIT1:1: Introduction
Introduction to to hiv/aids and the law
HIV/AIDS
system is weakened, it becomes hard for it to fight the HIV and to remove it (and
other viruses) from the body. This allows the virus to remain in your body and
multiply. The end result of the virus’s infecting your body is that it destroys all your
body’s immune cells. Scientists throughout the world are still trying to determine
ways in which to stop this from happening and to find a cure.10
HIV can remain in the body for some time before being diagnosed.11 The infected
person may not have any symptoms of HIV infection. The virus slowly attacks and
destroys your immune system. The purpose of your immune system is to protect
you from deadly diseases and infections.
1.2.2 What is AIDS?

AIDS is a syndrome which makes one vulnerable to a number of diseases because
of a damaged immune system.
In order to gain a better understanding of the word AIDS, it is necessary for us to

break it down and explain each letter:
A – Acquired – AIDS is not something that you can get through casual contact.12 It
may be transmitted from the mother to the foetus while in the mother’s womb
or during the process of birth (this form of transmission is known as mother-
to-child transmission).13 The most common mode of transmission after birth is
through sexual contact.14 This takes place through exposure to infected bodily
fluids or tissues.15
I – Immuno – This refers to your body’s immune system, which includes all the
organs and cells that work together to protect your body from disease or fight
off infections.16
D – Deficiency – You get AIDS when your immune system is damaged and no longer
protects you as it should do.
S – Syndrome17 – A syndrome is a collection of symptoms and signs of disease. AIDS

is a syndrome, rather than a single disease, because it is a complex illness with a
variety of complications and symptoms.
Now that you have learnt about HIV and AIDS, you will learn about the different
stages of the disease.
10 Cameron E “Legal and human rights responses to the HIV/AIDS epidemic” 2006 (1) Stellenbosch Law
Review 52.
11 Al-Jabri Sultan Qaboos University Medical Journal 82.
12 Cameron 2006 1 Stellenbosch Law Review 52.
13 Baimu E “The government’s obligation to provide anti-retrovirals to HIV-positive pregnant women
in an African human rights context: The South African Nevirapine case” 2002 2 African Human Rights
Law journal 160.
14 Cameron 2006 1 Stellenbosch Law Review 52.
15 Okoroju L and Ukpere WI “A relationship between HIV/AIDS and the productivity of the hardest
hit regions” 2009 3 African Journal of Business Management 822.
16 HIV/AIDS 101. available at: http://aids.gov/hiv-aids-basics/hiv-aids-101/what-is-hiv-aids/. (Date of
use: 11 October 2012).
17 Johnson R (2009) 9 African Human Rights Law Journal 130.
HIL3705/13

ACTIVITY 1.1
Read the five page article written by HH Bauer entitled “Questioning HIV/AIDS:
Morally reprehensible or scientifically warranted?” 2007 (12) Journal of American
Physicians and Surgeons 116–120, available at http://www.duesberg.com/articles/
new/2007,%20Bauer,%20JAPSfinal.pdf, and write a short note on whether HIV
causes AIDS.
1 FEEDBACK ON ACTIVITY 1.1

Your answer should at least demonstrate an understanding of HIV and AIDS.
Refer to the Durban Declaration on HIV/AIDS and the rationale for its adoption.
1.2.3 Transmission of the HIV virus

HIV is found in specific human bodily fluids. If your body comes into contact
with fluids that contain HIV, you can become infected with HIV.18 HIV lives and
reproduces in these fluids. The following fluids may contain significant levels of HIV:
•• Blood
•• Semen
•• Pre-seminal fluid (fluids that are released before the semen)
•• Breast milk
•• Vaginal fluids
•• Rectal mucus
Other bodily fluids, such as faeces, nasal fluid, saliva, sweat, tears, urine or vomit,
do not contain enough HIV to be infective, unless they contain blood and you have
significant and direct contact with them. These bodily fluids transmit the HIV virus
in one of the following ways:19
•• during sexual contact (this is the main form of transmission in South Africa);20
•• as a result of injected drug use
•• breast feeding
ACTIVITY 1.2
James, who is a primary school learner at Grosvenor Primary School, has learnt
that Ryn’s parents died of AIDS-related complications two years previously. Ryn
is in the same class as James. They are both in grade 7. James refuses to go to
school and informs his parents that he does not want to be in the same class as
Ryn because he believes that he will be exposed to HIV/AIDS. James’s parents
approach you as a paralegal for legal advice on whether their son’s fears are
justified and whether they may approach the school principal and ask to have Ryn
removed from the school. Advise James’s parents.
18 Ngwena C “HIV/AIDS and equal opportunities in the workplace: The implication of the Employment
Equity Act” 2000 (33) Comparative and International law Journal of Southern Africa 97.
19 Okoroju L and Ukpere WI 2009 (3) African Journal of Business Management 822.
20 Ngwena C 2000 (33) Comparative and International law Journal of Southern Africa 97.
4
STUDYUNIT
Introduction toto hiv/aids and the law
HIV/AIDS

In your answer, you must include a discussion on how HIV is transmitted from one
person to another. Mention the modes of transmission and instances in which HIV
cannot be transmitted. The nature of the conduct towards those living with HIV
that is prohibited by the Constitution must also be mentioned.
1.3 STAGES OF HIV AND AIDS INFECTION

Like all virus infections, HIV infection progresses through different stages, from the
moment when a person is infected with the virus up to the point when the infection
has developed into full-blown AIDS. These stages are discussed below.
1.3.1 Primary HIV infection

During this stage the body changes from being HIV negative to HIV positive.
During this process, one may experience minor flu-like symptoms such as a sore
throat. This stage is also called acute retroviral syndrome (ARS), during which one’s
body naturally responds to the HIV infection.21 During this stage of infection, the
virus multiplies in the body. The virus uses CD4 cells to multiply and destroys them
during this process. Initially, one’s immune response will be able to reduce the level
of the virus in one’s body to a level where it is under control.22 One’s CD4 count
slowly returns to normal, although it may not return to pre-infection levels.23 This
stage lasts for a week or two and the person feels well again afterwards.24
1.3.2 Asymptomatic stage

After primary HIV infection, the asymptomatic or silent stage follows. This is a stage
in which the infected person has no symptoms of the disease.25 The infected person
may not even be aware of having contracted the virus.26 Only a test will reveal one’s
HIV-positive status.27 After the first stage of HIV infection, the disease progresses
to a stage called clinical latency. This period is sometimes called asymptomatic HIV
infection or chronic HIV infection.28 The person living with HIV does not have
symptoms or opportunistic infections. This period can last up for five years or even
longer.29 Some people progress through this phase faster than others. It is important
to remember that you can transmit HIV to others during this phase. Knowingly
transmitting the HIV/AIDS virus to someone is a criminal offence and may result
21 Weber J “The pathogenesis of HIV-1 infection” 2001 (58) British Medical Bulletin 63.
22 The AIDS Law Project HIV and the law 2nd ed ( Joint Oxfam HIV/AIDS Programme 2005).
23 Ngwena C 2000 (33) Comparative and International Law Journal of Southern Africa 98.
24 http://section27.org.za.dedi47.cpt1.host-h.net/wp-content/uploads/2010/04/01Manual.pdf
25 Van Dyk AC HIVAIDS Care & Counselling, 4th ed (Ceri Printer, Cape Town 2008) 53.
26 Van Dyk AC HIVAIDS Care & Counselling 53.
27 Van Dyk AC HIVAIDS Care & Counselling 53.
28 Weber J 2001 (58) British Medical Bulletin 68.
HIL3705/15

in prosecution.30 For example, in S v Nyalungu,31 the accused raped the complainant

knowing that he was HIV positive. The court found him guilty of attempted murder
for raping a woman while he knew that he was HIV-positive.
Towards the end of this period, the virus multiplies more rapidly, causing the viral
load to rise and the CD4 cell count to drop.32 The immune system begins to weaken.33
1.3.3 Symptomatic stage

A person at this stage develops major symptoms of AIDS but the disease has not fully
developed.34 The symptoms include night sweats, fever, loss of weight and thrush.35
The person is still able to do his or her daily activities, such as going to work, but
may need medical attention to treat opportunistic diseases.36 The CD4 cell count is
also lowered.37 A person who has major opportunistic infections and a CD4 count
of less than 50 is entitled to social assistance.38 The law regulating access to social
assistance and access to ARVs is discussed in section 3.1.4 below.
1.4 AIDS
This is the final stage of HIV infection. The immune system is severely weak-
ened and the person is at risk of opportunistic infections such as pneumonia and
tuberculosis that may eventually cause death.39 The person is now considered to have
“full blown” AIDS and needs medical intervention and treatment to boost the immune
system to prolong life.40 Without this treatment, people become severely ill, unable
to work and eventually die. During this stage one is eligible to receive ARVs and a
disability grant.41 The disability grant is regulated by the Social Assistance Act 13 of
2004. The state’s obligations to support people with HIV/AIDS flow from section
27(2) of the Constitution of the Republic of South Africa, 1996, which provides that
“[t]he state must take reasonable legislative and other measures, within its available
resources, to achieve the progressive realisation of each of these rights”.
30 Bhamjee S “A tale of attempted murder and HIV … S v Nyalungu 2005 JOL 13254 (T)” Obiter 2009 317;
The South African Law Commission (now the South African Law Reform Commission) 5th and Final
Report (Project 85 5th Interim Report on Aspects of the Law Relating to AIDS – The Need For A
Statutory Offence Aimed At Harmful HIV-Related Behaviour, April 2001
31 2005 JOL 13254 (T).
32 Van Biljon and Others v Minister of Correctional Services and Others 1997 (4) SA 441 (C) (SAHC 1997 C) at
para 31.
34 Ngwena C 2000 (33) Comparative and International Law Journal of Southern Africa 98; Van Dyk
AC HIVAIDS Care & Counselling 4th ed (Ceri Printer, Cape Town, 2008) 54.
37 Van Dyk HIVAIDS Care & Counselling 54.
38 Kallmann K “HIV/AIDS and Social Assistance in South Africa” (2003) available at: http://www.salan.
org/wp-content/uploads/2013/02/hiv-and-social-assistance.pdf (Date of use: 2 May 2013).
40 Ullum H et al “Increased losses of CD4+CD45RA+ cells in late stages of HIV infection is related to
increased risk of death: evidence from a cohort of 347 HIV-infected individuals AIDS” available at:
http://journals.lww.com/aidsonline/fulltext/1997/12000/increased_losses_of_cd4_cd45ra__cells_
in_late.12.aspx#P41 (Date of use: 11 October 2012).
41 Kallmann K HIV/AIDS and Social Assistance in South Africa (2003) available at: http://www.salan.
org/wp-content/uploads/2013/02/hiv-and-social-assistance.pdf (Date of use: 2 May 2013). See also
section 27(c) of the Constitution of the Republic of South Africa, 1996 which provides that “[e]veryone
has the right to have access to social security, including, if they are unable to support themselves and
their dependants, appropriate social assistance”.
6
STUDY
STUDYUNIT
UNIT1:1:
Introduction to to
Introduction HIV/AIDS
hiv/aids and the law
South Africa has made some progress in rolling out ARVs to those living with HIV/
AIDS.42 Access to ARV treatment and the government’s constitutional obligations to
provide access to health care services will be discussed further in study units 3 and 5.
ACTIVITY 1.3
In January 2012, Zamani discovered that he was HIV-positive. He did not believe
this as he was still healthy and performing well at his work. At one stage, his throat
was sore and this lasted for about a week or two but he felt well again afterwards.
During a conversation with one of his friends, Zakes, he heard that there are people
who receive social assistance because of their HIV/AIDS-positive status. Zamani
now wishes to apply for the grant too.
Obtain a copy of the Social Assistance Act 13 of 2004 and read section 3 of the Act
and Regulation 3. The full text of the Social Assistance Act and its regulations can
be accessed at http://www.acts.co.za/social-assistance-act-2004/index.html?9_per-
sons_eligible_for_social_relief_of_distress_1.php. After reading section 3 and
Regulation 3, answer the following question:
(a) In your view, which stage of infection does Zamani fall under and why? Does
Zamani qualify for social assistance? If so, discuss the provisions of the relevant
legislation under which Zamani can apply for social assistance? If you don’t think
he can apply, give reasons. [15]

Your answer should at least be able to indicate whether Zamani can apply
for a grant. It should also indicate the stage of infection that Zamani currently
falls under. If necessary, you must also refer to the relevant provisions of the
Constitution of the Republic of South Africa, 1996, and the conditions set out in
the Social Assistance Act 13 of 2004 and the Regulations to that Act.
1.5 DIAGNOSING HIV/AIDS
1.5.1 Introduction
In VRM v Health Professions Council of SA & Others,43 the applicant was pregnant and
consulted Dr Labuschagne regarding her pregnancy. During one of the consultations,
Dr Labusachagne took blood samples from VRM for an HIV test without the
applicant’s consent. The doctor discovered that the applicant was HIV-positive but
did not inform her. VRM later gave birth to a stillborn baby. The doctor informed
her that she was HIV-positive and that the baby had died of HIV. VRM sought an
investigation by the Health Professions Council of South Africa (HPCSA) into the
conduct of the doctor regarding why the doctor conducted an HIV test without her
consent and without providing pre- or post-test counselling; why the doctor did
42 Johnson LF “Access to antiretroviral treatment in South Africa, 2004 – 2011” 2012 (13) Southern African
Journal of HIV Medicine 25; Van Biljon and Others v Minister of Correctional Services and Others 1997 (4) SA
441 (C) (SAHC 1997 C).
43 [2003] JOL 11944 (T).
HIL3705/17

not disclose her HIV status at the consultation, why the doctor did not advise her
on measures to take to reduce the risk of mother-to-child HIV transmission during
birth after he knew her HIV status; and why he did not perform a Caesarean section
immediately after VRM’s waters broke to further reduce the risk of mother-to-child
HIV transmission.
In the light of the above, read the discussion that follows about voluntary testing and
informed consent. After the discussion below, consider the facts outlined above in
VRM v Health Professions Council of SA & Others and answer the questions in activity 4.
1.5.2 Voluntary testing and informed consent

An HIV test is an accurate scientific test to determine whether a person has been
infected with the HIV virus. A blood sample is usually tested to establish HIV.
The Constitution of the Republic of South Africa, 1996, provides for the right to
bodily and psychological integrity (section 12(2)), the right to privacy (section 14)
and the right to dignity (section 10). These rights translate to the protection of every
person’s right to either consent to or refuse any testing and medical treatment.44
For the purposes of the present discussion, the focus will be on informed consent,
and on pre- and post-test counselling in the context of HIV testing. You will learn
more about the nature, scope and content of the aforesaid constitutional rights in
study unit 2.
Before you read further, take a few minutes to listen to the video link below
(http://www.youtube.com/watch?v=h16Ujzw9VtA) to learn about the history of
informed consent. After listening to the video, determine whether there are any
similarities between what is said on the video and what is said about voluntary testing
and informed consent in this section.
It is a legal and ethical requirement that all HIV testing should be conducted in a
manner that respects the individual’s privacy.45 In particular, the updated Department
of Health’s National Policy Guideline for HIV Counselling and Testing46 requires
an HIV test to be accompanied by:
•• informed consent
•• counselling (pre- and 10040939
•• post-test counselling)
Informed consent is defined as “a process by which a client voluntarily confirms his
or her willingness to provide written or verbal consent to be tested for HIV or to
provide information about his or her HIV status to a health care provider, health
care worker or researcher. This agreement is obtained after the client has received
information about the HIV test and understands the purpose of the procedure, or
after understanding the purpose of the exchange of information as being in the best
interest of his or her own health or that of the partner or in the case of the pregnant
44 Maile S “Legal aspects of the disclosure of HIV serostatus by educators” 2003 (23) South African Journal
of Education 78.
45 Maile 2003 (23) South African Journal of Education 78.
46 Department of Health’s National Policy Guideline for HIV Counselling and Testing, available at:
http://www.justice.gov.za/vg/hiv/docs/2009_FinaDraft-HCT-Policy-PIC-22oct.pdf (Date of use:
11 October 2012).
8
STUDYUNIT
Introduction to to hiv/aids and the law
HIV/AIDS
women, the foetus (baby in utero) or the infant being breastfed.”47 Section 7 of the
National Health Act 61 of 2003 also requires that the patient’s informed consent
must be obtained before conducting an HIV test.
The voluntary consent requirement applies to the decision to undergo testing for the
HIV virus and to undergo medical treatment for the condition diagnosed.
A person can only make an informed decision on whether or not to accept medical
treatment or HIV testing when they have enough accurate information on which to
base their decision. Such consent, as a general rule, has to be given by the individual
who is to undergo the testing or the treatment. Before informed consent to HIV
testing can be given, the following must be disclosed to the person being tested:
•• what the test is

