41
IN THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case no.: ______
In the matter between:
ANDISIWE DWENGA First Applicant
APPLICANT X Second Applicant
MOTOAI SHADRACK SEBATANA Third Applicant
SOUTH AFRICAN SECURITY FORCES UNION Fourth Applicant
SOUTH AFRICAN NATIONAL DEFENCE UNION Fifth Applicant
and
SURGEON-GENERAL OF THE First Respondent
SOUTH AFRICAN MILITARY HEALTH SERVICE
CHIEF OF THE SOUTH AFRICAN NAVY Second Respondent
CHIEF OF THE Third Respondent
SOUTH AFRICAN NATIONAL DEFENCE FORCE
MINISTER OF DEFENCE Fourth Respondent
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Fifth Respondent
______
FOUNDING AFFIDAVIT
______
I, the undersigned,
ANDISIWE DWENGA
do hereby make oath and say:
1. I am an adult female residing at 7973 Phase 3, Mvimbi Street, Kwa-Nokuthula, Plettenberg Bay, Western Cape. Until 30 April 2013, I was employed by the South African Navy (“the SA Navy”) at SAS Saldanha as an Able Seaman with force number 05030689MG. SAS Saldanha is an SA Navy training base in Saldanha Bay.
2. The facts contained in this affidavit are within my personal knowledge and, to the best of my knowledge and belief, are both true and correct. I make all submissions of law on the basis of the advice given by the Applicants’ legal representatives, which advice I accept has been correctly given.
THE PARTIES
The Applicants
3. I am the First Applicant.
4. The Second Applicant is Applicant X, an adult female who– until 30 April 2013 – was employed by the SA Navy. Applicant X’s identity is already known to the State Attorney and some or all of the Respondents.
5. Applicant X has requested that this Court grant an order that keeps her identity confidential throughout the course of these legal proceedings and beyond.Should the prayer in paragraph 2 of the Notice of Motion be granted, Applicant X’s name –
5.1. will be provided to the Registrar and the respondents, to be retained in a safe place, separate from the ordinary court file; and
5.2. shallnot be disclosed or publicised in any manner or form – including in the form of initials – by any person or entity.
6. The Third Applicant is Motaoi Shadrack Sebatana (“Sebatana”), an adult male residing at 2008 K Section, Botshabelo, Mangaung, Free State. Until 30 April 2013, he was employed by the SA Navy at SAS Wingfield as an Able Seaman with force number 04041620MC. SAS Wingfield is an SA Navy training base located at Goodwood in Cape Town.
7. The Fourth Applicant is the South African Security Forces Union (“SASFU”), a registered trade union with its headquarters at 225 Francis Baard Street, Pretoria.
8. The Fifth Applicant is the South African National Defence Union (“SANDU”), a registered trade union with its headquarters at 4th Floor, Bureauforum Building, Bureau Lane, Church Square, Pretoria.
The Respondents
9. The First Respondent is the Surgeon-General of the South African Medical Health Service (“the SAHMS”).
10. The Second Respondent is the Chief of the SA Navy.
11. The Third Respondent is the Chief of the South African National Defence Force (“SANDF”), which comprises the SA Navy, the South African Army (“the SA Army”), the South African Air Force (“the SA Air Force”) and the SAMHS.
12. The Fourth Respondent is the Minister of Defence (“the Minister”), who is cited in her official capacity as the Cabinet member to whom section 201(1) of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) refers.The Minister is the Cabinet member responsible for defence.
13. The Fifth Respondent is the President of the Republic of South Africa (“the President”), who is cited in his official capacity as the head of the national executive and therefore, in accordance with section 202(1) of the Constitution, the Commander-in-Chief of the SANDF.
14. All Respondents are cited care of the State Attorney, Pretoria, whose principal place of business is at SALU Building, corner Francis Baard and Thabo Sehume Streets, Pretoria.
STANDING
15. In bringing this application, I act in my own interest as well as acting –
15.1. as a member of and in the interest of the group of persons who are no longer employed by the SANDF solely because each member of the group does not possess a G1K1 health classification;
15.2. on behalf of any other similarly placed persons who cannot act in their own name; and
15.3. in the public interest.
16. The Second and Third Applicants bring this application on the same bases.
17. The Fourth and Fifth Applicants bring this application acting –
17.1. in the public interest; and
17.2. in the interest of their members.
