CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 17/00
JACQUES CHARL
HOFFMANN Appellant
versus
SOUTH AFRICAN
AIRWAYS Respondent
Heard on : 18 August 2000
Decided on : 28 September
2000
JUDGMENT
NGCOBO J:
Introduction
[1] | This appeal concerns the
constitutionality of South African Airways’ (SAA) practice of refusing to
employ as cabin attendants
people who are living with the Human Immunodeficiency
Virus (HIV). Two questions fall to be answered: first, is such a practice
inconsistent with any provision of the Bill of Rights; and second, if so, what
is the appropriate relief in this case? |
[2] | Mr Hoffmann, the appellant,
is living with HIV. He 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
(the High
Court) on various constitutional grounds. The High Court issued a
positive certificate and this Court granted him leave to appeal
directly to
it.[1] |
[3] | The AIDS Law Project
(ALP)[2] sought, and was granted,
leave to be admitted as an amicus curiae in support of the appeal. In
addition, the ALP sought leave to introduce factual and expert material that had
been placed before
the Labour Court in a case that also involved the refusal by
SAA to employ as a cabin attendant someone who was living with
HIV.[3] The additional material
included opinions by various medical experts on the transmission, progression
and treatment of HIV, as well
as the ability of people with HIV to be vaccinated
against yellow fever. In particular, it included minutes reflecting the
unanimous
view of these medical experts. Leave to introduce the additional
material was granted subject to any written argument on its admissibility.
Neither party objected to the admission of the additional
material. |
[4] | The ALP submitted written
argument and was represented by Mr Tip, together with Mr Boda. We are indebted
to the ALP and counsel for
their assistance in this
matter. |
The factual background
[5] | In September 1996 the
appellant applied for employment as a cabin attendant with SAA. He went through
a four-stage selection process
comprising a pre-screening interview,
psychometric tests, a formal interview and a final screening process involving
role-play.
At the end of the selection process, the appellant, together with
eleven others, was found to be a suitable candidate for employment.
This
decision, however, was subject to a pre-employment medical examination, which
included a blood test for HIV/AIDS. The medical
examination found him to be
clinically fit and thus suitable for employment. However, the blood test showed
that he was HIV positive.
As a result, the medical report was altered to read
that the appellant was “H.I.V. positive” and therefore
“unsuitable”.
He was subsequently informed that he could not be
employed as a cabin attendant in view of his HIV positive status. All this was
common cause. In the course of his argument, Mr Cohen, who, together with Mr
Sibeko, appeared for SAA, raised an issue as to whether
HIV positive status was
the sole reason for refusing to employ the appellant. Mr Trengove, who,
together with Mr Katz and Ms Camroodien,
appeared on behalf of the appellant,
submitted that it was. I deal with this issue later in the
judgment.[4] |
[6] | The appellant challenged the
constitutionality of the refusal to employ him in the High Court, alleging that
the refusal constituted
unfair discrimination, and violated his constitutional
right to equality, human dignity and fair labour practices. He sought an
order,
in motion proceedings, amongst other things, directing SAA to employ him as a
cabin attendant. |
[7] | SAA denied the charge. It
asserted that the exclusion of the appellant from employment had been dictated
by its employment practice,
which required the exclusion from employment as
cabin attendant of all persons who were HIV positive. SAA justified this
practice
on safety, medical and operational grounds. In particular, SAA said
that its flight crew had to be fit for world-wide duty. In
the course of their
duties they are required to fly to yellow fever endemic countries. To fly to
these countries they must be vaccinated
against yellow fever, in accordance with
guidelines issued by the National Department of Health. Persons who are HIV
positive may
react negatively to this vaccine and may, therefore, not take it.
If they do not take it, however, they run the risk not only of
contracting
yellow fever, but also of transmitting it to others, including passengers. It
added that people who are HIV positive
are also prone to contracting
opportunistic diseases.[5] There is a
risk, therefore, that they may contract these diseases and transmit them to
others. If they are ill with these opportunistic
diseases, they will not be
able to perform the emergency and safety procedures that they are required to
perform in the course of
their duties as cabin attendants. SAA emphasised that
its practice was directed at detecting all kinds of disability that make an
individual unsuitable for employment as flight crew. In this regard, it pointed
out that it had a similar practice that excluded
from employment as cabin crew
individuals with other disabilities, such as epilepsy, impaired vision and
deafness. SAA added that
the life expectancy of people who are HIV positive was
too short to warrant the costs of training them. It also pointed out that
other
major airlines utilised similar practices. |
[8] | It must be pointed out
immediately that the assertions by SAA were inconsistent with the medical
evidence that was proffered in their
support. SAA’s medical expert,
Professor Barry David Schoub, in an affidavit, told the High Court that only
those persons
whose HIV infection had reached the immunosuppression stage and
whose CD4+ count had dropped below 300 cells per microlitre of blood
were prone
to the medical, safety and operational hazards
asserted.[6] The assertions made by
SAA, therefore, were not only not true of all persons who are HIV positive, but
they were not true of the
appellant. According to SAA’s medical expert,
at the time of medical examination there was nothing “to indicate that
the
infection has reached either the asymptomatic immunosuppressed state or the AIDS
stage.” On the medical evidence placed
before the High Court, therefore,
it was not established that the appellant posed the risks asserted. Yet he was
excluded from employment. |
[9] | The High Court, however,
agreed with SAA.[7] It found that the
practice: was “based on considerations of medical, safety and operational
grounds”;[8] did not exclude
persons with HIV from employment in all positions within SAA, but only from
cabin crew positions; and was “aimed
at achieving a worthy and important
societal goal.”[9] The High
Court noted that if the employment practices of SAA were not seen to promote the
health and safety of its passengers and
crew, its “commercial operation,
and therefore the public perception about it, will be seriously
impaired”.[10] A further
factor that it took into consideration was the allegation by SAA that its
competitors apply a similar employment policy.
The court reasoned that if SAA
were obliged to employ people with HIV, it “would be seriously
disadvantaged as against its
competitors”.[11] It
concluded that “it is an inherent requirement for a flight attendant, at
least for the moment, to be HIV-negative”
and that the practice did not
unfairly discriminate against persons who are HIV
positive.[12] If it did, the court
found, such discrimination was “justifiable within the meaning of s36 of
the Constitution.”[13] In the
result, it dismissed the application. The present appeal is the
sequel. |
[10] | To put the issues on appeal
in context, it is necessary to refer to the medical evidence placed before this
Court by the amicus, for it is this medical evidence that altered the
course of argument on appeal. This evidence, however, told SAA nothing new.
Indeed,
it said nothing that SAA’s expert did not already
know. |
Medical evidence on appeal
[11] | The medical opinion in this
case tells us the following about HIV/AIDS: it is a progressive disease of the
immune system that is caused
by the Human Immunodeficiency Virus, or HIV. HIV
is a human retrovirus that affects essential white blood cells, called CD4+
lymphocytes.
