HIV and AIDS AND THE LAW
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Introduction
What are HIV and AIDS?
HIV/ AIDS and human rightsCHART: What the rights mean for people living with HIV or AIDS Health and Medical rightsConfidentiality
HIV testing and informed consent
HIV/AIDS in the workplace
Women and HIV and AIDS
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Lesbians and gay men and HIV/AIDSChildren and youth and HIV/AIDS
Children's health and medical rights and HIV/AIDS Prisoners and HIV/AIDSSome rights and rules about prisoners and HIV or AIDS Bail and sentence for rape accused with HIV and AIDS Social support and medical care for people living with HIV/AIDS
HIV/AIDS Strategic Plan for South Africa, 2007-11
Problems
Community action : Running an HIV/AIDS awareness campaign |
Everybody has heard about HIV and AIDS. It is one of the most widely talked about illnesses in history and has become a pandemic of massive proportions particularly in Southern Africa. There are many untrue stories about AIDS and this causes people who are living with the disease to live with fear, prejudice and discrimination. It is important that people understand what HIV and AIDS are and how to prevent the disease from spreading but it is also important that we look at ways of undoing the prejudice that has built up around the disease.
Facts and statistics about HIV and AIDs
HIV/AIDS is one of the biggest challenges we face in South Africa. The incidence of HIV/AIDS is rising rapidly in this country and over 5.4 million people are already HIV-positive (2006 figures). This is the largest number of individuals living with the virus in a single country.
The research to measure how common HIV/AIDS infection is in South Africa is done among pregnant women who visit state health clinics. The infection rates quoted below for each province are for these women. The national HIV infection rate among pregnant women attending state health clinics in 2006 was 28.3%. These statistics apply mostly to young women who are sexually active. Many of the men who are partners to these women will also be HIV positive. From these figures the estimate is that about 19% of all South African adults are infected with the virus.
The infection rate amongst pregnant women in 2006 was as follows:
| KwaZulu-Natal | 40.2% | Free State | 33.7% |
| Mpumalanga | 32.5% | Gauteng | 35.8% |
| North West | 29.2% | Eastern Cape | 27.7% |
| Limpopo | 19.6% | Northern Cape | 19.9% |
| Western Cape | 15.5% |
(Source: South African Department of Health)
South Africa HIV estimates for 2007
(Source: Statssa.gov.za)
By the end of 2007 an estimated one million people will have died of Aids in South Africa and more than a million children will have become orphans as a result of Aids. Almost one thousand people die every day.
The estimated adult HIV-prevalence rates (the proportion of adults who are infected with HIV) for 2007 are as follows:
Women 15–49 - 20,4%
Women 20–64 - 18,1 %
Men 20–64 - 17.7%
Adults 20–64 - 17,9%
The total HIV prevalence rate has been estimatedat 11% in 2007 with an estimated 5,4 million people who are HIV-positive. Most of the people who are dying from AIDS are women between the ages of 18 and 40 and men between the ages of 30 and 50. This means that the most vulnerable groups are women of child-rearing and working age and men in their working years. This will badly affect our society as a whole.
For 2007, life expectancy, which was 60 years in 1990 had decreased to 48 years for men and 52 years for females. This means that around 50% of people living in South Africa will not live to the age of 60 years.
HIV stands for the Human Immune Deficiency Virus. This virus attacks the immune system which is the body's defence against disease. HIV can live in our bodies for years without us looking or feeling sick in any way. Most people with HIV feel healthy and are able to work and live healthy lives for many years. It is only when a person develops an AIDS-related illness that he or she becomes very ill.
AIDS is caused by HIV. AIDS stands for Acquired Immune Deficiency Syndrome. It is the name given to a group of serious illnesses that are caused by your body being unable to fight infections. People with HIV or AIDS are more likely to get some diseases and infections because their immune system cannot fight them off.
There are four stages of the HIV disease:
After an early feeling of sore throat, swollen glands, headache, muscle aches or similar flu-like symptoms, you will return to feeling completely well. This stage may last several years during which the person might have no HIV-related illnesses
If you have the primary HIV illness you can feel very well for many years without showing any major symptoms. A person with HIV who lives a healthy lifestyle by eating healthy foods, taking exercise, food supplements and antiretroviral treatment (ART) when necessary, can remain in stage 1 or 2 of the illness for many years living a normal life.
Where the person does not live healthily and/or fails to take ART treatment, he or she will begin to develop minor illnesses in stage 2. Ear infections, frequent flu and skin problems are common at this stage.
Gradually, after many years, the person’s immune system starts to break down and the CD4+ cell count drops lower and lower. (The strength of a person’s immune system is calculated by their CD4+cell count). Some people will begin to show mild symptoms of HIV disease, for example, shingles, swollen lymph glands, occasional fevers, mild skin irritations and rashes, fungal skin and nail infections, mouth ulcers, chest infections and weight loss.
This is the stage when the CD 4+ cell count gets very low and people use ART treatment to boost their immune systems. In stage four, the person has illnesses due to a very weak immune system. These may include PCP, pneumonia, chronic diarrhoea, toxoplasmosis and meningitis. It is at this stage that a person is said to “have AIDS.” A person is also said to “have AIDS” if their CD4 count (white blood cells) goes under 200.
There are only three ways to get HIV/AIDS:
1.Unprotected sex (sex without a condom),
2.Contact between your blood and infected blood or body fluids, and
3. Mother-to-child transmission.
1. Unprotected sex.
This is the most common way that people get HIV/AIDS. If you have sex with an HIV positive person and there is direct contact between the penis and vagina or anus, you can easily get infected. The virus lives in the fluids inside the penis and vagina and can easily enter your bloodstream. Using condoms properly is the only protection against this kind of infection.