•• why the test is being done
•• what the result of the test will mean
An important decided case about informed consent and counselling in the context
of HIV is C v Minister of Correctional Services48 where a prisoner was tested for HIV
without his consent and without counselling. The prisoner instituted an action for
damages for wrongful intrusion upon his right to privacy. The court found that
non-compliance with the requirement of informed consent and the absence of pre-
counselling were wrongful. It awarded financial damages to the prisoner. The court
emphasised that there can only be informed consent if the person understands what
the “object and purpose of the test is”; what the outcome of HIV-positive results
entails; and what the chances are of getting AIDS.
There are exceptions to the rule that there must be voluntary testing and informed
consent by the person who will undergo the test. These include:
Mentally ill patients
Persons who are mentally ill generally lack the mental capacity to give informed
consent. They can be assisted by their next of kin, a curator where one has been
appointed, a spouse or a medical superintendent where the person is institutionalised.
It must nonetheless be emphasised that a mental disorder does not necessarily mean
that a patient is incapable of giving consent.49
Anonymous and unlinked testing
This is a process where persons are tested as part of a research study. Such tests are
anonymous and cannot be linked to the individual who was tested.
Emergency
This entails a situation where the doctors are required to test a person in order to
give proper treatment in an emergency situation. The HIV test may therefore be
47 Department of Health’s National Policy Guideline for HIV Counselling and Testing, available at:
http://www.justice.gov.za/vg/hiv/docs/2009_FinaDraft-HCT-Policy-PIC-22oct.pdf (Date of use:
11 October 2012).
48 1996 (4) SA 292 (T).
49 Van Staden CW and Krüger C “Incapacity to give informed consent owing to mental disorder” 2003
(29) Journal of Medical Ethics 41.
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conducted when the patient is unable to give consent.50 However, attempts to get
consent must be sought where possible from a person who is legally competent to give
consent on behalf of the patient. If this is not possible, it is up to the doctor to decide
what is in the best interests of the patient. Pregnant women also have to undergo
a compulsory HIV test for health reasons without the option of giving consent.51
Children
Sections 130–133 of the Children’s Act 38 of 2005 (Children’s Act) deals with HIV
testing for children. The Children’s Act describes when and how a child may be tested
for HIV. A child may not be tested for HIV unless, inter alia, it is in his or her best
interests to do so and lawful consent has been given for the test.52 According to the
Children’s Act, a child who is over the age of 12 is capable of giving consent for an
HIV test.53 The Children’s Act also provides that a child under the age of 12 years
may give consent if he or she is “of sufficient maturity to understand the benefits,
risks and social implications of such a test”.54 HIV testing has to be accompanied by
pre- and post-test counselling done by an appropriately trained person.55 As a general
rule, no person may disclose a child’s HIV status without consent.56 The rights of
specific persons, including children, are dealt with in detail in study unit 4. Testing
at the workplace and the applicable laws are dealt with in study unit 5.
To ascertain whether you understand the concepts of privacy, take a few minutes to
read a three-page article by D Cameron and H van der Merwe entitled “Are students
being coerced into HIV testing? Ethical considerations related to offering incentives
for HIV counselling and testing at tertiary institutions in South Africa” 2012 5 South
African Journal of Bioethics and Law 95. The article is also available at: http://www.sajbl.
org.za/index.php/sajbl/article/view/197. Having read the article, do you consider
the offering of incentives for HIV testing at tertiary institutions to be a violation of
privacy and informed consent? Discuss this in your study group.
ACTIVITY 1.4
With specific reference to the case of VRM v Health Professions Council of SA
& others 57 and other decided cases regarding informed consent and voluntary
testing, discuss whether the doctor’s conduct in performing an HIV test without
the patient’s knowledge is permissible under the law. What was the court’s and
the HPCSA’s ruling? Do you agree with the HPCSA’s decision that the doctor was
not guilty of a breach of the HPCSA’s guidelines on the management of people
with HIV? Fully substantiate your answers.
50 Hartman KM and Liang BA “Exceptions to Informed Consent in Emergency Medicine”1999

Perspectives in Legal Medicine and Health law 53–54.
51 HIV/AIDS and the law, available at: http://www.paralegaladvice.org.za/docs/09_full.html (Date of
use: 15 September 2013).
52 Section 130(1)(a) of the Children’s Act.
53 Section 130(2)(a)(1) of the Children’s Act.
54 Section 130(a)(ii) of the Children’s Act.
55 Section 132(1) and (2) of the Children’s Act.
56 Section 133(1) of the Children’s Act.
57 [2003] JOL 11944 (T).
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Introduction HIV/AIDS
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Your answer should at least reflect an ability to discuss the nature of informed
consent, as well as what pre- and post-test counselling entail. You were also
expected to refer to the relevant provisions of the Constitution of South Africa,
1996, the National Health Act 61 of 2003 and decided cases.
1.6 TREATMENT OPTIONS FOR HIV AND AIDS

Anti-retroviral drugs (ARVs) have been developed to fight HIV. They cause a delay
in the onset of AIDS, owing to the fact that they reduce the viral load in the person’s
immune system. ARVs work by blocking the action of enzymes needed for the HIV
to function and make copies of itself. The South African government has undertaken
measures to make ARVs available at public hospitals and to prevent mother-to-child
transmission of HIV.58 For example, in Minister of Health and Others v Treatment Action
Campaign and Others (No 2),59 the Treatment Action Campaign (TAC) approached
the High Court and challenged the provision of antiretroviral drugs to only
certain pilot sites on the basis that this limitation was a violation of the right to access
health care services. TAC demanded that the drug be made available throughout
the country. The High Court ruled in favour of TAC and ordered that nevirapine be
made available throughout the country. The Government unsuccessfully appealed
the decision to the Constitutional Court. The Constitutional Court dismissed the
appeal and ordered the Government to, inter alia, remove the restrictions and extend
the availability of nevirapine to hospitals and clinics.
1.7 CONCLUSION
In this study unit, you were introduced to HIV and AIDS, the modes of
transmission, the stages of HIV and AIDS and the role that the law plays in protecting
people living with HIV and AIDS. You also learnt about the concepts of voluntary
testing, informed consent for different categories of people such as children, the
treatment for HIV/AIDS and the rights protected.
IN THE NEXT STUDY UNIT
Now that you understand the nature of the disease and the issues associated with
it, we will look at HIV and AIDS and specific rights in detail, as contained in the
Constitution of the Republic of South Africa, 1996.
1.8 SELF-ASSESSMENT
Before you begin the next study unit, read the following scenarios and attempt to
answer the questions on your own to ensure that you know and understand the work
covered in this study unit.
1. Jabu has been an officer with the Gender Rights Society for a total of six years.
Throughout his employment, he has been an excellent officer and has been
58 Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002 (5) SA 721; 2002 (10)
BCLR 1033.
59 2002 (5) SA 721; 2002 (10) BCLR 1033 para 67.
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recognised as such with certificates for his long and excellent service. He has
recently applied to be relocated to Somalia to promote the rights of children
in that country. He was advised that a medical check-up will be necessary for
the job outside South Africa. During the medical check-up, a blood sample was
taken from him. He remains unsure for what purposes the sample was taken.
He has now been informed that he cannot be relocated to Somalia because he
is HIV-positive.
In the light of the above scenario, determine whether any of Jabu’s

constitutional rights have been violated and discuss the principles required by
law for consent to HIV testing.
2. With reference to case law, discuss the requirements for consent and voluntary
testing.
3 Under which circumstances may someone living with HIV or AIDS apply
for social assistance? Discuss the applicable legislation and the type of social
assistance available to such persons.
12
STUDY UNIT 2: Hiv/aids and the bill of rights
3 STUDY UNIT 2
2 HIV/AIDS and the Bill of Rights
LEARNING OUTCOMES
On completion of this unit you should be able to:
•• identify specific rights in the Bill of Rights and be in a position to distinguish
and apply them in given scenarios
•• discuss the scope, content and application of the right to equality within the
context of HIV and AIDS in given situations
•• discuss the scope, content and application of the right to dignity
•• discuss the scope, content and application of the right to privacy
•• identify situations where the aforesaid rights may be limited in terms of section
36 (limitation clause) of the Constitution
2.1 INTRODUCTION
Unlike before 1994, when there was no specific legislation protecting people living
with HIV and AIDS,60 there are now various statutes and policies that have been
adopted to ensure that these people are protected. The South African Constitution
is the supreme law of the country and it serves as a yardstick for all acts and
conduct.61 The Constitution, through the Bill of Rights, protects the rights of everyone,
including people living with HIV and AIDS. The Bill of Rights sets out the
fundamental rights of all persons living in South Africa. These rights give people
living with HIV and AIDS the means of defending themselves.
The Bill of Rights applies to natural and juristic persons such as companies. Section
8(2) of the Bill of Rights provides that:
(2) A provision of the Bill of Rights binds a natural or a juristic person if, and to
the extent that, it is applicable, taking into account the nature of the right and
the nature of any duty imposed by the right.
This section of the study guide considers the various rights contained in the Bill of
Rights as they apply to the protection of the rights of people living with HIV and
AIDS. The rights that will be discussed here must be respected and protected by
individuals and other institutions in their interaction with people living with HIV
and AIDS.
Other than the Constitution, there are several laws (such as the Employment Equity
Act) that have been enacted to ensure that people living with HIV and AIDS receive
the necessary protection by the law.62 In an activity below you will be required to
read an article to learn about other laws that protect people with HIV and AIDS.
60 Richter M “Aiding intolerance and fear: The nature and extent of AIDS discrimination in South Africa”
2009 Law, Democracy & Development 196.
61 Section 2 of the Constitution.
62 Richter 2009 Law, Democracy & Development 196.
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In addition to the aforesaid laws, South Africa is a state party to the International
Covenant on Civil and Political Rights (ICCPR),63 which protects several rights
such as the right to equality before the law,64 privacy,65 freedom and security of the
person66 and human dignity.67 State parties to the ICCPR have undertaken to respect
and to ensure that all individuals within their territories enjoy the rights contained
in the ICCPR without any distinction as to, inter alia, race and other status.68 The
ICCPR is relevant in that South Africa, by ratifying it, indicated its commitment
to be bound by internationally accepted standards that promote human rights,
including the rights of those living with HIV and AIDS.
2.2 THE BILL OF RIGHTS
2.2.1 Equality
Section 9 of the Constitution provides for the right to equality. In terms of
section 9, everyone is equal before the law and has the right to equal protection and
benefit of the law. Equality includes the full and equal enjoyment of all rights and
freedoms. Further, to promote the achievement of equality, legislative and other
measures designed to protect or advance persons, or categories of persons, who
have been disadvantaged by unfair discrimination may be taken. Section 9 states
that neither the state nor any person may unfairly discriminate directly or indirectly
against anyone on one or more grounds. In addition, section 9 requires national
legislation to be adopted in order to prohibit unfair discrimination. Before going
further, it is imperative to understand the term “discrimination”. Discrimination
is a form of differentiation.69 Mere differentiation would entail treating people in a
different but acceptable way. For example, the separation of toilet facilities (one for
males and others for females) is differentiation but would not amount to prohibited
unfair discrimination. Prohibited discrimination differentiates between people on
illegitimate grounds. (See section 9(3) of the Constitution, which is discussed below.)
Section 9 lists grounds upon which one may not be discriminated against. These
grounds are contained in section 9(3) and include race, gender, sex, pregnancy,
marital status, ethnic or social origin, colour, sexual orientation, age, disability,
religion, conscience, belief, culture, language and birth. HIV and AIDS are not
listed, although they are protected under section 9(4), which prohibits any form of
unfair discrimination on analogous/unlisted grounds. The Constitutional Court has
defined an analogous ground as one that is “based on attributes or characteristics
which have the potential to impair the fundamental dignity of persons as human
beings, or to affect them seriously in a comparably serious manner”.70
An applicant who is relying on a violation of the right to equality must demonstrate

the following:
63 G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S.
171, entered into force 23 March 1976.
64 Article 14.
65 Article 17.
66 Article 9(1).
67 Article 10.
68 Article 2(1).
69 Currie I and de Waal The Bill of Rights Handbook 5th ed ( Juta 2005) 243.
70 Harksen v Lane NO 1998 (1) SA 300 (CC) para 46.
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•• That the provision under attack differentiates between people, or categories of

people, and that this differentiation is not rationally connected to a legitimate
governmental objective; or
•• That he or she has been unfairly discriminated against.
•• That, even if the discrimination is found to be unfair, the measure is a law of
general application and reasonable and justifiable in terms of the limitation clause
(section 36 of the Constitution).71
In terms of section 9(5), discrimination on the grounds listed, such as colour or

sex, is presumed to be unfair until the contrary is proven.72 As a result, the person
who has discriminated against someone has to show why he or she thinks that such
discrimination is permissible under the law. Unlike discrimination on listed grounds,
discrimination on unlisted grounds, such as HIV and AIDS, is not presumed to
be unfair. Therefore, the burden of proof is on the person complaining of the
wrongdoing. In other words, the person alleging the discrimination will have to
prove that the discrimination was unfair.73
Although the equality clause does not provide for protection against discrimination
on the basis of health or HIV status under section 9(3), the court in Hoffmann v South
African Airways 74 ruled that the refusal by South African Airways to employ the
appellant because of his HIV-positive status violated his right to equality guaranteed
by section 9 of the South African Constitution. An example of a decided case
dealing with discrimination on the basis of HIV is Hoffmann v South African Airways.75
In this case Hoffmann applied for a position as a cabin attendant with South African
Airways. He was asked by SAA to go for an HIV test. He tested HIV-positive. As
a result, the South African Airways refused to give Hoffmann the job despite his
having successfully completed the four-stage process of the selection committee.
Hoffmann challenged the decision of South African Airways not to employ him
on the basis of his HIV status. He argued that the company’s conduct violated his
rights to, amongst others, equality. The court held that SAA’s refusal to employ
Hoffmann violated his right to equality. It further ruled that Hoffmann should be
appointed to the position he had applied for as he had been discriminated against
on the basis of his HIV status.
The court held that the refusal by SAA to employ an HIV-positive individual as a
cabin attendant violated his right to equality and freedom from discrimination as
guaranteed by section 9 of the Constitution.
It is important to note that section 9(4) of the Constitution also requires national
legislation to be enacted to prevent or prohibit unfair discrimination. The Promotion
of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) was
therefore promulgated to give effect to section 9 of the Constitution. PEPUDA’s
objects are, inter alia, to prevent, prohibit and eliminate unfair discrimination and
promote equality.76 In terms of section 6 of PEPUDA, a state or any person may
not unfairly discriminate against any person. PEPUDA specifically recognises
71 President of the Republic of South Africa v Hugo 1997 (6) BCLR 708 (CC); Prinsloo v Van der Linde and Another
1997 (6) BCLR 759 (CC) and Harksen v Lane NO and Others 1997 (11) BCLR 1489 (CC).
72 Currie and de Waal The Bill of Rights Handbook 248.
74 2000 (2) SA 628 (W); 2001 (1) SA 1 (CC).
75 2000 (2) SA 628 (W); 2001 (1) SA 1 (CC).
76 Section 2 of PEPUDA.
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that discrimination on the grounds of HIV/AIDS status should be included in the

definition of “prohibited grounds”.77
Within the context of our discussion, the prohibition against discrimination in

section 9 of the Constitution and various provisions of PEPUDA means that people
living with HIV and AIDS cannot be arbitrarily treated any differently from other
persons in South Africa.
ACTIVITY 2.1
Sipho applied for a position as a paralegal at the Children’s First Community,
an organisation based in Johannesburg. He successfully completed the written
test for the job. In addition to the written test, Sipho had to undergo a medical
examination to ascertain whether he was medically fit to perform his duties. The
medical test included an HIV test. Sipho consented to the HIV test and had to wait
two weeks for the results. A week before the results were released, the Director of
the organisation phoned Sipho and informed him that he was the only candidate
who had performed exceptionally well in the written test and that the job was his.
Sipho’s HIV test was positive. The Director of the organisation decided to send
Sipho an e-mail informing him that, based on his HIV test, they no longer have
a vacancy for him. The Director told Sipho that it would be an embarrassment
for donors to employ an HIV-positive person. Sipho then approached you as a
paralegal for advice.
Has Sipho’s right to equality been violated? Discuss your understanding of section
9 of the Bill of Rights with Sipho. In addition, identify and apply the relevant laws
that Sipho may rely on to challenge the decision to withdraw the job offer because
of his HIV or AIDS status. Reference to case law is compulsory to substantiate
your answers.

