Section 27
IN THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case no.: ___________
In the matter between:
ANDISIWE DWENGA First Applicant
APPLICANT X Second Applicant
MOTOAI SHADRACK SEBATANA Third Applicant
SOUTH AFRICAN SECURITY FORCES UNION Fourth Applicant
SOUTH AFRICAN NATIONAL DEFENCE UNION Fifth Applicant
and
SURGEON-GENERAL OF THE First Respondent
SOUTH AFRICAN MILITARY HEALTH SERVICE
CHIEF OF THE SOUTH AFRICAN NAVY Second Respondent
CHIEF OF THE Third Respondent
SOUTH AFRICAN NATIONAL DEFENCE FORCE
MINISTER OF DEFENCE Fourth Respondent
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Fifth Respondent
___________________________________________________________________
FOUNDING AFFIDAVIT
___________________________________________________________________
I, the undersigned,
ANDISIWE DWENGA
do hereby make oath and say:
1. I am an adult female residing at 7973 Phase 3, Mvimbi Street, Kwa-Nokuthula, Plettenberg Bay, Western Cape. Until 30 April 2013, I was employed by the South African Navy (“the SA Navy”) at SAS Saldanha as an Able Seaman with force number 05030689MG. SAS Saldanha is an SA Navy training base in Saldanha Bay.
2. The facts contained in this affidavit are within my personal knowledge and, to the best of my knowledge and belief, are both true and correct. I make all submissions of law on the basis of the advice given by the Applicants’ legal representatives, which advice I accept has been correctly given.
THE PARTIES
The Applicants
3. I am the First Applicant.
4. The Second Applicant is Applicant X, an adult female who– until 30 April 2013 – was employed by the SA Navy. Applicant X’s identity is already known to the State Attorney and some or all of the Respondents.
5. Applicant X has requested that this Court grant an order that keeps her identity confidential throughout the course of these legal proceedings and beyond.Should the prayer in paragraph 2 of the Notice of Motion be granted, Applicant X’s name –
1. will be provided to the Registrar and the respondents, to be retained in a safe place, separate from the ordinary court file; and
2. shallnot be disclosed or publicised in any manner or form – including in the form of initials – by any person or entity.
6. The Third Applicant is Motaoi Shadrack Sebatana (“Sebatana”), an adult male residing at 2008 K Section, Botshabelo, Mangaung, Free State. Until 30 April 2013, he was employed by the SA Navy at SAS Wingfield as an Able Seaman with force number 04041620MC. SAS Wingfield is an SA Navy training base located at Goodwood in Cape Town.
7. The Fourth Applicant is the South African Security Forces Union (“SASFU”), a registered trade union with its headquarters at 225 Francis Baard Street, Pretoria.
8. The Fifth Applicant is the South African National Defence Union (“SANDU”), a registered trade union with its headquarters at 4th Floor, Bureauforum Building, Bureau Lane, Church Square, Pretoria.
The Respondents
9. The First Respondent is the Surgeon-General of the South African Medical Health Service (“the SAHMS”).
10. The Second Respondent is the Chief of the SA Navy.
11. The Third Respondent is the Chief of the South African National Defence Force (“SANDF”), which comprises the SA Navy, the South African Army (“the SA Army”), the South African Air Force (“the SA Air Force”) and the SAMHS.
12. The Fourth Respondent is the Minister of Defence (“the Minister”), who is cited in her official capacity as the Cabinet member to whom section 201(1) of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) refers.The Minister is the Cabinet member responsible for defence.
13. The Fifth Respondent is the President of the Republic of South Africa (“the President”), who is cited in his official capacity as the head of the national executive and therefore, in accordance with section 202(1) of the Constitution, the Commander-in-Chief of the SANDF.
14. All Respondents are cited care of the State Attorney, Pretoria, whose principal place of business is at SALU Building, corner Francis Baard and Thabo Sehume Streets, Pretoria.
STANDING
15. In bringing this application, I act in my own interest as well as acting –
1. as a member of and in the interest of the group of persons who are no longer employed by the SANDF solely because each member of the group does not possess a G1K1 health classification;
2. on behalf of any other similarly placed persons who cannot act in their own name; and
3. in the public interest.
16. The Second and Third Applicants bring this application on the same bases.
17. The Fourth and Fifth Applicants bring this application acting –
1. in the public interest; and
2. in the interest of their members.
THE NATURE OF THIS APPLICATION
18. This application is the latest in a series of attempts over more than 19 years to stop the SANDF from adopting and implementing policies and practices that unfairly discriminate on the basis of HIV status.In particular, it concerns a decision of one or more of the Respondents to set– alternatively a failure to remove – and apply the health classification G1K1 as a requirement for entry into the Military Skills Development System (“MSDS”) andsecuring a contract in the Core Service System (“CSS”).
19. I deal in detail with the MSDS and CSS at paragraphs99 to 105below. At this stage, I make the simple point that entry into the CSS is contingent upon two things:successful completion of service in the MSDS; andthe availability of posts in the CSS.
20. The G1K1 requirement for entry into the MSDS andsecuring a contract in the CSS effectively places a blanket ban on the recruitment into the SANDF of persons with HIV, regardless of their actual state of health. This is because, in accordance with a Department of Defence Directive on the Health Classification and Deployability of SANDF Members with HIV and AIDS dated November 2009 (“the 2009 DoD directive”), a person who has tested HIV-positive – without anything more – is automatically excluded from being classified G1K1. The 2009 DoD directive is attached as annexure“AD1”. [Drafting note: was AD3]
21. This blanket ban applies to all positions in the MSDS and CSS. As such, it does that which was declaredby this Courtmore than five years ago to be unlawful. In this regard, Claassen J– in South African Security Forces Union and Others v Surgeon-General and Others (case no. 18683/2007) – ordered on 16 May 2008 –
“2.THAT the consequences of the HIV testing policy as developed by the [Surgeon-General] and implemented by the [Minister] in terms of which no person who is HIV positive may be recruited, deployed externally or promoted within the SANDF, is hereby reviewed and set aside.
