According to section 9, entitled “Equality”. It says:
“(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”
This section leaves no doubt that no unfair discrimination based on any feature of sexual orientation will be tolerated.
When it comes to healthcare, food, water and social security rights, in section 27, it says:
- Everyone has the right to have access to:
- healthcare services, including reproductive healthcare;
- sufficient food and water; and
- social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.
- The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.
- No one may be refused emergency medical treatment.
The Constitution of South Africa protects the rights of people living with HIV. It doesn’t allow discrimination and protects people’s right to privacy and confidentiality. In South Africa, there aren’t any laws that force people to tell others about their HIV status. People who do test positive should tell their partner, so that they can be protected and also have an HIV test. People with HIV or AIDS in South Africa are protected by the Bill of Rights and have the same rights which protect all citizens.
- There can be no discrimination against anyone who has HIV or AIDS
- They have the right to medical treatment and care from the health and welfare services
- Children with HIV are allowed to attend any school
- No one can be fired from a job just because they are HIV-positive
- No one can be forced to have an HIV test before getting a job or while at work
- Test results cannot be shown to anyone else without the permission of the person who had the test
- Pregnant women with HIV have the right to make a choice about their pregnancy
The Basic Rights of people living with HIV/AIDS
People living with HIV infection and AIDS should have the same basic rights and responsibilities as those which apply to all citizens of the country.
- They are not allowed to be separated, isolated or quarantined in prisons, schools, hospitals or anywhere else because of their HIV-positive status.
- People with HIV infection or AIDS are entitled to make their own decisions about matters that affect their marriage and having children. Counselling about the consequences of their decisions should be provided.
- No person may be tested for HIV infection without his or her consent beforehand.
- In all other cases – such as HIV testing for research purposes or when a person’s blood will be screened because he or she is a blood donor – the informed consent of the individual is required legally.
- Where an existing blood sample is available, and an emergency situation necessitates testing the source patient’s blood (e.g. when a health care worker has been put at risk because of an accident such as a needle stick injury), HIV testing may be undertaken without informed consent. This can only happen after telling the patient that the test will be performed and assuring them that the results will be confidential.
- If an existing blood sample isn’t available for testing in an emergency situation, the patient must give his or her informed consent for blood to be drawn for the HIV test to be done.
- Routine testing of a person for HIV infection for the perceived purpose of protecting a health care professional from infection isn’t allowed.
- A parent or guardian of a child below the age of consent to medical treatment may give consent to HIV testing of the child.
- Informed consent (the person has been made aware of and understands the implications of the test) is compulsory before HIV testing may be carried out.
- The person should be free to make his or her own decision about whether to be tested or not, and may in no way be forced into being tested.
- Pre-test counselling should occur before an HIV test is undertaken.
- Post-test HIV counselling should take place when the person is about to receive their results.
- People with HIV and AIDS have the right to confidentiality and privacy about their health and HIV status.
- Information about a person’s HIV status may not be disclosed to anybody without that person’s fully informed consent.
- After death, the HIV status of the deceased person may not be disclosed to anybody without the consent of his or her family or partner – except when required by law.
- People with HIV/AIDS have the same rights to housing, food, social security, medical assistance and welfare as all other members of our society.
- Medical schemes may not discriminate against any person on the basis of his or her state of health.
- People have a moral and legal obligation to tell their sex partners if they are HIV positive.
- Insurance companies may not unfairly refuse to provide an insurance policy to any person solely on the basis of HIV/AIDS status.
- All people have the right to proper education and full information about HIV and AIDS and how to prevent it.
The Basic Rights of people living with HIV/AIDS in the Workplace
- Employers may not discriminate against HIV-positive employees or victimise them in any way.
- No person may unfairly discriminate against an employee in any employment policy or practice (e.g. recruitment, appointment, remuneration, training and development, promotion, transfer and dismissal) on the grounds of his or her HIV status.
- People who are infected with HIV must by law receive the same benefits (in all matters affecting sick leave, disability, medical aid, pension funds and death) that are applicable to members who are not infected with HIV.
- Employers are not allowed to request employees and applicants for employment to go for an HIV test unless an employer can prove that testing is a necessary requirement of the job for example in the case of nurses or doctors.
- No HIV-positive employee has to disclose his/her HIV status to his/her employer.
- Employers are not allowed to dismiss (demote or transfer) HIV-infected employees on the basis of their HIV status alone provided that they are otherwise qualified to do the job and provided that they are able to work.
- The law requires employers to make reasonable accommodations such as flexible working hours, rest periods, adapted duties, or extended sick pay with reduced (or no) pay, to help employees who are incapacitated on the grounds of ill health to keep their jobs.
- Information and education on HIV and AIDS, as well as access to counselling and referral, should be provided in the workplace.
Read the full version of the Constitution of South Africa here.
The constitution in all our other official languages.