You cannot get AIDS from kissing someone on the lips, hugging, sharing food and drink or using the same bath or toilet as someone who is HIV positive. (Deep kissing or French kissing can pass on HIV if you have sores in your mouth).
2. Contact with infected blood.
If you have an open wound and it is exposed to the blood of an HIV positive person, you can be infected. This contact could be through using the same needles for drugs or unsafe instruments used for circumcision. It is possible to get HIV if you use the same razor blade or tooth brush as an HIV-positive person if there are any traces of blood on the implement. While you could easily contract HIV from a blood transfusion if the blood is contaminated, all blood in SA is tested for safety. Medical workers can get it from accidentally pricking themselves with needles they have used to inject HIV positive people.
3. Mother to child transmission.
HIV positive mothers can pass the infection to their babies. An estimated 15-30 % of mothers with HIV will transmit the infection during either pregnancy or during childbirth. This happens because of the contact with blood. Another 10-20 % will pass the HIV to the baby through breast milk. A medicine called Nevirapine (antiretroviral treatment) can make it half as likely that a mother will transmit the virus to her child in the womb or during childbirth. If the mother has been taking the full cocktail of antiretrovirals the risk is reduced even more. Using formula instead of breast-feeding can ensure that the baby is not infected through breast milk.
Anyone can get HIV, but some people are more vulnerable because they do not have the power to say no to unprotected sex or because of their risky lifestyles. The groups who are most vulnerable and have the highest infection rates are:
Young women are the most vulnerable because they are often powerless to say no to unprotected sex with an HIV positive partner. They have the highest infection rate of all in South Africa. They are also the most common victims of rape and sexual abuse. Young girls who are virgins are also at risk because of the myth that a person can be cured of HIV or AIDS by having sex with a virgin. This is completely untrue and is just an excuse for child abuse.
It is easier for women to get infected by HIV than men. The virus can easily enter the bloodstream through the vagina. When the vagina is not lubricated (wet), it can be injured during sex and infection happens more easily. Rape and practices like dry sex (where herbs and other materials are used to keep the vagina dry) contribute to the rapid spread of HIV and AIDS among women.
Men and women who have other sexually transmitted diseases (such as syphilis or gonorrhoea) are also more vulnerable because they often have open sores on their private parts.
You can find out whether you are HIV positive by having a free blood test at any clinic or hospital. The results will only be given to you. If you are positive, you should tell your sexual partner so that he or she can also be tested and you should only practice safe sex by using a condom.
There is no cure for HIV, but there are many ways to help people living with HIV to strengthen their immune systems for example:
There are medications that can help to fight the illnesses like pneumonia and stomach infections that easily kill people with AIDS. These infections are called opportunistic infections. Many of the medicines used to fight opportunistic infections are available at clinics and the government is working to get more affordable medicines to people who need them.
Anti-retroviral treatment (ART), when taken properly, can greatly reduce the level of HIV in the body, reduce susceptibility to HIV/AIDS illness and extend the person’s life, sometimes for many years. ART prevents the virus from reproducing and helps prevent further damage to the body. Many people find that, after taking ART for a few months, the level of the virus in their blood is so low that it cannot be detected.
ART cannot, however, repair damage to organs and systems to the body that the virus has already made. Once a person goes on ART, they must accept that they will have to keep taking the medication for many years to come and quite probably for the rest of their lives.
Finding out that you are HIV-positive can be a big shock in itself and can lead to further emotional and physical suffering. There is a lot of ignorance and prejudice about HIV and AIDS and it is often seen as a “death sentence”. Most people are terrified when they are first diagnosed. Some respond by feeling that their lives are over and become very depressed. Many people cannot accept the diagnosis and deny that they are positive to their families and to themselves. Others react with anger and refuse to be responsible and practice safe sex. Many people feel ashamed of their HIV status and think that they will be rejected by their partners and family, or that their communities will isolate them if they are open about being HIV positive.
It takes courage to face this disease and a lot of support is needed to fight it. People with HIV/AIDS can live long and productive lives if they get emotional support, strengthen their immune systems, get proper medical treatment and take good care of their health.
The vast majority of people who are HIV positive do not know it. In South Africa only 15% - 20% of people who are positive have been tested. The people who do not know may be spreading the disease by having unprotected sex. Many of them only realise they are HIV positive when they develop AIDS and get seriously ill.
The burden of care falls mostly on the families and children of those who are ill. Often they have already lost a breadwinner and the few resources they have left are not enough to provide care for the ill person and food for the family. Families also suffer the daily stress of looking after someone who is ill and, in many cases, facing death. Many children, especially older female children, have to leave school to look after ill parents.
Children who are orphaned are often deprived of parental care and financial support. More and more orphans are living in child-headed families where no-one is earning an income. Many of them leave school and have no hope of ever getting a decent education or job. These children who grow up without any support or guidance from adults may become our biggest problem in the future. They are more likely to become street children or turn to sex work or crime as a way of surviving.
Older female relatives, mostly grandmothers, are the most likely to take in orphans. Many of them survive on pensions and already live in dire poverty. When their children die and they become responsible for grandchildren, they get a huge extra financial burden and at the same time they lose the financial support they may have received from their children.
People who carry the heaviest burden as a result of HIV and AIDS are the poor. AIDS increases poverty and families are the first to feel the economic effects of having members of the family who have HIV and/or AIDS. Families lose income if an earner is sick. Often another family member stays at home to look after the sick person and further income is lost. Families have also increased costs as they have to spend money on caring for the sick or paying for funerals.