3. THAT the consequences of the HIV testing policy referred to in paragraph 2 is unconstitutional in that it unreasonably and unjustifiably infringes the rights of aspirant and current HIV positive SANDF members:
3.1 not to be unfairly discriminated against in terms of section 9(3) of the Constitution;
3.2 to privacy in terms of section 14 of the Constitution;
3.3 to dignity in terms of section 10 of the Constitution;
3.4 to fair labour practices in terms of section 23(1) of the Constitution; and
3.5 to administrative justice in terms of section 33 of the Constitution.”
22. A copy of the full order is attached as annexure “AD2”.
23. SASFU, the Fourth Applicant in this application, was the First Applicant in case no. 18683/2007 (“the SASFU case”).Sergeant Sipho Mthethwa (“Mthethwa”), who is openly living with HIV and was the Second Applicant in the SASFU case, has deposed to an affidavit in support of this application.Amongst other things, his affidavit deals with his recent external deployments to Sudan and the Democratic Republic of the Congo (“DRC”). It is attached as annexure “AD3”.
24. As I explain below, I was denied a CSS contract solely on the basis of my HIV status. The Second and Third Applicants were similarly denied CSS contracts.
25. The purpose of this application is therefore fourfold:
1. First, to review and set aside the requirement ofa G1K1 health classification for entry into the MSDS andsecuring a CSS contract;
2. Second, to secure appropriate relief for the individual Applicants: Applicant X, Sebatana and me;
3. Third, to compel the relevant Respondents to adopt and implement an appropriate guidance document for dealing appropriately with any suitably qualified person with a health classification other than G1K1 seeking to enter the MSDS and/orsecure a CSS contract; and
4. Fourth, to secure interim relief pending the adoption and implementation of the guidance document to which paragraph 25.3 above refers.
26. Importantly, this application does notchallenge the lawfulness of the2009 DoD directive or the various health classifications – including G1K1 – to which it refers. Instead, this case focuses solely on those unlawful consequences that ordinarily follow a G1K1 health classification.
STRUCTURE OF THIS AFFIDAVIT
27. In the remainder of this affidavit I deal with the following:
1. The facts giving rise to this application, including the circumstances within which I was denied a CSS contract solely on the basis of my HIV status;
2. The historical and legal context within which this application is made, including the build-up to and the aftermath of the SASFU case (in respect of which Claassen J handed down his order on 16 May 2008);
3. SA Naval Order Pers No 6/2002 (“the 2002 Naval Order”), entitled “Guidelines Regarding Selection and Development of Candidates Within the Broad Parameters of the Military Skills Development”; and
4. The main legal grounds upon which this application is made.
28. In addition to Mthethwa’s affidavit, to which I have already referred (in paragraph 23 above), I understand that each of the following persons will depose to an affidavit in support of this application:
1. Applicant X, the Second Applicant;
2. Sebatana, the Third Applicant;
3. France Mankwalandile Sipho Sityoshwana (“Sityoshwana”), in his capacity as the Deputy Secretary of SASFU in the Western Cape; and
4. Johannes George Greeff (“Greeff”), in his capacity as the National Secretary of SANDU.
29. In particular, I understand that –
1. Applicant X and Sebatana will set out additional facts pertaining to their discharges from the SANDF on 30 April 2013;
2. Sityoshwana will set out the steps SASFU took in attempting to assist Applicant X and me, as well as consider a recently published study which shows that properly managed with the use of antiretroviral (“ARV”) treatment, the general life expectancy of a person in South Africa with HIV – who adheres to treatment – is near normal; and
3. Greeff will explain what can be expected of SANDF members in respect of training requirements, combat readiness and deployment, as well as consider how the SANDF ordinarily deals with the health needs of its members, whether on deployment or during training.
FACTS GIVING RISE TO THIS APPLICATION
Joining the MSDS in the SA Navy
30. I applied to join the SA Navy’s MSDS in 2009. In September 2010, as part of the pre-selection process for entry into the MSDS, I underwent a Comprehensive Health Assessment (“CHA”). As an integral part of the CHA, I underwent an HIV test – which was negative. I attach a copy of the findings of that medical examination (generally referred to as a “DD50”), which indicate a G1K1 “medical category”, as annexure“AD4”.[Drafting note: was AD7]
31. I joined the SA Navy’s MSDS on 15 January 2011. A copy of my service contract is attached as annexure“AD5”.[Drafting note: was AD8] As the conditions of service indicate, I was employed in terms of section 52 of the Defence Act 42 of 2002 in the regular force for a two-year period of full-time training and utilisation.
32. Attached to my letter of appointment was “Appendix E”, which provides general information for members for military training. Paragraph 6 of the document, a copy of which is attached as annexure“AD6”[drafting note: was AD9],deals with the requirement of a further medical examination:
“On reporting at the training unit, you may have to undergo a second full comprehensive medical examination if required. Should you become medically unfit (temporarily or permanently), you will be discharged and sent home. If you are suffering from a medical condition which in your opinion does not render you completely unfit for military service, but for which you require protection during training, you should supply all the medical documentation you have and give it to the medical doctor at your unit Sickbay.”
