Volume: Volume 5(2) - 2001

Article type: Forum contribution

Author/s: Rugege, Sam

Sam Rugege provides concise commentary on two important recent judgments involving discrimination on the basis of HIV/AIDS. The first is a decision by the South African Constitutional Court in Hoffmann v South AJrican Airways [2000] I I BCLR 121 1 (CC) based on the constitutional equality clause.

This case raised important issues relating to the extent to which employers can justify discrimination on the basis of the requirements of a job or the perceived prejudices of the public. In addition. novel questions arose in relation to the appropriate remedy for unfair discrimination in cases where an employer has refused to employ applicants on the basis of their HIV status. The second case is a decision of the Namibian Labour Court in N v Minister of DeJence (2000) 21 ILJ 999 (NmLC). The applicant in this case was refused employment in the Defence Force because he tested HIV positive. The court found that this constituted unfair discrimination as envisaged by the Namibian Labour Act of 1992 and ordered the applicantnt's enlistment subject to a medical test.

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