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EDITOR’S LETTER


Imagine a country (Ané Kotzé)

Imagine a country
Where men and women ruled side by side
Where the only thing a child ran away from, is his friend in a game of hide and seek
Where the bare necessity is not to survive, but to enjoy life

Imagine a country
Where the only distinction between light and dark was that of night and day
Where the biggest fight is to accommodate sameness
Where similarity is sin, and diversity, triumph

Imagine a country
The same as the one that you are living in now
Where human rights are not a right, but a way of living

Imagine this country
Achieving what it is made to achieve by law and history
Imagine you. Making that happen.

We dedicate this issue to our country and its human rights, and you for making it happen.

Enjoy the read!
JJR Inc. Team

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DISCRIMINATION WHILE SEEKING EMPLOYMENT
Did you unfairly miss out on your dream job because of your HIV status?


– Helena van der Nest

‘My bags are packed, I`m ready to go’ you sing… You imagine yourself at the top of the Eiffel Tower and can almost taste the bubbly on the Champs-Élysées when one phone call brings your daydream to a screeching halt and you are back on Stanza Bopape in Pretoria. You are informed that although you had passed the first four gruelling rounds, your application for your dream job as an air hostess, with the salary which was supposed to whisk you off to Paris, was not successful due to your HIV status. They mention something about the company’s HIV-testing employment policy.

Is an employer entitled to have an HIV-testing employment policy and can an employer discriminate against an employee on the basis of his / or her HIV status?

There are three different categories of HIV-related discrimination at the workplace1, namely:

1. Discrimination while seeking employment;
2. Limited opportunities while employed; and
3. Dismissal from employment.

Discrimination in the first category will include cases where a prospective employer requires an HIV test before appointing or considering a potential employee for a position.

The Code of Good Practice2 issued in terms of the Employment Equity Act3 prohibits an employer to require an employee or an applicant for employment to undertake medical testing in order to ascertain the employee’s HIV status4. Employers may however approach the Labour Court to obtain authorisation for such testing5. The testing will only be granted if legislation permits or requires the testing or if the testing is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits, or the inherent requirements of a job6.

In a Constitutional Court case7 regarding pre-employment HIV-testing, the court had to decide whether an HIV-testing employment policy of South African Airways was justified. Mr. Hoffman applied for a position as cabin attendant at SAA, was selected as a suitable candidate for appointment (after a four-stage selection process), but at the end was rejected because of his HIV positive status.

SAA stated that in terms of their employment policy, no person who is HIV positive can work as a cabin attendant and further justified the policy on safety, medical and operational grounds. SAA asserted that its flight crew had to be fit to travel world-wide and must be vaccinated when flying to certain countries, with for instance yellow fever endemic. SAA proclaimed that HIV-positive people may react negatively to this vaccine and may therefore not take it. If they do not take the vaccination they will be at risk of contracting the yellow fever and also possibly transmitting it to fellow cabin crew members or passengers. It was further argued that HIV-positive persons are also prone to contracting opportunistic diseases, which can then also be transmitted to others, including passengers. If they were ill with these diseases they would not be able to perform all their duties, for instance emergency and safety procedures.8

The Constitutional Court found that, based on the medical evidence, an asymptomatic immunocompetent9 HIV-positive person could indeed perform the work of a cabin attendant completely and that any hazards to which an immunocompetent cabin attendant may be exposed to, could be managed by counselling, monitoring, vaccination and the administration of the appropriate antibiotic prophylaxis if necessary. The court further found that the risk to passengers and others are therefore inconsequential, and if necessary, well-established universal precautions can be utilised.10

The Constitutional Court found in favour of Mr. Hoffman and ruled that the refusal by SAA to employ Mr. Hoffman as a cabin attendant because he was HIV positive violated his right to equality, guaranteed by section 9 of the Constitution.11

Do not let anyone stand in the way of your dream job…remember you’ve got the Constitution on your side. “Paris, here I come!”

1 Southern African Litigation Centre (SALC) Litigation Manual Series, Equal rights for all: Litigating cases of HIV-related discrimination, 2011.
2 The Code of Good Practice on Key Aspects of HIV/AIDS and Employment is accessible at http://www.labourguide.co.za/general/387-code-of-good-practice-on-aspects-of-hivaids-employment
3 Act 55 of 1998.
4 Clause 7.1 of the Code of Good Practice.
5 Section 7 and 50(4) of the Employment Equity Act, 55 of 1998.
6 Section 7(1) of the Employment Equity Act, 55 of 1998.
7 Hoffmann v South African Airways 2001 SA 1 (CC).
8 Hoffman v South African Airways 2001 1 SA 1 (CC) para 7.
9 Asymptomatic immunocompetent stage: this stage 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.
10 Hoffman v South African Airways 2001 1 SA 1 (CC) para 15.
11 Hoffman v South African Airways 2001 1 SA 1 (CC) para 41.

FREEDOM OF EXPRESSION VERSUS HATE SPEECH


– Karolien van Wyk

“Free expression is the base of human rights, the root of human nature and the mother of truth. To kill free speech is to insult human rights, to stifle human nature and to suppress truth.” Lui Xiaobo (Chinese writer, critic and philosopher)

Earlier the year we had the saga of Penny Sparrow who commented on social media with regards to the state the beaches of Durban was after the New Year celebrations and she alleged that it was because of “these monkeys”. She felt the backlash and there were people who felt she had incited hate speech. On the flip side of the coin, Gareth Cliff uttered on social media that we have a right to freedom of speech and his contract with Mnet was subsequently terminated.

