Five years ago, after a battle in the North Gauteng High Court, the SANDF agreed it was unconstitutional to discriminate against HIV-positive members. The court ruled against the defence force policy that no one with HIV could be recruited, deployed externally or promoted. The SANDF was forced to draft new health classification policies within six months. The Aids Law Project, which led the litigation, called it a “vindication of the Constitution”. In 2009 Cabinet approved a change in the policy that had excluded HIV-positive South Africans from serving in the SANDF and henceforth those without the symptoms of a disease or medical virus would be able to start and advance a career serving South Africa’s defence forces. According to Sergeant Sipho Mthethwa, the only reported HIV-positive soldier reported to be deployed at the time, the new policy came with a sense of justice, recognising his ability to serve his country like any other soldier.
Speaking on Tuesday, union leaders from the South African Security Forces Union (Sasfu) and the South African National Defence Union (Sadnu) said the policy changes had little effect in reality. Represented by Section27 and S’khumbuzo Maphumulo, an advocate who worked on the 2008 case, the unions are taking the SANDF back to court representing three members of the defence forces whose offers of employment to move from the training phase to potential deployment phase were after withdrawn after their medical tests showed they were HIV-positive.
“We have experienced for many years that this (change) is just on paper,” said Bheki Mvovo, president of Sasfu, in Section27’s Johannesburg offices. He described how members who go through the military skills development programme, two years of training designed to lead into full service, are denied the opportunity to advance when they are found to be HIV-positive. If you’re female (two of the three applicants in the court submissions are female) discrimination is more likely (despite the current and previous defence ministers being female). If you’re not connected to the upper echelons of the SANDF you’ll also face a tough time, said Mvovo. He described how women who fall pregnant during the two-year training phase will not get a contract for full duty.
According to the union leaders, discrimination and invasion of privacy begins at the point of medical testing. Soldiers sit in a queue for a blood test. If there’s an issue they are told to wait in front of their colleagues. A red mark against their name, for whatever health reason, including HIV, may mean they don’t get offered a contract. Some HIV-positive soldiers get through, but are then subjected to further tests. Nurses told Mvovo that those with HIV are deployed to the harshest environments. A seemingly unofficial policy is to wait for them to fail, test them until the point that they their health deteriorates and prove the former SANDF policy right – that HIV-positive troops aren’t fit to be soldiers.
“It is an absolute disgrace that we have things like this going on in the defence force,” said Sandu National Secretary Pikkie Greef. These are people whose colleagues died in Central African Republic and are at risk in Democratic Republic of Congo, he pointed out. He pinned the blame on management. Despite the SANDF heads adopting the new policy, Greef puts the blame squarely on the defence force bosses, who unions have a notoriously adversarial relationship with (“Our place of meeting is in the courts,” said Mvovo).
Maphumulo, the Section27 advocate, said there is little doubt the three applicants to the court case were discriminated on the basis of their HIV status. Many SANDF members have been disadvantaged because of the issue but taking the matter to court is difficult, he said, because most soldiers are unwilling to step forward and take action against their employer.
Simphiwe Dlamini, head of communication for the Department of Defence, responded: “The SANDF has a very comprehensive policy on how to manage members that present themselves with the conditions of such. There is strict adherence to such guidelines which are executed in line with the prescripts of the Health Department. Applicable governance in this regard is applied at all times during the process of recruitment, training, selection, utilisation and deployment of the members.
“We therefore do not discriminate but have a responsibility as an employer to make sure that members who present themselves with this condition have access to medical care if required. If there are such claims as alleged they are far and very few out of more than 70,000 members. However, we do not condone such behavior should there be any as we at all times abide by our policies, rules and regulations. The SANDF is founded on very solid democratic principles one being that of non-discriminatory.”
Five years after the matter seemed solved after extensive court action, it looks as if the judiciary will once again have to intervene. According to Greef, all the unions want is a firm statement against discrimination and for the three SANDF members to have their contracts renewed. In the adversarial environment between labour and the defence force, however, involving the judiciary is a matter of certainty. DM
Photo: Bheki Mvovo, president of the South African Security Forces Union, speaks out against discrimination. (Nick White for Daily Maverick)
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