THE NATURE OF THIS APPLICATION
18. This application is the latest in a series of attempts over more than 19 years to stop the SANDF from adopting and implementing policies and practices that unfairly discriminate on the basis of HIV status.In particular, it concerns a decision of one or more of the Respondents to set– alternatively a failure to remove – and apply the health classification G1K1 as a requirement for entry into the Military Skills Development System (“MSDS”) andsecuring a contract in the Core Service System (“CSS”).
19. I deal in detail with the MSDS and CSS at paragraphs99 to 105below. At this stage, I make the simple point that entry into the CSS is contingent upon two things:successful completion of service in the MSDS; andthe availability of posts in the CSS.
20. The G1K1 requirement for entry into the MSDS andsecuring a contract in the CSS effectively places a blanket ban on the recruitment into the SANDF of persons with HIV, regardless of their actual state of health. This is because, in accordance with a Department of Defence Directive on the Health Classification and Deployability of SANDF Members with HIV and AIDS dated November 2009 (“the 2009 DoD directive”), a person who has tested HIV-positive – without anything more – is automatically excluded from being classified G1K1. The 2009 DoD directive is attached as annexure“AD1”. [Drafting note: was AD3]
21. This blanket ban applies to all positions in the MSDS and CSS. As such, it does that which was declaredby this Courtmore than five years ago to be unlawful. In this regard, Claassen J– in South African Security Forces Union and Others v Surgeon-General and Others (case no. 18683/2007) – ordered on 16 May 2008 –
“2.THAT the consequences of the HIV testing policy as developed by the [Surgeon-General] and implemented by the [Minister] in terms of which no person who is HIV positive may be recruited, deployed externally or promoted within the SANDF, is hereby reviewed and set aside.
3. THAT the consequences of the HIV testing policy referred to in paragraph 2 is unconstitutional in that it unreasonably and unjustifiably infringes the rights of aspirant and current HIV positive SANDF members:
3.1 not to be unfairly discriminated against in terms of section 9(3) of the Constitution;
3.2 to privacy in terms of section 14 of the Constitution;
3.3 to dignity in terms of section 10 of the Constitution;
3.4 to fair labour practices in terms of section 23(1) of the Constitution; and
3.5 to administrative justice in terms of section 33 of the Constitution.”
22. A copy of the full order is attached as annexure “AD2”.
23. SASFU, the Fourth Applicant in this application, was the First Applicant in case no. 18683/2007 (“the SASFU case”).Sergeant Sipho Mthethwa (“Mthethwa”), who is openly living with HIV and was the Second Applicant in the SASFU case, has deposed to an affidavit in support of this application.Amongst other things, his affidavit deals with his recent external deployments to Sudan and the Democratic Republic of the Congo (“DRC”). It is attached as annexure “AD3”.
24. As I explain below, I was denied a CSS contract solely on the basis of my HIV status. The Second and Third Applicants were similarly denied CSS contracts.
25. The purpose of this application is therefore fourfold:
25.1. First, to review and set aside the requirement ofa G1K1 health classification for entry into the MSDS andsecuring a CSS contract;
25.2. Second, to secure appropriate relief for the individual Applicants: Applicant X, Sebatana and me;
25.3. Third, to compel the relevant Respondents to adopt and implement an appropriate guidance document for dealing appropriately with any suitably qualified person with a health classification other than G1K1 seeking to enter the MSDS and/orsecure a CSS contract; and
25.4. Fourth, to secure interim relief pending the adoption and implementation of the guidance document to which paragraph 25.3 above refers.
26. Importantly, this application does notchallenge the lawfulness of the2009 DoD directive or the various health classifications – including G1K1 – to which it refers. Instead, this case focuses solely on those unlawful consequences that ordinarily follow a G1K1 health classification.