These cells play an essential part in the proper functioning of
the human immune system. When all the interdependent parts of the
immune system
are functioning properly, a human being is able to fight off a variety of
viruses and bacteria that are commonly present
in our daily environment. When
the body’s immune system becomes suppressed or debilitated, these
organisms are able to flourish
unimpeded. Professor Schoub identifies four
stages in the progression of untreated HIV
infection: |
(a) Acute stage - this stage begins shortly after infection. During this
stage the infected individual experiences flu-like symptoms which last
for some
weeks. The immune system during this stage is depressed. However, this is a
temporary phase and the immune system will
revert to normal activity once the
individual recovers clinically. This is called the window period. During this
window period,
individuals may test negative for HIV when in fact they are
already infected with the virus.
(b) Asymptomatic immunocompetent stage - this follows the acute stage.
During this stage the individual functions completely normally, and is unaware
of any symptoms of
the infection. The infection is clinically silent and the
immune system is not yet materially affected.
(c) Asymptomatic immunosuppressed stage - this occurs when there is a
progressive increase in the amount of virus in the body which has materially
eroded the immune system.
At this stage the body is unable to replenish the
vast number of CD4+ lymphocytes that are destroyed by the actively replicating
virus. The beginning of this stage is marked by a drop in the CD4+ count to
below 500 cells per microlitre of blood. However, it
is only when the count
drops below 350 cells per microlitre of blood that an individual cannot be
effectively vaccinated against
yellow fever. Below 300 cells per microlitre of
blood, the individual becomes vulnerable to secondary infections and needs to
take
prophylactic antibiotics and anti-microbials. Although the
individual’s immune system is now significantly depressed, the
individual
may still be completely free of symptoms and be unaware of the progress of the
disease in the body.
(d) AIDS (Acquired Immune Deficiency Syndrome) stage - this is the end
stage of the gradual deterioration of the immune system. The immune system is
so profoundly depleted that the
individual becomes prone to opportunistic
infections that may prove fatal because of the inability of the body to fight
them.
[12] | HIV is transmitted through
intimate contact involving the exchange of body fluid. Thus, sexual
intercourse, receipt of or exposure
to the blood, blood products, semen, tissues
or organs of the infected person or transmission from an infected mother to her
foetus
or suckling child are known methods by which it can be transmitted. HIV
has never been shown to be transmitted through intact skin
or casual
contact. |
[13] | It will be convenient at
this stage to refer to the medical evidence which was placed before us on appeal
by the amicus. The relevant evidence is contained in the minutes of the
meetings of the medical experts of the parties in the Labour Court case,
held on
28 April and 8 May 2000.[14] The
minute of the first meeting reflects the unanimous view of these experts on the
nature of the HIV disease, its progression,
treatment and transmission, as well
as the ability of people living with HIV to be vaccinated against yellow fever.
The sole subject
of the second meeting was the exact point at which HIV positive
persons can no longer be effectively vaccinated against yellow fever,
and the
effectiveness of Highly Active Antiretroviral Therapy, which is a combination of
drugs, referred to as HAART treatment.
This minute concluded that a person with
a CD4+ count below 350 cells per microlitre could not be vaccinated against
yellow fever.
The minute of the first meeting records
that: |
“1. HIV is a progressive illness characterised by decreasing
immunocompetence over time.
2. HIV is an infectious disease that requires intimate contact for transmission.
By far the predominant mode of transmission is via
sexual contact. A small
number of medical work-related injuries from needlestick or sharp instruments
have accounted for some cases
of HIV transmission. Transmission also occurs
through mother-to-child routes, through transfusion of blood products, and
through
needle sharing by intravenous drug users.
3. HIV has never been demonstrated to be transmissible through intact skin or
through casual contact. It is not a highly transmissible
infection.
4. The standard test to diagnose HIV is a screening ELISA test followed by
confirmatory tests. There is a window period of between
two to twelve weeks
depending on the tests used, within which an HIV-positive individual will test
negative.
5. Predicting an individual’s risk of developing AIDS can be done
accurately by assessing the immune function and the level
of HIV burden.
6. Immune function is determined by measuring a particular immune cell count in
the blood, which is accepted as a marker. This is
the CD4+ lymphocyte cell,
which is attacked and destroyed by HIV. The CD4+ count is used to assess the
risk of various opportunistic
diseases.
7. The level of HIV replication is assessed by quantifying the amount of HIV
genetic material in the blood (HIV-1 RNA). This measurement
is usually referred
to as the individual’s viral load.
8. The viral load and the CD4+ lymphocyte count are now routinely used in
patient management.
1. 9. During the asymptomatic phase, HIV infected individuals are able to
maintain productive lives and can remain gainfully and
productively employed,
particularly if they are properly treated with antiretrovirals and prophylactic
antibiotics appropriate to
their condition.
10. The natural progression of HIV has been dramatically altered in consequence
of recent advances in the available medication.
There are now combinations of
drugs that are capable of completely suppressing the replication of the virus
within an HIV+ individual.
This combination of drugs has been described as
Highly Active Antiretroviral Therapy or HAART. They are available in South
Africa
and are increasingly accessible.
11. With successful HAART treatment, the individual’s immune system
recovers, together with a very marked improvement in the
CD4+ lymphocyte count.
A significant improvement in survival rates and life expectancy
results.”
[14] | In regard to the ability of
people with HIV to perform employment duties, and in particular the work of a
cabin attendant, the minute
records that: |
12. With the advent of [HAART] treatment, individuals are capable of living
normal lives and they can perform any employment tasks
for which they are
otherwise qualified.
13. The reasons for testing employees and potential employees for any medical
condition are in
general:
• to see whether they are fit for the inherent requirements of the
job;
• to protect them from hazards inherent in the job;
• to protect others (clients, third parties etc) from hazards;
• to promote and maintain the health of
employees.
14. Within this framework, as applied to the circumstances of a cabin crew
member:
• the inherent requirements of a cabin crew attendant’s position are
such that an asymptomatic HIV-positive person could
perform the work
competently;
• the hazards to the immunocompetent employee inherent in the job of cabin
crew attendant can be reasonably managed by counselling,
monitoring, vaccination
and the administration of appropriate antibiotic prophylaxis if required;
• the hazards to the clients and third parties arising from a cabin crew
attendant being an asymptomatic HIV-positive individual
are inconsequential and,
insofar as it may ever be necessary, well-established universal precautions can
be utilised.
15. There is no well-founded medical support for a policy that ALL
persons who are HIV positive are unable to be vaccinated for yellow fever.
Whether or not a particular individual should receive
such vaccination should be
assessed on the basis of a proper clinical examination of that individual,
having regard to inter alia the individual’s CD4 count.
16. Thus, where an HIV-positive individual is asymptomatic and immunocompetent,
he or she will in the absence of any other impediment
be able
both:
• to meet the performance requirements of the job; and
• to receive appropriate vaccination as required for the
job.
17. On medical grounds alone, exclusion of an HIV-positive individual
from employment solely on the basis of HIV positivity cannot be
justified.” (Emphasis in the original)
[15] | On the medical evidence, an
asymptomatic HIV positive person can perform the work of a cabin attendant
competently. Any hazards to
which an immunocompetent cabin attendant may be
exposed can be managed by counselling, monitoring, vaccination and the
administration
of the appropriate antibiotic prophylaxis if necessary.