In your answer, you must include a discussion of the Bill of Rights, and the nature,
scope and content of the right or rights that have been violated. There must also
be a reference to applicable legislation, specific sections and decided cases.
ACTIVITY 2.2
The Constitution of the Republic of South Africa, 1996, requires national
legislation and other laws to be enacted in order, inter alia, to prevent and prohibit
unfair discrimination on many grounds, including HIV and AIDS. In your knowledge,
has South Africa taken any of the aforesaid measures? Discuss.

Your answer should state the specific constitutional provisions that require the
adoption of the legislation that would prevent unfair discrimination. In addition,
77 S 34 of PEPUDA.
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you must indicate the relevant legislation and discuss the provisions dealing with
HIV and AIDS.
2.3 HUMAN DIGNITY

The right to human dignity is an important right enshrined in the Constitution78
and other international instruments such as the International Covenant on Civil and
Political Rights.79 The right to dignity is regarded by many as the most important
right that should be valued among other rights and a source of all other human
rights.80 O’Regan J said the following in S v Makwanyane:81
The importance of dignity as a founding value of the new Constitution cannot

be overemphasized. Recognizing a right to dignity is an acknowledgement of the
intrinsic worth of human beings: human beings are entitled to be treated as worthy
of respect and concern. This right therefore is the foundation of many of the other
rights that are specifically entrenched in chapter 3.
This is an indication that it forms the basis of all other rights and requires people to
be treated with respect. Section 10 of the Constitution provides that everyone has
inherent dignity and the right to have their dignity respected and protected. The
Constitutional Court in Hoffmann v South African Airways employed the right to dignity
as a way to read HIV status into the list of prohibited grounds in the Constitution.82
The Court reasoned that: “ [i]n view of the prevailing prejudice against HIV positive
people, any discrimination against them can, to my mind, be interpreted as a fresh
instance of stigmatization and I consider this to be an assault on their dignity”.83
In a recent case of NM and Others v Smith and Others,84 a biography of Ms Patricia de

Lille entitled Patricia de Lille and published by New Africa Books revealed the names
of three women who are HIV-positive. The women approached the High Court
and alleged that their names had been published in the book without their consent.
They claimed that their rights, inter alia, their right to dignity, had been violated. The
High Court dismissed their application. They then approached the Constitutional
Court. With regard to the right to human dignity, the Constitutional Court
indicated that living with HIV/AIDS should not per se be seen as a violation of one’s
dignity. The Court said that “[p]eople who are living with HIV must be treated with
compassion and understanding”.85 It nonetheless viewed the disclosure of someone’s
HIV status without consent as an insult to their dignity and therefore concluded that
the disclosure of the applicants’ HIV status violated their right to dignity.86
78 See sections 1, 7, 10, 36, 39, 165, 181 and 186 of the Constitution.
79 Preamble and article 10 of the International Covenant on Civil and Political Rights, G.A. res. 2200A
(XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into
force 23 March 1976.
80 S v Makwanyane and Another 1995 (6) BCLR 665; 1995 (3) SA 391 para 328; Botha H “Human dignity
in comparative perspective” 2009 2 Stellenbosch Law Review 171.
81 S v Makwanyane and Another 1995 (6) BCLR 665;1995 (3) SA 391 para 328.
82 Hoffmann v South African Airways 2001 (1) SA 1; 2000 (11) BCLR 1235 (hereinafter referred to as Hoffmann
case).
83 Hoffmann case para 28.
84 2007 (5) SA 250 (CC).
85 Hoffmann case para 38.
86 Hoffmann case paras 48 and 54.
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Although the Constitutional Court applied the concept of human dignity in many
of its decisions, there is no precise meaning attached to the notion of dignity, except
that it requires everyone to acknowledge the value of other individuals as human
beings and members of the community.87 This right, according to the Court, should
be valued above all other rights. Unlike other rights, which are not applicable
in certain instances, the right to dignity applies in almost all cases involving the
violation of human rights.88
ACTIVITY 2.3
In National Coalition for Gay and Lesbian Equality and Another v Minister of Justice
and Others 89 the Constitutional Court said that “[d]ignity is a difficult concept to
capture in precise terms”. Discuss your understanding of the concept of human
dignity and give examples from case law where this right applies.

In your answer, you must show your understanding of the concept of human
dignity and its importance. In addition, you must indicate how the courts have
used the right to human dignity to ensure that the dignity of those living with HIV/
AIDS is protected.
2.4 PRIVACY
In terms of the South African common law and the Constitution, everyone has the
right to have their privacy protected and not be subjected to unwarranted intrusion
upon their privacy without their consent.90 The common law treats privacy right as
a component of human dignity.91 The violation of this right constitutes an iniuria
in common law.92 In order for someone to allege that his or her right to privacy
has been violated under the common law, he or she must prove the following
elements, namely; (1) Intention, (2) wrongfulness and (3) an invasion of privacy.93 To
ascertain whether there has been an infringement of privacy under the Constitution, a
two-stage process has to be followed. First, it must be ascertained whether there has
been an infringement of the right to privacy.94 If the answer is in the affirmative, it
will “be prima facie be regarded as unlawful”.95 However, there could be a ground of
justification in terms of section 36 of the Constitution.
87 Currie and de Waal The Bill of Rights Handbook 273; National Coalition for Gay and Lesbian Equality and
Another v Minister of Justice and Others 1999 (1) SA 6; 1998 (12) BCLR 1517.
89 1999 (1) SA 6; 1998 (12) BCLR 1517 para 28. See also Currie and de Waal The Bill of Rights Handbook
273.
90 Ross A “Privacy in the Facebook era: A South African legal perspective” 2012 (129) The South African
Law Journal 395; Neethling J “The right to privacy and divorce trials” 2010 (127) South African Law
Journal 231; Bernstein v Bester NO 1996 (2) SA 751 (CC) para 68.
91 Roehrs S “Privacy, HIV/AIDS and public health interventions” 2009 (129) South African Law Journal
361.
92 Neethling J et al Law of Personality 2nd ed (LexisNexis Butterworth’s Durban 2005) 231–236.
93 McQuoid-Mason D “Privacy in Constitutional Law of South Africa”, available at: http://old.ispa.org.
za/regcom/privacyfiles/chapter-2-righttoprivacy.pdf (Date of use: 20 April 2013).
94 McQuoid-Mason D “Invasion of privacy: common law v constitutional delict – does it make a
difference?’ 2000 Acta Juridica 362.
95 McQuoid-Mason 2000 Acta Juridica 362.
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The rights to privacy and dignity are closely related and are part of the
requirements for informed consent. As a general rule, a patient’s confidential information
can therefore not be released without his or her consent. This applies to medical
practitioners and patients whose relationship is recognised as a special confidential
relationship. In other words, HIV patients and all other patients should feel free to
reveal their personal information to doctors for medical purposes.
According to Curie and de Waal,96 the constitutional right to privacy entails the
following:
•• protecting privacy against intrusions and interferences with private life;
•• protecting privacy against disclosures of private facts; and
•• protecting privacy against infringement of autonomy.
If their right to privacy were not protected, patients would be hesitant about consulting
with medical doctors as their personal information would be released to third parties.
People wanting to be tested for HIV would not come forward to know their HIV
status for fear that their HIV status would be revealed to the public. Should one’s
right to privacy be violated, one can approach a court for damages. For example, in
C v Minister of Correctional Services,97 a prisoner’s privacy suit was successful because
the state had permitted an HIV test to be taken without the prisoner’s informed
consent. The prisoner had twice been informed that the test was for HIV and other
sexually transmitted diseases and that he had the right to refuse to undergo the test.
Despite these efforts, the court found that the prisoner had still not given informed
consent because (a) the information had not been given in private or individually
and (b) the prisoner had not been given enough time to consider whether to refuse
or undergo the test.
With regard to the disclosure of a patient’s HIV-positive status constituting a

violation of the patient’s privacy by a medical doctor, the case of Jansen van Vuuren
NNO v Kruger 98 is relevant. This case was decided in terms of the common law
principles protecting the right to privacy. On the golf course a medical doctor
disclosed the HIV status of his patient, Mr McGeary, to colleagues of his who
had nothing to do with the patient. McGeary instituted legal proceedings in the
then Witwatersrand Local Division of the High Court claiming damages against
the doctor on the basis that his right to privacy had been violated. His action did
not succeed. McGeary died and the executors of his estate appealed the decision
and the court ruled in their favour. The Supreme Court of Appeal (formerly the
Appellate Division) held that there was no ethical or legal duty on the medical doctor
to inform his colleagues about McGeary’s HIV status.
In NM v Smith99 the Constitutional Court emphasised that:
The disclosure of an individual’s HIV status, particularly within the South African
context, deserves protection against indiscriminate disclosure due to the nature
and negative social context the disease has as well as the potential intolerance and
discrimination that result from its disclosure. The affirmation of secure privacy rights
within our Constitution may encourage individuals to seek treatment and divulge
information encouraging disclosure of HIV which has previously been hindered by

97 1996 (4) SA 292 (C).
98 1993 (4) SA 842 (AD).
99 NM v Smith para 42.
HIL3705/1 19

fear of ostracism and stigmatisation. The need for recognised autonomy and respect
for private medical information may also result in the improvement of public health
policies on HIV/AIDS.
The court stated that the medical information of the person should always be kept
confidential even if the person has been discharged from hospital.100 No one is allowed
to gain access to such information without the consent of the person involved. The
court therefore ruled that the publication of the applicants’ HIV status without their
consent “constituted a wrongful publication of a private fact and so the applicants’
right to privacy was breached by the respondents”.101
2.5 FREEDOM AND SECURITY OF PERSON

In terms of section 12(2)(c) of the Constitution, everyone has the right to bodily
and psychological integrity, which includes the right not to be subjected to medical
or scientific experiments without their informed consent. It has been said that with
regard to one’s body, this right creates a sphere of individual inviolability which has
two components.102 These components are “security in” and “control over” one’s
body.103 The former refers to the protection of bodily integrity against individual
or government intrusions and the latter refers to one’s control over one’s body.104
This right is important as it involves issues of informed consent, privacy and

human dignity. With regard to HIV, it means that one cannot be subjected to a
medical examination without giving consent, except in emergency situations.105 Before
an HIV test can be done, there must be informed consent together with pre-test
and post-test counselling. An example of a case that turned on the right not to be
subjected to HIV test with one’s informed consent is the case of C v Minister of
Correctional Services106 (discussed earlier). [Refer back to study unit 1 on voluntary
testing and informed consent and study unit 2 under privacy.]
ACTIVITY 2.4
As a paralegal, you are approached by Zakumi for legal assistance. He informs
you that in October 2012 he had gone for a medical consultation at Dr Mzimasi’s
medical practice in Zone 7, Pimville, Soweto. To his surprise, the doctor forced
him to undergo an HIV/AIDS test for the purposes of certain scientific experiments
regarding a cure for HIV/AIDS. Zakumi also tells you that his neighbour gave him
a copy of his HIV-positive test results towards the end of November 2012. When
Zakumi asked the neighbour how he had obtained his (Zakumi’s) medical records,
the neighbour said that the results had been brought to him by six well-known
unruly community members who enjoy spreading rumours about people who have
HIV/AIDS. The said community members also told the neighbour that he should
100 NM v Smith paras 43–45.

101 NM v Smith para 47.
104 Currie and de Waal The Bill of Rights Handbook 308-309; Bishop M “A Baedeker to Constitutional
Law of South Africa” in Woolman S et al (eds) Constitutional law of South Africa 2nd ed ( Juta Cape
Town 2007); Mswela, M “Cultural Practices and HIV in South Africa: A Legal Perspective” 2009
(12) Potchefstroom Electronic Law Journal 196.
105 McQuoid-Mason D “An introduction to aspects of health law: bioethical principles, human rights
and the law” 2008 (1) South African Journal of Bioethics and Law 7.
106 1996 (4) SA 292 (C).
20
STUDY
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theBill
billofofRights
rights
hand the results to Zakumi because they were close friends and that they had both
slept around in the past. They further said that the results were a true reflection
of their unprotected sexual conduct. Zakumi’s attempts to get hold of Dr Mzimasi
and enquire about how his medical records were made available to the public have
been unsuccessful. It was also reported in the local newspaper that Dr Mzimasi
usually carries his patients’ files in his car when he goes to social events. Further,
his car’s locking system has not been working for almost two years but he has not
done anything about repairing it.
In light of the above, refer to legal principles, case law and specific constitutional
rights to advise Zakumi on how he could deal with this case. In your view, have
any rights been violated? If so, name the affected rights.

In your answer, you must include a discussion of the scope and content of the
rights violated under the common law and the Constitution. You are also expected
to discuss informed consent with reference to decided cases. In your answer,
indicate whether the rights discussed have been violated.
2.6 LIMITATION OF RIGHTS

The rights in the Bill of Rights are not absolute and can therefore be limited under
section 36 of the Constitution. Section 36 is also known as the general limitation
clause and sets out various factors107 that need to be considered when a particular
right is to be limited. The courts have “adopted a two-stage approach to rights
adjudication”.108 This two-stage process is captured by Iles in the following words:
The first stage involves a determination of the scope of the right. If the law of
general application which is the subject of the litigation restricts an activity which
falls within the protected scope of the right, then a second stage justification
analysis is triggered. This stage [second stage] draws on the factors listed in s 36(1) to
determine whether the infringement of the right is justifiable in an open and
democratic society based on human dignity, equality and freedom.109
In short, the first part requires an ascertainment of whether a particular law violates
a certain right protected in the Constitution. If so, the court is required to consider
whether such violation is justifiable by looking at the provisions of section 36, which
provide that:
107 See S v Makwanyane and Another 1995 (6) BCLR 665; 1995 (3) SA 391 para 104 where the court
said: “…[T]he relevant considerations will include the nature of the right that is limited, and its
importance to an open and democratic society based on freedom and equality; the purpose for
which the right is limited and the importance of that purpose to such a society; the extent of the
limitation, its efficacy, and particularly where the limitation has to be necessary, whether the desired
ends could reasonably be achieved through other means less damaging to the right in question. In
the process regard must be had to the provisions of section 33(1), and the underlying values of the
Constitution. ...”
108 IIes K “A fresh look at limitations: unpacking section 36” 2007 (23) South African Journal on Human
Rights 71.
109 IIes 2007 (23) South African Journal on Human Rights 71.
HIL3705/121

The rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom, taking into
account all relevant factors, including:
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
When the nature of the right is considered, the courts will take into account the
content of the right that is sought to be limited, the importance of the right and the
interest which is protected.110 Limitation of rights entails a process of trying to strike
a balance between various competing rights and trying to find less restrictive means
that would achieve the required purpose. In a concurring judgment that found the
death penalty to be unconstitutional in S v Makwanyane,111 Langa J said that any law
that sought to limit a right will have to comply with the requirements of the limitation
clause. He accordingly also found that the state had failed to justify the limitation
of the right to life by a death penalty.
There are other instances where the courts have found that a particular right has
been justifiably limited and that such limitation is necessary to achieve a legitimate
government purpose. For example, in President of the Republic of South Africa and
Another v Hugo,112 former President Nelson Mandela enacted the Presidential Act 17
of 1994 (the Presidential Act), which granted special remission of sentences to certain
mothers in prison with children under the age of twelve years. The respondent, a
single father of a child under the age of twelve years, challenged the constitutionality
of the Presidential Act in the High Court on the basis that it unfairly discriminated
against him and his son on the ground of sex or gender and therefore violated section
8 of the interim Constitution. The High Court ruled in his favour. The President
appealed. The Constitutional Court ruled in favour of the President and found that
while the Presidential Act discriminated against the respondent on the basis of sex,
such discrimination was not unfair. In deciding whether the limitation was reasonable
and justifiable in an open and democratic society, the Constitutional Court took into
account the President’s reason for releasing mothers, which in part reads as follows:
… I was motivated predominantly by a concern for children who had been deprived
of the nurturing and care which their mothers would ordinarily have provided.
Having spent many years in prison myself, I am well aware of the hardship which
flows from incarceration …113
The Constitutional Court said that “there can be no doubt that the aim of ensuring
young children are looked after is legitimate”. It then found that the Presidential Act
served a legitimate purpose in only allowing mothers to be released. The limitation
was also found to be justifiable.
For a full elaboration on the factors listed above (a–e), visit the library and read the
article by K Ies entitled “A fresh look at limitations: unpacking section 36” South African
110 See S v Makwanyane para 84.

