Hoffmann v South African Airways

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Yacoob J, Madlanga AJ
• Judgment Date: 28 September 2000
• Citation: 2001 (1) SA 1 (CC)
• Docket Number: CCT 17/00
• Hearing Date: 18 August 2000
• Counsel: W H Trengove SC (with him A F Katz and Z Camroodien) for the appellant. C Z Cohen SC (with him L T Sibeko) for the respondent. K S Tip SC (with him F A Boda) for the amicus curiae.
• Court: Constitutional Court

Ngcobo J:

Introduction

[1] This appeal concerns the constitutionality of South African G Airways' (SAA) practice of refusing to employ as cabin attendants people who are living with the Human Immunodeficiency Virus (HIV). Two questions fall to be answered: first, is such a practice inconsistent with any provision of the Bill of Rights; and second, if so, what is the appropriate relief in this case? H

[2] Mr Hoffmann, the appellant, is living with HIV. He was refused employment as a cabin attendant by SAA because of his HIV positive status. He unsuccessfully challenged the constitutionality of the refusal to employ him in the Witwatersrand High Court (the High Court) I on various constitutional grounds. The High Court issued a positive certificate and this Court granted him leave to appeal directly to it. [1]

Ngcobo J

[3] The AIDS Law Project (ALP) [2] sought, and was A granted, leave to be admitted as an amicus curiae in support of the appeal. In addition, the ALP sought leave to introduce factual and expert material that had been placed before the Labour Court in a case that also involved the refusal by SAA to employ as a cabin attendant someone who was living with HIV. [3] The additional material included opinions by various medical experts on the B transmission, progression and treatment of HIV, as well as the ability of people with HIV to be vaccinated against yellow fever. In particular, it included minutes reflecting the unanimous view of these medical experts. Leave to introduce the additional material was granted subject to any written argument on its admissibility. Neither party objected to the admission of the additional material. C

[4] The ALP submitted written argument and was represented by Mr Tip, together with Mr Boda. We are indebted to the ALP and counsel for their assistance in this matter.

The factual background D

[5] In September 1996 the appellant applied for employment as a cabin attendant with SAA. He went through a four-stage selection process comprising a pre-screening interview, psychometric tests, a formal interview and a final screening process involving role-play. At E the end of the selection process the appellant, together with 11 others, was found to be a suitable candidate for employment. This decision, however, was subject to a pre-employment medical examination, which included a blood test for HIV/AIDS. The medical examination found him to be clinically fit and thus suitable for employment. However, the F blood test showed that he was HIV positive. As a result, the medical report was altered to read that the appellant was 'HIV positive' and therefore 'unsuitable'. He was subsequently informed that he could not be employed as a cabin attendant in view of his HIV positive status. All this was common cause. In the course of his argument, Mr Cohen, who, together with Mr Sibeko, appeared for G SAA, raised an issue as to whether HIV positive status was the sole reason for refusing to employ the appellant. Mr Trengove, who, together with Mr Katz and Ms Camroodien, appeared on behalf of the appellant, submitted that it was. I deal with this issue later in the judgment. [4]

[6] The appellant challenged the constitutionality of the refusal to H employ him in the High Court, alleging that the refusal constituted unfair discrimination and violated his constitutional right to equality,

Ngcobo J

human dignity and fair labour practices. He sought an order A in motion proceedings, amongst other things, directing SAA to employ him as a cabin attendant.

[7] SAA denied the charge. It asserted that the exclusion of the appellant from employment had been dictated by its employment practice, which required the exclusion from employment as cabin attendant of all B persons who were HIV positive. SAA justified this practice on safety, medical and operational grounds. In particular, SAA said that its flight crew had to be fit for world-wide duty. In the course of their duties they are required to fly to yellow fever endemic countries. To fly to these countries they must be vaccinated against yellow fever in accordance with guidelines issued by the National Department of Health. C Persons who are HIV positive may react negatively to this vaccine and may, therefore, not take it. If they do not take it, however, they run the risk not only of contracting yellow fever, but also of transmitting it to others, including passengers. It added that people who are HIV positive are also prone to contracting opportunistic diseases. [5] There is a risk, therefore, that they D may contract these diseases and transmit them to others. If they are ill with these opportunistic diseases, they will not be able to perform the emergency and safety procedures that they are required to perform in the course of their duties as cabin attendants. SAA emphasised that its practice was directed at detecting all kinds of disability that make an individual unsuitable for employment as flight crew. In this E regard it pointed out that it had a similar practice that excluded from employment as cabin crew individuals with other disabilities, such as epilepsy, impaired vision and deafness. SAA added that the life expectancy of people who are HIV positive was too short to warrant the costs of training them. It also pointed out that other major airlines utilised similar practices. F

[8] It must be pointed out immediately that the assertions by SAA were inconsistent with the medical evidence that was proffered in their support. SAA's medical expert, Professor Barry David Schoub, in an affidavit told the High Court that only those persons whose HIV G infection had reached the immunosuppression stage and whose CD4+ count had dropped below 300 cells per microlitre of blood were prone to the medical, safety and operational hazards asserted. [6] The assertions made by SAA, therefore, were not only not true of all persons who are HIV positive, but they were not true of the appellant. According to SAA's medical expert, at H the time of medical examination there was nothing 'to indicate that the infection has reached either the asymptomatic immunosuppressed state or the AIDS stage'. On the medical evidence placed before the High Court, therefore, it was not established that the appellant posed the risks asserted. Yet he was excluded from employment. I

Ngcobo J

[9] The High Court, however, agreed with SAA. [7] A It found that the practice was 'based on considerations of medical, safety and operational grounds'; [8] did not exclude persons with HIV from employment in all positions within SAA, but only from cabin crew positions; and was 'aimed at achieving a worthy and important societal goal'. [9] The High B Court noted that if the employment practices of SAA were not seen to promote the health and safety of its passengers and crew, its 'commercial operation, and therefore the public perception about it, will be seriously impaired'. [10] A further factor that it took into consideration was the allegation by SAA that its competitors apply a similar employment policy. The Court reasoned that C if SAA were obliged to employ people with HIV, it 'would be seriously disadvantaged as against its competitors'. [11] It concluded that 'it is an inherent requirement for a flight attendant, at least for the moment, to be HIV-negative' and that the practice did not unfairly discriminate against persons who are HIV positive. [12] If it did, the Court found, such discrimination was 'justifiable within the meaning of s 36 of the D Constitution'. [13] In the result it dismissed the application. The present appeal is the sequel.

[10] To put the issues on appeal in context it is necessary to refer to the medical evidence placed before this Court by the amicus, for it is this medical evidence that altered the course of argument on appeal. This evidence, however, told SAA nothing E new. Indeed, it said nothing that SAA's expert did not already know.

Medical evidence on appeal

[11] The medical opinion in this case tells us the following F 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 G 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: H

Ngcobo J

(a)

Acute stage - this stage begins shortly after A 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 B 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

(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...