Similarly, the risks to passengers and other third parties arising from
an
asymptomatic HIV positive cabin crew member are therefore inconsequential and,
if necessary, well-established universal precautions
can be utilised. In terms
of Professor Schoub’s affidavit, even immunosuppressed persons are not
prone to opportunistic infections
and may be vaccinated against yellow fever as
long as their CD4+ count remains above a certain
level. |
The issues on appeal
[16] | Confronted by the consensus
among medical experts, including its own expert, on the nature of the HIV
disease, its transmission, progression,
tracking its progression and treatment,
as well as the ability of HIV positive persons to be vaccinated against yellow
fever, SAA
now concedes that: (a) its employment practice of refusing to employ
people as cabin attendants because they are living with HIV
cannot be justified
on medical grounds and (b) therefore, its refusal to consider employing the
appellant because he was living with
HIV was
unfair. |
[17] | Despite these concessions,
it is the duty of this Court to determine whether any constitutional rights of
the appellant were violated
by SAA, and if so, the appropriate relief to which
the appellant is entitled. |
[18] | Before turning to these
questions, it is necessary to dispose at once of one matter. We were invited to
express an opinion on SAA’s
policy of testing applicants for employment
for HIV/AIDS status, and thereafter of refusing employment if the infection has
progressed
to such a stage that the person has become unsuitable for employment
as a cabin attendant. This policy, we were told, represents
SAA’s true
policy, but in the case of the appellant was incorrectly applied. It was
desirable for this Court to express such
opinion, we were further told, in order
to give guidance to the Labour Court, a court that has a statutory duty to
address issues
relating to testing to determine suitability for
employment.[15] |
[19] | This invitation must be
declined because the policy that is now being urged on appeal was not in issue
in the High Court. That policy,
therefore, cannot be in issue on
appeal. |
[20] | There is a further
consideration that militates against this Court making any decision on the
policy put forward by SAA. The question
of testing in order to determine
suitability for employment is a matter that is now governed by section 7(2),
read with section 50(4),
of the Employment Equity
Act.[16] In my view, there is much
to be said for the view that where a matter is required by statute to be dealt
with by a specialist tribunal,
it is that tribunal that must deal with such a
matter in the first instance. The Labour Court is a specialist tribunal that
has
a statutory duty to deal with labour and employment issues. Because of this
expertise, the legislature has considered it appropriate
to give it jurisdiction
to deal with testing in order to determine suitability for employment. It is
therefore that court which,
in the first instance, should deal with issues
relating to testing in the context of employment.
|
[21] | I now turn to consider
whether any constitutional rights have been violated by the refusal to employ
the appellant as a cabin attendant.
The appellant alleges that his rights to
equality, human dignity and fair labour practices have been
violated. |
The right to equality
[22] | The relevant provisions of
the equality clause, contained in section 9 of the Constitution,
provide: |
“(1) Everyone is equal before the law and has the right to equal
protection and benefit of the law.
. . .
(3) The state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender,
sex, pregnancy, marital
status, ethnic or social origin, colour, sexual orientation, age, disability,
religion, conscience, belief,
culture, language and birth.
. . .
(5) Discrimination on one or more of the grounds listed in subsection (3) is
unfair unless it is established that the discrimination
is
fair.”
[23] | Transnet is a statutory
body, under the control of the state, which has public powers and performs
public functions in the public
interest.[17] It was common cause
that SAA is a business unit of Transnet. As such, it is an organ of state and
is bound by the provisions of
the Bill of Rights in terms of section 8(1), read
with section 239, of the Constitution. It is, therefore, expressly prohibited
from discriminating
unfairly.[18] |
[24] | This Court has previously
dealt with challenges to statutory provisions and government conduct alleged to
infringe the right to equality.
Its approach to such matters involves three
basic enquiries: first, whether the provision under attack makes a
differentiation that
bears a rational connection to a legitimate government
purpose.[19] If the differentiation
bears no such rational connection, there is a violation of section 9(1). If it
bears such a rational connection,
the second enquiry arises. That enquiry is
whether the differentiation amounts to unfair discrimination. If the
differentiation
does not amount to unfair discrimination, the enquiry ends there
and there is no violation of section 9(3). If the discrimination
is found to be
unfair, this will trigger the third enquiry, namely, whether it can be justified
under the limitations provision.
Whether the third stage, however, arises will
further be dependent on whether the measure complained of is contained in a law
of
general application. |
[25] | Mr Trengove sought to apply
this analysis to SAA’s employment practice in the present case. He
contended that the practice
was irrational because: first, it disqualified from
employment as cabin attendants all people who are HIV positive, yet objective
medical evidence shows that not all such people are unsuitable for employment as
cabin attendants; second, the policy excludes prospective
cabin attendants who
are HIV positive but does not exclude existing cabin attendants who are likewise
HIV positive, yet the existing
cabin attendants who are HIV positive would pose
the same health, safety and operational hazards asserted by SAA as the basis on
which it was justifiable to discriminate against applicants for employment who
are HIV positive. |
[26] | In the view I take of the
unfairness of the discrimination involved here, it is not necessary to embark
upon the rationality enquiry
or to reach any firm conclusion on whether it
applies to the conduct of all organs of state, or whether the practice in issue
in
this case was irrational. |
[27] | At the heart of the
prohibition of unfair discrimination is the recognition that under our
Constitution all human beings, regardless
of their position in society, must be
accorded equal dignity.[20] That
dignity is impaired when a person is unfairly discriminated against. The
determining factor regarding the unfairness of the
discrimination is its impact
on the person discriminated
against.[21] Relevant
considerations in this regard include the position of the victim of the
discrimination in society, the purpose sought to
be achieved by the
discrimination, the extent to which the rights or interests of the victim of the
discrimination have been affected,
and whether the discrimination has impaired
the human dignity of the
victim.[22] |
[28] | The appellant is living
with HIV. People who are living with HIV constitute a minority. Society has
responded to their plight with
intense
prejudice.[23] They have been
subjected to systemic disadvantage and
discrimination.[24] They have been
stigmatised and marginalised. As the present case demonstrates, they have been
denied employment because of their
HIV positive status without regard to their
ability to perform the duties of the position from which they have been
excluded. Society’s
response to them has forced many of them not to
reveal their HIV status for fear of prejudice. This in turn has deprived them
of
the help they would otherwise have received. People who are living with
HIV/AIDS are one of the most vulnerable groups in our society.
Notwithstanding
the availability of compelling medical evidence as to how this disease is
transmitted, the prejudices and stereotypes
against HIV positive people still
persist. In view of the prevailing prejudice against HIV positive people, any
discrimination against
them can, to my mind, be interpreted as a fresh instance
of stigmatisation and I consider this to be an assault on their dignity.