Government spending will also be affected since more and more of the taxes will have to be spent on health care and welfare. Our welfare system may not be able to cope with the number of orphans who need grants. Our health system is already strained to provide basic health care for all diseases and in parts of KwaZulu Natal and Gauteng almost half of hospital beds are taken by people who are ill from AIDS. If government spends more on health and welfare, less money will be available for providing basic services or for spending on development.
In addition, very poor people usually cannot afford the basic requirements for a healthy lifestyle - such as healthy food, a clean environment and clean water. They also cannot afford the costs of basic health care such as transport to clinics or hospitals and vitamin supplements.
So, it is clear that poverty cannot cause HIV or AIDS, but poor people are more at risk of HIV infection and of developing the disease more quickly.
Most of the people who are dying are between the ages of 20 and 45 – an age when most people are workers and parents. This has serious consequences for our economy and the development of the country.
Although HIV and AIDS have become very common it is still surrounded by silence. People are ashamed to speak about being infected and many see it as a scandal when it happens in their families. People living with HIV or AIDS are exposed to daily prejudice born out of ignorance and fear. Fear leads to discrimination and victimisation against those living with HIV or AIDS. People have been taught to believe that only gays, prostitutes, people who sleep around and drug users get infected with HIV. They think if you are not one of 'these', you are safe. This makes it easy for some people to discriminate against others and blame them for the disease, while not protecting themselves. And because people fear the discrimination they will face if others know that they are HIV positive, they are afraid to go for an HIV test or to be open about their HIV status.
There are myths around HIV/AIDS and they lead to people seeing it as a scandal that should be kept secret. Many people see those with HIV/AIDS as people who are somehow to blame because they were promiscuous or homosexual. AIDS is seen by some people as a plague that you can catch just from being with someone who is HIV positive. In some communities people with HIV or AIDS have been chased out or attacked. This underlines the great importance of widespread community education efforts because the ignorance and prejudice around HIV/AIDS can be almost as destructive as the disease itself. In some countries AIDS activists have adopted the slogan “Fight AIDS NOT People with AIDS.” (See Running an HIV/AIDS awareness campaign)
In countries where the infection rate has gone down, this only happened after so many people became ill that no-one could pretend it was not happening. Everyone started fearing that they would be next. We cannot afford to wait that long and must find ways of bringing HIV and AIDS into the open.
The challenge for us is to make people fear getting the disease without them turning against those who are already HIV positive. This means that we have to make it easier for people to be open, to go for tests and to seek care. We have to treat it as an illness and not a scandal that has to be kept secret. We must work to ensure respect for and observance of rights and freedoms for people with HIV/AIDS, as well as the avoidance of HIV/AIDS-related discrimination and stigma.
We have to create an environment where communities become more caring towards people living with HIV/AIDS and orphans and we all take responsibility for education around prevention. Although AIDS is a terrible disease that can destroy families and communities, we should never forget that it is also a preventable disease. We can also protect ourselves against becoming infected by the virus.
The Constitution includes many rights but most important for people living with HIV and Aids are the socio-economic rights, such as the right to basic health care, education, social services, shelter, and so on. The government has a duty over time to make it possible for people to use their socio-economic rights.
| Section in the Bill of Rights | RIGHT | WHAT IT MEANS FOR YOU IF YOU ARE LIVING WITH HIV OR AIDS |
| 10 | Human dignity Everyone has inherent dignity and the right to have their dignity respected and protected | A person or institution, such as hospital or company, may not insult or take away your self-respect, by their words or actions. |
| 12 | Freedom and security of person Includes the right to:
| You have the right to take your own decisions about medical treatment and pregnancy e.g. you cannot be forced to have an HIV test. You may not be treated in a cruel or degrading way by any person or institution. |
| 14 | Privacy Everyone has the right to privacy. | You have the right to keep the fact that you have HIV or AIDS to yourself. An employer or hospital cannot force you to tell them, or force you to have an HIV test. |
| 16 | Freedom of expression Everyone has the right to freedom of expression, which includes freedom to receive or impart information or ideas. | Proper information can be made available in schools or prisons about how to prevent HIV. |
| 18 | Freedom of association Everyone has the right to freedom of association. | You can join any organisation you choose. You cannot be forcefully separated from other people. |
| 21 | Freedom of movement and residence Everyone has the right to:
| You are free to move around the country. You cannot be forced to live in a separate place, away from the rest of society. |
| 22 | Freedom of trade, occupation and profession Every citizen has the right to choose their work freely. | You can choose what kind of work you want to do e.g. you may not be told that you cannot be a teacher or a health care worker. |
| 23 | Labour relations Everyone has the right to fair labour practices. | You may not be unfairly discriminated against at work. |
| 24 | Environment Everyone has the right to an environment that is not harmful to their health or well-being. | This right may be important for people living in a state institution such as a prison or psychiatric hospital. |
| 26 | Housing Everyone has the right to have access to adequate housing. No-one may be evicted from their home, or have their home demolished without a court order. | You may not be refused a subsidy or loan to buy a house because you have HIV or AIDS. It is unlawful to evict you from your home because of your health. |
| 27 | Health care, food, water and social security No-one may be refused emergency medical treatment. Everyone has the right of access to:
| Hospitals or medical people cannot refuse to treat you. You have the right to a disability grant if you are too ill to support yourself or your family. |
| 29 | Education Everyone has the right to a basic education, including adult basic education. | You have the same right as anyone else to education. A school cannot refuse to educate you or your child because you have HIV or AIDS. |
| 32 | Access to information Everyone has the right to see any information held by another person that they need in order to exercise or protect their rights. | If for example you feel your rights are being violated because of a company policy, you can demand to see the policy and may then challenge it in court. You have the same right with private institutions or the state , for example an organisation, or your medical records at a state hospital. |
| 33 | Just administrative action Everyone whose rights have been negatively affected by administrative action, has the right to be given written reasons. This includes reasons for very long delays. | If you believe that you are being refused a social service (e.g. a house or education) for unjust reasons, you can demand to get the reasons in writing. You may then decide to challenge the decision. |
| 35 | Arrested, detained and accused people Everyone who is detained, including every sentenced prisoner, has the right to conditions of detention that are consistent with dignity. | Prisoners cannot be discriminated against or treated in an undignified way just because they have HIV or AIDS. |
Acknowledgements, HIV/AIDS & The LAW: A Resource Manual, 2nd edition.
