JOHANNESBURG, 16 May 2008 (IRIN) - South Africa's High Court in Pretoria has ruled that the military's exclusion of HIV-positive people from recruitment, promotion and foreign deployment is unconstitutional.

"This case is not about the relevance of HIV in a military context," argued senior advocate Gilbert Marcus. "The case is about the exclusion from recruitment, deployment and promotion of HIV-positive people, without any individual assessment of the state of their health."

The case against the South African National Defence Force (SANDF), which could set a precedent for armed forces internationally, was brought by the South African Security Forces Union (SASFU), the organisation representing SANDF employees, and by two men who were denied deployment and employment opportunities because of their positive HIV status.

Marcus, who represented both the men and the union, said that almost 25 percent of SANDF employees were HIV positive.

At issue was the SANDF's current policy, which bans all HIV-positive people from recruitment, promotion and foreign employment. The advocates representing SASFU and the men argued that this was inconsistent with the policy formulated by the cabinet.

SANDF conceded that the ban was unconstitutional and said this policy, along with the health classification used to justify the ban, were already under review.

High Court Judge Roger Claassen issued an interdict Friday giving the SANDF six months to present the court with a new policy that would take into account individual health indicators such as CD4 counts (which measures the strength of the immune system) and general fitness levels when accessing personnel.

The policy will also have to be approved by lawyers from the AIDS Law Project (ALP), a South African non-profit organisation that specialises in helping people with HIV/AIDS to deal with problems of discrimination, and assisted SASFU and the men in bringing the case to court.

The judge ruled that Sipho Mthethwa, one of the applicants and an SANDF member who is an arms expert and officer in charge of physical training, should be allowed to deploy with his unit in four months' time, as part of its next rotation.

Setting the standard

In southern Africa, Zambia still imposes an HIV ban in respect of their armed forces, while Botswana and Namibia do not.

ALP executive director Mark Heywood said the organisation had been fighting the military ban on HIV for the last 13 years and said they hoped the case would create a precedent for other militaries in the region and around the world.

"The government is a big employer," Heywood added. "It's not like everyone loves combat, it's that for many people, the military is a job."

Mthethwa's fellow applicant, who wished to remain anonymous and had been denied employment with the SANDF because of his status, said: "The hardest part of this was not to be accepted, to do something you really wanted to do, [join the military] because of one thing, and that is being positive. That's why I decided to go to court and fight it."

Finalising the hiring process for HIV-positive recruits will likely be on hold until the new policy is drafted, but Claassen's ruling has also guaranteed Mthethwa's fellow applicant immediate employment.

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