111 S v Makwanyane para 217.
112 1997 (6) BCLR 708; 1997 (4) SA 1 para 105.
113 President of the Republic of South Africa and Another v Hugo para 105.
22
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theBill
billofofRights
rights
Journal on Human Rights 2007 (23) 68–92. Study pages 8–85 only. The article can also
be accessed at: http://www.sabinet.co.za/abstracts/ju_sajhr/ju_sajhr_v23_n1_a3.html
ACTIVITY 2.5
Zola went to the Johannesburg General Hospital to see his friend, Zama, who had
been hospitalised because of an ear infection. Ear infections have been prevalent
in the village of Sakhumzi, in the North West province. These infections have
claimed several lives and the government has spent large sums on trying to curb
them. The Department of Health decides to issue a public statement and publishes
Regulation 53, indicating that everyone in the province suspected of having an
ear infection will be randomly tested. While he was at the hospital, the nurses
decided to take blood samples from Zola to ascertain whether he had picked up
an ear infection when he visited his friend in the hospital room without wearing
the required mask. With reference to the specific constitutional provisions, was
the nurses’ conduct permissible in the given scenario? Discuss.

In your answer, you must include a discussion of your understanding of the
limitation clause, various factors that need to be taken into account and the
importance of the provision.
2.7 REMEDIES
Other infringements of rights may result in the offending legislation being
declared invalid and of no force and effect.114 It has been said that the “purpose of
constitutional remedies is to vindicate the right and deter its further infringement”.115
As per the provision of section 38, which refers to appropriate relief, there is no
closed list of remedies and therefore the courts may order any remedy that will
provide redress. For example, in Hoffman v South African Airways116 the court ordered
that a person who was denied employment because of his HIV/AIDS status should
be employed.
According to section 8 of the Constitution, 1996, everyone whose rights have

been threatened or violated has the right to approach a competent court and seek
appropriate relief, including a declaration of rights.117 In many instances, where
a constitutionally guaranteed right has been infringed and a person has suffered
harm or loss, the law of delict provides suitable remedies.118 Action may be brought
against the other person under the actio legis aquilae (which provides for compensation
for damage to person or property). Such damage may have been committed
unlawfully, either negligently or intentionally. The other action that one may use is
114 National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6;
1998 (12) BCLR 1517.
116 2000 12 BLLR 1365 para 64 (d).
117 Section 8 of the Constitution.
118 O’ Regan K “Fashioning constitutional remedies in South Africa: some reflections”, available at:
http://www.sabar.co.za/law-journals/2011/april/2011-april-vol024-no1-pp41-44.pdf (accessed
18 May 2013).
HIL3705/123

the actio injuriarum which provides inter alia for compensation for harm to a person’s
reputation and privacy.
2.8 CONCLUSION
In this study unit you were introduced to the rights to equality, human dignity and
privacy. You were shown how these rights apply in given scenarios. In particular,
you learnt about the role that the law and the courts play in protecting the aforesaid
rights of people living with HIV and AIDS. You also learnt that these rights are
not absolute and can therefore be limited in terms of section 36 of the Constitution.
Finally, you learnt about possible remedies for breaches of these constitutional rights.
Now that you understand specific rights in the Constitution protecting people living
with HIV and AIDS, in study unit 3 we will look at access to health and the duty
imposed on the state by the Constitution to provide access to medical care.
2.9 SELF-ASSESSMENT
Before you begin studying the next study unit, please answer the following questions
on your own in order to ensure that you know and understand the work covered in
this study unit:
1. Discuss your general understanding of the provisions of the Bill of Rights.
2. With reference to decided cases, identify, discuss and apply the specific rights
that protect people living with HIV and AIDS.
3. Discuss your understanding of the limitation clause and the circumstances

under which the rights in 7.2 above can be limited.
4. With reference to case law, discuss the scope and content of the rights to equality,
privacy, dignity and equality in relation to HIV and AIDS.
24
STUDY UNIT 3: Hiv/aids and the right to health under the constitution
4 STUDY UNIT 3
3 HIV/AIDS and the right to health under the
Constitution
LEARNING OUTCOMES
On completion of this unit you should be able to:
•• Identify and discuss the constitutional provisions dealing with the right to
access health care.
•• Discuss the concepts “progressive realization”, and “within available state
resources” in given scenarios with reference to case law.
•• Critically discuss the enforceability of socioeconomic rights with specific
reference to the right of access to health care
3.1 INTRODUCTION
The adoption of the Constitution in 1996 saw the right of access to health care
services being protected as a human right for the first time in South Africa’s history.119
The Constitution imposes obligations on the state to take reasonable and other
legislative measures to achieve the progressive realisation of the right to access to
health care.120 Chirwa rightly observes that good health is important for a “decent
and dignified life”, including the enjoyment of all other rights.121 The Constitution
does not contain a definition of health care, although it refers to “health”. The
World Health Organization defines health as a “complete state of physical, social,
and mental well-being and not merely the absence of diseases or infirmity”.122 To
give effect to section 27 of the Constitution, the National Health Act 61 of 2003
was promulgated.123
In addition to incorporating the right to have access to health care services in its
Constitution, on 09 July 1996 South Africa ratified the African Charter on Human
and Peoples’ Rights (ACHPR).124 In terms of article 1 of the ACHPR, states
parties to the Charter undertake inter alia to recognise the rights, duties and freedoms
contained in the ACHPR and to adopt legislative or other measures to give effect to
119 Section 27(1)(a) of the Constitution.

120 Section 27(2) of the Constitution.
121 Chirwa DM “The right to health in international law: its implications for the obligations of state and
non-state actors in ensuring access to essential medicine” 2003 (19) South African Journal on Human
Rights 541.
122 Callanah D “The WHO definition of ‘health’” The Hastings Center Studies 1973 (1) World Health
Organization website, accessible at: http://www.who.int/about/definition/en/print.htm (Date of
use: 3 October 2012).
123 Dhai A “Healthcare reform in South Africa: A step in the direction of social justice: editorial” 2011
(4) South African Journal of Bioethics and Law 48–9.
124 African [Banjul] Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/
LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 Oct. 1986. See the website of the African
Commission on Human and Peoples’ Rights, available at: http://www.achpr.org/instruments/
achpr/ratification/ (Date of use: 16 September 2013).
HIL3705/125

them. Although the ACHPR does not specifically deal with HIV and AIDS, it has
been said that its provisions are flexible enough “to address the denial of human
rights as a result of HIV/AIDS”.125 This view is tenable as there are various
provisions in the ACHPR which deal with health.126 The only concern is the
clawback clauses in which a particular provision confers a right and at the same
time limits that right.127 African Heads of State have also, inter alia, undertaken “[t]o
place the fight against HIV/ AIDS at the forefront and as the highest priority issue
… in national development plans.128 This shows the collective efforts to fight the
spread of HIV and AIDS.
The right to have access to health care services is a socio-economic right and requires
the government to make resources available so that the country’s people may enjoy
the rights set forth under section 27 of the Constitution.129 In other words, the right
to have access to health care services is enforceable in the courts.130 This means that
an individual can approach a court of law and ask for relief, ordering the government
to provide health care services.131
3.2 THE RIGHT TO HEALTH UNDER THE CONSTITUTION

It is important to note that the Constitution requires the state to “respect, protect,
promote and fulfil” the rights in the Bill of Rights.132 By complying with these
constitutional requirements, the state would fulfil its obligations133 under section 27
of the Constitution, which provides that:
27 (1) Everyone has the right to have access to –
(a) health care services, including reproductive health care;

(b) …
(c) …
(d) …
(2) The state must take reasonable legislative and other measures, within its
available resources, to achieve the progressive realisation of each of these
rights.
(3) No one may be refused emergency medical treatment.
This right to have access to health care services has been interpreted as:
125 Gumedze S “HIV/AIDS and human rights: The role of the African Commission on Human and
Peoples’ Rights” 2004 (4) African Human Rights Law Journal 190.
126 See inter alia article 11 and 12 of the ACHPR.
127 Mutua M “The Construction of the African human rights system: Prospects and pitfalls” in: Power
S and Allison G (eds) Realizing Human Rights: Moving from inspiration to impact (Palgrave Macmillan,
2000) 146.
128 Article 23 of the Abuja Declaration on HIV/AIDS, tuberculosis and other related infectious diseases,
Abuja, Nigeria 24–27 April 2001, available at: http://www.un.org/ga/aids/pdf/abuja_declaration.
pdf (Date of use: 16 September 2013).
129 Currie I and de Waal J The Bill of Rights Handbook 5 ed ( Juta 2005) 567.
130 Ex Parte Chairperson of the Constitutional Assembly In re: Certification of the Constitution of the Republic of
South Africa 1996 1996 (4) SA 744 (CC) para 78.
131 Wiles E “Aspirational principles or enforceable rights? The future for socio-economic rights in
national law” 2000 American University International Law Review 2000.
132 Section 7(2) of the Constitution.
133 Ngwenya C “Article Commentary: Access to Health Care Services as a Justiciable Socio-Economic
Right under the South African Constitution: Minister of Health and Others v Treatment Action Campaign
and Others (2002) Constitutional Court of South Africa” 2003 (6) Medical Law International 20.
26
STUDY
STUDYUNIT
UNIT3:3:
HIV/AIDS
Hiv/aids and
and the
the right
right to
to health
health under
under the
the Constitution
constitution
conferring, on everyone in South Africa, an entitlement to the availability,

accessibility, and acceptability of preventative, diagnostic and curative health care
services of adequate quality on primary, secondary and tertiary levels.134
The above provision requires that the state must not hinder access to health care
services and that it must take reasonable legislative and other measures within its
reasonable resources to ensure that health care services are accessible to those who
need them.135 Section 27 has an internal limitation clause as it requires the state to
do what is within its means.136 In other words, the right to have access to health care
services is something that can be enjoyed progressively because it requires resources.
The state is therefore not expected to do what is beyond its financial means. At the
very least, the government must show that it has taken reasonable measures to ensure
that everyone has access to health care services.
The National Health Act 61 of 2003 (the Act) was enacted to give effect to section
27 of the Constitution. One of the purposes of the Act is to provide the population
of South Africa with the best possible health care services.137 In terms of the Act,
the Minister of Health must endeavour to “protect promote, improve and maintain
the health of the population”.138 This has to be done “within the limits of available
resources”.139 For a discussion on available resources, refer to part 3.2.3 below.
There are three noticeable points in section 27(2): namely, the phrases “reasonable
measures”, “within available resources” and “progressive realization”. These will be
discussed independently below.
3.2.1 Reasonableness
The state is required to take reasonable measures to fulfil its constitutional obligation
to provide for the right to health.140 The courts have not given a definitive
interpretation of the term “reasonable”, but they have indicated that what constitutes
reasonableness will depend on the circumstances of each case.141 For example,
in Government of the Republic of South Africa and Others v Grootboom and Others142 the
Constitutional Court said that a “programme that excludes a significant segment of
society cannot be said to be reasonable”.143 It went on to state that:
… To be reasonable, measures cannot leave out of account the degree and extent of
the denial of the right they endeavour to realise. Those whose needs are the most
urgent and whose ability to enjoy all rights therefore is most in peril must not be
ignored by the measures aimed at achieving realisation of the right.
134 Marius P “Resuscitating socio-economic rights: constitutional entitlements to health care services”
2006 (22) South African Journal on Human Rights 480.
135 Ngwenya C “The recognition of access to health care as a human right in South Africa: Is it enough?
2000 (5) Health and Human Rights 30.
136 Iles K “Limiting socio-economic rights: Beyond the internal limitations clauses” 2004 (20) South
African Journal on Human Rights 455.
137 Section 2 of the Act.
140 Forman L “The Imperative to Treat: The South African state’s constitutional obligations to provide
antiretroviral medicines” 2003 (12) Health Law Review 11.
141 Government of the Republic of South Africa and Others v Grootboom and Others Grootboom 2001 (1) SA 46;
2000 (11) BCLR. para 92 (hereinafter referred to as the Grootboom case); Iles South African Journal on
Human Rights 455–458.
142 2001 (1) SA 46; 2000 (11) BCLR.
143 Grootboom case para 43.
HIL3705/127

Similarly, in Minister of Health and Others v Treatment Action Campaign and Others
(No 2)144 the court found the government’s policy of restricting nevirapine to research
and training sites to be unreasonable on the basis that it failed to “address the
needs of mothers and their new-born children” who did not have access to the
aforesaid sites. It follows that when the state adopts measures aimed at fulfilling the
rights in the Constitution, such steps must take into account the needs of the most
vulnerable and accommodate the people most affected. Accordingly, a programme
that fails to address a huge number of those affected is likely to be found unreasonable
by the courts.
ACTIVITY 3.1
Assume that during the years 1997–2000 there was an outbreak of tuberculosis
(TB) in South Africa. All the public health facilities were severely strained because
of the large number of people who required medical attention. In these years, the
government allocated 30% of the budget to the health care system and the rest
was distributed among other departments. In 2008 and 2009, the government
decided to allocate only 10% of the budget to the health care system. Despite
the absence of security issues in the country, the government allocated 50%
of the budget to the Ministry of Defence and the rest was distributed to other
departments. By the end of 2009, the health care system was collapsing. In early
2000, many people were turned away from clinics and hospitals because there was
not enough medicine to cater for everyone. As a result of this, a non-governmental
organisation known as Health For All took the government to court on behalf of
all affected people.
In light of the above, evaluate whether any rights were affected by the
government’s actions and critically discuss whether you would consider the
government to have taken “reasonable measures” to curb the TB epidemic.

In your answer, you must include a discussion of the scope and content of
the rights that may be violated under the Constitution. There must also be a
discussion on reasonableness through reference to case law.
3.2.2 Progressive realisation

Socio-economic rights, in general, cannot be achieved and/or realised overnight as
they require financial resources. Accordingly, the state makes these rights a reality
on a progressive basis over a period of time. For example, one cannot approach a
court of law and demand that a hospital or clinic be built in a village overnight so
that one can access it the following day. Socio-economic rights require budgeting,
planning and other resources and it may take time before the hospital or clinic can
be built. As was pointed out by the Constitutional Court in Grootboom case:
… The term “progressive realisation” shows that it was contemplated that the right
could not be realised immediately. But the goal of the Constitution is that the basic
needs of all in our society be effectively met and the requirement of progressive
144 2002 (5) SA 721; 2002 (10) BCLR 1033 para 67.
28
STUDYUNIT
STUDY UNIT3:3: Hiv/aids and
HIV/AIDS and the
the right
right to
to health
health under
under the
the Constitution
constitution
realisation means that the state must take steps to achieve this goal. It means that
accessibility should be progressively facilitated: legal, administrative, operational
and financial hurdles should be examined and, where possible, lowered over time.
Housing must be made more accessible not only to a larger number of people but
to a wider range of people as time progresses …145
The state in these instances is allowed time to adopt policies that would assist
in implementing the rights set forth in the Constitution. The courts are slow to
interfere with reasonable or rational policies adopted by government to give effect
to the Constitution.146
ACTIVITY 3.2
There have been several incidents of unrest throughout the country involving
people living in informal settlements. For example, in Cape Town people protested
against the newly developed portable toilets that have been designed for informal
settlements. They barricaded roads carrying placards written “WE WANT
FLUSHABLE TOILETS NOW NOW” etc! They view the new toilets as undermining
them and as exposing them to health risks as, according to the residents, these
toilets are no different from the old system of bucket toilets. Government officials
responded by indicating that these were temporary measures.
Do you consider the residents’ demand that flushable toilets be provided

immediately to be acceptable and in line with the constitutional requirement of
“progressive realization”? Discuss your answer with a fellow student and refer to
decided cases.

In your answer, you must include a discussion of whether any right has been
violated. You must also, through reference to case law, discuss the concept of
progressive realisation and indicate whether the demands of the residents should
be addressed immediately.
3.2.3 Within available resources

This phrase means that the enjoyment of socio-economic rights depends on the
availability of resources from the state. In other words, when the state has no resources
to ensure the right to access to health care, there is nothing that can be done. For
example, in Soobramoney v Minister of Health, a 41 year-old diabetic man was in need
of kidney dialysis.147 He suffered from ischaemic heart disease and cerebro-vascular
disease, which resulted in a stroke. His kidneys were failing. His condition was severe
and his life could be prolonged only by means of regular renal dialysis. He tried to
get treatment from the renal unit of the Addington state hospital in Durban but was
145 Grootboom case para 45.