33. On 16 March 2011, I suffered a pelvic fracture injury during training. I attach a copy of the relevant documentation that confirms this injury as annexure “AD7”. [Drafting note: was AD10] As a result of this injury “sustained in the execution and as a result of the performance of official military duties”, I was placed on light duty for about three weeks. In or about October 2011, I was declared completely fit.
34. For the first six months of my MSDS period I underwent basic training and upon completion I obtained a course certificate. I attach a copy of this certificate as annexure“AD8”. [Drafting note: was AD11]
35. Thereafter I enrolled in a personnel clerk course, which I successfully completed in September 2011. Between October 2011 and January 2013, I was employed as a personnel clerk at SAS Saldanha.
CSS contracts for MSDS members
36. On 1 November 2012, a signal was sent informing us of the eight musterings that were oversubscribed and in respect of which no CSS contracts would be available for MSDS members. A signal is a military instruction. A mustering is an occupational class. A copy of the signal is attached as annexure “AD9”. [Drafting note: was AD12]
37. Amongst others, the identified musterings included the personnel clerk mustering. But in the same signal, MSDS members falling within theseeight musterings were encouraged to apply for all technical musterings, as these were undersubscribed. I applied for [insert mustering] on [insert date]. [Drafting note: copy of application?]
38. On 11 December 2012, a signal was sent to all MSDS members who were part of the 2011 intakelisting the names of those who were approved to receive one-year CSS contracts. A copy of this signal is attached as annexure“AD10”. [Drafting note: was AD13]
39. My name is listed at paragraph 4W. Sebatana’sname is listed at paragraph CX. Applicant X’s name is also listed. We were all identified for the Engine Room Attendant (“ERAtt”) training course.
40. At paragraph 4, the signal states that those MSDS members listed in paragraphs 4A to 4DT – including Applicant X, Sebatana and me – were required to sign contracts. In terms of paragraph 5 of the order, contracts in respect of the remaining MSDS members – listed in paragraphs 4DU to 4EH – would be forwarded electronically.
41. In terms of paragraph 6, we were to remain in our musterings and continue serving at our units until notified. At this stage, I was still employed as a personnel clerk at SAS Saldanha.
Signing the CSS contracts
42. A further signal was released shortly thereafter stating that all MSDS members who were part of the 2011 intake were required to report tothe contracts section of Navy Headquarters in Simonstown (“the contracts section”) to sign CSS contracts.The signal also required us to submit our latest DD50s.I do not have a copy of this signal in my possession.
43. When I reported at Simonstown, I was sent back to my unit because I did not have an up-to-date DD50. Instead, I produced a letter issued by my doctor at the navy sickbay (“the sickbay”) – Captain Hankerman – explaining that my CHA was in the process of being finalised. I do not have a copy of this letter in my possession.
44. As part of the CHA to which Captain Hankerman referred in this letter, I had undergone an HIV test on 22 November 2012. [Drafting note: the draft affidavit said 2011 – I’ve changed it to 2012] I had been informed by Captain Hankerman that I had tested positive. Despite this, my state of physical and mental health at the time was good. It is still good.
45. When I produced the letter from Captain Hankerman I was asked to bring an up-to-date DD50, with a proper medical classification. After I brought this to Captain Hankerman’s attention, he wrote another letter stating that my CHA was in the process of being finalised,recommending that my classification provisionally remain G1K1N1 until the completion of the re-classification process. I do not have a copy of this letter in my possession.
46. I went back to Simonstown with the letter and spoke to one Able Seaman Matila in the contracts section who informed me that I could only sign the CSS contract once I had received my new classification.
47. When I returned to the sickbay, I found that my DD50 had been partially updated. But instead of a health classification, it stated “exam referred”. A copy of this report is attached as annexure “AD11”. [Drafting note: was AD14]
48. Corporal Ngwenya, who is a receptionist at the sickbay, had given me a copy of the partially updated DD50, which she also faxed to the contracts section. Later that same day, my Divisional Officer (supervisor)– Lieutenant Sekwati – called the contracts section to enquire about my classification. Lieutenant Sekwati is a personnel officer in the human resources department. [Drafting note: the draft affidavit said “Personal Officer”]
49. On 8 January 2013, Lieutenant Sekwati informed me that the contracts section had extended all MSDS contracts for three months to afford those who did not have fully-updated DD50s the opportunity to submit them by no later than 11 March 2013. A signal was sent out confirming the extension. A copy of this signal is attached as annexure“AD12”. [Drafting note: was AD15]
My new health classification
50. On 9 January 2013, the Medical Board sat to finalise my CHA. On 11 January 2013 I received an updated DD50 with a new health classification of G2K2 red. The red code is allocated to a member who is regarded as unfit for external operational duties, with green indicating that a member is regarded as fit for all external operational duties and yellow indicating that a member is regarded as temporarily unfit for external operational duties.
51. Lieutenant Sekwati called the contracts section to enquire about the implication of the G2K2 classification for the CSS contract that I was due to sign. He was told that the Medical Board[drafting note: draft affidavit saidCSS contracts board – but we need consistency]wouldconvene to discuss the matter and that I had to wait until March 2013 for the outcome.
52. In the meantime, Applicant X and I were placed on a technician’s course – the ERAtt course – on 5 February 2013. Sebatana joined us a week later – on 12 February 2013 – as he had received his signal late.
53. The course was scheduled to last for nine months. [Drafting note: SA Navy website says six weeks] A copy of the relevant signal dated 17 January 2013 – which was six days after my health classification had been changed to G2K2 Red – is attached as annexure “AD13”. [Drafting note – was AD17]
54. Careers in the technical field include an electrician and an engineer at sea. A list of the course pre-entry requirements, which includes a G1K1N1 health classification, is attached as annexure “AD14”.[Drafting note – was AD18] Paragraph 6(e) of the list makes it plain that the SANDF only considers those members with a G1K1N1 health classification as being “medically fit for service at sea”. Put differently, a member with HIV – regardless of actual health status – cannot be considered as being “medically fit for service at sea”.