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.[25] |
[29] | There can be no doubt that
SAA discriminated against the appellant because of his HIV status. Neither the
purpose of the discrimination
nor the objective medical evidence justifies such
discrimination. |
[30] | SAA refused to employ the
appellant saying that he was unfit for world-wide duty because of his HIV
status. But, on its own medical
evidence, not all persons living with HIV cannot
be vaccinated against yellow fever, or are prone to contracting infectious
diseases
- it is only those persons whose infection has reached the stage of
immunosuppression, and whose CD4+ count has dropped below 350
cells per
microlitre of blood.[26] Therefore,
the considerations that dictated its practice as advanced in the High Court did
not apply to all persons who are living
with HIV. Its practice, therefore,
judged and treated all persons who are living with HIV on the same basis. It
judged all of them
to be unfit for employment as cabin attendants on the basis
of assumptions that are true only for an identifiable group of people
who are
living with HIV. On SAA’s own evidence, the appellant could have been at
the asymptomatic stage of infection. Yet,
because the appellant happened to
have been HIV positive, he was automatically excluded from employment as a cabin
attendant. |
[31] | A further point must be
made here. The conduct of SAA towards cabin attendants who are already in its
employ is irreconcilable with
the stated purpose of its
practice.[27] SAA does not test
those already employed as cabin attendants for HIV/AIDS. They may continue to
work despite the infection, and
regardless of the stage of infection. Yet they
may pose the same health, safety and operational hazards as prospective cabin
attendants.
Apart from this, the practice also pays no attention to the window
period. If a person happens to undergo a blood test during the
window period,
the person can secure employment. But if the same person undergoes the test
outside of this period, he or she will
not be
employed. |
[32] | The fact that some people
who are HIV positive may, under certain circumstances, be unsuitable for
employment as cabin attendants
does not justify the exclusion from employment as
cabin attendants of all people who are living with HIV. Were this to be
the case, people who are HIV positive would never have the opportunity to have
their
medical condition evaluated in the light of current medical knowledge for
a determination to be made as to whether they are suitable
for employment as
cabin attendants. On the contrary, they would be vulnerable to discrimination
on the basis of prejudice and unfounded
assumptions - precisely the type of
injury our Constitution seeks to prevent. This is manifestly unfair. Mr Cohen
properly conceded
that this was so. |
[33] | The High Court found that
the commercial operation of SAA, and therefore the public perception about it,
would be undermined if the
employment practices of SAA did not promote the
health and safety of the crew and passengers. In addition, the High Court took
into
account that the ability of SAA to compete in the airline industry would be
undermined “if it were obliged to appoint HIV-infected
individuals as
flight-deck crew members.”[28]
This was apparently based on the allegation by SAA that other airlines have a
similar policy. It is these considerations that led
the High Court to conclude
that HIV negative status was, at least for the moment, an inherent requirement
for the job of cabin attendant
and that therefore the appellant had not been
unfairly discriminated against. |
[34] | Legitimate commercial
requirements are, of course, an important consideration in determining whether
to employ an individual. However,
we must guard against allowing stereotyping
and prejudice to creep in under the guise of commercial interests. The greater
interests
of society require the recognition of the inherent dignity of every
human being, and the elimination of all forms of discrimination.
Our
Constitution protects the weak, the marginalised, the socially outcast, and the
victims of prejudice and stereotyping. It is
only when these groups are
protected that we can be secure that our own rights are
protected.[29] |
[35] | The need
to promote the health and safety of passengers and crew is important. So is the
fact that if SAA is not perceived to be
promoting the health and safety of its
passengers and crew this may undermine the public perception of it. Yet the
devastating effects
of HIV infection and the widespread lack of knowledge about
it have produced a deep anxiety and considerable hysteria. Fear and
ignorance
can never justify the denial to all people who are HIV positive of the
fundamental right to be judged on their merits.
Our treatment of people who are
HIV positive must be based on reasoned and medically sound judgments. They must
be protected against
prejudice and stereotyping. We must combat erroneous, but
nevertheless prevalent, perceptions about HIV. The fact that some people
who
are HIV positive may, under certain circumstances, be unsuitable for employment
as cabin attendants does not justify a blanket
exclusion from the position of
cabin attendant of all people who are HIV
positive. |
[36] | The constitutional right of
the appellant not to be unfairly discriminated against cannot be determined by
ill-informed public perception
of persons with HIV. Nor can it be dictated by
the policies of other airlines not subject to our
Constitution. |
[37] | Prejudice can never justify
unfair discrimination. This country has recently emerged from institutionalised
prejudice. Our law reports
are replete with cases in which prejudice was taken
into consideration in denying the rights that we now take for
granted.[30] Our constitutional
democracy has ushered in a new era - it is an era characterised by respect for
human dignity for all human beings.
In this era, prejudice and stereotyping
have no place. Indeed, if as a nation we are to achieve the goal of equality
that we have
fashioned in our Constitution we must never tolerate prejudice,
either directly or indirectly. SAA, as a state organ that has a
constitutional
duty to uphold the Constitution, may not avoid its constitutional duty by bowing
to prejudice and stereotyping. |
[38] | People who are living with
HIV must be treated with compassion and understanding. We must show
ubuntu towards them.[31]
They must not be condemned to “economic death” by the denial of
equal opportunity in employment. This is particularly
true in our country,
where the incidence of HIV infection is said to be disturbingly high. The
remarks made by Tipnis J in MX of Bombay Indian Inhabitant v M/s ZY and
another[32] are apposite in this
context: |
“In our opinion, the State and public Corporations like respondent No. 1
cannot take a ruthless and inhuman stand that they
will not employ a person
unless they are satisfied that the person will serve during the entire span of
service from the employment
till superannuation. As is evident from the
material to which we have made a detailed reference in the earlier part of this
judgment,
the most important thing in respect of persons infected with HIV is
the requirement of community support, economic support and non-discrimination
of
such person. This is also necessary for prevention and control of this terrible
disease. Taking into consideration the widespread
and present threat of this
disease in the world in general and this country in particular, the State cannot
be permitted to condemn
the victims of HIV infection, many of whom may be truly
unfortunate, to certain economic death. It is not in the general public
interest and is impermissible under the Constitution. The interests of the HIV
positive persons, the interests of the employer and
the interests of the society
will have to be balanced in such a case.”
[39] | As pointed out earlier, on
the medical evidence not all people who are living with HIV are unsuitable for
employment as cabin attendants.[33]
It is only those people whose CD4+ count has dropped below a certain level who
may become unsuitable for employment. It follows
that the finding of the High
Court that HIV negative status is an inherent requirement “at least for
the moment” for
a cabin attendant is not borne out by the medical evidence
on record. |
[40] | Having regard to all these
considerations, the denial of employment to the appellant because he was living
with HIV impaired his dignity
and constituted unfair discrimination. This
conclusion makes it unnecessary to consider whether the appellant was
discriminated
against on a listed ground of disability, as set out in section
9(3) of the Constitution, as Mr Trengove contended or whether people
who are
living with HIV ought not to be regarded as having a disability, as contended by
the amicus. |
[41] | I conclude, therefore, that
the refusal by SAA to employ the appellant as a cabin attendant because he was
HIV positive violated his
right to equality guaranteed by section 9 of the
Constitution. The third enquiry, namely whether this violation was justified,
does
not arise. We are not dealing here with a law of general
application.[34] This conclusion
makes it unnecessary to consider the other constitutional attacks based on human
dignity and fair labour practices.