STRUCTURE OF THIS AFFIDAVIT
27. In the remainder of this affidavit I deal with the following:
27.1. The facts giving rise to this application, including the circumstances within which I was denied a CSS contract solely on the basis of my HIV status;
27.2. The historical and legal context within which this application is made, including the build-up to and the aftermath of the SASFU case (in respect of which Claassen J handed down his order on 16 May 2008);
27.3. SA Naval Order Pers No 6/2002 (“the 2002 Naval Order”), entitled “Guidelines Regarding Selection and Development of Candidates Within the Broad Parameters of the Military Skills Development”; and
27.4. The main legal grounds upon which this application is made.
28. In addition to Mthethwa’s affidavit, to which I have already referred (in paragraph 23 above), I understand that each of the following persons will depose to an affidavit in support of this application:
28.1. Applicant X, the Second Applicant;
28.2. Sebatana, the Third Applicant;
28.3. France Mankwalandile Sipho Sityoshwana (“Sityoshwana”), in his capacity as the Deputy Secretary of SASFU in the Western Cape; and
28.4. Johannes George Greeff (“Greeff”), in his capacity as the National Secretary of SANDU.
29. In particular, I understand that –
29.1. Applicant X and Sebatana will set out additional facts pertaining to their discharges from the SANDF on 30 April 2013;
29.2. Sityoshwana will set out the steps SASFU took in attempting to assist Applicant X and me, as well as consider a recently published study which shows that properly managed with the use of antiretroviral (“ARV”) treatment, the general life expectancy of a person in South Africa with HIV – who adheres to treatment – is near normal; and
29.3. Greeff will explain what can be expected of SANDF members in respect of training requirements, combat readiness and deployment, as well as consider how the SANDF ordinarily deals with the health needs of its members, whether on deployment or during training.
FACTS GIVING RISE TO THIS APPLICATION
Joining the MSDS in the SA Navy
30. I applied to join the SA Navy’s MSDS in 2009. In September 2010, as part of the pre-selection process for entry into the MSDS, I underwent a Comprehensive Health Assessment (“CHA”). As an integral part of the CHA, I underwent an HIV test – which was negative. I attach a copy of the findings of that medical examination (generally referred to as a “DD50”), which indicate a G1K1 “medical category”, as annexure“AD4”.[Drafting note: was AD7]
31. I joined the SA Navy’s MSDS on 15 January 2011. A copy of my service contract is attached as annexure“AD5”.[Drafting note: was AD8] As the conditions of service indicate, I was employed in terms of section 52 of the Defence Act 42 of 2002 in the regular force for a two-year period of full-time training and utilisation.
32. Attached to my letter of appointment was “Appendix E”, which provides general information for members for military training. Paragraph 6 of the document, a copy of which is attached as annexure“AD6”[drafting note: was AD9],deals with the requirement of a further medical examination:
“On reporting at the training unit, you may have to undergo a second full comprehensive medical examination if required. Should you become medically unfit (temporarily or permanently), you will be discharged and sent home. If you are suffering from a medical condition which in your opinion does not render you completely unfit for military service, but for which you require protection during training, you should supply all the medical documentation you have and give it to the medical doctor at your unit Sickbay.”
33. On 16 March 2011, I suffered a pelvic fracture injury during training. I attach a copy of the relevant documentation that confirms this injury as annexure “AD7”. [Drafting note: was AD10] As a result of this injury “sustained in the execution and as a result of the performance of official military duties”, I was placed on light duty for about three weeks. In or about October 2011, I was declared completely fit.
34. For the first six months of my MSDS period I underwent basic training and upon completion I obtained a course certificate. I attach a copy of this certificate as annexure“AD8”. [Drafting note: was AD11]
35. Thereafter I enrolled in a personnel clerk course, which I successfully completed in September 2011. Between October 2011 and January 2013, I was employed as a personnel clerk at SAS Saldanha.
CSS contracts for MSDS members
36. On 1 November 2012, a signal was sent informing us of the eight musterings that were oversubscribed and in respect of which no CSS contracts would be available for MSDS members. A signal is a military instruction. A mustering is an occupational class. A copy of the signal is attached as annexure “AD9”. [Drafting note: was AD12]
37. Amongst others, the identified musterings included the personnel clerk mustering. But in the same signal, MSDS members falling within theseeight musterings were encouraged to apply for all technical musterings, as these were undersubscribed. I applied for [insert mustering] on [insert date]. [Drafting note: copy of application?]
38. On 11 December 2012, a signal was sent to all MSDS members who were part of the 2011 intakelisting the names of those who were approved to receive one-year CSS contracts. A copy of this signal is attached as annexure“AD10”. [Drafting note: was AD13]