146 Soobramoney v Minister of Health (Kwazulu-Natal) 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (27)
para 29 where the court said that a “court will be slow to interfere with rational decisions taken
in good faith by the political organs and medical authorities whose responsibility it is to deal with
such matters”.
147 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696.
HIL3705/1 29

turned away because of limited resources at the hospital. The hospital could only
provide dialysis treatment to a limited number of patients. Soobramoney appealed
to the Constitutional Court but was also unsuccessful as the state demonstrated
that it had no resources to prolong his life. It is clear that the obligation imposed
by section 27 of the Constitution does not “require the state to do more than its
available resources permit”. Rather, the state is required to act reasonably and within
its available resources to achieve the full realisation of the right to have access to
health care services.
ACTIVITY 3.3
In 2004, the government allocated the lion’s share of its budget to the Department
of Defence. As a result of this, many sectors, including the Department of Health,
were under resourced. The government’s reason for allocating almost all the
country’s resources to Defence was related to its desire to attract young, educated
and zealous soldiers into the army. This move attracted a strong public outcry as
HIV and AIDS affects most South Africans. According to the public, the Department
of Health should have been made the first priority in order to reduce the spread
of HIV/AIDS and provide the necessary treatment for those affected.
In light of the above, discuss the right to health care services with specific
reference to the Constitution. In your answer, indicate whether the steps taken by
the government in allocating resources to various departments were reasonable
as required by the Constitution. In your view, is the right to have access to health
care services enforceable in South African courts? Substantiate your answers with
reference to relevant case law. In your discussion, also indicate whether South
Africa is a party to any regional instruments and mention its regional obligations
under the said instruments. [20]

In your answer, you must include a discussion of the obligations imposed on the
state by section 27 of the Constitution. In your answer, indicate whether the right
to have access to health care services is enforceable in South African courts. You
must refer to case law and regional instruments.
3.3 CONCLUSION
In this study unit, you were introduced to the right to have access to health care
services under the Constitution and the ACHPR. You also learnt about the duty of
the state to ensure that the right to health is enjoyed by everyone. In particular, you
learnt that this right is to be realised on a progressive basis and may be limited by a
lack of resources. You also learnt that the state is required to take reasonable steps
to make this right a reality.
Now that you understand the nature of the obligations on the state in terms of
section 27 of the Constitution and the steps that need to be taken by the state, we
will look at the rights of specific individuals in study unit 4. We will examine the
30
STUDYUNIT
STUDY UNIT3:3: Hiv/aids and
HIV/AIDS and the
the right
right to
to health
health under
under the
the Constitution
constitution
rights of children and women and the state’s obligation in respect of the rights of
these categories of persons.
3.4 SELF-ASSESSMENT
1. Discuss your understanding of the nature of the obligations imposed on the
state by section 27 of the Constitution.
2. How have the courts applied the concepts “reasonableness”, “progressive

realization” and “within available resources” in various cases?
3. Critically discuss the scope and content of section 27 of the Constitution and
advise on whether socio-economic rights are enforceable in South Africa.
HIL3705/131

5 STUDY UNIT 4
4 Rights of specific individuals
LEARNING OUTCOMES
After completing this study unit students should be able to:
•• identify the rights related to HIV and AIDS which apply to each category of
individuals
•• discuss the extent to which these rights protect these specific individuals
•• apply the different rights in a given scenario
4.1 INTRODUCTION
In study unit 2 you learnt how the Bill of Rights protects people living with HIV/
AIDS. In this study unit we will focus mainly on the rights of specific individuals
affected by HIV/AIDS. The following classes or categories of persons will be
discussed:
•• Women
•• Children
•• Prisoners
•• Gays and lesbians
These persons are vulnerable and their human rights are often violated on account
of their HIV status. Various measures have been taken to protect these specific
vulnerable groups.
4.2 THE RIGHTS OF WOMEN

Women are among the vulnerable persons in the community. This is because of
the power relationships between men and women. Olivia Rose-Innes in her article,
“Sociocultural aspects of HIV/AIDS”, states that, “South African culture is generally
male dominated, with women accorded a lower status than men are. Men are
socialised to believe that women are inferior and should be under their control;
women are socialised to over-respect men and act submissively towards them. The
resulting unequal power relation between the sexes, particularly when negotiating
sexual encounters, increases women’s vulnerability to HIV infection and accelerates
the epidemic.” Women’s inferior status affords them little or no power to protect
themselves by insisting on the condom use or refusing sex”.148
Customary practices and lack of economic opportunities make women vulnerable

to HIV and AIDS. Rape is another factor which makes women vulnerable to these
infections.
148 Olivia Rose-Innes, Health24, October 2006.

http://www.health24.com/Medical/HIV-AIDS/The-South-African-culture/Sociocultural-aspects-
of-HIVAIDS-20120721 (date used: 29 March 2012)
32
STUDY UNIT 4: Rights of specific individuals
South Africa is a signatory to the United Nations Convention on the Elimination

of all Forms of Discrimination against Women. The Convention seeks to eradicate
all forms of discrimination against women. It defines discrimination against women
as any distinction, exclusion or restriction made on the basis of sex which has the
effect or purpose of impairing or nullifying the recognition, enjoyment or exercise
by women, irrespective of their marital status, on a basis of equality of men and
women, of human rights and fundamental freedoms in the political, economic, social,
cultural, civil or any other field.
By virtue of being a signatory to the Convention, South Africa is bound to take

serious measures to end all forms of discrimination against women as required by
the Convention. In terms of this Convention, states parties are required to modify
the social and cultural patterns of men and women with a view to achieving the
elimination of prejudices and customary and all other practices which are based on
the idea of inferiority or superiority of either sexes or on the stereotypical roles of
men and women. An interesting provision in the Convention is Article 14, which
requires states parties to take all appropriate measures to eliminate discrimination
against women in rural arrears, and to ensure that they participate in and benefit
from rural development on the same basis as men.
This means that South Africa must make economic opportunities available to women,
and prohibit all practices which create unequal status between men and women.
In study unit 2, you have learnt about the Bill of Rights, specifically the right to
equality as entrenched and advocated in the Constitution of the Republic of South
Africa. In this regard, the Constitution of Republic of South Africa protects the
rights of women and promotes equality between sexes.
Having studied some of the factors which make women vulnerable to HIV
infections above, the Constitution seeks to eliminate unequal power between men
and women, thereby reducing women’s vulnerability to HIV infections.
4.2.1 Customary practices

Because of customary practices, women generally have less power than men in
the community or family structures, as the fact that men exercise power over women
puts women at a greater risk of contracting HIV. Traditionally a man did not require
consent to have sexual intercourse with his wife. Due to women’s inferior status, they
are reluctant to demand that their husbands use condoms during sexual intercourse
as they fear this might be regarded as being disrespectful.
In terms of our law, it is possible for a person to be charged with raping his or her
own spouse due to the other spouse’s lack of consent.
Women could also not demand that their husbands use condoms during sexual
intercourse as this would be seen as disrespect.
It is therefore important to study the definition of rape in the Criminal Law (Sexual
Offences and Related Matters) Amendment Act.149 Section 3 of the Criminal
Law (Sexual Offences and Matters) Amendment Act150 provides that any person
149 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.
HIL3705/133

who unlawfully and intentionally commits an act of sexual penetration with a

complainant, without his or her consent, is guilty of the offence of rape.
Sexual penetration and consent are further defined in section 1 of the Act.151 Sexual
penetration is defined as including any act which causes penetration to any extent
whatsoever by –
(a) the genital organs of one person into or beyond the genital organs, anus or
mouth of another person;
(b) any other part of the body of one person, or any object, including any part of
the body of an animal, into or beyond the genital organs or anus of another
person; or
(c) the genitals of an animal, into or beyond the mouth of another person.
For a person to be guilty of the offence of rape, the following elements must be
satisfied:
(a) Unlawfulness
(b) Intention
(c) Without consent of another person
(d) Sexual penetration (as defined in the Act)
It therefore becomes necessary to discuss consent in more detail. For the crime of
rape to be committed, the act of sexual penetration must take place without the
consent of the complainant. The word “consent” as used in the definition of the
crime is defined in section 1(2) as “voluntary or uncoerced agreement”.152 This
means that the complainant must voluntarily and without coercion agree to an act
of sexual penetration.
Being in a marital relationship is not a defence as it cannot replace the necessary

consent. It is possible for a husband to rape his own wife. Section 56(1) provides that
whenever an accused person is charged with rape, it is not a valid defence for the
accused person to contend a marital or other relationship exists or existed between
him or her and the complainant.153
In polygamous marriages women face a greater risk of becoming infected with

HIV as their husbands have more than one wife and the use of condoms is not
encouraged or is seen as taboo.
However, it will be wrong to conclude that polygamy is primarily a harmful practice

which leads directly to the spread of HIV/AIDS. The manner in which persons in
polygamous marriages conduct themselves may facilitate the spread of HIV. There
are more potential victims of HIV/AIDS in a polygamous family circle than in a
monogamous union.154
Women can decide whether they want to be in polygamous marriages, where

they will be allowing their husbands to have multiple sexual partners and thereby
increasing the risk of HIV infection.
152 Snyman CR, Criminal Law
153 Snyman CR, Criminal Law
154 M Mswela, Cultural Practices and HIV in South Africa: A legal perspective, PER 2009 Volume 12
No. 4
34
In study unit 2 you learnt about the Bill of Rights as entrenched in the Constitution.155
Section 9 of the Constitution provides that everyone has the right to equality. This
means that women have the same rights as men in a marriage relationship. They can
decide whether to have sex and whether to use condoms during sexual intercourse.
ACTIVITY 4.1
Mr and Mrs Khumalo are a married couple. They are married in terms of customary
law. Mr Khumalo has paid lobola for Mrs Khumalo and they have been living together
for three years. Mrs Khumalo works long hours packaging food in a nearby factory.
She is always tired when she comes back from work. Mr Khumalo always forces
her to have sex with him even when she refuses because she is tired. He says he
has paid lobola for her and can have sex with her any time he wants.
Is Mr Khumalo guilty of rape?

Having sexual intercourse with someone without that person’s consent is a
criminal offence.
Section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment
Act156 provides that any person who unlawfully and intentionally commits an act
of sexual penetration with a complainant, without his or her consent, is guilty of
the offence of rape.
It does not matter whether or not you are married. Section 56(1) provides that
whenever an accused person is charged with rape, it is not a valid defence for the
accused person to contend that a marital or other relationship exists or existed
between him or her and the complainant.157
This means that having sexual intercourse without your husband or wife’s consent
amounts to rape. Mr Khumalo would be found guilty of rape because he had sexual
intercourse with Mrs Khumalo without her consent.
Study the definition of rape in the Criminal Law (Sexual Offences and Related
Matters) Amendment Act.158
4.2.2 Abortion
Women have the right to terminate their pregnancies without the consent of the
father of the child. This is in terms of the Choice on Termination of Pregnancy
Act.159 This Act makes it possible for pregnant women, including women who are
HIV-positive, to terminate their pregnancies without seeking authorisation from
their husbands or the child’s father. Women can terminate their pregnancies if they
155 Chapter 2 of the Constitution of the Republic of South Africa, 1996

159 Choice on Termination of Pregnancy Act 92 of 1996.
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believe they will not be able to take care of the child because of their HIV status,
or if they fear that they will pass HIV on to the child, or if the child was conceived
as a result of rape or for any other reason they might have.
It should be noted that the Choice on Termination of Pregnancy Act provides

circumstances in which and conditions under which pregnancy may be terminated.160
Section 2(1)(a) of the Act161 provides that pregnancy may be terminated upon request
during the first 12 weeks of gestation. Section 2(1)(b)–(c) stipulates the circumstances
and conditions under which pregnancy can be terminated after the first 12 weeks
of gestation have elapsed.
4.2.3 Mother-to-child transmission

The Constitution of the Republic of South Africa provides that everyone has a right
to have access to health care services, including reproductive health care.162 HIV-
positive mothers have the right to anti-retroviral treatment to prevent mother-to-child
transmission of HIV. In TAC v Minster of Health,163 the Pretoria High Court ordered
the South African government to make available an antiretroviral called nevirapine
to all HIV positive pregnant women to prevent mother-to-child transmission. This
means that an HIV-positive mother can give birth to an HIV-negative child.
The case made it to the Constitutional Court and received international attention.
Study the case of Minister of Health and Others v Treatment Action Campaign,164
which can be accessed from: http://www.saflii.org/za/cases/ZACC/2002/15.html
ACTIVITY 4.2
Study the case of Minister of Health and Others v Treatment Action Campaign
mentioned above and answer the following questions:
1. What were the constitutional provisions (sections in the Constitution) that

were raised or dealt with or are relevant in this case?
2. What does each of the provisions or sections mentioned provide for or deal
with (rights)?
3. Write a summary of the case (Minister of Health and Others v Treatment
Action Campaign).
Your summary must be structured as follows:
a. Facts of the case

b. Legal question
c. Decision
d. Reason for decision
160 Section 2(1) of the Choice on Termination of Pregnancy Act 92 of 1996.

162 Section 27 of the Constitution of the Republic of South Africa.
163 TAC v Minister of Health, TPD Case 21182/2001 unreported.
164 Minister of Health and Others v Treatment Action Campaign and Others 2002 (5) SA 721.
36
ACTIVITY 4.2.1
Sarah, an HIV-positive pregnant woman, is married to John Doe. John has just learnt
that Sarah is HIV-positive at their first check-up with their doctor. John fears that
Sarah will transmit HIV to the child and wants Sarah to terminate the pregnancy.
Sarah consults you as a paralegal for advice on whether John can force her to
terminate the pregnancy and on her options to reduce the chances of transmitting
the virus to the child. Provide advice in a short paragraph.
14 FEEDBACK ON ACTIVITY 4.2.1

Your answer should refer to the Choice on Termination of Pregnancy Act.165
Specify the conditions, circumstances or time frames under which pregnancy
can be terminated.
4.3 VICTIMS OF SEXUAL OFFENCES

Victims of rape face a high risk of being infected with HIV/AIDS. You learnt in
study unit 1 that HIV testing cannot be done without the voluntary consent of
the person. However, because of the risk of being infected with HIV/AIDS which
rape victims face, the law gives the victims of rape the right to have the perpetrator
tested for HIV. This topic is discussed under the heading “Women” but it should
be remembered that men can also be the victims of this atrocity.
4.3.1 Compulsory HIV testing of offenders

Section 30(1) of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007166 provides that a victim or interested person can within
90 days after the alleged commission of a sexual offence apply to a magistrate, using
the prescribed form, for an order that:
(i) the alleged offender be tested for HIV and that the results thereof be disclosed
to the victim or interested person, as the case may be, and to the alleged
offender; or
(ii) the HIV test in respect of the alleged offender, obtained on application by
a police official as contemplated in section 32, be disclosed to the victim or
interested person, as the case may be.
Section 30(2)(a) provides that the application referred to in subsection 1 must state
the following:
(i) that a sexual offence was committed against the victim by the alleged offender;
(ii) confirm that the alleged offence has been reported as contemplated in
section 28(2);
(iii) state that the victim may have been exposed to the risk of being infected with
HIV as a result of the alleged sexual offence;
165 Section 2(1)(a) of the Choice on Termination of Pregnancy Act 92 of 1996.