The Aids Law Project & The Aids Legal Network
Many people living with HIV or AIDS complain that they are treated badly at hospitals and clinics. Sometimes medical staff even refuse to treat patients who have HIV or AIDS. People also complain that information about their illness is not kept confidential.
Health care workers also have rights, including the right to a safe working environment, while patients have rights to:
Confidentiality means that doctors, nurses, psychologists, dentists and other health care workers have a moral and legal duty to keep all information about patients confidential. Any information about the patient's illness or treatment cannot be given to another person unless:
EXAMPLEIn the well-known McGeary case, the Supreme Court of Appeal said that a doctor cannot tell other doctors about the HIV status of a patient without the patient's consent. Mr McGeary applied for a life assurance policy. The insurance company told him to have an HIV test before they could approve his application. The doctor got the results of the test told McGeary that he was HIV positive. The next day the doctor played golf with another doctor and a dentist. During the game they discussed AIDS and McGeary's doctor told the other two that McGeary was HIV positive. The news of McGeary's condition spread around the small community. McGeary began a civil claim to get compensation from his doctor for breaking his rights to confidentiality. The Court said the doctor had to pay McGeary compensation for breaking his right to confidentiality. |
Telling other health care workers - A health care worker must get a patient's permission before giving any of that patient's medical information to another health care worker or to another health care centre.
Telling a patient's sexual partner - A health care worker may not tell the patient's sexual partner that the patient has HIV, unless the partner appears to be at risk because the patient refuses to practise safer sex. The health care worker must counsel the patient on the need to tell their sexual partner and to practise safer sex. The health care worker must then warn the patient that if he or she does not tell their sexual partner or practise safer sex, then the health care worker will have to tell the partner about the person's HIV status.
Telling a court - A court can order a health care worker to give them confidential information.
HIV/AIDS is not an open issue mainly because people living with the disease fear the prejudice and discrimination they will suffer if they are tell people about it. Communities need to be educated about HIV and Aids and the supportive role they can play in the lives of people living with the disease. In this way people may be encouraged to be open about their HIV status. Some people choose to be open about their status to certain people but this does not mean they lose their right to confidentiality with a doctor, nurse, health care worker, employer or friend. A person’s personal right to privacy and confidentiality must always be respected.
You can complain to the Health Professions Council of South Africa (HPCSA). You can also make a civil claim for damages (compensation) against the health care worker, hospital or clinic, or any member of the public who has abused your rights.
See Resources
With an HIV test, you must know what the test is, why it is being done and what the result will mean for you before you agree to the blood sample being taken. This is called pre-test counselling. After the HIV test results have been received you must be counselled again to help you understand and accept the effect that a negative or a positive result will have on your life. This is called post-test counselling.
EXAMPLEThami is a care-giver in a children's home. The matron informs him that all staff in the hospital must have a Hepatitis B test. Thami agrees to this. But, the hospital does an HIV test too, saying it saves time and money to do both tests at the same time. The matron tells Thami he is HIV positive. Thami is furious because he only gave permission for the Hepatitis B test. The matron did not have a right to do the test. She should have discussed it with Thami first and obtained his consent. |
Here are some rules to remember :
These are the only exceptions to the rule that a person must give their consent to treatment or an operation:
Adults who are of sound and sober mind can give consent to medical treatment. Children over 14 years can also give their own consent to medical treatment. (Children and youth and HIV/AIDS)
What can you do if an HIV test was done without your consent?
If an HIV test was done without consent, your rights have been abused. You can complain to the Health Professions Council of South Africa (HPSCSA). You can also bring a civil claim for invasion of privacy, and a criminal charge of assault against the health care worker or the person they were acting on behalf of.
Everyone has the right of access to health care services and medical treatment, including access to affordable medicines and proper medical care. The right to access to health care services includes the right to proper care from a health care worker which means it is against the law for a health care worker to :
If a hospital or clinic refuses to treat someone living with HIV/ AIDS, they can be reported to the Department of Health, the Public Protector or the South African Human Rights Commission.. The case can also be taken to the High Court, which can review and cancel the hospital's decision to refuse to provide treatment.
The right to health care includes the provision of medical treatment to people in need. The government has committed itself as part of its strategic plan, to making antiretroviral treatment available to all people who have reached a certain stage of the illness. Roll-out of the treatment has begun in most provinces. A person who wants to receive antiretroviral treatment must be medically certified by a state doctor.