It now remains to consider the remedy to
which the appellant is entitled. |
Remedy
[42] | Section 38 of the
Constitution provides that where a right contained in the Bill of Rights has
been infringed, “the court may
grant appropriate relief”. In the
context of our Constitution, “appropriate relief” must be construed
purposively,
and in the light of section 172(1)(b), which empowers the Court, in
constitutional matters, to make “any order that is just
and
equitable.”[35] Thus
construed, appropriate relief must be fair and just in the circumstances of the
particular case. Indeed, it can hardly be
said that relief that is unfair or
unjust is appropriate.[36] As
Ackermann J remarked, in the context of a comparable provision in the interim
Constitution, “[i]t can hardly be argued,
in my view, that relief which
was unjust to others could, where other available relief meeting the
complainant’s needs did
not suffer from this defect, be classified as
appropriate.”[37]
Appropriateness, therefore, in the context of our Constitution, imports the
elements of justice and fairness. |
[43] | Fairness requires a
consideration of the interests of all those who might be affected by the order.
In the context of employment,
this will require a consideration not only of the
interests of the prospective employee but also the interests of the employer.
In other cases, the interests of the community may have to be taken into
consideration.[38] In the context
of unfair discrimination, the interests of the community lie in the recognition
of the inherent dignity of every
human being and the elimination of all forms of
discrimination. This aspect of the interests of the community can be gathered
from
the preamble to the Constitution in which the people of this country
declared: |
“We, the people of South Africa,
Recognise the injustices of our past;
. . .
We therefore, through our freely elected representatives, adopt this
Constitution as the supreme law of the Republic so as to —
Heal the divisions of the past and establish a society based on democratic
values, social justice and fundamental human rights .
.
.”
[44] | This proclamation finds
expression in the founding provisions of the Constitution, which include
“human dignity, the achievement
of equality and the advancement of human
rights and
freedoms.”[39] |
[45] | The determination of
appropriate relief, therefore, calls for the balancing of the various interests
that might be affected by the
remedy. The balancing process must at least be
guided by the objective, first, to address the wrong occasioned by the
infringement
of the constitutional right; second, to deter future violations;
third, to make an order that can be complied with; and fourth, of
fairness to
all those who might be affected by the relief. Invariably, the nature of the
right infringed and the nature of the infringement
will provide guidance as to
the appropriate relief in the particular case. Therefore, in determining
appropriate relief, “we
must carefully analyse the nature of [the]
constitutional infringement, and strike effectively at its
source.”[40] |
[46] | With these considerations
in mind, I now turn to consider the appropriate relief in this case. The
infringement involved here consists
of the refusal to employ the appellant
because he was HIV positive. The relief to which the appellant is entitled
depends, in the
first place, on whether he would have been employed as a cabin
attendant but for his HIV positive status. It is to that question
that I now
turn. |
(a) Would the appellant have been employed but for the unfair
discrimination?
[47] | It is common cause that the
appellant was refused employment because of his HIV positive status. This much
was conceded both in the
written argument of SAA and in the course of oral
argument by Mr Cohen. Mr Cohen nevertheless contended that it had not been
shown
that the appellant would necessarily have been employed but for his HIV
positive status. The contention being advanced here is that
it has not been
shown that the appellant has been denied employment solely because of his HIV
status. This contention rests on the
assumption that there were fewer than
twelve posts for which the twelve individuals, including the appellant, had been
identified
as suitable. It was submitted that there was, therefore, no
guarantee that the appellant would have been one of the individuals
to fill the
available posts. |
[48] | The fallacy of this
contention lies in its premise. It has never been SAA’s case that there
were fewer than twelve vacant posts
at the time the twelve individuals were
selected for employment, nor was there any suggestion that the individuals who
were selected
still had to go through some further selection process to
determine who amongst them were to fill the available posts. Had this
been its
case, it would have been an easy matter for SAA to have said so. Far from
saying so, SAA admitted the allegation that the
appellant was selected “as
one of twelve flight attendants to be employed out of one hundred and seventy
three applicants”,
and that his selection was subject to a pre-employment
medical examination, which included a test for HIV. SAA knew that the case
it
had to meet in the event that it was unsuccessful on the merits was why the
appellant should not be employed. This was the main
relief sought by the
appellant. The contention must, therefore,
fail. |
[49] | It is common cause that the
appellant successfully completed the final screening stage, having been found
suitable for employment
throughout the selection process. As already
mentioned,[41] when the blood test
of the appellant indicated that he was infected with the HIV virus, the medical
report was altered to indicate
that he was unsuitable for employment as a cabin
attendant. It follows that what stood between the appellant and employment as a
cabin attendant was his HIV positive status. I am therefore satisfied that the
appellant was denied employment as a cabin attendant
solely because of his HIV
positive status. It follows that the infringement involved here consists in the
refusal to employ the
appellant solely because he was HIV positive. It now
remains to consider how to redress this wrong. Mr Trengove contended that
instatement was the appropriate relief. |
(b) Is instatement the appropriate relief?
[50] | An order of instatement,
which requires an employer to employ an employee, is a basic element of the
appropriate relief in the case
of a prospective employee who is denied
employment for reasons declared impermissible by the Constitution. It strikes
effectively
at the source of unfair discrimination. It is an expression of the
general rule that where a wrong has been committed, the aggrieved
person should,
as a general matter, and as far as is possible, be placed in the same position
the person would have been but for
the wrong suffered. In proscribing unfair
discrimination, the Constitution not only seeks to prevent unfair
discrimination, but
also to eliminate the effects thereof. In the context of
employment, the attainment of that objective rests not only upon the elimination
of the discriminatory employment practice, but also requires that the person who
has suffered a wrong as a result of unlawful discrimination
be, as far as
possible, restored to the position in which he or she would have been but for
the unfair discrimination. |
[51] | The need to eliminate
unfair discrimination does not arise only from Chapter 2 of our Constitution.
It also arises out of international
obligation.[42] South Africa has
ratified a range of anti-discrimination Conventions, including the African
Charter on Human and Peoples’
Rights.[43] In the preamble to the
African Charter, member states undertake, amongst other things, to dismantle all
forms of discrimination.
