This is an archive of the Treatment Action Campaign's public documents from
December 1998 until October 2008. I created this website because the TAC's
website appears unmaintained and people were concerned that it
increasingly hard to find important documents.
The menu items have
been slightly edited and a new stylesheet applied to the site. But none of the
documents have been edited, not even for minor errors. The text appears on this
site as obtained from the Internet Archive.
The period covered by
the archive encompassed the campaign for HIV medicines, the civil disobedience
campaigns, the Competition Commission complaints, the 2008 xenophobic violence
and the PMTCT, Khayelitsha health workers and Matthias Rath court cases.
TAC Electronic Newsletter
24 October 2003
ALP STATEMENT ON HIV/AIDS IN THE SANDF23 October 2003
The AIDS Law Project was pleased to note the comments made by Cabinet yesterday about the SANDF's position on HIV/AIDS. In particular the ALP was pleased to note that there is no government policy to exclude individuals from the SANDF solely on the basis of their HIV status.
The ALP is however extremely concerned to note that despite this pronouncement, the SANDF has however excluded and continues to exclude job applicants with HIV from employment in the SANDF. The ALP is currently dealing with a number of cases where this has occurred:
- Two soldiers who applied for employment in 1999, who fulfilled all other requirements, including fitness tests, but who were refused employment solely on the basis of their HIV status. In correspondence from the State Attorney, acting on the instructions of the SANDF, the ALP was advised that its clients had "tested sero-positive and therefore could not be considered for employment in the South African National Defence Force". The ALP has given the required statutory notice to the SANDF, indicating that it intends to bring an application on behalf of the two men challenging their exclusion on the grounds of their HIV status amounts to unfair discrimination;
- A young woman who applied for a position as a chaplain in the SANDF was required to undergo an HIV test, and was refused employment solely on the basis of her HIV status. The ALP has issued the required statutory notice to the SANDF indicating that it intends to challenge the decision not to employ her.
- A young woman applied for a position as a nurse in the SANDF and was required to undergo an HIV test. The test result indicated a false positive. The client has subsequently undergone two further HIV tests, both of which are negative, but the SANDF has continued to refuse to employ her on the basis of her HIV status. The ALP is also challenging this case.
It is clear that, despite the Cabinet position, the SANDF continues to practice a blanket policy of excluding job applicants with HIV. The official policy of the SANDF on sexually transmitted diseases including HIV, issued by the Surgeon-General, Lt Gen D P Knobel, explicitly states that "sero-positive cases ? are by definition unfit for employment as uniformed members?"
The ALP hopes that the statement by Cabinet will clarify the confusion that appears to exist between Cabinet and the SANDF. The ALP calls on Cabinet to instruct the SANDF to resolve the cases referred to above without litigation and to ensure that its policies are immediately brought into line with the Cabinet position.
[END OF SANDF STATEMENT - BACK TO CONTENTS]
ALP STATEMENT ON JUDGMENT IN KAREN PERREIRA V BUCCLEUCH MONTESSORI NURSERY SCHOOL
22 October 2003
Judgement in this matter was handed down today by Judge Lucy Mailula in the Johannesburg High Court. The matter was argued fifteen months ago.
The factsKaren Perreira applied to enrol her foster daughter, Tholakele, at the Buccleuch Montessori Nursery School in January 2001. At the time she made the application, she informed the principal of the school, Lesley Heywood, that Tholakele is living with HIV. Although Ms Perreira was advised that the school had three vacancies, she was told that a teachers' meeting had taken place to discuss the possible enrolment of Tholakele, and that serious concerns had been expressed about the readiness of the school to deal with learners with HIV and also with concerns about the risks of HIV transmission in the school setting. The school indicated that they wished to defer Tholakele's application until she was three years old and "past the biting stage".
The caseThe AIDS Law Project, acting on behalf of Ms Perreira, took the matter to the High Court on the basis that the failure to admit Tholakele on the basis of her HIV status amounted to unfair discrimination in terms of section 9 of the Constitution. The matter was argued in September 2002.
The judgementThe court found that the school had indeed expressed concerns about its readiness to deal with learners with HIV and the lack of training undergone by its teachers in this regard. The court also found that the school had therefore recommended that Tholakele's enrolment be deferred for at least six months when she would be "past the biting stage". On this basis, the court found that the school had not taken a final decision to exclude Tholakele. The court therefore dismissed the application with costs.
It is of deep concern to the AIDS Law Project and Ms Perreira that this judgement seems to suggest that it is permissible for nursery schools to use a lack of preparedness as a justification to defer the enrolment of children with HIV. The judgement fails to give any guidance to what nursery schools need to do to ensure that they are able to admit children with HIV and further, fails to comment on and deal with the fact that it is unreasonable for any school in South Africa to consider themselves unequipped to admit children with HIV. The judgement acknowledges that the school raised concerns about the risks of HIV transmission through biting. Again the judgement fails to deal with the reasonableness of this fear, despite the expert evidence adduced by the ALP that unequivocally indicated that it is extremely unlikely that a child will contract HIV as a result of a bite from another child. To date, there are no recorded cases of transmission between children as a result of biting.
The judgement fails to consider the implications of the deferral of the enrolment and impact of this on Tholakele. As a result of the deferral, Ms Perreira was forced to seek an alternative school.
It is the view of the ALP that the mere fact that school recommended that Tholakele's enrolment be deferred amounted to unfair discrimination This discrimination is unquestionably linked to her HIV status. As such, the ALP had hoped that the court would send a strong message to nursery schools that a failure to admit children with HIV is unconstitutional and unlawful.
The ALP intends to appeal against the decision.
FOR FURTHER INFORMATION PLEASE CONTACT LIESL GERNTHOLTZ ON 083 600 3592 OR MARK HEYWOOD ON 083 634 8806
[END OF KAREN PERREIRA STATEMENT - BACK TO CONTENTS]
[END OF NEWSLETTER]