Non-compliance with the CSS contract criteria
55. On 4 March 2013, three MSDS members – including Applicant X and I – received a signal dated 1 March 2013 stating that we did not meet the CSS contract criteria and would therefore have to leave the SA Navy before 31 March 2013. A copy of the signal is attached as annexure“AD15”.[Drafting note – was AD19] I have blacked out the names of Applicant X and the other person to protect their identities.
56. Our Divisional Officer at the time, Chief Farmer, showed Applicant X and me the signal and took us to the Master – Warrant Officer Naidoo – who explained its implications to us. Warrant Officer Naidoo asked us to produce our DD50s. After considering the documents he informed us that we did not meet one of the CSS contract requirements – a health classification of G1K1N1.
57. Over the following weeks, Applicant X and I approached– or caused to be contacted – various superiors in an attempt to resolve our problem. These superiors included Petty Officer Makhanya, Lieutenant Marashula, Major Sebolai, Lieutenant Sekwati, Captain Pillay, Warrant Ndimande, Commander Mashilo and Major du Toit.
58. At best, our efforts secured some responses that indicated that there was nothing that could be done because we did not have G1K1 health classifications. In summary, we were informed that –
1. the Second and Third Respondents have a right to terminate our employment as they are under no obligation to issue CSS contracts;
2. the MSDS contracts clearly stipulate that a member’s health classification has to remain G1K1N1 to qualify for a CSS contract;
3. the new 2009 DoD directive– which arose as a result of the SASFU case and is considered at paragraphs77 to95below – only applies to members who are already in the SANDF, thus excluding us as MSDS members; and
4. we ought to prepare to leave the SANDF.
Further attempts to resolvethe matter
59. On 27 March 2013, Applicant X and I went to meet Chief Petty Officer Mpho Maepa at the Directorate of Fleet Human Resources (“DFHR”) in Simonstown. We gave him permission to disclose our HIV status to Captain Mboyise, the staff officer responsible for CSS contract appointments.
60. Captain Mboyise wrote a letter to Rear-Admiral Junior Grade Kubu – Directorof Navy Personnel in the Department of Defence (“DoD) – requesting a month’s extension on our behalf while awaiting further directions. Soon thereafter we received a month’s extension – until 30 April 2013 – on our MSDS contracts. A copy of the signal confirming this extension is attached as annexure“AD16”. [Drafting note – was AD20]
61. In a bid to resolve this matter, our legal representatives – SECTION27 – began to engage the DoD directly. A copy of this letter, which was sent to Rear-Admiral Junior Grade Kubu and copied to the Second Respondent and the Secretary for Defence and Military Veterans, is attached as annexure“AD17”. [Drafting note – was AD21]
62. The purpose of this letter was to request the Second and Third Respondents’ urgent intervention regarding my then imminent discharge from the SANDF on the grounds that I did not qualify for a CSS contract because I did not have a G1K1 health classification. In the letter, my attorney noted that the imminent discharge would be in violation of this Court’s order in the SASFU case.
63. In the absence of any response to this letter, which I regarded as a refusal to address the identified concerns, my attorney sent a letter of demand to the state attorney on 16 April 2013. This letter was also sent on behalf of Applicant X. A copy of this letter, with Applicant X’s name blacked out, is attached as annexure“AD18”. [Drafting note – was AD22]
64. In particular, I draw attention to paragraph 5 of the demand of demand, which provides as follows:
“In the circumstances, we have been instructed to demand, as we hereby do, that –
5.1.1 The decision to discharge our clients be revoked and that our clients be allowed to sign the relevant CSS contracts forthwith;
5.1.2 Written reasons why all other relevant classification policies of the SANDF have not been amended to comply with the [SASFU] court order;
5.1.3 An indication as to when such policies will be amended to comply with the court order; and
5.1.4 That signals are sent to every commanding officer and every military base, stating unambiguously that HIV positive status alone should not be used as a ground for refusing employment, promotion or deployment within the SANDF.”
65. On 23 April 2013, the State Attorney responded to this letter informing SECTION27 that his clients were investigating the matter and requested that they be granted an extension until 3 May 2013 to respond. A copy of this letter is attached as annexure “AD19”. [Drafting note – was AD23]
66. In an e-mail response sent the same day, SECTION27noted that Applicant X and I had until 30 April 2013 to leave the SANDF. Because of this, our attorney sought an assurance that our contracts would be extended at least until 31 May 2013, pending the contemplated investigation. A copy of this email is attached as annexure “AD20”. [Drafting note – was AD24]
67. Two days later, on 25 April 2013, our legal representatives sent a letter to the State Attorney granting the requested extension on the understanding that we would remain employed by the SANDF pending the outcome of the investigation. A copy of this letter is attached as annexure“AD21”. [Drafting note – was AD25]
68. On 13 May 2013, almost two weeks after Applicant X and I had been discharged from the SANDF, my legal representatives received a response to the letter of demand. In this letter, a copy of which is attached as annexure“AD22”[drafting note – was AD26],the State Attorney set out his clients’ response, which I summarise as follows:
1. An HIV test is but one of a battery of tests that recruits are required to undergo before their enlistment;
2. To be recommended for absorption into the CSS, members must comply fully with all requirements for employment in the SANDF, such as medical fitness;
3. Medical classifications are conducted privately by medical practitioners, with the result that when a particular decision is taken on the employability of an individual, the decision-maker is unaware of the underlying medical condition that warrants that particular classification;
4. Our contracts came to an end in December 2012 by the efluxion of time, at a point at which we were being considered for absorption into the CSS alongside other MSDS members;
5. The DoD is implementing the order of this Court in the SASFU case fully; and
6. His clients were not in a position to comply with our demands.
69. The State Attorney’s letter does not address our key concern: that the G1K1 requirement automatically – and unlawfully – excludes persons with HIV. It does not matter that when an MSDS member is denied a CSS contract on the basis of non-compliance with the G1K1 requirement, the relevant decision-maker may have no knowledge of his or her HIV status. What is known, pursuant to the 2009 DoD directive, is that members with HIV cannot be classified G1K1.
