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Frustrated peacekeeper takes on SANDF's HIV policy AIDS Law Project has been trying for 13 years to persuade military establishment of the unlawfulness of its policies Ernest Mabuza Legal Affairs Correspondent A SOUTH African National Defence Force (SANDF) corporal, whose duty it is to train soldiers so that they are ready for combat, cannot be deployed to fight abroad.

The soldier is fit and able to perform the same routines as the soldiers he trains but he cannot be deployed because he is HIV-positive.

Foreign deployment is lucrative for soldiers as they receive about R13000 a month more than their usual salaries and an allowance of $250 every two weeks for items such as soap and cigarettes.

The corporal, the South African Security Services' Union and two other individuals have taken the SANDF to court to challenge its policy on HIV/AIDS. The union, which has 6800 members, believes the SANDF's HIV/AIDS policy unfairly discriminates against people living with HIV, whether as potential recruits or as members.

In papers filed with the Pretoria High Court recently, the union says the case arises from the ongoing discrimination against HIV-positive members or potential members of the SANDF which denies them opportunities for employment, deployment and promotion.

The applicants in this case are the corporal, known as SM; TCM, an adult male and a musician who was denied employment in the SANDF on the grounds of his HIV status; and ZSM, an adult male member of the SANDF who had been denied the opportunity of promotion and foreign deployment on the grounds of his HIV-positive status.

The SANDF justifies its policy of denying people infected with HIV employment and promotion on the grounds that there is a need to keep HIV prevalence low in the military; that people living with HIV are medically unsuitable and unable to withstand stress, physical exercise, adverse climatic conditions; and that foreign deployment conditions are too harsh.

The crux of this case is whether the SANDF is entitled to impose a blanket exclusion of HIV-positive people from employment, deployment and promotion within the SANDF, regardless of category of employment, and based solely on HIV status, the union's deputy general secretary, John Hlatshwayo, says in the founding affidavit.

Hlatshwayo says that while health status and fitness levels are relevant for certain aspects of employment within the military, excluding individuals from employment, deployment or promotion solely on the basis of their HIV status is unreasonable and unconstitutional. He says that the SANDF's policy is not based on relevant facts pertaining to HIV/AIDS and its treatment.

The SANDF's policy ignores the nature of HIV/AIDS and the continually improving longevity and health status of people with HIV who are receiving anti- retroviral treatment, the advances in treatment and the health and strength of individuals showing no evidence of disease, says Hlatshwayo It assumes, without basis, that all HIV-positive individuals are by definition unable to work in harsh conditions. He says that the case of the combat-ready corporal illustrates how unreasonable the policy is.

According to SM, he is healthy and fit and able to perform the same fitness routines as the soldiers that he trains. In fact, he believes he is fitter than some of the HIV-negative people whom he trains. It is ironic that while he is responsible for training soldiers for deployment, he is prohibited from participating in deployment operations himself. Hlatshwayo says the corporal has not been able to serve the military as he wishes, including being able to be deployed externally. He has not been able to garner the benefits that he deserves as a member with long service in the military. The solution is an individual assessment of a person's health and ability to perform the functions of the particular position for which he or she was recruited, he says.

Mark Heywood, executive director of the AIDS Law Project, says the organisation has been trying for 13 years to persuade the government and the SANDF of the unlawfulness of its policies on HIV testing and the exclusion of HIV-positive people from employment in the military. In his affidavit, Heywood says the policy is not a means by which the prevalence of HIV can be reduced in the SANDF. He says the policy stigmatises people living with HIV and therefore undermines HIV prevention within the military.

Hlatshwayo says the reasonable course of action would be to devise a comprehensive prevention, treatment, care and support programme that does not result in unfair discrimination against HIV-positive members.

The very fact of the discrimination and stigmatisation is a barrier to members testing voluntarily for HIV and hence subverts the SANDF's own programmes that are aimed at managing the condition.

The fundamental miscalculation that the SANDF makes is that it considers HIV and AIDS as one illness. However, there is a drastic difference in health status at either end of the spectrum of HIV infection. In the light of current advances in medical science, being HIV-positive is not a death sentence. Applicant says the SANDF justifies policy of denying HIV-positive people employment and promotion on grounds of keeping HIV prevalence low in the military.