Mon séjour en Afrique du Sud (Cape Town)

On May 16, a historic settlement between the South African Security Forces Union (Sasfu) and several individuals living with HIV on the one side and the president, the surgeon-general, the chief of the South African National Defence Force (SANDF) and the minister of defence on the other, ended years of conflict over the SANDF’s refusal to employ, deploy or promote people with HIV.

Both parties agreed to an order by the Pretoria high court which stated that: “the consequences of the ... policy … is unconstitutional in that it unjustifiably infringes the rights of HIV- positive recruits and members: a) not to be unfairly discriminated against ..; b) to privacy..; c) to dignity..; d) to fair labour practices; and e) to administrative justice ...”

This means the SANDF may no longer apply a blanket exclusion of HIV-positive recruits or members. If it does then it is acting unlawfully.

The SANDF was also ordered to “immediately” employ one applicant as a trumpeter – a position he had previously been denied; and to “immediately reconsider” the foreign deployment of the second applicant – a healthy soldier living with HIV who has been in the SANDF for more than a decade.

Finally, the court directed that the SANDF formulate a new policy for “health classification” within six months – one that would not stereotype all people with HIV as automatically unfit. The order required that the new policy be lodged with the court and gave Sasfu the right to reply if it was still not satisfied of its fairness.

This was a far reaching and historic settlement indeed. It was a refreshing and rare example of government lawyers giving in to better judgment. It seemed that the SANDF had at last accepted, without even leading oral argument in court, that its policy was unlawful.

An attack on the case’s lawyers and litigants by an “analyst” for Jane’s Defence Weekly published in The Sunday Independent last week has little foundation in reality. Instead, Helmoed Roemer Heitman’s is a Boys’ Own depiction of army life. It adds insult to injury by suggesting that people with HIV cannot be mentally or physically fit for any job in the military.

It adds to stigma, to hysteria about the risks that people with HIV pose in the workplace by betraying its authors’ ignorance of how HIV is transmitted, medical knowledge and the reality of HIV/Aids in the militaries of Southern Africa.

The Aids Law Project (ALP), the lawyers in the case, never sought to deny the relevance of HIV to the military. The question was how it is managed. The surgeon-general accepted that prevalence of HIV in the SANDF is 23 percent. He also conceded that the aspects of life in the military make it an unusually high-risk environment for the transmission of HIV through unprotected sex.

Based on these sensible admissions, the suggestion that the military should be treated as if it is – or could ever be – HIV free became absurd. In fact, the real danger to military readiness lies in a refusal to put in place proper procedures for the management of HIV, on and off the battleground.

The ALP presented voluminous expert evidence to the court. This showed that HIV has become a manageable illness. An individual health assessment will determine fitness for deployment – not a blanket assumption that everyone with HIV is “sick”. Ironically, recognition that a nuanced approach to HIV is necessary had already led the SANDF to develop a protocol for HIV-positive aviators that allows them to continue to fly with some limitations. But, despite this, they continue to deny employment to trumpeters in the air force band.

The SANDF made wild justifications for its policy. But expert evidence made a mockery of this: ARV treatment can in fact be as simple as one pill a day (no different from malaria); antiretroviral side-effects can be appropriately managed; that the risk of contracting HIV from a bleeding soldier is 1 in 3 300 and that physical exercise is beneficial for people living with HIV.

Finally, the SANDF accepted that not all its employees engage in active combat. Indeed, government policy is that it is primarily a peacekeeping force. An accomplished trumpeter – one of the applicants – will not be in the frontline of battle.

Fortunately, South Africa is not a military state. The SANDF is subject to the constitution. Our courts have already held it to be so. As a result, the SANDF must conduct itself in a manner that respects fundamental rights. Like any other employer it must base its policies on sound scientific and factual data.

Therefore, it seemed eminently sensible when at the end of the applicants’ oral argument, lawyers for the SANDF asked for an adjournment and began to talk of a possible settlement. Indeed, after lunch, their senior counsel told the judge that she had been in touch with the office of the president, which was no longer opposing the matter.

This was apparently recognition that the practice of mandatory exclusion of HIV was in contradiction even with the cabinet which – the ALP showed – had stated on several occasions that people with HIV cannot automatically be denied employment, and that an individualised assessment was required. The policy was therefore inconsistent even with the government’s own stated position on HIV within the military.

This is why it is disturbing that, since the court order, several generals in the SANDF and acolytes, such as Heitman, are trying to re-open an issue that has been closed by legal agreement. It is unclear what they are trying to protect other than their comic-book romance of battalions of iron men, ready to drink blood, wade across roaring rivers and jump from planes to defend the fatherland.

The SANDF would serve us better by urgently revising its policy so that it properly addresses HIV prevention and treatment, and develops appropriate health standards according to job classification, post and mustering – as required by the law.

l Mark Heywood is the executive director of the Aids Law Project