The Dignity Jurisprudence of the Constitutional Court of South Africa: Cases and Materials, Volumes I & II

Hoffmann

Hoffmann v. South African Airways  () SA  (CC) CASE SUMMARY Facts Mr. Hoffmann applied for a position as a cabin attendant with South African Airways (SAA). After successfully making it through the four-stage selection process, he was considered a suitable candidate. His employment, however, was subject to a medical examination. That battery of tests encompassed an HIV test. The medical examination showed that he was clinically fit and suitable to be a cabin attendant; the blood test showed that he was HIV-positive. Based upon the positive test for HIV alone, SAA decided that Hoffmann could not be employed as a cabin attendant. Hoffmann approached the High Court for an order directing SAA to employ him as a cabin attendant: their refusal to do so, on his account, constituted a violation of his rights to equality, dignity, and fair labor practices. SAA attempted to justify its decision on the grounds that all its cabin crew had to be fit for worldwide duty. As Mr. Hoffmann was HIV-positive, he could not receive a number of vaccinations necessary to enter some countries (for example, yellow fever). SAA also contended that Hoffmann’s condition raised the specter of contracting opportunistic diseases and transmitting them to fellow employees and passengers. Hoffmann Legal History The Witwatersrand Local Division of the High Court was persuaded by the arguments of SAA and dismissed Mr. Hoffmann’s application. The Constitutional Court then granted Mr. Hoffmann leave to appeal directly. Issues Two questions had to be answered: Was the SAA’s employment practice inconsistent with any provision of the Bill of Rights? And if so, what right had been violated and what remedy would constitute appropriate relief? Decision of the Constitutional Court On appeal, extensive medical evidence of the nature and the effect of HIV was presented by the Aids Law Project (acting as amicus curiae.) The evidence demonstrated that an asymptomatic HIV-positive person can perform the work of a cabin attendant competently and that the risks to passengers and other third parties arising from an asymptomatic HIV-positive cabin crew member are inconsequential. If necessary, then well-established precautions could be utilized. The evidence also showed that HIV-positive persons may be vaccinated against yellow fever as long as their CD+ count remains above a certain level. Justice Ngcobo, for a unanimous court, held that it was clear that Mr. Hoffmann had been subject to unfair discrimination (paragraph ). He held that while the commercial interests of SAA were important, employment practices based upon prejudice and ignorance could not justify discrimination (paragraph ), and that the refusal to employ Mr. Hoffmann impaired his dignity and unfairly discriminated against him. As there was no law of general application, the discriminatory policy could not be justified in terms of section  of the Constitution. Order Justice Ngcobo held that the appropriate remedy was Mr. Hoffmann’s instatement as an SAA cabin crew member. Comment Is the court correct in finding that only SAA’s conduct—and no law—is responsible for the unfair discrimination and the impairment of dignity? Is it not true that on the Hohfeldian account a rule of law would always have allowed a court to dispose of a matter one way or another? That is, isn’t there always a rule of law upon which a party in a dispute seeks to rely? Why are the dignity-as-freedom interests relied on in Barkhuizen not mentioned in the contractual setting of Hoffmann?  Hoffmann JUSTICE NGCOBO [] This appeal concerns the constitutionality of South African 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? [] 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) various constitutional grounds. The High Court issued a positive certificate and this court granted him leave to appeal directly to it. [] The appellant challenged the constitutionality of the refusal to employ him in the High Court, alleging that the refusal constituted unfair discrimination and violated his constitutional right to equality, human dignity and fair...