Dwenga and Others v Surgeon-General of the South African Military Health Services and Others (40844/2013) [2014] ZAGPPHC 727 (26 September 2014)

Dwenga and Others v Surgeon-General of the South African Military Health Services and Others (40844/2013) [2014] ZAGPPHC 727 (26 September 2014)

The court found that the SANDF's continued blanket exclusion of HIV positive individuals from recruitment and employment, through the use of the G1K1 health classification, is unconstitutional and in breach of both its own revised policies and prior court orders. The SANDF's attempt to relitigate the constitutionality of its employment practices was held to be vexatious, frivolous, and an abuse of process, as the issue had already been determined in the SASFU case. The SANDF failed to provide evidence that its operational requirements justified such discrimination, and its arguments regarding oversubscription and budgetary constraints were unsubstantiated. The court emphasized that...

Citation
[2014] ZAGPPHC 727
Parties
Applicant: Andisiwe Dwenga; Applicant: Applicant X; Applicant: Motoai Shadrack Sebatana; Applicant: South African Security Forces Union; Applicant: South African National Defence Union; Respondent: Surgeon-General of the South African Military Health Service; Respondent: Chief of the South African Navy; Respondent: Chief of the South African National Defence Force; Respondent: Minister of Defence; Respondent: President of the Republic of South Africa
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 September 2014
Case Number
40844/2013
Procedural Posture
Review Application / Final Judgment
Outcome
Application granted. The SANDF's blanket exclusion of HIV positive individuals from recruitment and employment is declared unconstitutional and in breach of prior court orders. Instatement relief is granted to the individual applicants. Costs awarded on a punitive scale against the respondents.
Judges
P.A. Meyer
Legal Topics
Unfair Discrimination, Hiv Status in Employment, Bill of Rights Limitation, Abuse of Process, Instatement, Public Sector Employment
Constitutional Law Labour Law Civil Procedure Unfair Discrimination Hiv Status in Employment Bill of Rights Limitation Abuse of Process Instatement +1 more

Case Brief

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Parties

Andisiwe Dwenga

Applicant

Applicant X

Applicant

Motoai Shadrack Sebatana

Applicant

South African Security Forces Union

Applicant

South African National Defence Union

Applicant

Surgeon-General of the South African Military Health Service

Respondent

Chief of the South African Navy

Respondent

Chief of the South African National Defence Force

Respondent

Minister of Defence

Respondent

President of the Republic of South Africa

Respondent

Procedural Posture

Review Application / Final Judgment

Legal Issues

  1. 1 Whether the SANDF's blanket exclusion of HIV positive individuals from recruitment and employment is unconstitutional.
  2. 2 Whether the SANDF may relitigate the constitutionality of its employment practices regarding HIV positive recruits, previously decided in SASFU.
  3. 3 Whether the SANDF's implementation of health classification policies complies with prior court orders and constitutional requirements.

Ratio Decidendi

The court found that the SANDF's continued blanket exclusion of HIV positive individuals from recruitment and employment, through the use of the G1K1 health classification, is unconstitutional and in breach of both its own revised policies and prior court orders. The SANDF's attempt to relitigate the constitutionality of its employment practices was held to be vexatious, frivolous, and an abuse of process, as the issue had already been determined in the SASFU case. The SANDF failed to provide evidence that its operational requirements justified such discrimination, and its arguments regarding oversubscription and budgetary constraints were unsubstantiated. The court emphasized that...

Court Disposition

Application granted. The SANDF's blanket exclusion of HIV positive individuals from recruitment and employment is declared unconstitutional and in breach of prior court orders. Instatement relief is granted to the individual applicants. Costs awarded on a punitive scale against the respondents.

Orders

  • The second applicant is granted leave to be described as applicant X.
  • The name of the second applicant is to be provided to the Registrar and respondents, retained securely, and not disclosed or publicised.