Article 2 prohibits discrimination of any kind. In
terms of Article 1, member states have an obligation to give effect to the
rights
and freedoms enshrined in the Charter. In the context of employment, the
ILO Convention 111, Discrimination (Employment and Occupation)
Convention, 1958
proscribes discrimination that has the effect of nullifying or impairing
equality of opportunity or treatment in
employment or occupation. In terms of
Article 2, member states have an obligation to pursue national policies that are
designed
to promote equality of opportunity and treatment in the field of
employment, with a view to eliminating any discrimination. Apart
from these
Conventions, it is noteworthy that item 4 of the SADC Code of Conduct on
HIV/AIDS and Employment,[44]
formally adopted by the SADC Council of Ministers in September 1997, lays down
that HIV status “should not be a factor in job
status, promotion or
transfer.” It also discourages pre-employment testing for HIV and
requires that there should be no compulsory
workplace testing for
HIV. |
[52] | Where a person has been
wrongfully denied employment, the fullest redress obtainable is
instatement.[45] Instatement serves
an important constitutional objective. It redresses the wrong suffered, and
thus eliminates the effect of the
unfair discrimination. It sends a message
that under our Constitution discrimination will not be tolerated and thus
ensures future
compliance. In the end, it vindicates the Constitution and
enhances our faith in it. It restores the human dignity of the person
who has
been discriminated against, achieves equality of employment opportunities and
removes the barriers that have operated in
the past in favour of certain groups,
and in the process advances human rights and freedoms for all. All these are
founding values
in our Constitution. |
[53] | In these circumstances,
instatement should be denied only in circumstances where considerations of
fairness and justice, for example,
dictate otherwise. There may well be other
considerations too that make instatement inappropriate, such as where it would
not be
practical to give effect to it. |
[54] | Here, there was no
suggestion that it would either be unfair or unjust were SAA to be ordered to
employ the appellant as a cabin attendant.
Nor was it suggested that it would
not be practical to do so. On the contrary, Mr Cohen assured us that it would
not be impractical
to employ the appellant as a cabin attendant. Nor does the
medical condition of the appellant render him unsuitable for employment
as a
cabin attendant.[46] The appellant
is currently receiving combination therapy, which should result in the complete
suppression of the replication of
the virus and lead to a marked improvement in
his CD4+ count.[47] On 19 June 2000
he was medically examined and his blood sample was taken. He was found to be
asymptomatic, and his CD4+ count was
469 cells per microlitre of blood. He
describes his prognosis as excellent. He is able to be vaccinated against
yellow fever, and
is not prone to opportunistic
infections.[48] |
[55] | It was contended that an
order of instatement would open the floodgates for other people who are living
with HIV and who were previously
denied employment by SAA. However, what the
appropriate relief would be in this case cannot be made to depend on other cases
that
may or may not be instituted. What constitutes appropriate relief depends
on the facts of each case. The relief to be granted in
those other cases will
have to be determined in the light of their
facts. |
[56] | In the light of the
aforegoing, the appropriate order is one of
instatement. |
[57] | Mr Trengove submitted that
the order for the employment of the appellant should be effective from the date
of the judgment of the
High Court. Whether it is appropriate to make such an
order in this case is a matter to which I now
turn. |
(c) The effective date of the order
[58] | As a general matter, the
question whether instatement is the appropriate relief must be determined as at
the time when the matter
came before the High Court. The denial of instatement
by the High Court should not be allowed to prejudice the appellant. Indeed,
it
would be unfair to a litigant to fail to provide him or her with the full relief
that the trial court should have given, where
the trial court has wrongly
refused such relief. Albeit in a different context, Goldstone JA expressed the
principle as follows: |
“Whether or not reinstatement is the appropriate relief, in my opinion,
must be judged as at the time the matter came before
the industrial court. If
at that time it was appropriate, it would be unjust and illogical to allow
delays caused by unsuccessful
appeals to the Labour Appeal Court and to this
Court to render reinstatement inappropriate. Where an order for reinstatement
has
been granted by the industrial court, an employer who appeals from such an
order knowingly runs the risk of any prejudice which may
be the consequence of
delaying the implementation of the
order.”[49]
However, the ultimate consideration is whether it would be appropriate to
backdate the order of instatement to the date of the judgment
of the trial
court.
[59] | In this case there is, in
my view, an insuperable difficulty besetting the appellant’s path to that
relief. Where, as here,
the employee seeks an order backdating the order of
instatement to the date of the High Court order, it is, in my view, incumbent
upon that employee both to warn the employer that he or she intends to request
such an order on appeal and to place before the court
such information as may be
relevant to the consideration of such relief. This is necessary so as to inform
the employer of the case
it will be required to meet on appeal in the event that
it fails on the merits. Here the appellant did not seek such relief in his
notice and grounds of appeal. As a result, SAA came to this Court unprepared to
meet a claim for the backdating of the order of
instatement to the date of the
High Court judgment. |
[60] | There is a further
consideration that militates against granting such relief. The backdating of an
order for instatement raises a
number of difficult legal questions relating to
the form such relief should take. These questions were not argued. It is not
possible
physically to instate the appellant retrospectively to the date of the
judgment of the High Court. Whether retrospectivity of instatement
can be
expressed by the ordering of back pay and the provision of benefits or some
other relief such as damages are matters that
were not debated in this Court.
Although Mr Trengove informed us from the bar that the appellant has been in
employment since the
date of the judgment of the High Court, this is not enough.
We do not have any information as to what he has earned. Nor do we have
any
information as to what he would have earned as a cabin attendant. More
importantly, SAA has not had the opportunity of investigating
these facts. In
these circumstances it would be unfair to SAA to make an order backdating the
instatement to the date of judgment
in the High
Court. |
[61] | I conclude, therefore, that
the appropriate relief in the circumstances of this case is an order directing
SAA to employ the appellant
as a cabin attendant with effect from the date of
the order of this Court. It now remains to consider the question of
costs. |
Costs
[62] | The litigation resulting in
this appeal was unnecessary, SAA effectively told us on appeal. It is a result,
it also told us, of its
true policy having been applied incorrectly to the
appellant. There was, therefore, nothing for SAA to defend either in the High
Court or in this Court. It must, therefore, bear the costs of the appellant in
both courts. In the High Court, the appellant sought
the costs of two counsel,
and he is entitled to such costs. In this Court, Mr Trengove sought the costs
of two counsel, but limited
the costs of the out-of-town counsel to
reimbursements and actual costs
incurred.[50]
|
[63] | The amicus also
asked for an order that SAA pay its costs. An amicus curiae assists the
court by furnishing information or argument regarding questions of law or fact.
An amicus is not a party to litigation, but believes that the
court’s decision may affect its interest. The amicus differs from
an intervening party, who has a direct interest in the outcome of the litigation
and is therefore permitted to participate
as a party to the matter. An
amicus joins proceedings, as its name suggests, as a friend of the court.
It is unlike a party to litigation who is forced into the litigation
and thus
compelled to incur costs. It joins in the proceedings to assist the court
because of its expertise on or interest in the
matter before the court. It
chooses the side it wishes to join, unless requested by the court to urge a
particular position. An
amicus, regardless of the side it joins, is
neither a loser nor a winner and is generally not entitled to be awarded costs.
Whether there
may be circumstances calling for departure from this rule is not
necessary to decide in this case. Suffice it to say that in the
present case no
such departure is warranted. |
Order
[64] | In the result, the
following order is made: |
(a) The appeal is upheld.
(b) The order of the High Court is set aside.
(c) The decision of SAA not to employ Mr Jacques Charl Hoffmann as a cabin
attendant is set aside.
(d) SAA is ordered forthwith to offer to employ Mr Jacques Charl Hoffmann as a
cabin attendant; provided that should Mr Hoffmann
fail to accept the offer
within thirty days of the date of the offer, this order shall lapse.
