When Andisiwe Dwenga was told her contract as a personal clerk in the SANDF wouldn’t be renewed, she started a remastering course so she might be able to work in the Navy. After disclosing that she was HIV positive, she was told that she wouldn’t get a job.

“I was very disappointed. I was hurt at the same time because I was about to leave my job and at home I am the breadwinner,” said Dwenga. In April last year, she searched the internet for more information on discrimination against those with HIV in the SANDF. She saw that in 2008 the courts ruled that HIV-positive South Africans could start and advance a career in the defence forces.

“If they had made new policies that means they weren’t implementing them,” said Dwenga over the phone on Sunday. “So I had to enforce it so they can start using them.”

Dwenga, along with two others in similar situations, took the matter to court and on Friday were victorious. In the North Gauteng High Court, Judge PA Meyer found the SANDF had not implemented a 2008 ruling in the same court and it was “vexatious and frivolous and an abuse of process” to re-litigate the matter.

Five years ago the court ruled it unconstitutional for the SANDF to discriminate solely on the basis of HIV status and said people with HIV must be able to be recruited, deployed externally and promoted. The then-policy excluded the recruitment and external deployment of those with HIV without any evaluation on whether they had the fitness to do the job. After the ruling, Cabinet approved an SANDF policy that accorded with the Constitution.

Meyer, however, said that by barring those with HIV from participating in the Military Skills Development System (MSDS) and Core Service System (CSS) programmes, the SANDF was still practising discrimination. “The SANDF’s implementation of its health classification policy, therefore, constitutes a blanket ban on the recruitment of anyone and everyone who is HIV positive, regardless of their actual state of health and even though the SANDF recognises that a person with HIV may ‘remain fit and healthy’,” said Meyer.

The SANDF argued that the discrimination was not unfair and as the defence forces are oversubscribed they have the option of picking only the most suitable candidates. It also said providing antiretroviral (ARV) treatment could blow the SANDF budget. Meyer dismissed the arguments, saying no evidence was presented that the SANDF was oversubscribed and as an organ of the state it had a responsibility to lead by example and uphold the Constitution. The state is already required to provide medication such as ARVs in the public health system.

“It is not an issue that a particular state of health is required for entry into the MSDS or the CSS, but there is no evidence adduced to suggest that the requisite health cannot be achieved by a person who lives with HIV,” found Meyer. “On the contrary, the SANDF recognises that a person with HIV can ‘remain fit and healthy’.”

Meyer continued, “It is indisputable that the SANDF denied people who are HIV-positive entry into the MSDS or the securing of a contract in the CSS without regard to their health and fitness and ability to perform the duties required of them during MSDS or of the particular position they otherwise would have secured in terms of a CSS contract. I, in the words of [Justice Sandile Ngcobo who ruled on a case of HIV discrimination at South African Airways in the Constitutional Court], ‘consider this to be an assault on their dignity’. The discrimination has not been shown to be fair and it violates the right to equality guaranteed by s9 of the Constitution.”

Meyer ordered the SANDF to provide appropriate remuneration to the applicants since May 2013, offer them contracts, and said the recruiting policy for fitness that automatically excludes HIV-positive applicants is set aside. Instead, the SANDF must assess each HIV-positive recruit on an individual basis to test whether they have the appropriate health requirements for a specific position. In a harshly worded judgment, Meyer awarded punitive costs against the SANDF.

Dwenga said she was happy and excited by the ruling and while a little uncertain about what will happen now said she expects to return to working in human resources for the SANDF. For her, the court process began when she contacted Section27 and asked for help. Legal advisor Violet Kaseke from Section27 said the judgment was a resounding victory enforcing the 2008 ruling. Asked why the SANDF may not have complied with the former ruling, she said stigma could play a part but it’s also about the state thinking it is above the law.

South African National Defence Union (SANDU) National Secretary Pikkie Greef said, “Basically it means the SANDF is under no circumstances allowed to discriminate against any soldier or recruit based solely on HIV”.

“The mind boggles,” Greef responded when asked why the discrimination continued despite the 2008 ruling. He said management acted like a law unto itself.

Greef said the defence forces were mandated to protect the Constitution and human rights. “It’s not just a question of not complying [with the 2008 ruling]. It’s a question of wilfully defying it.” We must ask, he said, what else SANDF management is willing to flout and whether the current leaders are fit to hold office.

While the SANDF couldn’t be reached for comment on Sunday, when allegations of discrimination emerged last year, the Department of Defence’s Simphiwe Dlamini said, “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.”

It seems unlikely, however, that the discrimination would be limited to just these applicants. For Dwenga the win goes beyond her case. “It is a victory for everyone because even those living with HIV – now they don’t have to worry about getting a contract because the judgment is there,” she said.

“I just hope I am the last person who has to face this.” DM

Read more:

• Unions: SANDF discriminating against HIV-positive in Daily Maverick

Photo: Members of the South African National Defence Force (SANDF) return after taking part in a Capability Demonstration at the Roodewal Bombing Range in Makhado, in the northern province of Limpopo, May 9, 2013.  REUTERS/Siphiwe Sibeko