Employees living with HIV/AIDS are often discriminated against by their employers, supervisors or colleagues (other employees). The following laws give people rights at work:
The Constitution
The Constitution gives all employees the right to be treated fairly at work including the right to fair labour practices and the right to equal treatment and non-discrimination.
The Labour Relations Act (LRA)
The LRA gives employees the right to be treated equally. It is an unfair labour practice to discriminate against an employee on any grounds, including, race, gender, sex, colour, sexual orientation, age, disability and so on. Discrimination is 'automatically unfair' if it breaks any of the basic rights of employees such as discrimination on grounds of a person’s disability.
See Automatically unfair dismissals.
CASE STUDYHoffman v South African Airways (2000) Mr Hoffman applied for a job as a cabin attendant with South African Airways (SAA) and was asked by SAA to go for an HIV test. The test showed that he was HIV positive. SAA refused to give Mr Hoffman the job because, they said, part of his job involved travelling to different countries and he would need to have a yellow fever vaccination. It is not advisable for someone with HIV to have these vaccinations. SAA said that this was an inherent requirement of the job (essential for the job) in the airline and therefore they couldn't employ him. The case was referred to the Constitutional Court. The court was asked to decide if SAA had gone against Hoffman's rights to equality, dignity and fair labour practices. The court decided:
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The Employment Equity Act (EEA)
The EEA is more specific about the rights of people living with HIV or AIDS. The EEA explicitly prohibits unfair discrimination against people at work on grounds of their HIV status. The EEA also prohibits testing for HIV in the workplace unless this is authorised by the Labour Court.
An employer cannot :
The EEA doesn't cover members of the South African National Defence Force, the Secret Service or the National Intelligence Agency. But members of these organisations can still take their cases to the Constitutional Court
The Occupational Health and Safety Act and Mine Health and Safety Act
Sometimes an accident at work can cause a bleeding injury. If the injured person is HIV-positive and someone who tries to help the person also has an open wound, there is a small chance of the helper becoming infected if the wound comes into contact with the injured person's blood. The employer has a responsibility to make sure that the workplace is safe and that employees are not at risk of HIV infection at work.
See Occupational Health and Safety Act.
There are new regulations issued by the Department of Labour which say:
Compensation for Occupational Injuries and Diseases Act (No 130 of 1993) (COIDA)
COIDA gives employees the right to compensation if they are injured or become ill at work. If you get infected with HIV because of a workplace accident, you can claim for compensation.
The Medical Schemes Act No 131 of 1998 and Regulations: Government Gazette 20556, 20 October 1999
Medical aid as a form of insurance is an important employee benefit in the workplace. In the past, the majority of medical schemes refused to cover illnesses that were linked to HIV infection.
The Medical Schemes Amendment Act of 1998 prohibits discrimination on the grounds of 'state of health'. This covers a person living with HIV or AIDS. It means that the medical scheme cannot refuse to cover reasonable care that could prolong the health and lives of people living with HIV or AIDS
The Medical Schemes Act stops medical schemes from discriminating against people living with HIV or AIDs. It states that all schemes must offer a minimum level of benefits, decided by the government, to employees with HIV or AIDS. The minimum levels of benefits include:
The Department of Labour has published a Code of good practice in terms of the Employment Equity Act called ‘Key aspects of HIV and employment’. This Code gives employers and trade unions guidelines to ensure that people who are HIV-positive are not unfairly discriminated against in the workplace. This includes provisions dealing with:
The Code also provides guidelines for employers, employees and trade unions on how to manage HIV/AIDS in the workplace.
For a copy of the Code, see the website: www.labour.gov.za and search under ‘Legislation’.
All employees have a right to sick leave and an employer has no right to discriminate against or dismiss an employee who uses these rights. The Basic Conditions of Employment Act says an employee can have 6 weeks paid sick leave over any 3-year cycle. However, people with HIV will eventually start to become ill and this will affect their capacity to perform their work. An employer is allowed to dismiss an employee on grounds of incapacity and poor work performance, even if the employee has not used all their sick leave. This means, if an employee is unable to do their job properly because of their illness then the employer will eventually be able to dismiss them.
There are very clear guidelines for employers to follow when they want to dismiss an employee for incapacity. For example, the employer must see whether the incapacity is going to be permanent and must also investigate alternative employment. for the employee.
Employees can take disputes about dismissals or discrimination to a Bargaining Council or the Commission for Conciliation, Mediation and Arbitration (CCMA). The Bargaining Council or CCMA will try to settle the dispute by conciliation, mediation or arbitration.
See Solving disputes under the Labour Relations Act.
Cases about unfair discrimination and automatically unfair dismissal will be referred to the Labour Court. Employees can appeal against decisions of the Labour Court by going to the Labour Appeal Court.
See Case study: ‘A’ vs South African Airways.
The impact of the HIV pandemic has been far greater on women than men. Women are at greater risk of being infected by HIV because of the power relationships between women and men. For example:
If a woman has been raped she should ask for an HIV test. Even if the result is negative, she should go for another test after 3 or 4 months. If she is HIV positive this will be proof that she was infected by the rapist. She should report this to the prosecutor in her case who will be able to raise it in court. If a rapist is found by the court to be HIV positive, and he knew of his HIV status before the rape, this could be used to give him a harsher sentence.
A rape survivor can also make a civil claim against a rapist. If she has been infected with HIV during the rape, and she can prove this, she can make a claim against the rapist for her medical expenses and for pain and suffering because of the rape.
See Problem 6: Reporting rape or assault and going to court.
If a woman falls pregnant and does not want to continue the pregnancy, she can choose to have an abortion without the consent of her partner. This becomes very important for a woman who is HIV positive and doesn’t want to risk passing on the virus to the foetus.