(e) SAA is ordered to pay the appellant’s costs as
follows:
(i) in the High Court, costs consequent upon the employment of two counsel;
and
(ii) in this Court, costs consequent upon the employment of two counsel, the
costs of the second counsel to be limited to the out
of pocket expenses actually
incurred.
Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Mokgoro J,
O’Regan J, Sachs J, Yacoob J and Madlanga AJ concur
in the judgment of
Ngcobo J.
For the appellant: WM Trengove SC, A Katz and Z Camroodien instructed by the
Legal Resources Centre, Cape Town.
For the respondent: CZ Cohen SC and LT Sibeko instructed by Nalane Manaka
Attorneys.
For the amicus curiae: KS Tip SC and FA Boda instructed by the Centre
for Applied Legal Studies.
[1] In terms of rule 18 of the
Constitutional Court Rules.
[2] The ALP is a project of the Centre
for Applied Legal Studies at the University of the Witwatersrand. One of the
objects of the ALP
is to prevent discrimination against people living with
HIV/AIDS.
[3] The additional material was
introduced in terms of rule 30 of the Constitutional Court Rules. The Labour
Court case was A v South African Airways (Pty) Ltd, Case J1916/99. The
case was settled on the basis of payment of damages by SAA to the claimant.
[4] See below paras 47-9.
[5] Such as chronic diarrhoea and
pulmonary tuberculosis.
[6] The immunosuppressed stage is one
of the stages in the progression of the HIV infection. The progress of HIV is
discussed in more
detail below at para 11.
[7] The judgment of the High Court is
reported as Hoffmann v South African Airways 2000 (2) SA 628 (W).
[8] At para 26 of the judgment.
[9] At para 28.
[10] At para 28.
[11] At paras 26-8.
[12] At para 29.
[13] At para 28. It does not appear
from the judgment of the High Court on what basis the practice was found to be
justifiable under
section 36 of the Constitution, as that section is only
applicable to a law of general application. This is dealt with at para 41
below.
[14] At these meetings SAA was
represented by its expert Professor Schoub, who, as mentioned in para 8 above,
also deposed to an affidavit
in these proceedings in the High Court.
[15] In terms of section 7(2), read
with section 50(4), of the Employment Equity Act, 55 of 1998.
[16] Act 55 of 1998. Section 7 came
into effect on 9 August 1999.
[17] Transnet Limited has its origin
in the South African Railways and Harbours Administration, which was
administered by the state under
the Railway Board Act, 73 of 1962. In terms of
section 2(1) of the South African Transport Services Act, 65 of 1981 the South
African
Railways and Harbours Administration was renamed the South African
Transport Services. In terms of section 3(1), it was not a separate
legal
person, but a commercial enterprise of the state. It was empowered, in terms of
section 2(2)(a), amongst other things, to
“control, manage, maintain and
exploit . . . air services (under the title ‘South African Airways’
or any title
in the Minister’s discretion)”. Pursuant to sections
2(1) and 3(2) of the Legal Succession to the South African Transport
Services
Act, 9 of 1989 Transnet was incorporated as a public company, and took transfer
of the whole of the commercial enterprise
of the South African Transport
Services. SAA is a business unit within Transnet, established in terms of
section 32(1)(b) of that
Act. In terms of section 2(2), the state is the only
member and shareholder of Transnet. Section 15 requires it to provide certain
services in the public interest. Its services must be performed in accordance
with the provisions of schedule 1 to the Act.
[18] In terms of section 9(3) of the
Constitution.
[19] The three stages were was set
out concisely in Harksen v Lane NO and Others [1997] ZACC 12; 1998 (1) SA 300 (CC); 1997
(11) BCLR 1489 (CC) at para 53. In Jooste v Score Supermarket Trading (Pty)
Ltd (Minister of Labour Intervening) [1998] ZACC 18; 1999 (2) SA 1 (CC); 1999 (2) BCLR 139
(CC) at para 17, the Court noted that the only purpose of the first stage of the
test was “an inquiry into whether the differentiation
is arbitrary or
irrational, or manifests naked preference . . .”. In National
Coalition for Gay and Lesbian Equality and Another v Minister of Justice and
Others 1999 (1) SA 6 (CC); 1998 (12) BCLR 1517 (CC) at para 18, the Court
held that the rationality test does not inevitably precede the unfair
discrimination test, and that the
“rational connection inquiry would be
clearly unnecessary in a case in which a court holds that the discrimination is
unfair
and unjustifiable.”
[20] President of the Republic of
South Africa and Another v Hugo [1997] ZACC 4; 1997 (4) SA 1 (CC); 1997 (6) BCLR 708 (CC)
at para 41.
[21] Harksen v Lane, above n
19, at para 50.
[22] Ibid, para 51.
[23] Ngwena “HIV In the
Workplace: Protecting Rights to Equality and Privacy” (1999) 15 SA
Journal of Human Rights 513 at 514.
[24] See section 34 of the Promotion
of Equality and Prevention of Unfair Discrimination Act, 2000, 4 of 2000.
[25] Section 6(1) of the Employment
Equity Act, which section came into effect on 9 August 1999, specifically
mentions HIV status as a prohibited ground of unfair discrimination; section
7(2) prohibits the testing of an employee for HIV status unless the Labour
Court, acting under section 50(4), determines that such testing is justifiable.
Section 34(1) of the Promotion of Equality and Prevention of Unfair
Discrimination Act, 2000, 4 of 2000, which section came into effect on 1
September 2000, requires the Minister of Justice and Constitutional Development
to
give special consideration to the inclusion of, amongst other things,
HIV/AIDS as a prohibited ground of discrimination; the schedule
to that Act
lists, as part of an illustrative list of unfair practices in the insurance
services, “unfairly disadvantaging
a person or persons, including unfairly
and unreasonably refusing to grant services, to persons solely on the basis of
HIV/AIDS status”.
The National Department of Education has, in terms of
section 3(4) of the National Education Policy Act, 27 of 1996, issued a national
policy on HIV/AIDS which, amongst other things, prohibits unfair discrimination
against learners, students and
educators with HIV/AIDS. The National Department
of Health has, in terms of the National Policy for Health Act, 116 of 1990,
issued
a national policy on testing for HIV. The Medical Schemes Act, 131 of
1998 obliges all medical schemes to provide at least a minimum cover for HIV
positive persons. Finally, a draft code of good practice
on key aspects of
HIV/AIDS and employment issued under the Employment Equity Act has been
published for public comment. This draft code has, as one of its goals, the
elimination of unfair discrimination in the workplace
based on HIV status.
[26] See above para 11(c).
[27] I accept, of course, that the
obligations of an employer towards existing employees may be greater than its
obligations towards prospective
employees.
[28] Above n 7, at para 28.
[29] S v Makwanyane and
Another [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) at para 88.
