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Lawyers challenge SANDF HIV testing policy

22nd May 2007

By: Nelendhre Moodley

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The Aids Law Project (ALP), in mid-May challenged the South African National Defence Force (SANDF) policies on HIV testing with regards to employment, deployment, promotions and transfer, saying that the policies discriminated against HIV-positive members.

The ALP is an organisation that specialises in helping people with HIV/Aids to deal with discrimination.

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The project, acting on behalf of the South African Security Forces Union (Sasfu), filed papers at the Transvaal provincial division on May 14.

Five policies and their implementation were being challenged.

The HIV testing policy was mainly implemented through the comprehensive health assessment, an annual medical examination, which included physical, mental and audiometric tests to determine levels of fitness.

An HIV-positive result adversely affected a potential recruit’s opportunity for employment, and a member’s opportunities for deployment and promotion, the project reported.

The ALP said that this resulted in a blanket exclusion of HIV positive people from employment, foreign deployments and promotions regardless of their actual level of fitness, state of health and their job category or mustering.

“Over the years the SANDF has justified its HIV testing policy and its implementation on such grounds as, the military has a duty to protect the Republic, there is a need to keep HIV prevalence low in the military, people living with HIV are medically unsuitable and unable to withstand stress, physical exercise, adverse climatic conditions, etc, foreign deployment conditions are too harsh for people living with HIV, HIV-positive members pose a risk to others the need to comply with the United Nations regulations with regard to deployment of peacekeepers,” the statement released by Sasfu said.

There was no basis for the assumption that HIV infection in itself renders a person physically unfit or mentally unstable, the ALP reported.

Further, it said that the SANDF policies were not in line with United Nations policy or with governments’ strategy to respond to HIV/Aids, and the cabinet approved national strategic plan for HIV & Aids and STIs 2007/11.

Sasfu argued that was unreasonable to use HIV testing and exclusion as a measure to reduce HIV in the SANDF.

The case seeks to demonstrate that the policies were unconstitutional as they violate rights to fair labour practices, privacy, dignity, administrative justice, and they unfairly discriminate against people living with HIV.


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