In the Constitution of South Africa, the right to freedom of expression is enshrined in section 16 of the Bill of Rights and reads as follows:
“(1) Everyone has the right to freedom of expression, which includes—

(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.”

But this is not an unqualified right and sub paragraph 2 of the same section qualifies it on the following manners:
“(2) The right in subsection (1) does not extend to—

(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”

Hate speech is not formally defined in our current legislation and we look to the Constitution, International Legislation as well as the he Promotion of Equality and Prevention of Unfair Discrimination for guidance. Section 10 of the so-called “Equality Act” reads as follows:
“Subject to the provision in section 12, no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to;
(a) Be hurtful;
(b) Be harmful or to incite harm;
(c) Promote or propagate hatred.”

In 2013 The Freedom of Expression Institute in association with the RAITH Foundation suggested the following definition of hate speech: “the concept of hate speech makes reference to speech that attacks the persons or group to whom it is targeted on the basis of “racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to cause harm” among other things.”

Currently in South Africa we are experiencing problems weighing up freedom of speech versus the right to be protected against hate speech. A balance needs to be found when exercising one’s right to freedom of speech, which sometimes will shock and offend, but that one does it in such a manner as not to incite hate speech.

There has not been sufficient case law on the matter of freedom of speech versus hate speech, but the leading case currently is Afri-Forum and Another v Malema2 where Justice Collin Lamont found that the controversial song sang by Julius Malema that translates to “shoot the Boer/farmer, shoot the Boers/farmers they are rapists” was hate speech regardless of the historic significance of the song.

Our legislation should be developed in this regard so that there can be clarity on hate speech and freedom of expression.

Should you feel that your human rights that are protected in the Bill of Rights have been infringed on, you can lay a complaint at the South African Human Rights commission who will then adjudicate on the matter. You can also further go the Equality Courts or even the High Courts of South Africa.

1 Act 4 of 2000
2 2011 (6) SA 240

THE ABC’S OF LAND CLAIMS IN SA


– HJD Robertson

In order to be successful with a land claim, two sets of requirements are relevant: (1) a formal set and (2) a legal set of requirements. The first requires that no just and equitable compensation had already been paid and contains a cut-off date. The latter requires dispossession to have taken place after 19 June 1913 as a result of racially discriminatory law or practices. Then only can the basis upon which the claim has been brought, be considered. But what is a land claim?

Land Claim: A land claim is a written request made by a person, a direct descendant of a person, an estate or a community for the return of land, rights in land or other equitable redress that has been lodged with the Commission of Restitution of Land Rights in the prescribed manner. So, how can one lodge a claim?

Who may lodge a claim: A person or a community who was dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices, and who did not receive just and equitable compensation at the time of dispossession, can claim for restitution of that right in land or equitable redress.

Basis of the claim: Section 2 of the Restitution of Land Rights Act (herein after referred to as “the Act”) provides for the basis upon which a person may be entitled to restitution of land.

Section 2(1)(c):
From the Ex Parte Mayibuye: In Re Sub 121, Farm Trekboer1 it is clear that the legislature had no intention to include any other family member but these who expressly mentioned in the Act as being of direct decent of the initial possessor of the land in question.

Section 2(1)(d):
This section refers to the claim for land being brought on behalf of the “community

In Richtersveld Community v Alexkor2 the court held that individual members of the community are not allowed to institute land claims in their personal capacity or reject agreements made by the communal property association on behalf of its members. Further the court decided that there must be a group of persons who have rights to land, which are derived from shared rules determining access to land and which are held in common by the group.3

Racial Discrimination
The Constitutional Court in Pretoria City v Walker4 ruled that dispossession was based on “indirect racial discrimination”, yet the matter was dismissed as an additional requirement was not complied with, namely the inhabitants must be sufficiently civilised and the colonial government for this reason did not regard the land as terra nullius (no man’s land).

The recent Constitutional Court decision of Popela Community v Department of Land Affairs and Goedgelegen Tropical Fruits5 interpreted what racial discrimination in respect of a land claim means. The court found that a “reasonable connection” between the overarching grid of discriminatory laws and the resulting dispossession, would analogous with the legislature’s intention.

Suggested solution to an equitable outcome:
In the Florence v Government of the Republic of South-Africa6 case of 2014 the Constitutional Court found an equitable redress in the form of financial compensation, as well as the erection of a memorial plaque. A further R10 000.00 was awarded in recognition of the emotional hardship and trauma of a forced removal and in acknowledgement of the family’s dignity and worth.

1 1998 (4) All SA 604 (LCC) p. 612.
2 2001 (3) SA 129 at para 67.
3 Pienaar G. The meaning of the concept community in South African Land tenure legislation. STELL LR 2005 (1) p. 60 to 76.
4 1998 (2) SA 363 (CC) para 104.
5 Case number 50/00 CC.
6 2014 (10) BCLR 1137 (CC)

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This newsletter is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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