[30] For example, in Moller v
Keimoes School Committee 1911 AD 635, a case involving a challenge to
segregation in public schools following an objection by a group of white parents
to their children
having to attend the same school as black children, de
Villiers CJ, at 643-4, declined to ignore colour “prepossessions, or
. . .
prejudices” in construing a statute. Relying on such prejudice, he found
that a white parent would not have been “a
consenting party to an Act by
which European parents could be compelled to send their children to a school
which children of mixed
origin can also be compelled to attend”. In
Minister of Posts and Telegraphs v Rasool 1934 AD 167, a case involving a
challenge to segregation of counters at a post office following an objection by
a group of whites to being served
at the same counter as Indians, Stratford ACJ,
at 175, held that “a division of the community on differences of race or
language
for the purpose of postal service seems, prima facie, to be
sensible and make for the convenience and comfort of the public as a whole,
since appropriate officials conversant with the
customs, requirements and
language of each section will conceivably serve the respective sections”.
In Williams & Adendorff v Johannesburg Municipality 1915 TPD 106, a
case involving a challenge to segregation in the use of tramcars, while the
majority found that segregation was unlawful because
it was unauthorised by the
empowering statute, Bristowe J held, at 122, that regard might “be
properly paid to the feelings
and the sensitiveness, even to the prejudices and
foibles of the general body of reasonable citizens” in determining whether
segregation was lawful. Bristowe J held further that, having regard to
“the existing state of public feeling the segregation
of natives, even
though not coming within bye-law 12, may be essential to an efficient tramway
system.” Curlewis J, also dissenting,
held, at 128, that “apart
from dress and behaviour it is possible that it may be established that the use,
for instance, by
natives of the ordinary tramcars would be so distasteful and
revolting to the rest of the community that the council as a common
carrier
would be justified in refusing to carry them as passengers in the same cars as
Europeans”. The State v Xhego and Others 83 Prentice Hall H76
concerned the admissibility of confessions. Some ten African accused challenged
confessions made by them on
the grounds that they had been induced by threats or
force on the part of the police. Rejecting the evidence of the accused, van
der
Riet AJP observed, at 197, that “[h]ad the evidence been given by
Europeans, it might well have prevailed against the single
evidence of warrant
officer de Beer” because there were many other policemen who were
allegedly involved in the assault but
who gave no evidence to contradict the
accused. The evidence of the accused was rejected, however, because “the
native, in
giving evidence, is so prone to exaggeration that it is often
impossible to distinguish the truth from fiction.” The Court
also noted
that there were other factors which “militated strongly against the
acceptance of the allegations of the accused,
again resulting largely from the
inherent foolishness of the Bantu character”. In Incorporated Law
Society v Wookey 1912 AD 623, a case involving an application by a woman to
be admitted as an attorney, even though the statute in question did not
expressly
exclude women from practising as attorneys, relying upon the history
of the profession, namely that it is a profession which has
always been
practised by men, the Court found that the word “person” should be
construed to refer to men only, to the
exclusion of women.
[31] Ubuntu is the
recognition of human worth and respect for the dignity of every person. See
also the comments of Langa J, Mahomed J and Mokgoro
J in S v Makwanyane,
above n 29, at paras 224, 263 and 308 respectively.
[32] AIR 1997 (Bombay) 406 at
431.
[33] Above para 15.
[34] See August and Another v
Electoral Commission and Others [1999] ZACC 3; 1999 (3) SA 1 (CC); 1999 (4) BCLR 363 (CC)
at para 23.
[35] National Coalition for Gay
and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000
(2) SA 1 (CC); 2000 (1) BCLR 39 (CC) at para 65. In terms of section 7(4) of
the interim Constitution, where the rights contained in Chapter 3 were
infringed, persons
referred to in paragraph (b) of section 7(4) were entitled to
apply to Court “for appropriate relief.”
[36] In Re Kodellas et al and
Saskatchewan Human Rights Commission et al; Attorney-General of Saskatchewan,
Intervenor (1989) 60 DLR (4th) 143, 187, Vancise JA said: “A just
remedy must of necessity be appropriate, but an appropriate remedy may
not be
fair or equitable in the circumstances.” This statement must be
understood in the context of section 24(1) of the Canadian
Charter, which
provides that anyone whose rights, guaranteed in the Charter, have been
infringed may apply to court “to obtain
such remedy as the court considers
appropriate and just in the circumstances.” The Canadian Constitution,
therefore, makes
a distinction between “appropriateness” and
“justness”. Our Constitution does not.
[37] Fose v Minister of Safety
and Security [1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC) at para 38.
[38] Id.
[39] In Fose, above n 37,
Ackermann J said, at para 38, that in determining the appropriate relief under
section 7(4) of the interim Constitution,
“the interests of both the
complainant and society as a whole ought, as far as possible, to be
served.”
[40] Fose, above n 37, at
para 96 per Kriegler J.
[41] Above para 5.
[42] In terms of section 231(2) of
the Constitution, an international agreement is binding on the Republic of South
Africa once it has
been ratified.
[43] South Africa has ratified the
following Conventions dealing with discrimination: The African Charter on Human
and Peoples’
Rights, 1981; the Convention on the Elimination of All Forms
of Discrimination Against Women, 1979; the International Covenant on
Civil and
Political Rights, 1966; the International Convention on the Elimination of All
Forms of Racial Discrimination, 1966; and
ILO Convention 111, Discrimination
(Employment and Occupation) Convention, 1958.
South Africa has signed, but not ratified, the Convention on the Political
Rights of Women, 1953 and the International Covenant on
Economic, Social and
Cultural Rights, 1966.
[44] In terms of the Code of Conduct
on HIV/AIDS and Employment in the Southern African Development Community (SADC),
1997.
[45] In the context of an employee
who is unfairly dismissed, Nicholas AJA expressed the rule as
follows:
“Where an employee is unfairly dismissed he suffers a wrong. Fairness and
justice require that such wrong should be redressed.
The [Labour Relations Act,
28 of 1956] provides that the redress may consist of reinstatement, compensation
or otherwise. The fullest
redress obtainable is provided by the restoration of
the status quo ante. It follows that it is incumbent on the Court when
deciding what remedy is appropriate to consider whether, in the light of all
the
proved circumstances, there is reason to refuse
reinstatement.”
National Union of Metalworkers of South Africa and Others v Henred Fruehauf
Trailers (Pty) Ltd [1994] ZASCA 153; 1995 (4) SA 456 (A) at 462I-463A. In terms of section
193(2) of the 1995 Labour Relations Act (Act 66 of 1995), reinstatement is the
primary remedy
for a dismissal that is substantively unfair.
[46] When the appeal was called, Mr
Trengove asked for leave to hand in an affidavit deposed to by the appellant,
setting out his present
HIV status, medical condition and the treatment he is
receiving. Mr Cohen did not object and it was admitted.
[47] See items 10 and 11 of the
expert minute at para 13 above.
[48] A person may not be effectively
vaccinated against yellow fever when his or her CD4+ count drops below 350 cells
per microlitre of
blood, and only becomes prone to opportunistic infections when
his or her CD4+ count drops to below 300 cells per microlitre of blood.
See
above para 11.
[49] Performing Arts Council of
the Transvaal v Paper Printing Wood and Allied Workers Union and Others [1993] ZASCA 201; 1994
(2) SA 204 (A) at 219H-I.
[50] Komani NO v Bantu Affairs
Administration Board, Peninsula Area 1980 (4) SA 448 (A) at
473B-C.