An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Today is World Aids Day. It’s a time to remember all the people in South Africa and elsewhere in the world who have died needlessly because of the greed of pharmaceutical companies, the ignorance, hatred, prejudice and fear of people and the wilful stubbornness and cold-hearted arrogance of politicians like former President Thabo Mbeki. It is a time to reflect on whether one is in a position to be tested and to go for voluntary counselling and testing if one is indeed in a position to do so.
Earlier this year as I re-read the Constitutional Court judgment in Hoffmann v South African Airways which was handed down in 2000 by the present Chief Justice Sandile Ngcobo, it struck me that at the time when then President Thabo Mbeki was questioning the link between HIV and AIDS and the efficacy of anti-retroviral (ARV) drugs to treat HIV, our Constitutional Court definitively came out on the right side of the argument. While the President was tilting at windmills, the Constitutional Court made a definitive finding that should have put a stop to the President’s questioning of the science of HIV and AIDS. Unfortunately it never did.
Legally at least, President Mbeki’s wild goose chase was irrelevant. Unfortunately for hundreds of thousands of South Africans who died of AIDS related illnesses during this time, it was not. Let me quote three passages from the judgment without further comment. It speaks for itself.
[T]his case tells us the following about HIV/AIDS: it is a progressive disease of the immune system that is caused by the Human Immunodeficiency Virus, or HIV. HIV is a human retrovirus that affects essential white blood cells, called CD4+ lymphocytes. These cells play an essential part in the proper functioning of the human immune system. When all the interdependent parts of the immune system are functioning properly, a human being is able to fight off a variety of viruses and bacteria that are commonly present in our daily environment. When the body’s immune system becomes suppressed or debilitated, these organisms are able to flourish unimpeded. Professor Schoub identifies four stages in the progression of untreated HIV infection:
(a) Acute stage — this stage begins shortly after infection. During this stage the infected individual experiences flu-like symptoms which last for some weeks. The immune system during this stage is depressed. However, this is a temporary phase and the immune system will revert to normal activity once the individual recovers clinically. This is called the window period. During this window period, individuals may test negative for HIV when in fact they are already infected with the virus.
(b) Asymptomatic immunocompetent stage — this follows the acute stage. During this stage the individual functions completely normally, and is unaware of any symptoms of the infection. The infection is clinically silent and the immune system is not yet materially affected.
(c) Asymptomatic immunosuppressed stage — this occurs when there is a progressive increase in the amount of virus in the body which has materially eroded the immune system. At this stage the body is unable to replenish the vast number of CD4+ lymphocytes that are destroyed by the actively replicating virus. The beginning of this stage is marked by a drop in the CD4+ count to below 500 cells per microlitre of blood. However, it is only when the count drops below 350 cells per microlitre of blood that an individual cannot be effectively vaccinated against yellow fever. Below 300 cells per microlitre of blood, the individual becomes vulnerable to secondary infections and needs to take prophylactic antibiotics and anti-microbials. Although the individual’s immune system is now significantly depressed, the individual may still be completely free of symptoms and be unaware of the progress of the disease in the body.
(d) AIDS (Acquired Immune Deficiency Syndrome) stage — this is the end stage of the gradual deterioration of the immune system. The immune system is so profoundly depleted that the individual becomes prone to opportunistic infections that may prove fatal because of the inability of the body to fight them.
The natural progression of HIV has been dramatically altered in consequence of recent advances in the available medication. There are now combinations of drugs that are capable of completely suppressing the replication of the virus within an HIV+ individual. This combination of drugs has been described as Highly Active Antiretroviral Therapy…. They are available in South Africa and are increasingly accessible. With successful [ARV] treatment, the individual’s immune system recovers, together with a very marked improvement in the CD4+ lymphocyte count. A significant improvement in survival rates and life expectancy results.
Prejudice can never justify unfair discrimination. This country has recently emerged from institutionalised prejudice. Our law reports are replete with cases in which prejudice was taken into consideration in denying the rights that we now take for granted. Our constitutional democracy has ushered in a new era — it is an era characterised by respect for human dignity for all human beings. In this era, prejudice and stereotyping have no place. Indeed, if as a nation we are to achieve the goal of equality that we have fashioned in our Constitution we must never tolerate prejudice, either directly or indirectly. SAA, as a state organ that has a constitutional duty to uphold the Constitution, may not avoid its constitutional duty by bowing to prejudice and stereotyping.
People who are living with HIV must be treated with compassion and understanding. We must show ubuntu towards them. They must not be condemned to “economic death” by the denial of equal opportunity in employment. This is particularly true in our country, where the incidence of HIV infection is said to be disturbingly high. In regard to the ability of people with HIV to perform employment duties, and in particular the work of a cabin attendant, the minute records that: With the advent of [ARV] treatment, individuals are capable of living normal lives and they can perform any employment tasks for which they are otherwise qualified.
For those of us living with HIV or are otherwise affected by HIV, these words can only make us proud of our highest court. No, let me rephrase that: I would say that every single South African — even those who believe they are HIV negative or those that believe they do not know anyone who is HIV positive — should be proud of our court for these sane findings based on scientific evidence and the ringing words that endorses respect for all people, regardless of their HIV status.BACK TO TOP