A woman with HIV cannot be sterilised unless she agrees to this. All women, including women with HIV, have the right to have children. However, women who are HIV should think carefully about having children as it is possible that the children will also get HIV.
Women who suffer abuse are usually unable to take control of their relationships and unable to demand safer sex. This puts them at a greater risk of getting HIV. The Domestic Violence Act protects women by giving them a quick way to apply for a Protection Order to stop their partner from abusing them again.
See Getting a Protection Order.
See Problem 7: Using the law against domestic violence.
See Problem 8: Getting a Protection Order.
Sexual harassment is unwanted attention given mostly to women in the workplace. The person being harassed will be at greater risk of getting HIV. Sexual harassment is an unfair labour practice and should be reported to a supervisor.
Commercial sex workers are vulnerable to HIV because:
Some customary practices affect the rights of women by giving them less power than men in the community. Practices that make women unequal to men put them at greater risk of contracting HIV. Virginity testing for example, is a custom sometimes practiced on girls. Some people believe that this practice prevents the spread of HIV and AIDS as it encourages young girls not to have sex (in other words, if a young girl knows she is going to have her virginity tested she will be less likely to have sex.). Other people say this isn't true and it may have the effect of putting young girls at greater risk because -
Research has shown that giving anti-retroviral drugs to HIV-positive pregnant mothers before they give birth decreases the risk of passing HIV on to the baby.
The Constitutional Court has said that the national government must make it possible for all pregnant mothers to have access to drugs that will prevent mother-to-child transmission of HIV.
In the early days when HIV and Aids were first identified, gay communities were blamed for spreading the disease. This stigma continues today and adds to the discrimination and prejudice against gay people. A gay person with HIV or AIDS will therefore suffer a double burden of discrimination and negative attitudes towards them: because of having the disease and because of being gay. Because of the general prejudice and discrimination against gay and lesbian people, important ways of educating people about HIV and AIDS are lost. For example, sexuality education in schools ignores or avoids discussion about lesbian or gay relationships.
See What rights mean for people living with HIV and AIDS.
HIV and Aids can affect children in the following ways:
Children who have HIV or whose parents are ill because of HIV or AIDS are often shunned and discriminated against by people in the community. Many suffer from neglect or are abandoned as babies. There are many examples of children being refused access to crèches, schools and bursaries. Orphans of parents who have died from AIDS are particularly vulnerable and many survive in child-headed households. Many of them turn to crime, drugs, or to the streets in order to survive.
Children are protected by various international, regional and local human rights documents and these are some of their major rights.
See Section 28: Children’s Right.
IMPORTANT RIGHTS OF CHILDRENChildren have the following special rights spelt out in these human rights documents:
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All children have the right to basic education. If a child is stopped from going to school because of his or her HIV status, this is unlawful and can be challenged in court. Learners with HIV should also not be denied the opportunity to reach their full potential so they should not be treated differently to other learners. It is important to remember that HIV is never passed on through casual contact. It is very difficult for children of any age to get HIV from contact at school. Therefore the risks of infection of other children cannot be used as a reason to exclude children with HIV from a school.
Parents do not have to tell the school authorities if their child has HIV, even if the school asks them to fill this in on the application form. Schools are also not allowed to test learners for HIV before they are admitted to the school or while they are at school. A learner cannot be tested for HIV without his or her consent (if over 14 years and/or parents or guardians consent if younger than 14 years.)
With the increasing numbers of learners and teachers becoming infected with HIV and Aids, it is important for all schools to have an HIV/AIDS policy so that:
-the rights of all learners and teachers are respected
- learners and teachers with HIV are managed in an appropriate way
-further HIV infection is prevented
- a non-discriminatory and caring learning environment is created
The Department of Education has drafted a national policy on the management of HIV/AIDS in schools. School governing bodies should develop and adopt their own policies but these must be in line with the principles in the national policy. They should do this in consultation with the wider school community. A schools AIDS policy should include guidelines to the following:
- non-discrimination on ground sofa person’s HIV status
-admission policy
-HIV testing
-Prevention of HIV transmission
-Management of HIV/AIDS
-HIV/AIDS education programme which should be integrated into the Life Orientation programme of the school
-Refusal to study, teach or work with a person with HIV
Rules regarding testing and confidentiality for children include:
The Child Welfare will not allow someone to adopt a child before they have gone through a medical examination which includes an HIV test. The following people must have an HIV test before adoption can happen:
See Adopted children.
See Problem 3: Adopting a child.
Fostering is usually for a short period so children are not tested for HIV before they are fostered.
Remember the following points when dealing with cases of adoption or fostering :
In many cases, prisoners with HIV or AIDS continue to be strongly discriminated against.
EXAMPLEIn the case of Van Viljon and Others v Minister of Correctional Services (1997), the High Court ordered the Department of Correctional Services to provide combination anti-retroviral drugs to two prisoners because the doctor had prescribed these drugs for them. This case makes it clear that if a doctor has prescribed anti-retroviral drugs, the Department of Correctional Services must provide them. |
Accused people are people who have been charged with crimes but who have not yet been found guilty or not guilty. An accused person cannot be forced to have an HIV test. However, the Compulsory HIV testing of alleged sexual Offenders Bill [B-2003] recommends that the victim of a sexual crime should be able to apply to a magistrate to have an accused person tested for HIV and the result should be told to the victim in certain circumstances. This Bill is still under discussion.