HISTORICAL AND LEGAL CONTEXT
Background to the SASFU case
70. As far back as 19 May 1994, the AIDS Law Project (“ALP) – SECTION27’s predecessor – began to engage the DoD on the constitutionality of the SANDF’s HIV testing policy. The 13-year history of engagement that preceded the SASFU case – which itself was finalised over five years ago – is set out in an affidavit deposed to by Mark Heywood (“Heywood”) in that matter. A copy of the affidavit is attached as annexure “AD23”.
71. I do not intend to deal with that history in any detail. However, I would like to draw this Court’s attention to some of the key developments over that period, none of which resulted in a change in policy:
1. On 19 May 1994, the ALP wrote a letter to then Minister of Defence Modise questioning the constitutionality of the HIV testing policy. In a response dated 22 July 1994, then Deputy Minister of Defence Kasrils defended the policy as being “prescribed by law”. Whilst threats of legal action by the ALP resulted in the reinstatement of some members of the SANDF, the policy remained in force.
2. In March 1997, then Minister of Water Affairs and Forestry Asmal requested the ALP to provide a briefing note on the policy. On 16 April 1997, Cabinet decided that HIV status should ordinarily not serve as an exclusionary criterion for appointment to positions in the public service. In the case of the SANDF, this did not extend to positions in respect of which extreme physical fitness was required. This decision was relayed to the ALP by then Deputy Minister Kasrils on 9 May 1997.
3. In November 2003, the ALP submitted a memorandum on the testing policy to the South African National AIDS Council (“SANAC”). This resulted in the issue being discussed at a SANAC meeting on 17 March 2004 [drafting note: please check date] and the setting up of a task team to consider the issue and make recommendations. At the time, then Deputy President Zuma – the Fifth Respondent in this case – was the chairperson of SANAC.
4. On 8 October 2004, the Fifth Respondent wrote to Heywood requesting a memorandum on the issue of HIV testing in the military. At the time, Heywood was the head of the ALP and deputy chairperson of SANAC.
The SASFU case
72. In June 2007, once it had become clear that nothing short of litigation would suffice, the Fourth Applicant and three others initiated the SASFU case. While they did not challenge the SANDF’s right to conduct HIV testing as part of the CHA, they sought an order that focused on the consequences of the testing policy – excluding all persons with HIV from being recruited, deployed externally or promoted within the SANDF.
73. There were three individual applicants in the SASFU case: Mthethwa, a combat readiness trainer who had been denied the opportunity to be deployed externally; TCM, a trumpeter who had applied for a job in the SA Air Force Band; and ZSM, a personnel clerk who was doing administrative work.
74. All threehad beenunfairly treated solely on the basis of their HIV status; none had been assessed to determine his or her actual state of health. In short, they were the victims of the SANDF’s blanket exclusion of persons with HIV from recruitment, external deployment and promotion within the SANDF.
75. The SASFU case was set down for argument starting on 15 May 2008. On the morning on 16 May 2008, after counsel for the applicants had already completed his argument, the parties largely settled the matter on the basis that the impugned policy was unconstitutional and should be set aside on that basis. This agreement was made an order of Court.
76. Argument continued on one outstanding issue– relating to the individual relief sought by the trumpeter. A copy of the judgment on that issue is attached as annexure“AD24”. [Drafting note: was AD1] In accordance with the judgment, as reflected in paragraph 4(a) of the order to which paragraphs21and 22 above refer, the respondents were “directed immediately to employ the third applicant”.
Implementing paragraph 5 of the order in the SASFU case
77. On 18 November 2009, the then Chief of the SANDF – General G. N. Ngwenya – signed the 2009 DoD directive. As I have already indicated at paragraph 20 above, this document is attached as annexure “AD1”.[Drafting note: was AD3]
78. The 2009 DoD directive, which was also signed by the then Acting Secretary for Defence, provides as follows at paragraph 1 (page 1):
“This Department of Defence Directive (DODD) is a consequence of the judgment given in the High Court Case (No 18683/07) in the matter between the South African Security Forces Union (SASFU) and the Surgeon General (SG). The health requirements of the South African National Defence Force (SANDF), regarding the recruitment, deployment and promotion of HIV positive people were found to be unconstitutional and were set aside by the Court on that basis. This Directive gives effect to the Court Order.”
79. The 2009 DoD directive is based on the following policy principles:
“5. Each post or utilisation in the SANDF, whether within or external to the borders of the RSA, shall have a defined health profile.
6. Every member of the SANDF shall receive a health category in accordance with the medical standards of the SANDF.
7. The health classification of the incumbent shall match the health profile of the particular post or utilisation to which he/or she is appointed.
8. The deployment of SANDF members will be restricted to operational areas where their particular health needs can be supported.”
80. The 2009 DoD directive was purportedly designed to ensure that its implementation would have the following auditable outcomes:
“a. A uniform approach to health classification exists for SANDF members and new recruits presenting with certain chronic medical conditions including HIV and AIDS.
b. SANDF members are optimally selected for the operational requirements of the SANDF.
c. SANDF members and new recruits are optimally selected per health and post profile in order for them to be trained and utilised in the interest of both the individual and the SANDF.
d. Prepared and supported military health capabilities, services and facilities to support members with health classification restrictions are in place, where reasonable and possible.