166 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
HIL3705/137

(iv) if it is brought by an interested person, state the nature of the relationship

between the interested person and the victim, and if the interested person is
not the spouse, same sex or heterosexual permanent life partner or parent of
the victim, the reason why the application is being made by such interested
person; and
(v) state that less than 90 days have elapsed from the date on which it is alleged
that the offence in question took place.
(b) The matters referred to in paragraph (a) must be verified by the victim or the
interested person, as the case may be, by affidavit or solemn declaration.
For compulsory HIV testing of the offender to be carried out, all the requirements in
section 30(2) above must be satisfied. Also note that an application by an interested
person must be brought with the written consent of the victim, unless the victim
lacks locus standi, due to any reason mentioned in section 30(1)(b)(i)–(v).
4.3.2 Post-exposure prophylaxis (PEP) for victims of rape

The most important object of compulsory testing of the offender is to try to minimise
the risk of HIV transmission from the offender to the victim.
Section 28(1) of the Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007 provides that, if the victim has been sexually exposed to the risk
of being infected with HIV as a result of a sexual offence having been committed
against him or her, he or she may –
(a) Subject to subsection (2) –
(i) receive PEP (Post Exposure Prophylaxis ) for HIV infection, at a

public health establishment designated from time to time by the cabinet
member responsible for health by notice in the Gazette for that purpose
under section 29, at State expense and in accordance with the State’s
prevailing treatment norms and protocols;
(ii) be given free medical advice surrounding the administering of PEP
prior to the administering thereof; and
(iii) be supplied with a prescribed list, containing the names, addresses
and contact particulars of accessible public health establishments as
contemplated in section 29(1)(a); and
(b) subject to section 30, apply to a magistrate for an order that the alleged
offender be tested for HIV, at State expense.
Subsection (2) provides that only a victim who –
(a) lays a charge with the South African Police Service in respect of the alleged
offence; or
(b) reports an incident in respect of an alleged sexual offence in the prescribed
manner at a designated health establishment as contemplated in subsection
(1)(a)(i),
within 72 hours after the alleged sexual offence took place may receive the services
contemplated in subsection 1(a).
38
This means that for a victim of a sexual offence to receive PEP he or she must have
opened a sexual offence case with the South African Police Service or reported the
incident of the sexual offence to a designated health establishment. Failure to report
the incident or to report the incident within 72 hours will result in PEP not being
provided.
4.3.3 Compensation
In some countries, for example in the United States of America, failing to disclose
your HIV status to your partner when you know that you are HIV-positive and
thereby infecting your partner with HIV is a criminal offence. This is not the case
in South Africa, however.
If you would like to find more details or comments on the reasons why this is
the position in SA, you can read the South African Law Reform Commission,
Discussion paper 80, project 85, Aspects of the Law Relating to AIDS: The need for
a Statutory Offence Aimed at Harmful HIV-Related Behaviour. The document can
be accessed from http://www.info.gov.za/view/DownloadFileAction?id=123790.
Although infecting another person with HIV in the knowledge that you are HIV-
positive is not a statutory offence, this leads to a harsher sentence in cases of rape.
The offender can also be charged with attempted murder.167 However, this is difficult
to prove in our courts.
A person infected by HIV as a result of rape can institute a civil claim against the
offender.
Study the case of Venter v Nel 1997 4 SA 1014 (D), which can be accessed from this
link; http://www1.chr.up.ac.za/undp/domestic/docs/caselaw_22.pdf.
In this case the plaintiff was awarded damages of R344 399.06 on the grounds that
the defendant had infected her with HIV during sexual intercourse. The matter was
undefended and the court was simply asked to fix a figure for damages. Damages
were granted for future medical expenses as well as for the possibility of a reduction
in life expectancy, psychological stress, pain and suffering, and were linked to the
plaintiff’s HIV positive condition.
ACTIVITY 4.3
A 24-year-old female, Primrose Taylor, worked at a restaurant in Lynwood Mall.
On Friday 27 September 2012, she had to work until late because the restaurant
is usually busy at weekends. On her way home she was attacked by two strangers
who took her wallet and mobile phone and later took turns raping her. A passerby
noticed the incident and came to her rescue. After he rescued her, he told her
that he knew the perpetrators and where they lived. Primrose is afraid she might
have been infected with HIV as a result of the rape because the perpetrators did
not use condoms.
Briefly outline the steps which Primrose must take to try to reduce her chances
of being infected with the virus as a result of the rape.
167 S v Nyalungu [2005] JOL 13254 (T).
HIL3705/1 39


Your answer should state which legislation is relevant and what the requirements
are if one is to invoke the said legislation. You should able to apply the legislation
in the given scenario. Can Primrose have the perpetrators tested for HIV? If
they are found to be HIV positive, will she be allowed access to Post Exposure
Prophylaxis? Briefly discuss.
4.4 CHILDREN’S RIGHTS

Children living with HIV/AIDS or whose parents are living with HIV/AIDS are
often discriminated against owing to their status or that of their parents. There are
various laws protecting children and prohibiting discrimination against children
infected with or affected by HIV. Section 28 of the Constitution168 provides for the
following rights which are relevant to children with HIV or affected by HIV:
•• the right to family care or parental care, or the right to appropriate alternative
care when removed from the family environment
•• the right to basic nutrition, shelter, basic health care services and social services
•• the right to be protected from maltreatment, neglect, abuse or degradation
•• and the right to education
A brief discussion of each of these rights follows below.
4.4.1 The right to family care or parental care, or the right to appropriate
alternative care when removed from the family environment
HIV/AIDS destroys the family structures that are supposed to protect children. For
example, some HIV/AIDS infected parents die and some become so ill that they are
unable to take care of themselves. Children whose parents have died of HIV/AIDS
are likely to be taken to orphanages or to be left alone in child-headed families.
This deprives them of the right to family care or parental care. Alternative care is
required when this happens.
Some are likely to be adopted or fostered by relatives. However, it is important to

note that the South African Child Welfare will not allow a person to adopt without
checking his or her HIV status. However this is not something that the law demands
and it can be considered as invasion of a person’s privacy. Both the prospective
adoptive parents and the child must be tested.169 Although this is discriminatory,
the law gives preference to the best interest of a minor child.
Usually their reason is that they want to protect the best interests of the minor child
by giving the child a permanent, stable family structure to grow up in, that is a
family able to look after the child. This is because of a belief that people living with
HIV/AIDS have a short life span and that therefore they will die before the child
has grown to be an independent adult, hence the need for another family structure.
This instability will usually affect the child’s development.
168 The Constitution of the Republic of South Africa, 1996.

169 http://www.paralegaladvice.org.za/docs/chap09/08.html.
40
People with HIV/AIDS are also perceived to be vulnerable to many illnesses and
there is a belief that they are often ill. It is therefore assumed that they will not be
able to look after the child.
Parents adopting a child who is HIV-positive must always be told the status of the
child. This is not what the law demands so not all adoption agencies do this.170
During fostering application, HIV testing is not a compulsory part of a fostering

application. The reason given is that fostering is terminated when the child reaches
the age of 14. Adoption is a longer-term solution. Adoptive parents acquire all
parental rights and responsibilities. Fostering is a short period compared to adoption
so the risks of the child losing another family structure are minimal.
4.4.2 Right to basic education

Because of the stigma attached to people living with or affected by HIV/AIDS,
children infected with or affected by HIV are at times refused access to crèches
and schools. The Constitution of the Republic of South Africa171 provides that every
child has the right to basic education. It is therefore unlawful for schools or crèches
to deny a child admission on account of his or her HIV/AIDS status.
In 1999 the Department of Education issued a National Policy on HIV/AIDS172

for learners and educators in public schools. This took place after the iconic HIV/
AIDS activist, the late Nkosi Johnson, challenged parliament on the issue after he
was refused admission to school on account of his HIV-positive status. The policy
prohibits any form of discrimination against HIV/AIDS-infected learners and
provides mechanisms for avoiding HIV transmissions among learners and educators.
In 2002, a 4-year-old HIV-positive girl was denied admission by three nursery schools
after they learnt that she was HIV-positive. She was later admitted to Anne’s Little
Nursery School in Midrand. Parents of HIV-negative children started removing
their children from Anne’s Little Nursery School after they learnt that there was an
HIV-positive child (Nkosi Tholakele) at the school. The school subsequently closed
down because parents removed their children. The Minister of Education condemned
these actions and referred to them as “blatant discrimination”. This illustrates the
prevalence of the stigma towards HIV-positive children at our schools.173 What about
using a question based on this story as an activity?
The purpose of the Department of Education’s National policy on HIV/AIDS is to

prevent the spread of HIV infection.
To demystify HIV and AIDS, the policy aims to

•• allay fears
•• reduce the stigma
•• instil non-discriminatory attitudes
170 http://www.paralegaladvice.org.za/docs/chap09/07.html (Date used:12 November 2013).

172 National Policy on HIV and AIDS for Learners and Educators in Public Schools and Students
and Educators in Further Education and Training Institutions (1996).
173 Pretoria News, 2002.
HIL3705/141

A further object is to develop knowledge, skills, values and attitudes in order for
people to adopt and maintain behaviour that will protect them from HIV infection
and support those infected and affected.
The Department of Education’s National Policy on HIV/AIDS addresses a number

of issues. For example, in terms of section 4 of the policy,174 schools are not allowed
to conduct HIV tests on learners during admission or while they are being admitted.
Parents are not obliged to tell the schools the HIV status of the child even where it
is requested in the application forms.
Other issues addressed by the policy are as follows:
–– Non-discrimination and equality with regard to learners, students

and educators with HIV/AIDS
–– HIV/AIDS testing and the admission of learners to a school and
students to an institution, or the appointment of educators
–– Attendance at schools and institutions by learners or students with
HIV/AIDS
–– Disclosure of HIV/AIDS-related information and confidentiality
–– Environment and safety in relation to HIV/AIDS at schools and
institutions
–– Prevention of HIV transmissions during play and sport
–– Education on HIV/AIDS
–– Duties and responsibilities of learners, students, educators and parents
–– Refusal to study with or teach a learner or student with HIV/AIDS, or
to work with or to be taught by an educator with HIV/AIDS
–– School and institutional plans to implement the policy
–– Health and advisory committee on HIV/AIDS
–– Implementation of the policy
This policy can be accessed from the link below:

http://www.education.gov.za/LinkClick.aspx?fileticket=71ayz6Sy4t8%3D&tabid=
188&mid=498
NB: Study and understand the whole policy. What does it address and which
sections are applicable in each given case or set of scenario.
ACTIVITY 4.4
Makombandlela is a primary school situated in the village of Tipfuxeni in Limpopo.
The school governing body have convened an urgent meeting to address the issue
of the fast spread of HIV in their community. They fear that this might also have
an impact on their school. At the meeting they proposed that
1. That all leaners be tested for HIV during admissions in the coming year
2. That they must not admit leaners with HIV as these leaners might infect other
HIV negative learners with the virus, through sharing desks, kissing, playing
sport and other forms of contact
3. And that the names of learners with HIV who have already been admitted
should be made known to teachers and other leaners
174 National Policy on HIV/AIDS for Learners and Educators in Public Schools, and for Students and
Educators in Further Education and Training Institutions (1996).
42
Are the proposals of the school governing body in line with the Department of
Education’s Policy on HIV?

You must refer to the Department of Education’s National Policy on HIV/AIDS, and
amongst others, answer the following questions.
What does the policy say about the HIV testing of learners?
What does it say about admissions?
What does it say about divulging the HIV status of learners and why?
What does it say about the duty of schools in educating learners on HIV and AIDS?
What measures must the school take in implementing the policy, for example, must
they design a school policy in this regards and what should it entail?
4.5 THE RIGHTS OF GAY AND LESBIAN PEOPLE

Gays and lesbians are sometimes discriminated against and rejected by communities.
They are sometimes accused of being possessed by evil spirits or being the cause of
HIV/AIDS. Before the enactment of the Sexual Offences Act, rape was a common-law
offence and could only be committed by males against females. Under the old
definition of rape, gay and lesbians would usually have no right to have the perpetrator
of rape undergo compulsory testing for HIV if they had been sexually molested,
as the previous definition presupposed that rape could only be committed by men
against women.
Furthermore, anal intercourse between men was a common-law offence called

sodomy.175 The Sexual Offences Act176 criminalised intercourse between males.
The Constitutional validity of the provisions of the Act that criminalised sexual
intercourse between males was challenged in National Coalition for Gay and Lesbian
Equality and Others v Minister of Justice and Others.177 The then Witwatersrand High Court
found the provisions to be unconstitutional and invalid. The constitutional invalidity
of the provisions was later confirmed by the Constitutional Court in National
Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others.178 Read
the case which can accessed from the link below.
http://www.saflii.org/za/cases/ZACC/1998/15.pdf
The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of
2007179 has changed the previous position. Under the new law, lesbian and gay people
can in law also be victims of sexual offences, including rape. Section 1 of the
Act defines sexual penetration as any act which causes penetration to any extent
whatsoever by –
175 Sexual Offences Act 23 of 1957.

176 Section 20A of the Sexual Offences Act 23 of 1957.
177 National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1998 (6) BCLR
726 (W).
178 National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others (CCT11/98)
[1998] ZACC 15; 1999 (1) SA 6; 1998 (12) BCLR 1517.
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(a) the genital organs of one person into or beyond the genital organs, anus, or
mouth of another person;
(b) any other part of the body of one person or, any object, including any part of
the body of an animal, into or beyond the genital organs or anus of another
person; or
(c) the genital organs of an animal, into or beyond the mouth of another person,
and “sexually penetrates” has a corresponding meaning.
Study section 1 of the Act, “definition and interpretations”.
From the definition of sexual penetration above it is clear that gay and lesbian people
are also protected by the Sexual Offences Act and have the right to have the offender
tested for HIV/AIDS if they are raped.
ACTIVITY 4.5
Luyanda is a 28-year-old gay male living in Umlazi in KwaZulu-Natal. The people
in the community are very intolerant towards gay and lesbian people. They say it
is a disgrace to the community for a male to behave and act like a female. Over
the weekend a group of boys aged around 23–28 forcefully had anal intercourse
with him. They said it was a corrective measure for him and that he could not have
them arrested because they did not rape him as he is a man and sodomy is no
longer a criminal offence in terms of South African law.
Can the perpetrators be charged with rape? Substantiate your answer.

Your answer should refer to the Criminal Law (Sexual Offences and Related
Matters) Amendment Act180 and to background information on sexual intercourse
between males. You should indicate whether a person can be charged with rape
for having anal intercourse with another man without his consent. You must also
discuss all the other elements of rape applicable to this set of facts.
4.6 THE RIGHTS OF PRISONERS

All prisoners, including prisoners living with HIV/AIDS, have constitutional rights
as entrenched in the Bill of Rights. Section 35(2)(e) of the Constitution of the
Republic of South Africa181 provides that everyone who is arrested for allegedly
committing an offence has the right to conditions of detention that are consistent with
human dignity, including at least exercise and the provision, at the state’s expense,
of adequate accommodation, nutrition, reading material and medical treatment.
Although a person loses some of the constitutional rights when he or she is sent to
prison, for example the right to freedom of movement and the right to freedom of
association are limited, he or she still has many legal and human rights, as set out
in the Constitution.
180 Sexual Offences Act 23 of 1957.

44
Unfair discrimination towards prisoners living with HIV/AIDS takes place in South
African prisons. In 1996 the Department of Correctional Services developed a policy
on managing HIV/AIDS in prisons.182 This policy is aimed at eradicating unfair
discrimination against prisoners living with HIV/AIDS and provides guidance on
treating HIV/AIDS prisoners looking at the fundamental rights as set out in the
Bill of Rights, the right to equality and the World Health Organisation guidelines
on HIV Infection and Aids in prisons.183 Prisoners living with HIV/AIDS should
be treated in the same manner as all other prisoners.
4.6.1 HIV testing

Compulsory HIV testing of prisoners is prohibited. HIV testing may only be done
with informed, written consent preceded by voluntary counselling. It is unlawful for
anybody, including a prisoner, to be tested against their wishes. This is in terms of
the law and the Department of Correctional Services policy on HIV/AIDS in South
African prisons. In C v Minister of Correctional Services184 a prisoner brought an action
against the Minister of Correctional Services because he was tested for HIV without
his consent. The judge held that it is axiomatic that there can only be consent if a
person appreciates and understands what the object and purpose of the test is, what
an HIV positive result entails and what the probability of AIDS occurring thereafter
is. Evidence was led in this case on the need for informed consent before the HIV
test is performed. Because of the devastation which positive results entail, the norm
so developed contains requirements of counselling both pre- and post-testing, the
latter in the event of positive results.
Consent was discussed in greater detail in study unit 1.
Read the case of C v Minister of Correctional Services above, which can be accessed from
the links below. After studying the case you should be able to determine under which
circumstances prisoners can be tested for HIV. You should be able to discuss the
requirement of consent in greater detail.
http://www.saflii.org/za/cases/ZAGPPHC/2012/324.pdf
http://www1.chr.up.ac.za/undp/domestic/docs/caselaw_17.pdf
4.6.2 Confidentiality
Prisoners have a right to confidentiality. A prison official who knows the HIV status
of a prisoner may only divulge such information with the consent of the prisoner.
The HIV/AIDS policy in South African prisons provides that the test results must
be treated confidentially at all times.
The World Health Organisation guidelines185 prohibit any kind of marking or coding
of a prisoner’s file or cell to indicate his or her HIV status.
182 HIV/AIDS Policy in South African prisons.

184 C v Minister of Correctional Services 1996 (4) SA 292 (T).
185 WHO guidelines on HIV infection and AIDS in prisons.
HIL3705/145

ACTIVITY 4.6
James is an HIV/AIDS positive prisoner. Over the weekend James was involved
in prison gang violence which resulted in serious bodily injuries and a lot of
bleeding. The warders are concerned that they face a huge risk of getting infected
with HIV/AIDS whilst they are attending to prisoners who have sustained cuts and
are bleeding. They want the Head of Correctional Services to develop a policy
that will help to identify HIV/AIDS-positive prisoners. They suggest that the HIV/
AIDS status of all prisoners be put on their file and different uniforms should be
issued to HIV/AIDS-positive prisoners so that they can be identified at a glance.
Can Correctional Services develop and apply the proposed policy? Give reasons
for your answer.