All accused people have a right to apply for bail. However, where the crime is very serious, for example, rape, the law makes it more difficult to get bail particularly where the accused knew that he was HIV positive or had AIDS at the time of the rape. The minimum sentence for a person accused of rape who is HIV positive, is much higher than the minimum sentence for a person accused of rape who is NOT HIV positive.
See The Criminal Procedures Second Amendment Act (Bail law).
If people are unable to support themselves and their dependants they have the right to social assistance. People living with HIV are able to work and support themselves during the first phases of their illness. However, eventually many people with HIV become sick and unable to look after themselves. Social support also includes the right to health care and medical treatment.
There are different types of social grants available to people living with HIV and Aids or people caring for someone with HIV or Aids:
The government has said that people living with HIV or AIDS will qualify for social security and assistance such as nutrition, transport, rent, burial costs and school books, where necessary.
See Social grants for children.
Disability grants
A person who has HIV or an AIDS-related illness will only get a disability grant if they become too sick to work. If that person is unemployed but still fit for work, they will not get a grant. The Department of Social Development will look at the medical report to make sure that the disability will stop the person from working for more than 6 months. Usually, a person will lose their grant if they become healthy enough to work.
Fast-tracking grants
The government has created a facility for ‘fast-tracking’ grants for people who are urgently in need of social support. The provincial district office is responsible for processing disability grants and for deciding on the policy on ‘fast-tracking’. These policies might differ from province to province. However, these are some of the standard rules about fast-tracking.
Both disability grants and care-dependency grants in respect of children, can be ‘fast-tracked’ for a person who is sick with AIDS. However, only if a person is in stage 4 of Aids will they qualify to have the grant fast-tracked. (See The different stages of HIV) If a grant is to be fast-tracked it means it should take no more than five (5) working days to be processed. The procedure for applying to have a grant fast-tracked is as follows:
- A prescribed medical form is issued AND stamped by the District Office of the provincial social services department. The person must take this form to a state doctor and not their own private doctor to have it completed. The person either has to take the medical form back to the social services department or the doctor sends it. The grant should then be available within 5 days.
A care-dependency grant will only be paid if a child’s physical condition stops him or her from going to school. The child must be in the full-time care of a care-giver at home.
A grant-in-aid is help in the form of nursing care. This grant is given to people who are too sick to take care of themselves at home. When a person applies for a grant-in-aid, they must bring the same forms to the SASSA office as they would for a disability grant.
Medical costs - Most public hospitals give medical care for people living with HIV on a sliding scale. This means each person pays according to what they can afford. Pregnant women and children below the age of 6 years can get free medical services. The government is also committed to making ART treatment available to people who are at a certain stage of the illness. This roll-out is happening in most provinces.
See HIV/AIDS Strategic plan for South Africa, 2007-11.
Child support - Under the Social Assistance Act the following grants are available for the support of children, including children living with HIV, or whose parents are living with HIV or AIDS :
Anti-retroviral treatment - The government has approved a comprehensive treatment and care plan for HIV and AIDS in all provinces in South Africa. The plan includes providing people with anti-retroviral treatment in government hospitals, clinics and identified service points (one service point per health district throughout South Africa). Ongoing monitoring of patients is required for people on ART treatment.
In 2003 the South African government approved a Comprehensive National Plan on HIV/AIDS Care, Management and Treatment. This plan was evaluated and revised in 2006 and a new strategy was published.
The strategy has clear targets and aims to reduce the number of new infections by 50% and get appropriate treatments, care and support to 80% of people who need it by 2011. It also has a strong focus on reducing the number of infections among young people.
The government, however, faces a big challenge in meeting these goals and will need a great deal of cooperation from civil society and local communities. The strategy is based on the principles of partnership, effective leadership and good communication. It seeks to promote social change and to make sure that funding is available for key programmes.
The strategy is holistic and addresses issues like poverty reduction and social safety nets, the empowerment of women and the promotion of testing. It also focuses on human and legal rights, medical research and monitoring and evaluation of programmes and projects.
The following are some of the key targets and programmes:
The strategy is a living document and will be reviewed and updated regularly.
The South African National AIDS Council (SANAC or NAC), is the main official body coordinating the government’s HIV/AIDS programme.
It is chaired by the South African Deputy President and has members from government, civil society (NGOs), the private sector and unions. People living with HIV/AIDS and women’s groups are also represented. SANAC is engaged in shaping, influencing and implementing policies and programme interventions.
The contents of certain sections of this chapter were originally based on relevant chapters in the publication HIV/AIDS and the Law, published by the AIDS Law Project and Lawyers for Human Rights. It was first published in May 1997 with a 2nd edition in 2001. For more information contact the AIDS Law Project.
Telephone (011) 717 8600
Fax (011) 403 2341
e-mail alpadm@wits.ac.za
Dr Vincent is a doctor at Langa day hospital. He has a patient called Themba who is HIV positive. Dr Vincent tells two other doctors about Themba's HIV status. Themba, is very angry about this. He believes Dr Vincent should have kept his HIV status confidential. Themba wants to take action against the doctor.
What does the law say?
Doctors, nurses, health-care workers, and so on have a legal and moral duty to keep information about a patient absolutely confidential. (See Confidentiality)
What can you do?
See Affidavits.
See Resources: Health Professions Council of South Africa (HPCSA).
The principal of the local high school, Mrs Shabangu, refuses to admit a student, Melanie, to the school because Melanie is HIV positive.
What does the law say?
It is an act of discrimination to keep a child out of a school because of their HIV status and every child has a right to education.
What can you do?
