An overview of some of the key legal developments in HIV/AIDS and the law — 2003

  • Liesl Gerntholtz Head, Legal Unit, AIDS Law Project, and Centre for Applied Legal Studies, University of the Witwatersrand, Johannesburg


South Africa has a strong legal framework that offers a high level of protection to people living with HIV/AIDS. Although the Constitution does not explicitly refer to HIV/AIDS, it does prohibit unfair discrimination on the grounds of disability. International jurisprudence has developed a broad definition of ‘disability\', which goes beyond so-called functional disability and has successfully accommodated HIV-related discrimination cases in Australia, Canada and the USA. It is likely that South African courts will ultimately do the same.
Employment legislation does refer specifically to HIV-related discrimination and prohibits unfair discrimination on the grounds of HIV status in the workplace. Pre-employment and employment HIV testing is prohibited, unless the permission of the Labour Court is obtained before to testing takes place. There are other laws, dealing with the provision of medical aid services, access to education and health care, that also prevent HIV-related discrimination.
Despite this, however, people with HIV/AIDS continue to suffer high levels of discrimination and prejudice. The disclosure of HIV status remains a fearful experience for many South Africans and may well be accompanied by violence and economic and social deprivation.
This article examines some of the most important cases that have come before the courts and other tribunals in 2003 and have sought to establish the rights of people with HIV/AIDS to live lives of dignity without fear.
Southern African Journal of HIV Medicine Vol. 5 (1) 2004: 40-43

Journal Identifiers

eISSN: 2078-6751
print ISSN: 1608-9693