Your answer should refer to the policy on HIV/AIDS in South Africa prisons and
other guidelines. You should consider confidentiality, consent to HIV testing and
other rights of prisoners with HIV/AIDS.
4.6.3 Segregation
In 1996, the Department of Correctional Services Policy on HIV/AIDS in South
African prisons186 ended the practice of segregating HIV-positive prisoners. Segregation
was found to be a breach of HIV-positive prisoners’ right to confidentiality because
the reason for segregation becomes apparent to the warder and other prisoners.
For instance, owing to the risk of prisoners infecting one another with the HIV/
AIDS virus, prison warders have opted for a policy that provides that HIV/AIDS-
positive prisoners must be kept in separate cells to reduce the risk of passing on the
virus. The policy is known by all prison warders as they were informed of it during
their induction programme. Prisoners are also aware that they are not supposed
to be held with HIV/AIDS-positive persons. If a prisoner is kept in a separate cell
or is segregated from other prisoners, the reason becomes apparent and as a result
confidentiality regarding the HIV-positive prisoner’s status will be breached.
It is now unlawful to separate HIV-positive prisoners from other prisoners. Prisoners

who are still segregated from other prisoners owing to their HIV status have legal
recourse and can challenge the prison authorities.
A prisoner can only be segregated from other prisoners if he or she has a contagious
or communicable disease. HIV is not a communicable disease and most AIDS-
related diseases are also not contagious. When the prisoners have a contagious or
communicable disease, they can only be segregated for 37 days.
4.6.4 Access to education on HIV/AIDS

The prison policy on HIV/AIDS provides that prisons should provide all prisoners
with education and information on HIV/AIDS and on how to prevent its
186 The Department of Correctional Services Policy on HIV/AIDS in South African Prisons (1996).
46
transmission. It also provides that provision of education and provision of

information on HIV/AIDS must be on an ongoing process. New prisoners are received
in prisons daily. If education and information on HIV/AIDS is only given once in
a long period, the result will be that new detainees who arrive after the education
and information sessions will be disadvantaged and might be infected owing to lack
of information on the prevention of HIV/AIDS transmission.
ACTIVITY 4.7
Because of the increase in the number of HIV-positive prisoners, the Department
of Correctional Services has decided to take the following steps to reduce the
number of HIV transmissions in prisons:
a. test every new prisoner upon arrival or detention (with or without consent?)
b. put prisoners with HIV in their own cells
c. make sure that they have their own separate toilets, bathrooms and kitchen
d. make sure that prison warders are made aware of the status of these
prisoners so that they can take the necessary measures to avoid
transmission during contact with the prisoners
The Minister argues that he is concerned about the safety of the warders and
other prisoners who are HIV-negative. Are the Minister’s actions justifiable? Briefly
discuss with reference to case law and other instruments.
HIL3705/147

6 STUDY UNIT 5
5 Rights at work or HIV/AIDS and the law in
the workplace
LEARNING OUTCOMES
After completing this study unit students should be able to:
•• Identify the laws that are applicable to protect the rights of employees with
HIV/AIDS
•• Apply the laws relating to HIV/AIDS in the workplace in a given scenario.
•• Give legal advice on discrimination based on HIV/AIDS in the workplace
5.1 INTRODUCTION
People living with HIV/AIDS are the most vulnerable group in our society. Various
forms of discrimination happen within the workplace, including unfair discrimination
on the ground of HIV/AIDS.
As Judge Ngcobo stated in Hofmann v SAA, “Notwithstanding the availability

of compelling medical evidence as to how the disease is transmitted, the prejudices
and stereotypes against HIV/AIDS positive people still persist. The impact of
discrimination on HIV positive people is devastating. It is even more so when it
occurs in the context of employment. It denies them the right to earn a living. For
this reason, they enjoy special protection in our law.”187
The law relating to HIV/AIDS therefore plays a major role in the workplace.
In study unit 3 you learned about the Constitution and the Bill of Rights.
The Constitution provides for the right to equality and prohibits any form of
discrimination.188 Beside the Constitution, various other legal instruments have
been developed to combat unfair discrimination in the workplace. These include
the Employment Equity Act,189 the Labour Relations Act,190 and the HIV and AIDS
and Sexually Transmitted Diseases in the Workplace Policy Guideline.
South Africa is also a party to the 1988 International Labour Organization Consensus
Statement on HIV/AIDS and the SADC Code on HIV/AIDS and Employment (1997).
These international instruments provide that workers with HIV/AIDS infection who
are healthy should be treated the same as any other worker and workers with HIV/
AIDS-related illness should be treated the same as any other worker with an illness.
As a member state which has adopted the International Labour Organization (ILO)
Recommendation Concerning HIV and AIDS and the World of Work, 2010 (No. 200),
South Africa has to review its legislation and align it to the ILO Recommendation.
187 Hoffman v South African Airways (2000) 21 ILJ 2357 (CC).
188 Section 9 of the Constitution of the Republic of South Africa.
189 Employment Equity Act 55 of 1998.
190 Labour Relations Act 66 of 1995.
48
STUDY
STUDYUNIT
UNIT5:5:
Rights at at
Rights work oror
work HIV/AIDS
hiv/aids and the law in the workplace
In this study unit the emphasis falls solely on discrimination on the grounds of HIV/
AIDS in the workplace:
5.2 THE CONSTITUTION

Section 9(2) of the Constitution provides that equality includes the full and equal
enjoyment of all rights and freedoms. To promote the achievement of equality,
legislative and other measures designed to protect or advance persons or categories
of persons who have been disadvantaged by unfair discrimination may be taken.191
Section 9(3) of the Constitution prohibits unfair discrimination and lists the grounds
on which a person may not be unfairly discriminated against. These grounds include
the following;
•• Race
•• Gender
•• Sex
•• Pregnancy
•• Marital status
•• Ethnicity or social origin
•• Colour
•• Sexual orientation
•• Age
•• Disability
•• Religion
•• Conscience
•• Belief
•• Culture
•• Language and birth
No person shall be unfairly discriminated against directly or indirectly on the grounds
mentioned above.192
Although HIV/AIDS status is not mentioned among the grounds of unfair

discrimination listed in section 9(3) of the Constitution above that does not mean
that unfair discrimination based on HIV/AIDS status is not prohibited. The Act uses
the word “including”, indicating that the list is not exhaustive. Unfair discrimination
on the grounds of HIV/AIDS status is also prohibited.
In the case of Hoffman v South African Airways193 the Constitutional Court held that
denial of employment due to HIV/AIDS-positive status violates the right to dignity
and constitutes unfair discrimination.
In this case Mr Hoffmann, the appellant, who is living with HIV, was refused
employment as a cabin attendant by SAA because of his HIV-positive status. He
unsuccessfully challenged the constitutionality of the refusal to employ him in the
Witwatersrand High Court on various constitutional grounds. He then successfully
challenged the decision in the Constitutional Court. The Constitutional Court held
that the constitutional right of the appellant not to be unfairly discriminated against
cannot be determined by ill-informed public perceptions of persons with HIV/AIDS.
191 The Constitution the Republic of South Africa.

192 Section 9(4) of the Constitution of the Republic of South Africa.
193 Hoffman v South African Airways (2000) 21 ILJ 2357 (CC).
HIL3705/1 49

Nor can it be dictated by the policies of airlines not subject to the constitution. The
SAA was ordered to offer employment to Mr Hoffmann as a cabin attendant.
From this landmark case it is now clear that a person cannot be unfairly discriminated
against because of his or her HIV/AIDS status.
The case can be accessed from the link below
http://www.saflii.org/za/cases/ZACC/2000/17.html
Any form of discrimination based on any grounds, including those listed in section 3
of the Constitution, is unfair unless it is established that the discrimination is fair.194
Section 23(1) of the Constitution further provides that everyone has the right to
fair labour practices. The right to fair labour practices is further reiterated in the
Labour Relations Act.195
NB: Study the Hoffman case and then answer the activity below.
ACTIVITY 5.1
The Department of Social Development is looking for qualified IT professionals to
fill vacant positions in their IT unit. They advertised the positions in the vacancy
circular of the Department of Public Service.
Bongani Smith, who is 25 years old, has been working in the Department for
a period of two years as an intern. Bongani meets all the requirements for the
job and wishes to apply. During his internship Bongani disclosed his HIV/AIDS
status publicly in one of the HIV/AIDS awareness campaigns organised by the
Department. Bongani believes he will not be considered for the job as he once
heard the unit manager talking about her personal viewpoint on HIV/AIDS-positive
people. She believes it is a risk to be working with someone with HIV as that person
might accidentally infect others. She says people with HIV/AIDS must be kept in
a hospice so that they do not spread the virus to others.
Briefly advise Bongani on the legal aspects of the above facts.

Your answer should refer to the relevant legislation and be supported by case
law. You must indicate whether a person can be denied employment owing to his
or her HIV/AIDS status.
5.3 THE EMPLOYMENT EQUITY ACT

The Employment Equity Act196 prohibits unfair discrimination in the workplace.
The purpose of the Employment Equity Act is to achieve equity in the workplace, by
194 Section 9(5) of the Constitution of the Republic of South Africa.

195 Section 185 of the Labour Relations Act 66 of 1995.
50
STUDYUNIT
STUDY UNIT5:5: Rights
Rights at at work
work oror hiv/aids and the law in the workplace
HIV/AIDS
(a) promoting equal opportunity and fair treatment in employment through the
elimination of unfair discrimination; and
(b) implementing affirmative action measures to redress the disadvantages in
employment experienced by designated groups, in order to ensure their
equitable representation in all occupational categories and levels in the work
force.197
It provides that every employer must take steps to promote equal opportunity in
the workplace by eliminating unfair discrimination in any employment policy or
practice.198
Section 6 of the Employment Equity Act provides that no person may unfairly
discriminate, directly or indirectly, against an employee, in the employment policy
or practice on one or more grounds, including race, gender, sex, pregnancy,
marital status, family responsibility, ethnic or social origin, colour, sexual orientation,
age, disability, religion, HIV status, conscience, belief, political opinion, culture,
language and birth.199
Section 11 of the Employment Equity Act 200 provides that whenever unfair
discrimination is alleged in terms of this Act, the employer against whom the
allegation is made must establish that it is fair. This means that the burden of proof
on determining whether the discrimination is fair lies with the employer.
Testing of an employee to determine that the employee’s HIV/AIDS status is

prohibited unless such testing is declared to be justifiable by the Labour Court in
terms of section 50(4) of the Employment Equity Act.201
Section 50(4) of the Employment Equity Act provides that if the Labour Court
declares that medical testing of an employee as contemplated in section 7 is justifiable,
the court may make any order that it considers appropriate in the circumstances,
including imposing conditions relating to –
(a) the provision of counselling;

(b) the maintenance of confidentiality;
(c) the period during which the authorisation for any testing applies; and
(d) the category or categories of jobs or employees in respect of which the
authorisation for testing applies.
This means that employees can only be subjected to mandatory HIV/AIDS

testing after the employer has applied and obtained an order from the Labour Court
authorising such test.
In terms of the Employment Equity Act it is not, however, unfair discrimination

to take affirmative action measures consistent with the purpose of the Act or to
distinguish, exclude or prefer any person on the basis of an inherent requirement
of the job.202
197 Section 2 of the Employment Equity Act 55 of 1998.

198 Section 5 of the Employment Equity Act 55 of 1998.
201 Section 6(2)(a) Employment Equity Act 55 of 1998.
202 Section 16(2)(b) of the Employment Equity Act 55 of 1998.
HIL3705/151

In Bootes v Eagle Inc System KZ Natal (Pty) Ltd 203 Pillay J noted that dismissal of
employees because of their HIV status was widely acknowledged to be discrimination
unless the employer could show that being free of HIV was an inherent requirement
of the job.
There have not been any cases relating to circumstances in which an employer has
argued that it needs to undertake mandatory HIV/AIDS testing or pre-employment
testing. The employer will usually conduct voluntary testing which is not part of
pre-employment testing.
In Irvin and Johnson Ltd v Trawler and Line Fishing Union and Others 204 the court held
that voluntary counselling fell outside section 7(2) of the Employment Equity Act,
because HIV/testing was voluntary and the employer does not have to apply to the
Labour Court to offer such testing.
In the case of Joy Mining Machinery v NUMSA and Others 205 the employer applied to the
Labour Court for permission to test employees for HIV as part of an HIV prevalence
study, which would be used to establish the exact prevalence of HIV among staff.
The Labour Court gave permission to test employees for HIV/AIDS provided that:
•• The testing was voluntary.

•• Testing was anonymous.
•• Employees would have the option of a second HIV test to determine their own
HIV status and this test would not form part of the surveillance study but would
be for the benefit of interested employees.
•• The testing and analysis would be performed by an independent consulting company
and the employer would not be involved in the process in any way.
•• HIV-positive employees would not be discriminated against and all testing
would be conducted with the consent of the affected employee and no prejudicial
inference would be drawn from the fact that an employee refused to be tested.
From the case law above it is now apparent that an employer can carry out voluntary
HIV/AIDS testing without applying to the Labour Court, subject to the conditions
set in Joy Mining Machinery above.
The relevant cases can be accessed from the links below:

http://www.justice.gov.za/labourcourt/jdgm-lbc/2011lbc/JS178-09.pdf
ACTIVITY 5.2
ABC (Pty) Ltd has won a government tender to collect blood for the South African
Blood Bank. It is now in the process of recruiting employees in order to carry out
its mandate. One of the job requirements for the employees collecting blood is
that they must be HIV/AIDS-negative. The job advertisement also states that all
candidates for the job will be subjected to compulsory (mandatory) HIV/AIDS testing.
203 2008 29 ILJ 139 (LC).

204 2003 (4) BLLR 379 (SALC).
205 (2002) 4 BLLR 372 (LC).
52
STUDY
STUDYUNIT
UNIT5:5:
Rights at at
Rights work oror
work HIV/AIDS
hiv/aids and the law in the workplace
Hope Advocacy, a non-profit organisation representing people with HIV/AIDS,

argues that ABC is discriminating against people with HIV/AIDS.
Is ABC discriminating against people with HIV/AIDS and is the discrimination

justified in our law? You should also indicate the requirements which ABC
should comply with in order to carry on such testing.

Your answer should indicate whether ABC is really discriminating against people
with HIV/AIDS and whether such discrimination is justifiable. Your answer should
refer to the laws applicable to the given facts. In this case, ABC is making HIV
testing an inherent job requirement.
5.4 THE LABOUR RELATIONS ACT

The Labour Relations Act 206 regulates relations between the employer and the
employee. It protects the employee from unfair labour practices, such as unfair
dismissals.
In terms of the Labour Relations Act, a worker with HIV/AIDS must not be
dismissed on the basis of his or her HIV/AIDS status.207 It provides that every
employee has a right not to be unfairly dismissed and subjected to unfair labour
practices.208
Unfair labour practice means any unfair act or omission that arises between an
employer and an employee involving –
(a) unfair conduct by the employer relating to the promotion, demotion, probation
(excluding disputes about dismissals for a reason relating to probation) or
training of an employee or relating to the provision of benefits to an employee;
(b) the unfair suspension of an employee or any other unfair disciplinary action
short of dismissal in respect of an employee;
(c) failure or refusal by an employer to reinstate or re-employ a former employee
in terms of any agreement; and
(d) an occupational detriment, other than dismissal, in contravention of the
Protected Disclosures Act 26 of 2000, on account of the employee having
made a protected disclosure defined in the Act.209
The Labour Relations Act also provides that an employer is not required to disclose
the HIV status of a worker unless that worker agrees to or consents to the disclosure
of his or her HIV/AIDS status.210
The Labour Relations Act, Code of Good Practice on Key Aspects of HIV/AIDS
and Employment, defines fair dismissal and lays down the procedures that should
206 Act 66 of 1995.