81. In interpreting and giving effect to the 2009 DoD directive, it is important to note the basis upon which “[t]he health requirements of the South African National Defence Force (SANDF), regarding the recruitment, deployment and promotion of HIV positive people were found to be unconstitutional” – the blanket exclusion of people with HIV from consideration. Read together with the judgment and order in the SASFU case, the 2009 DoD directive –
1. requires a uniform approach to all members of the SANDF, whether in the MSDS, the CSS or theSenior Career System (“SCS”); and
2. does not permit HIV status, on its own, to be usedas an exclusionary criterion in respect of any post.
82. The Surgeon-General – the First Respondent – was given responsibility for “the establishment and implementation of the policy prescribed by the [2009 DoD directive].”He was given until 1 July 2010 to take the necessary steps – in consultation with “the relevant Service and Divisional Chiefs” and with their support – to implement the policy. I am not aware that the Surgeon-General met this deadline.
83. In the interim, before formal implementation, the Surgeon-General was required to “consider every case that presents itself in accordance with the principles of health classification and management of SANDF members as set out in the attached document.” The document attached to the 2009 DoD directive, appendix A, is entitled “Interim Process and Procedures for the Health Classification and Deployability of DOD members with HIV and AIDS” (“the Interim Process and Procedures”).
The Interim Process and Procedures
84. In terms of the Interim Process and Procedures, each member of the SANDF must have a clinical health profile, which is a summary of that member’s health-related history, clinical assessments, treatments, and laboratory and supplementary test results. The health profile is determined by way of a CHA, which is done to determine the member’s functional and operational utilisation. Amongst other things, the CHA includes a medical examination (which includes an HIV test), an oral health assessment, psychological evaluation, a social work assessment and immunization status.
85. The CHA is performed annually for members of the SANDF. It is a prerequisite for all serving members, job applicants and new recruits. It is also performed throughout all the arms of the SANDF, including the SA Army, the SA Navy, the SA Air Force and the SAMHS. Its application extends to all available positions in the SANDF, with every medical examination including an HIV test.
86. Duties and posts within the SANDF are assigned standardised category codes. The Interim Process and Procedures explains (at paragraph 3):
“The different types of duty that members of the SANDF will be allowed to perform are indicated by a standardised category code. The code comprises various factors and code-letters are allocated to indicate the standard of mental and physical fitness required for specific military duties.”
87. The following code letters are used:
1. Code letter G: ground duty factor – “for total medical fitness of members for all ground duties”;
2. Code letter K: geographical/environmental factor – “for employment during operations/deployments/services in any or all geographical areas or environments”;
3. Code letter A: flying duty factor – “for aircrew”;
4. Code letter N: sea duty factor – “for sea duties”;
5. Code letter D: diving duty factor – “for diving duties”;
6. Code letter S: submarine duty factor – “for submarine duties”; and
7. Code letter V: parachute factor – “for all types of parachute jumps and duties”.
Code letter G
88. Theground duty factor – code letter G – “describes which physical activities a member [of the SANDF] can (or cannot) perform in a post”. In summary, paragraphs 11 to 16 of the Interim Process and Procedures provide as follows:
1. A G1 classification is allocated to a member who is regarded as healthy and can participate in all kinds of physical activities.
2. A G2 classification is allocated to a member whose assessment results indicate the presence of a disease process which “does not have an impact on the ability of the member to participate in physical military activities.”
3. A G3 classification is allocated to a member whose disease process or injury has an impact on his or her ability to perform required physical activities.
4. A G4 classification is allocated to a member whose medical condition has progressed to an extent that the member is regarded as fit only for administrative or office duties.
5. A GT classification is allocated to a member who is temporarily unfit for certain physical duties for an indicated period.
6. A GP classification is allocated to a member who is regarded as “permanently medically unfit for military duties”. A member with a GP classification will be discharged from the SANDF on medical grounds.
Code letter K
89. Thegeographical/environmental factor – code letter K – indicates the geographical area where the member may be deployed. In summary, paragraphs 18 to 22 of the Interim Process and Procedures provide as follows:
1. A K1 classification is allocated to a member who can be deployed anywhere and at any time without the need for nearby health care facilities.
2. A K2 classification is allocated to a member who can be deployed anywhere and at any time provided the member has “reasonable access to primary and secondary health care facilities.”
3. A K3 classification is allocated to a member who can be deployed only “under exceptional operational circumstances” and where a secondary health facility– such as a sickbay or a base hospital – is within a “reasonable proximity”.
4. A K4 classification is allocated to a member who can only be deployed where there is a tertiary or specialist health care facility – such as a military hospital or a provincial level 3/4 facility – within close proximity.
HIV and code letters G and K
90. Purportedly based on the clinical staging model of the World Health Organization (“WHO”), the Interim Process and Procedures set out – in paragraph 29 – the four clinical stages of HIV infection and the applicable G and K categories. In summary, paragraph 29 provides as follows:
1. Clinical stage 1: asymptomatic disease – G2K1 classification;
2. Clinical stage 2: mild disease – G3K2 or G3K3;
3. Clinical stage 3: advanced disease – G4K4; and
4. Clinical stage 4: severe disease – G4K4.
91. Further detail is provided in paragraph 38, which considers when the allocation of a G2K1 classification would be appropriate. This applies both to those members with HIV who are not yet on ARV treatment, as well as those members who are on ARV treatment. What paragraph 38 makes plain is that an HIV-positive diagnosis, without anything more, will – at best – result in a G2K1 classification.
