Ratified treaties¹

Discrimination on the basis of HIV status/ Refusal to employ an HIV positive person/ Appeal before the Constitutional Court alleging discrimination/ Examination of the State’s international obligations/ Obligation to eliminate the effects of discrimination/ Order of the Court to employ the appellant/ Reference to international law to strengthen a decision based on domestic law

At the end of a selection process, the appellant was found to be the most suitable candidate for employment as a cabin attendant for an airways company. The engagement was subject to a pre-employment medical examination. The medical examination found him to be clinically fit and thus suitable for employment. However, a blood test showed that he was HIV positive. The company informed him that he could not be employed in view of his HIV positive status. The Labour Court decided that the airways company’s practice was not unfairly discriminatory. Therefore, the appellant referred to the Constitutional Court of South Africa alleging that the refusal constituted unfair discrimination, and violated his constitutional right to equality, human dignity and fair labour practices.²

The Constitutional Court concluded that the refusal by the airways company to employ the appellant violated his right to equality guaranteed by section 9 of the Constitution. The Court then had to determine the remedy to which the appellant was entitled; the South African Constitution provides that where a right contained in the Bill of Rights has been infringed, the Court may grant appropriate relief.

The Court explained that in proscribing unfair discrimination, the Constitution not only sought to prevent unfair discrimination, but also to eliminate the effects thereof. In the context of employment, the attainment of that objective rested not only upon the elimination of the discriminatory employment practice, but also required that the person who had 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.

In order to strengthen its argument, the Court referred to South Africa’s international obligations on discrimination:

“The need to eliminate unfair discrimination does not arise only from Chapter 2 of our Constitution. It also arises out of international obligation. South Africa has ratified a range of antidiscrimination Conventions, including the African Charter on Human and Peoples’ Rights. 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.”

Relying on its national Constitution and international law, the Constitutional Court of South Africa concluded that, in order to effectively eliminate discrimination, the appropriate relief in the circumstances of this case was to direct the airways company to employ the appellant as a cabin attendant.