207 Section187(1)(f) of the Labour Relations Act 66 of 1995.
208 Section 185(a) and (b) of the Labour Relations Act 66 of 1995.
209 Section 186 of the Labour Relations Act 66 of 1995.
210 Section 16(5) of the Labour Relations Act 66 of 1995.
HIL3705/153

be followed in fairly dismissing an employee. In terms of the Labour Relations Act,

an employee can be dismissed for one of the following reasons:
1. misconduct
2. incapacity, including ill health
3. operational requirements (e.g. retrenchment)
A fair procedure must also be followed when dismissing an employee for one of the
reasons mentioned above or the dismissal will be rendered unfair, owing to failure
to follow the procedural requirements. The dismissal must be both procedurally
and substantively fair. Substantive fairness means that there must be a valid reason
for the termination of employment, for example theft as misconduct. Procedural
fairness means that the required fair procedure for dismissal must be followed, for
example the employee must be given a chance to state his case and call witnesses.
There are different procedures which should be followed when dismissing an

employee for the different reasons mentioned above. For example, when dismissing
an employee for incapacity due to ill health, the employer should look at the possibility
of securing alternative employment or adapting the duties or work circumstances
of the employee to allow for his or her disability.
In this module we will only focus on the procedure for dismissal based on incapacity
due to ill health as far as it is relevant to HIV/AIDS. This refers to inability to do
the job because of ill health.
Where a worker has become too ill to perform his or her current work, an employer is
obliged to follow accepted guidelines regarding dismissal for incapacity proceedings
before terminating the worker’s services, as set out in the Code of Good Practice on
Dismissal which is contained in Schedule 8 to the Labour Relations Act.211
Incapacity on the grounds of ill health may be temporary or permanent. If the

employee is temporarily unable to work, the employer should investigate the extent
of the incapacity. If the employee is likely to be absent for a time that is unreasonably
long, the employer should investigate all the possible alternatives short of dismissal.
When these alternatives are considered, relevant factors must be taken into account,
including the nature of the job, the period of absence, the seriousness of the illness
and the possibility of securing a temporary replacement for the ill employee. In the
case of permanent incapacity the employer should ascertain the possibility of securing
alternative employment, or adapting the duties or work circumstances of the employee
to accommodate the employee’s disability.
During the investigations into the extent of the incapacity, the employee should be
given the opportunity to state his or her case and to be assisted by a representative,
either a trade union representative or a fellow employee.
In summary, the employer should look at the following:

•• whether the incapacity is temporary or permanent
•• investigate the extent of the incapacity
•• look at the possibility of securing alternative employment or adapting the duties
of the employee or work circumstances to accommodate his or her disability
54
STUDYUNIT
Rights at at work
HIV/AIDS
The degree of incapacity is relevant to the fairness of the dismissal. Any person
determining whether a dismissal arising from ill health is unfair should consider
the following:
(a) Whether or not the employee is capable of performing the work; and
(b) If the employee is not capable –
(i) the extent to which the employee is able to perform the work;
(ii) the extent to which the employee’s work circumstances might be adapted
to accommodate disability, or, where this is not possible, the extent to
which the employee’s duties might be adapted; and
(iii) the availability of any suitable alternative work
It is self-evident that the fact that a person is HIV positive does not necessarily
make that person incapable of performing his or her duties. An employee cannot
be dismissed for incapacity based on the fact that he or she is HIV-positive and is
therefore assumed to be in poor health and disabled. Each case must be judged on its
merits based on reasoned and medically sound judgements, not on fear and ignorance.
Note that the employer bears the burden of proof whenever allegations of unfair
discrimination are raised. The employer must prove that the discrimination was fair.212
NB: Study the code which can be accessed from the link below and then answer
the activity that follows:
https://www.google.co.za/search?q=the+Code+of+Good+Practice+on+Dismiss
al+as+contained+in+Schedule+8+of+the+Labour+Relations+Act&oq=the+Cod
e+of+Good+Practice+on+Dismissal+as+contained+in+Schedule+8+of+the+La
bour+Relations+Act&aqs=chrome..69i57.2357j0j8&sourceid=chrome&espv=210
&es_sm=93&ie=UTF-8
ACTIVITY 5.3
Jan Almal is a security guard at the Jabulani Security Company. Jan has recently
been diagnosed with TB. When Jan is on night shift he frequently finds it hard to
last through the long night and the cold but he functions properly at all times when
he is on day shift. During the company’s investigation into Jan’s poor performance
it was established that Jan Almal has been diagnosed with TB. It was also learned
from Jan’s friend that Jan is HIV/AIDS-positive as well.
Jabulani Security immediately decides to terminate Jan’s employment. They allege

that Jan is incapable of performing his duties during night shifts.
Is the conduct of Jabulani Security in automatically terminating Jan’s employment

correct or incorrect?

Your answer should indicate which procedures must be followed in dismissing an
employee and apply them in the given scenario. You should discuss the procedural
and substantive requirements which the employer must follow in order to fairly
212 Section 11 of the Employment Equity Act, 1998 (Act 55 of 1998).
HIL3705/155

dismiss an employee and apply them in the given scenario in order to answer the
question whether Jan Almals’ dismissal was fair.
5.5 THE EMPLOYMENT EQUITY ACT, CODE OF GOOD PRACTICE

ON KEY ASPECTS OF HIV/AIDS AND EMPLOYMENT213
The Employment Equity Act enjoins our courts to have regard to all relevant codes
of practice as well as international conventions on HIV/AIDS. South African
anti-discrimination legislation derives its mandate from International Labour
Organization Conventions.
In 2000, South Africa published a Code of Good Practice on Key Aspects of

HIV and AIDS and Employment under the Employment Equity Act.214 The
Code was reviewed after the adoption of the International Labour Organization’s
Recommendation Concerning HIV and AIDS and the World of Work, 2010
(No. 200). The primary objective of this code is to provide guidelines to assist employers,
workers and their organisations to develop and implement comprehensive
gender-sensitive HIV and AIDS workplace policies and programmes. These policies
and programmes must be developed within the framework of decent work in the
formal and informal sectors in both public and private sectors with the following
objectives:
(a) Eliminate unfair discrimination and stigma in the workplace based on real
or perceived HIV status, including dealing with HIV testing, confidentiality
and disclosure.
(b) Promote access to education, equitable employee benefits and employment
protection.
(c) Manage grievance procedures in relation to HIV and AIDS.
(d) Create a safe working environment.
(e) Promote appropriate and effective ways of managing HIV and AIDS and TB
in the workplace.
(f) Give effect to international and regional obligations of South Africa on HIV
and AIDS and TB in the world of work.
This Code must be read in conjunction with the Constitution of the Republic of
South Africa215 and all relevant legislation, including the following:
(a) Employment Equity Act 216

(b) Labour Relations Act 217
(c) Occupational Health and Safety Act 218
(d) Children’s Act219
(e) Medical Schemes Act220
213 Employment Equity Act 55 0f 1998, Code of Good Practice on Key Aspects of HIV/Aids
and Employment.
214 This Code is issued in terms of section 54(1)(a) of the Employment Equity Act 55 of 1998.
215 The Constitution of the Republic of South Africa.
218 Occupational Health and Safety Act 95 of 1993.
219 Children’s Act 38 of 1995.
220 Medical Schemes Act 131 of 1998.
56
STUDYUNIT
Rights at at work
HIV/AIDS
(f) Mine Health and Safety Act 221

(g) National Health Act 222
(h) Unemployment Insurance Act 223
(i) Compensation for Occupational Injuries and Diseases Act 224
(j) Basic Conditions of Employment Act 225
(k) Occupational Diseases in Mines and Works Act226
(l) Promotion of Access to Information Act227
(m) Promotion of Equality and Prevention of Unfair Discrimination Act 228
Study and understand the Code, which can be accessed from the link below
http://www.info.gov.za/view/DownloadFileAction?id=167203
ACTIVITY 5.4
The Ekurhuleni Municipality wants to develop a policy on HIV and Aids in the
workplace. They have come to you as a paralegal for advice on the content of
the policy. They say they want a policy that will allow them not to employ HIV/
AIDS-positive persons and also enable them to check the HIV/AIDS status of all
employees because they are not productive and have a short life span; therefore
they are not a good investment.
Briefly advise them on what the policy should entail in order to conform to the laws
of the Republic of South Africa and other international standards.

Your answer should indicate the rights relevant to HIV/AIDS which should be
respected in the workplace in terms of all standards and norms. You should also
give practical examples for each right. Can the proposed policy require employees
to be tested for HIV without their consent? Can the policy allow that the HIV status
of employees be disclosed?
5.6 OTHER APPLICABLE LEGISLATION

As mentioned in the Code of Good Practice above, there are other Acts which are
applicable to HIV/AIDS and the law in the workplace (the law relating to HIV/
AIDS) and their relevance to HIV/AIDS is worth noting although they will not be
discussed in detail.
221 Mine Health and Safety Act 29 of 1996.

222 National Health Act 61 of 2003.
223 Unemployment Insurance Act 63 of 2001.
224 Compensation for Occupational Injuries and Diseases Act 130 of 1993.
225 Basic Conditions of Employment Act 95 of 1977.
226 Occupational Diseases in Mines and Works Amendment Act 208 of 1993.
227 Promotion of Access to Information Act 2 of 2000.
228 Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
HIL3705/157

1. The Basic Conditions of Employment Act provides that every employer is

obliged to ensure that all workers receive certain basic employment benefits,
including the minimum number of sick leave days.229
This means that all employees, including employees with HIV/AIDS, are
entitled to the minimum number of sick leave days as provided for by the Basic
Conditions of Employment Act.
2. In terms of the Compensation for Occupational Injuries and Diseases Act, a

worker who is infected with HIV as a result of an occupational exposure to
infected blood or bodily fluids must apply for benefits in terms of the Act.230
3. The Medical Schemes Act provides that a registered medical aid scheme must
not unfairly discriminate directly or indirectly against its members on the basis
of their state of health.231
4. Promotion of Access to Information Act provide that employers must not

disclose the HIV status of a worker unless that worker agrees to or consents
to the disclosure of his or her HIV/AIDS status.232
5. In terms of the Occupational Health and Safety Act, an employer is obliged to

provide a safe workplace.233
6. The Mine Health and Safety Act provides that an employer is required to create
a safe workplace.234
7. In terms of the Unemployment Insurance Act, every employer is obliged to

ensure that all workers are able to exercise their right to illness benefits.
8. In terms of the Occupational Diseases in Mines and Works Act, where the
certification committee has found that a person is suffering from TB which is
attributable partly to HIV/AIDS but not mainly to work at the mine or works
and where such person is not in receipt of full benefits for TB in terms of the
Compensation for Occupational Injuries and Diseases Act, or other law, such
person may receive benefits not exceeding one half of the benefits provided for
in terms of the Occupational Diseases in Mines and Works Act.235
9. Section 20(1) of the National Health Act states that health care personnel must
not be unfairly discriminated against on account of their health status. However,
the head of the health establishment concerned, subject to any applicable law
and in accordance with any guidelines determined by the Minister, may impose
conditions on the service that may be rendered by a health care provider or
health care worker on the basis of his or her health status.236
229 Section 22(2) of the Basic Conditions of Employment Act 95 of 1977.

230 Section 22(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993.
231 Section 24(2)(e) of the Medical Schemes Act 131 of 1998.
232 Section 37(1) and 63(1) of the Promotion to Access of Information Act 2 of 2000.
233 Section 8(1) of the Occupational Health and Safety Act 95 of 1993.
234 Section 29(1) and 5(1) of the Mine Health and Safety Act 29 of 1996.
235 Section 99(3) of the Occupational Diseases in Mines and Works Act 95 of 1977.
236 Section 20(1) of the National Health Act 61 of 2003.
58
STUDYUNIT
Rights at at work
HIV/AIDS
ACTIVITY 5.5
David Farlaam is employed by Stones (Pty) Ltd, a mining company based in
Witbank (Emalahleni) as a rock driller. David has been working in the mine since
2012. In January 2013 David was diagnosed with TB and also learned that he
is HIV/AIDS-positive. David has often been ill since and is allergic to dust and
other forms of waste pollution. He spends almost half of his salary on medical
consultations and is sometimes not at work owing to illness.
Briefly discuss the obligations of the employer in terms of various laws to make
sure that David’s condition is accommodated.

Your answer should refer to laws applicable in the workplace that will ensure
that Davis’s condition (TB) is accommodated as required. You must discuss the
laws which are applicable to ensure that people like David are accommodated
in the workplace. You must also apply the applicable laws to the given scenario,
for example, sick leave provisions, et cetera. Note that you are allowed to add
assumptions (hypotheses) on the given scenario in order to answer the question.
HIL3705/1 59

BIBLIOGRAPHY
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Cameron E “Some problems in Employment” 1991 (12) Industrial Law Journal 193–217.
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Johnson R “The Model Law on HIV in Southern Africa: Third World Approaches
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it make a difference?’ 2000 Acta Juridica 227–264.
60
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human rights and the law” 2008 (1) South African Journal of Bioethics and Law 7–10.
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3. Choice on Termination of Pregnancy Act 92 of 1996
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7. Occupational Health and Safety Act 95 of 1993
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14. Basic Conditions of Employment Act 95 of 1977
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HIL3705/161
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Minister of Health and Others v Treatment Action Campaign 2002 (5) SA 703 CC
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C v Minister of Correctional Services 1996 (4) SA 292 (T)
Venter v Nel 1997 4 SA 1014 (D)
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Irvin and Johnson Ltd v Trawler and Line Fishing Union and Others 2003 (4) BLLR 379
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S v Makwanyane and Another 1995 (6) BCLR 665; 1995 (3) SA 39
Prinsloo v Van der Linde and Another 1997 (6) BCLR 759 (CC)
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Bernstein v Bester NO 1996 (2) SA 751 (CC)
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VRM v Health Professions Council of SA & others [2003] JOL 11944 (T)
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HIV/AIDS and the law

Study unit 1: Introduction to HIV/AIDS and the law 1

Study unit 2: HIV/AIDS and the Bill of Rights 13

Study unit 3: HIV/AIDS and the right to health under the

Study unit 4: Rights of specific individuals 32

Welcome to the module, HID/AIDS and the law (HIL3705).

You probably fall into one of the following three groups:

•• What are HIV and AIDS?

HIL3705 consists of the following study units:

•• Study unit 1: Introduction to HIV/AIDS and the law

•• Study unit 2: HIV/AIDS and the Bill of Rights

•• Study unit 3: Health and medical rights

•• Study unit 4: Rights of specific individuals

•• Study unit 5: Rights at work

How to use this study guide:

Mr R Mabobo (module leader)

According to Cameron, “AIDS is perhaps the most frightening natural catastrophe

1.2 HIV AND AIDS

1.2.1 What is HIV?

After former President Thabo Mbeki became President in 1999, he established a

The Human Immunodeficiency Virus is different from other viruses because it

1.2.2 What is AIDS?

In order to gain a better understanding of the word AIDS, it is necessary for us to

S – Syndrome17 – A syndrome is a collection of symptoms and signs of disease. AIDS

1 FEEDBACK ON ACTIVITY 1.1

1.2.3 Transmission of the HIV virus

2 FEEDBACK ON ACTIVITY 1.2

1.3 STAGES OF HIV AND AIDS INFECTION

1.3.1 Primary HIV infection

1.3.2 Asymptomatic stage

in prosecution.30 For example, in S v Nyalungu,31 the accused raped the complainant

1.3.3 Symptomatic stage

3 FEEDBACK ON ACTIVITY 1.3

1.5 DIAGNOSING HIV/AIDS

1.5.2 Voluntary testing and informed consent

•• what the test is

Mentally ill patients

Anonymous and unlinked testing

50 Hartman KM and Liang BA “Exceptions to Informed Consent in Emergency Medicine”1999

4 FEEDBACK ON ACTIVITY 1.4

1.6 TREATMENT OPTIONS FOR HIV AND AIDS

IN THE NEXT STUDY UNIT

In the light of the above scenario, determine whether any of Jabu’s

2.2 THE BILL OF RIGHTS

An applicant who is relying on a violation of the right to equality must demonstrate

•• That the provision under attack differentiates between people, or categories of

In terms of section 9(5), discrimination on the grounds listed, such as colour or

that discrimination on the grounds of HIV/AIDS status should be included in the

Within the context of our discussion, the prohibition against discrimination in

5 FEEDBACK ON ACTIVITY 2.1

6 FEEDBACK ON ACTIVITY 2.2

2.3 HUMAN DIGNITY

The importance of dignity as a founding value of the new Constitution cannot

In a recent case of NM and Others v Smith and Others,84 a biography of Ms Patricia de

7 FEEDBACK ON ACTIVITY 2.3

With regard to the disclosure of a patient’s HIV-positive status constituting a

In NM v Smith99 the Constitutional Court emphasised that:

96 Currie and de Waal The Bill of Rights Handbook 317.

2.5 FREEDOM AND SECURITY OF PERSON