You can help Melanie and her parents by first setting up a meeting with the chairperson of the School Governing Board. If this doesn’t help you can write a letter of complaint to the South African Human Rights Commission about the school's actions. The SAHRC must investigate the complaint.
See Problem 1: Taking a case to the South African Human Rights Commission.
See Dealing with HIV/AIDS in schools.
Susan is a machine-operator in a factory. She tells her employer that she is HIV-positive. The employer tells Susan that she will have to leave her job, because the other workers will complain if they find out and he doesn't want any trouble in his factory.
What does the law say?
Everyone has the right to be treated equally and fairly at work. There can be no discrimination against a person because they are HIV-positive. The Labour Relations Act and the Equality Act (Promotion of Equality and Prevention of Unfair Discrimination Act, 2000) protect people living with HIV or AIDS from being discriminated against in the workplace.
An employer cannot dismiss a person because he or she is HIV-positive, even if other employees refuse to work with this person.
See Laws that give employees with HIV and/or Aids rights at work.
What can you do?
You can help Susan fill in the correct form for her to refer her case to the Commission for Conciliation, Mediation and Arbitration (CCMA).
See Solving disputes under the LRA.
Brian applies for a job with the South African Police Services (SAPS). On the application form he fills in that he is HIV positive. The SAPS refuses to employ him and give him no reasons explaining their refusal.
What does the law say?
The SAPS must give Brian reasons why he didn't get the job. The Labour Relations Act and the Equality Act say an employer cannot refuse to employ a person because they have HIV. This is discriminating against the person.
See Laws that give employees with HIV and/or Aids rights at work.
See Section 33: Just Administrative Action.
What can you do?
You can help Brian find out the reasons why he didn't get the job. If the SAPS refuses to give the reasons, Brian can complain to the Department of Safety and Security.
If the reasons do not seem valid, and Brian suspects that the real reason he didn't get the job is because he is HIV-positive, he can take up a case of an unfair labour practice involving arbitrary discrimination against the SAPS. You can help Brian fill in the correct form to refer his case to the Commission for Conciliation, Mediation and Arbitration (CCMA). The CCMA will investigate the allegation of discrimination.
See Solving disputes under the LRA.
Tina had been in an accident and is a patient at the Lagunya Hospital. Tina agrees to an HIV test. The test is positive.
Tina's wounds need to be treated every day, but the nurse treating her finds out the results of the test and refuses to treat her again. She also tells all the other nurses. They too refuse to touch Tina, and she is left in pain, with blood-soaked bandages for many hours. When she recovers she wants to take action against the hospital for the degrading way in which they treated her.
What does the law say?
Everyone has the right of access to health care services. It is against the law for a health care worker to refuse to treat a person because they have HIV, or to treat people with HIV differently to other patients.
See The right to health care and medical treatment.
What can you do?
You can refer Tina to a lawyer to make a civil claim against the health workers or the hospital on behalf of the patient.
You can help Tina draw up an affidavit explaining her complaint. Include the names the health workers involved. Send the affidavit to the relevant medical council which can discipline their members.
See Affidavits.
Send the affidavit to the South African Interim Nursing Council or the Health Professions Council of South Africa, which has the power to discipline nurses.
See Resources.
If any doctor refused to treat Tina, send the affidavit to the Health Professions Council of South Africa, which has the power to discipline doctors.
You can also help Tina send a letter of complaint to the South African Human Rights Commission (SAHRC).
See Problem 1: Taking a case to the South African Human Rights Commission.
Nobantu and Sipho are married with three young children below the ages of 10. Both partners are HIV-positive.
Sipho has lost his job because he became too ill to work. The doctor says that he could die within 6 months. Nobantu earns R400 per month doing part-time domestic work but she has also become increasingly ill and her employer has warned her on a number of occasions that she will have to find someone else to do the work.
What does the law say?
Both Sipho and Nobantu are able to apply for a disability grant. The Minister of Social Development has also notified the department that applications from HIV-positive people for disability grants should be 'fast-tracked'. This means that these applications should be given priority and processed faster than any other grant applications. The parents can also apply for Child Support Grants for the 3 children.
See Social grants for children.
What can you do?
You should find out from the provincial office that processes disability grants what the policy is on ‘fast-tracking’. Then you should write a letter, setting out the particular circumstances of Nobantu and Sipho and ask the provincial office to ‘fast-track’ their applications. You should also help them apply for Child Support Grants for their three children (who are all under the age of 15 years)
These guidelines will help you to run an HIV/AIDS campaign in your community - when you are planning your campaign you must keep them in mind.
The aim of the campaign says what you want to achieve at the end of the campaign. To think about your aim ask yourself this question:
What do I want to achieve with this campaign?
So, for example, your aim(s) for an HIV/AIDS campaign could be:
I want to:
Setting objectives for the campaign
Objectives are more specific than aims; they help you to achieve your aims. You can ask yourself the question:
What must we do to achieve our aims?
Your objectives could be as follows:
We will do this in the following ways -
We will try to get people to change their sexual behaviour in the following ways -
We will try to help community members living with HIV/AIDS, their families and orphans in the following ways -
The campaign should reach everyone in the community but we can also target specific sectors which are more vulnerable -
The education and prevention part of the campaign
The awareness and openness part of the campaign
These groups are most likely able to influence people's attitudes -
The support and community care part of the campaign
People who need information, care and/or support:
People who can help provide information, care and/or support -
You need to give the campaign an identity and decide what the main messages will be. For example, the Treatment Action Campaign encourages people to wear T-shirts with the slogan 'HIV-positive' to help bring AIDS awareness to the public.
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