92. Paragraph 39, which deals with “Variation in Categories”, expressly recognises that a health classification in respect of a member with HIV may either improve or worsen. But it too makes plain that – at best – members with HIV are not entitled to a classification better than G2K1.
Deployability and colour codes
93. Colour codes are utilized to determine the external operational deployability status of a member:
1. The green colour code is allocated to a member who is regarded as fit for all external operational duties;
2. The yellow colour code is allocated to a member who is regarded as temporarily unfit for external operational duties; and
3. The red colour code is allocated to a member who is regarded as unfit for external operational duties.
94. Paragraph 31 of the Interim Process and Procedures states that the single most important medical criterion to determine the deployability of a member with HIV –
“is fitness to perform his/her expected duties for the duration of deployment within the medical capability in the mission area and without any additional risk to the health of the member related to his/her HIV-positive status.”
Implementing the Interim Process and Procedures
95. Recognising the importance of individualised assessments, paragraph 44 of the Interim Process and Procedures provides as follows:
“The Surgeon General has delegated the responsibility and authority to the Director of Medicine (D Med) to allocate (in writing) a health category to each individual case that presents itself for health classification in accordance with the principles of health classification and management of SANDF members with HIV as set out in this document.”
96. Paragraph 63 of the Interim Process and Procedures, one of four concluding paragraphs, expressly states that “[t]here will be members earmarked for operational deployments that are not G1K1.” It continues:
“Therefore a huge responsibility rests on the Confirming Authority who must formulate a final judgement on the deployability of HIV-positive members who are classified as G1K2, G2K1, G2K2, G3K2 etc.”
97. Paragraph 45 deals with the confirming authority. It provides as follows:
“Director Medicine is assisted in this delegated duty [in paragraph 44] by approved medical Confirming Authorities (see Annexure 1 for definition) as captured electronically on the [Health Informatics System] (see Annexure 1 for definition). D Med must review the name list annually and must obtain approval from the [Surgeon-General] before the SSO Health Informatics may register the Confirming Authorities.”
98. Annexure 1 is attached to Appendix A, which in turn is attached to the 2009 DoD directive.
THE 2002 NAVAL ORDER
99. A “new” service system for the SANDF, which was approved by the Council on Defence on 27 October 2000 (for implementation in January 2003), is divided into three components: the MSDS, the CSS and the SCS. The 2002 Naval Order, which introduced this new system into the SA Navy, is attached as annexure “AD25”.[Drafting note: was AD4]
100. I place no particular reliance on the 2002 Naval Order in this application. I refer to it only to show how the service system is structured, with a focus on the relationship between the MSDS and the CSS in particular.
101. The structure of the “new” service system is set out at paragraph 22 of the 2002 Naval Order, which provides as follows:
“While this Naval Order is concerned predominantly with the MSD, the structure of the full Service System is depicted here in order to provide a contextual framework:
“a. The MSD System
i. Members entering the MSD should comply with the following characteristics:
(1) Not be younger than 18 and not older than 22.
(2) Will have passed Grade 12, with 80% of the complement having successfully completed mathematics and science at the Grade 12 level.
(3) Will preferably be single.
(4) Will not be area bound.
(5) Will comply with the SANDF Medical Standards and all other approved appointment requirements.
ii Approximately 10% of the Full Time Component of the SA Navy will serve in the MSD for a period no longer than two years.
iii The aim of the MSD is to satisfy the HR requirement for a rapid throughput of fit, young members able to satisfy deployment contingencies.
iv A proportion of the members within the MSD will, on conclusion of the two year period, transfer to the Reserve Force (ResF), where they will be contractually bound to serve.
v Members with the rank seaman will not serve in the SANDF beyond the age of 28.
b. The CSS System
i Approximately 70% of the Full Time Component will serve within the CSS system.
ii All Full Time Component Junior Officers, the majority of middle ranking officers up to the rank of Lt Cdr and NCO’s up to the rank of CPO will serve within the CSS.
iii The maximum age limit for service within the CSS will be between 40 – 45 years.
iv The CSS will provide the bulk of the Full Time Component command cadre, and junior to middle levels of management.
v Flexible service contracts ranging from 4,6,8,12 to 15 years will prevent members within this component from stagnating.
c. The SCS
i 20% of the Full Time Component will serve within SCS.
ii Only Officers from the rank Lt Cdr upwards, and NCOs with the rank of CPO upwards, who have been identified as having top-level development potential and/or excellent performance records will be selected for SCS.
iii Normal retirement age for members within SCS varies between the age of 55 – 60. Alternatively, the member’s retirement age may be prior to age of 55 and will be specified in the contract.”
102. Thus in terms of the 2002 Naval Order, the full-time component of the SA Navy was to be structured as followed:
1. 10% in the MSDS, with each employee serving for a period of no longer than two years;
2. 70% in the CSS; and
3. 20% in the SCS.
103. The MSDS is the primary human resources supply source for the Regular and Reserve Forces of the SANDF.As already indicated at paragraph 19 above, entry into the CSS – which provides the bulk of the full-time component of the SA Navy – is contingent upon two things: successful completion of service in the MSDS; and the availability of posts in the CSS.
104. Recruitment into the MSDS begins the year before intake, with successful applicants therefore being pre-selected the year before they are formally employed by the SANDF. Starting with the recruitment stage, prospective employees have to comply with the required medical category and fitness level – G1K1. This requirement continues beyond the MSDS, thereby restricting entry to the CSS.
