sexual health and human rights in the african region - The ICHRP

Rights ought to be interpreted to promote rather than to restrict human rights. In
this regard, South Africa has taken a lead in the African region in reading in HIV
status into its constitution in Hoffmann v South African Airways. 267
[64] The main issue before the Constitutional Court in the Hoffmann case was whether
refusal by South African Airways to employ Hoffmann as an airline steward on
the ground of HIV status constituted unfair discrimination contrary to section
9(3) of the Constitution. As part of adjudication, the Court has to determine
whether HIV constituted an analogous ground under section 9(3) as it was not
listed. The Court held that HIV was an analogous ground and that the conduct of
the airline constituted unfair discrimination contrary to section 9(3) of the
Constitution.
[65] In determining whether HIV was an analogous ground, the Court noted that the
grounds listed in section 9(3) are inclusive rather than exhaustive. The Court
followed the flexible and inclusive approach that it developed in cases such as
Harksen v Lane 268 to the effect that that the grounds that are listed as prohibited
grounds in section 9 are not a closed category, but, instead, illustrations of
grounds that have historically been used to perpetrate unfair discrimination.
Section 9(3) contemplates other grounds for discrimination that are not explicitly
articulated. The crucial consideration is whether the conduct in question
amounts to treating a person differently, adversely and with injury to his or her
human dignity on the basis of a personal attribute or characteristic. Ultimately
the question is whether discriminating on the basis of HIV status means treating
persons differently in a way which impairs their fundamental dignity as human
beings, who are inherently equal in dignity.
[66] As part of its deliberation in Hoffmann, the Constitutional Court took into account
that the need to eliminate unfair discrimination was not only an obligation
267 Hoffmann v South African Airways 2001 (1) SA 1 (Constitutional Court of South Africa). For a similar
approach outside of the countries that have been surveyed see also Makuto v State (2000) 5 LRC 183 (Court
of Appeal of Botswana), where the equality and non-discrimination clause in section 15 of the
Constitution of Botswana was interpreted as implicitly including protection against discrimination on the
grounds of HIV status. Section 15 prohibits discrimination on the basis of ‘race, tribe, place or origin,
political opinions, colour or creed’. The Court said that the drafters of section 15 did not envisage a closed
category of protected grounds. The case concerned an applicant who had been convicted of rape and had
been given a more severe sentence for the reason that an HIV test that was performed for the purpose of
assessing his possible sentence had revealed that he was positive. The applicant appealed against the
sentence on the ground that it constituted unfair discrimination contrary to section 15 of the Constitution.
The Court said that section 15 permits justifiable limits to non-discrimination and that if he applicant
knew of his HIV status as the time of rape, the limitation and the heavier sentence would be justified. In
this instance the Court held that the applicant did not know of his HIV status at the time of rape, and
therefore, the limitation and the heavier sentence were not justified. The Court substituted a ten-year
prison sentence for a sixteen-year sentence that had been passed by the trial court.
268 Harksen v Lane 1997 (11) BCLR 1489 (Constitutional Court of South Africa).
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