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1.INTRODUCTION

1.1 The South African Law Commission has been investigating reform of the law affecting AIDS and HIV since 1993. Since then a discussion document (Working Paper 58) was published for general information and comment during 1995. A reconstituted project committee - assisting the Commission in resolving differences of opinion between interest groups reflected in the comments received on Working Paper 58 and in developing final recommendations - decided to adopt an incremental approach to this large and difficult task.

1.2 The Commission has already adopted the committee's first interim report (dealing with condom standards; incorporating universal infection control measures in occupational safety regulations; limiting the use of non-disposable syringes; implementing a national policy on HIV testing; and descheduling AIDS from mandatory coercive measures authorised by regulation). The report was tabled in Parliament on 28 August 1997.

1.3 In the current interim report, the Commission addresses the question whether statutory intervention to prohibit pre-employment testing for HIV is warranted.

1.4 Preliminary proposals regarding this issue were included in a discussion paper (Discussion Paper 72) published for comment during June 1997. Written comments were received from 65 respondents. (A list of commentators is attached as ANNEXURE A.) Although respondents were divided on the issue of prohibiting and regulating pre-employment HIV testing, the majority supported the principle of no pre-employment HIV testing as formulated by the project committee, as well as the statutory enactment of a prohibition as proposed in the Discussion Paper. This formulation included an escape clause to allow for HIV testing of an applicant for employment where such testing is reasonably, justifiably and rationally warranted.

1.5 Comments on Discussion Paper 72 are integrated extensively in the interim report. Comments on the principles proposed and on the terms of the proposed Bill to prohibit HIV testing are discussed separately in Chapter 7 and are evaluated in Chapter 8.

1.6 The comments received, and a suggestion by the Department of Labour (supporting the preliminary recommendations) that a statutory intervention on pre-employment HIV testing be compatible with present and prospective labour legislation and should preferably be included in the Department's proposed Employment Equity Bill, led to the further development of the preliminary proposals. The Commission has collaborated closely with the Department of Labour on the formulation of such inclusion in the 14th Draft of the Employment Equity Bill which has been submitted for Cabinet approval in November 1997. Since the final formulation of this Bill is subject to the parliamentary process, the Commission accepts certain principles for legislative intervention regarding pre-employment HIV testing in this report, embodies these principles in draft legislation (ANNEXURE B), but in addition offers comment on the 14th Draft of the Employment Equity Bill. However, a final recommendation on any specific legislative option for realising the principles accepted, is not made at this stage. If necessary, this interim report will be followed up by a final report on pre-employment HIV testing.

1.7 After completion of this report and before the Commission finally adopted the report on 17 April 1998, the Department of Labour published the Employment Equity Bill under General Notice 1840 of 1997 in Government Gazette No 18481 of 1 December 1997. The Bill published in the Government Gazette corresponds with the 14^th Draft of the Bill (attached as ANNEXURE C) and accommodates the recommendations in principle as set out in Chapter 8 of this report. However, the published Bill contains the following relevant editorial changes: additional clauses were inserted between clause 37 and clause 38, and clause 52 and 53 respectively, with a resultant change in numbering of certain clauses referred to in Chapter 8. In addition, the definition of medical "testing" in clause 59 of the 14^th Draft has been adapted (refer to clause 61 of the re-numbered and published Bill).

1.8 It is to be noted that this interim report deals only with the issue of HIV testing in the workplace. Subsequent interim reports will deal with other matters identified for reform.