105. During the final stages of the MSDS, a signal is ordinarily issued detailing the CSS opportunity, the entry criteria and the assessment process to be followed. A competence profile is also formulated to reflect the requirements of eachpost that needs to be filled. In the final phase, a final selection board is convened during the second half of the second year to review candidates’ performance results and determine the allocation of available CSS contracts.
MAIN LEGAL GROUNDS UPON WHICH THIS APPLICATION IS MADE
106. In this part of the founding affidavit I do not intend to deal comprehensively with the legal grounds upon which this application is made. Detailed submissions in this regard will be advanced by counsel at the hearing of this matter.
107. Instead, at this point, I intend only to focus on the following three broad legal grounds which are central to this case:
1. Non-compliance with this Court’s order in the SASFU case;
2. Non-compliance with the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”), alternatively the principle of legality, by taking a decision to set – or failing to remove – aG1K1 health classification as a requirement for entry into the MSDS or securing a CSS contract; and
3. Non-compliance with PAJA, alternatively the principle of legality, by applying an unlawful requirement so as to deny Applicant X, Sebatana and me the opportunity to be employed in the CSS.
Non-compliance with this Court’s order in the SASFU case
108. I am advised that –
1. the SASFU case has already established that a blanket prohibition on employing, deploying and/or promoting membersin the SANDFbecause of an HIV-positive diagnosis is unconstitutional in that it unreasonably and unjustifiably limits the rights to equality, privacy, dignity, fair labour practices and administrative justice;
2. all the Respondents –with the exception of the Chief of the SANavy (who reports directly to the Third Respondent) – recognised that such a blanket prohibition is unconstitutional when they agreed to the settlement that formed the basis of this Court’s order in the SASFU case; and
3. despite being bound by this Court’s orderin the SASFU case, the Respondents continue to impose a blanket prohibition regarding the recruitment of people with HIV – whether the recruitment of prospective employees into the MSDSor the recruitment of members in the MSDS into the CSS.
109. In so doing, the SANDF has violated – and continues to violate – the constitutional rights to which this Court’s order in the SASFU case refers.
110. Moreover, by acting in a manner expressly prohibited by this Court, the SANDF violates the rule of law, as entrenched in section 1(c) of the Constitution.
111. In addition, as an organ of state, the SANDF conducts itself in a manner contrary to its obligations under section 165(4) of the Constitution – which requires all organs of state to “assist and protect the courts to ensure [their] independence, impartiality, dignity, accessibility and effectiveness”.
Setting / failing to remove a G1K1 health classification as an entry requirement
112. I am advised that the decision of one or more of the Respondents to set a G1K1 health classification as a requirement for entry into the MSDS or securing a CSS contract, alternatively a failure to take a decision to remove this requirement, constitutes administrative action for the purposes of PAJA and is therefore subject to judicial review.
113. Should the administrative action in question concern a decision taken, I understand it to be unlawful in that it –
1. was materially influenced by an error of law (section 6(2)(d));
2. was not authorised by the 2009 DoD directive (section 6(2)(f)(i));
3. was not rationally connected to the purpose for which it was taken (section 6(2)(f)(ii)(aa));
4. was unreasonable (section 6(2)(g)); and
5. was unconstitutional in that it was contrary to this Court’s order in the SASFU case regarding the constitutionality of a blanket ban on the employment of persons with HIV in the SANDF (section 6(2)(i)).
114. To the extent that the administrative action in question concerns a failure to take a decision, I understand that it is unlawful in terms of section 6(2)(g) of PAJA. Following this Court’s order in the SASFU case, and in line with the 2009 DoD directive, the G1K1 entry requirement should have been removed.
115. In any event, even if the decision (or failure to take a decision) were not to constitute administrative action for the purposes of PAJA, it would certainly constitute the exercise of public power and is thus subject to the principle of legality.
Applying a G1K1 health classification as an entry requirement
116. I am also advised that the decision of one or more of the Respondents – or anyone authorised and/or delegated by them to make such a decision on their behalf – to apply the G1K1 health classification requirement so as to deny Applicant X, Sebatana and me the opportunity to be employed in the CSS constitutes administrative action for the purposes of PAJA and is therefore also subject to judicial review.
117. In particular, I understand that this decision is unlawful on the same grounds as set out in paragraph 113 above. In any event, even if the application of the G1K1 health classification were not to constitute administrative action for the purposes of PAJA, it certainly constitutes the exercise of public power and is thus subject to the principle of legality.
CONCLUSION
118. I have invested more than two years in developing my skills in the SANDF. I believe that I am fit, healthy and qualified to continue providing service. The evidence shows that but for my HIV status,which precludes me from being categorised G1K1, I would have been employed in terms of a CSS contract.
119. During my employment in the MSDS, I received a non-commissioned rank (a promotion) as “Able Seaman”. All other MSDS members in my intake also received the same promotion. In addition, I received a commendation certificate on 26 April 2012 which, amongst other things, refers to my “positive contribution, loyalty and professionalism in execution of [my] duties”. A copy of the commendation certificate is attached as annexure“AD26”. [Drafting note: was AD16]
120. My loss of employment has already had a serious negative impact on me and my family. I am the mother of a seven-year-old child. My mother is a domestic worker who has relied on me to assist her with household expenses. I also have a brother who is a student.I am no longer able to assist him in paying for rent and food.
121. I therefore pray for an order in terms of the relief set out in the Notice of Motion to which this affidavit is attached.
__________________
ANDISIWE DWENGA
SIGNED and SWORN to before me at _______________________________ on this the _____ day of _________ 2013 by the deponent who has acknowledged that she knows and understands the contents of this affidavit, has no objection to taking to the prescribed oath and she considers the prescribed oath to be binding on her conscience.
________________________
COMMISSIONER OF OATHS
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