Millions of people living with HIV-AIDS will finally have access to Equality Courts to fight stigmatisation and discrimination on the basis of being infected with the virus in South Africa

The government is adding HIV-AIDS to the list of prohibited grounds for discrimination as current legislation is often not able to provide viable recourse for people living with the virus.

Currently, race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth are the only grounds listed in the constitution as prohibited grounds for discrimination.

The Justice Department said the inclusion of HIV-Aids status would result in greater access to Equality Courts as claimants would only have to prove that there was discrimination on the basis of their status.

A new law outlawing discrimination against people living with HIV, actual or presumed, has been released by the government for public comment.

The introduction of the Judicial Matters Amendment Bill would assist in developing a human rights approach in accordance with international precedents, according to the department. According to Stats SA, the estimated overall HIV prevalence rate in the country is about 11.2% of the total population.

Last year, the total number of people living with HIV in South Africa was estimated at about 6.19 million.

The SA National Aids Council's Kanya Ndaki told Sowetan they had an agreement with Legal Aid SA to provide services to people who had been discriminated against because of their HIV status.

Last year, Legal Aid SA launched its national legal assistance programme for people discriminated against on the basis of having HIV-Aids or tuberculosis (TB) and partnered with law firm Webber Wentzel, NGO Section27 and the International Labour Organisation.

It has trained paralegals and civil litigation specialists to respond to HIV-Aids and TB-related discrimination.

Ayanda Ngubo, a partner in Webber Wentzel's Pro Bono unit, said there was no obligation on employees in any workplace to disclose their HIV status.

She said discrimination based on people's HIV status was prevalent across all industries and the programme has had many domestic workers complaining about discrimination on the basis of their HIV status.

"It's mainly small, medium and micro-sized enterprises where workers are not unionised and that's where there is a lot of discrimination," said Ngubo, adding that big companies were also not immune to discriminatory practices.

Ngubo said she was currently working on a case of a worker who had TB but was forced by their employer to undergo an HIV test under the pretext of testing if the disease was not contagious.

The matter has been referred to the Labour Court.

Anti-media law scrapped

SOUTH African journalists will no longer be charged with defamation. The new Judicial Matters Amendment Bill repeals the Criminal Procedure Act which made provision for any person to be charged with the unlawful publication of a defamatory matter.

The UN has complained that criminal defamation adversely affected journalists and asked countries to abolish such laws.

The African Commission on Human and Peoples' Rights echoed the call, saying the laws prevented journalists from practising their profession without fear and in good faith.

The repeal of the law however does not affect civil liability in terms of common law based on defamation.

In 2014, former Sowetan journalist Cecil Motsepe (pictured), had his criminal defamation conviction and sentence set aside by the North Gauteng High Court.

Motsepe was fined R10000 or 10 months imprisonment wholly suspended on certain conditions for a period of five years for writing an article.

He incorrectly reported that a magistrate had imposed a heavier sentence on a black male compared to a white female for a similar offence. The high court did not jail Motsepe because he lacked intention to defame.

Last September, the ANC announced its intention to get rid of criminal defamation laws as they were unconstitutional. The SA National Editors' Forum had been involved in a process with the ANC to have the laws scrapped. - Loyiso Sidimba

By Loyiso Sidimba


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