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2.1 AIDS is an acronym for "acquired immune deficiency syndrome".[1] It is the clinical definition given to the onset of certain life-threatening infections in persons whose immune systems have ceased to function properly.[2] The condition is "acquired" in the sense that it is not hereditary. AIDS, it is generally accepted, is caused by the human immunodeficiency virus (HIV) which, over a period of years (five to twelve or more) inhibits the cells that usually fight infection.[3] HIV attacks and destroys the body's immune system. The body's natural defence mechanism consequently cannot offer resistance to conditions that usually do not involve danger to healthy people. AIDS is a syndrome of symptoms. It is not a specific disease. It is a collection of several conditions that occur as a result of damage the virus causes to the immune system. Persons thus do not die of AIDS. They die of one or more diseases or infections (pneumonia, tuberculosis or certain cancers) that are "opportunistic" because they attack the body when immunity is low. AIDS can therefore be defined as a syndrome of opportunistic diseases, infections and cancers that eventually cause a person's death.
2.2 The genetic material of HIV ("human immunodeficiency virus") becomes a permanent part of the DNA[4] (the genetic material of all living cells and of certain viruses) of the infected individual. The result is that a person who acquires HIV remains infected for the rest of his or her life (and can therefore transmit the virus to others).
2.3 Infection with HIV does not necessarily entail that a person is sick. A person with HIV can remain otherwise healthy and without symptoms for a number of years.[5] He or she can live without notice of infection. HIV infection during this period is called asymptomatic infection.[6] During asymptomatic infection, a person is capable of performing all of his or her daily activities, and can thus lead a full and productive life.[7] Such a person does not have AIDS. A person has AIDS only when he or she becomes ill as a result of one or more opportunistic illnesses. AIDS is the final clinical stage of HIV infection.[8] In this interim report, the Commission's frame or reference, unless otherwise stated, is otherwise healthy persons with HIV. The essential relevant feature in the case of such persons is that they are still capable of productive employment, and may remain so for a number of years.[9]
2.4 As soon as a person is infected with HIV he or she is able to transmit the infection irrespective of whether symptoms exist. HIV has been identified in blood, semen, vaginal discharge, mother's milk, the brain, bone-marrow, cerebrospinal fluid, urine, tears, foetal material and saliva. However, it is likely that only blood, semen, vaginal discharge and mother's milk contain a sufficient concentration of HIV to make transmission possible. But HIV is not easily transmitted. Transmission can occur only through specific and limited routes: through sexual intercourse; from mother to infant through birth or breast feeding; and through exposure to infected blood products and bodily fluids.[10]
2.5 There is thus no risk of HIV transmission from casual contact in a normal work environment.[11] It cannot be transmitted by air or casual contact. It cannot be transmitted through food preparation, on toilet seats, or in any ordinary workplace. Measures, in the form of universal precautions and other prophylactic measures, in any event necessary to prevent the occupational transmission (that is transmission where the nature of the work is such that exposure to infected blood or organs is possible in the course of the work) of other infections such as hepatitis B (which are frequently more infectious, and as dangerous), prevent the transmission of HIV.[12]
2.6 At present no scientific evidence exists that HIV can be transmitted through any other mode than the following:
2.7 To infect a person, HIV must reach the lymphatic system. The virus therefore cannot be spread by forms of personal contact other than those described above. Outside the human body and especially outside body fluids, HIV has an extremely limited life span of a few seconds only.[14] The virus is also destroyed by disinfectant.[15]
2.8 Not every person exposed to HIV becomes infected. Similarly, it is possible that not every person who is infected with HIV eventually develops AIDS. Scientists are as yet uncertain of the precise position. There is apparently reasonable consensus that 45-50% of infected persons will develop AIDS after 10 years. It has also been estimated that between 65-100% of infected persons will develop the disease within 16 years.[16]
2.9 The course of HIV infection is generally divided into four different stages: the acute or initial phase; the asymptomatic phase; the third phase (during which less serious opportunistic diseases occur); and the final phase, during which the patient has full-blown or clinical AIDS.
* Initial phase: preceding seroconversion
2.10 The initial phase begins very shortly after a person's infection with HIV has occurred. Symptoms that present are similar to those of influenza (fever, night sweats, headaches, muscular pain, skin rashes and swollen glands). This phase continues until seroconversion occurs (when antibodies develop in the subject's blood in an ineffective attempt to protect the body against HIV). Seroconversion takes place on average six to twelve weeks after exposure (in exceptional cases even later). The period between infection and seroconversion is known as the "window period". Blood tests generally used to determine whether a person has been infected with HIV cannot trace HIV itself, but react to the presence of antibodies. The fact that antibodies are formed only after a lapse of time entails that blood tests conducted during the window period may deliver false negative (seronegative) results. Where antibodies have not yet developed, the blood test for antibodies will be negative in spite of infection. During the window period an infected person can transmit HIV, but will not test positive (seropositive) for the virus.[17]
* Second phase: asymptomatic seropositivity
2.11 During this phase the person is infected with HIV; antibodies have already developed and will be indicated by antibody tests from this stage onwards; but he or she shows no symptoms of illness. However, the body's resistance and immune response are slowly being impaired. This second phase can continue for many years while the infected person remains otherwise healthy and is capable of productive employment. In this phase infected persons are often not aware that they have HIV; they can therefore transmit the virus unknowingly to others.
* Third phase: AIDS-related symptoms
2.12 This phase (referred to in the past as "AIDS-related complex" [ARC]) can also continue for several years. Symptoms of the opportunistic diseases that cause death in the final phase now occur.[18] These include swelling of the lymph glands in the neck, groin and armpits as well as drastic loss of body weight, thrush and chronic diarrhoea.
* Final phase: clinical AIDS
2.13 Only during the final phase can a person be said to have AIDS. As a result of the compromised immunological response because of the HIV infection, a person during this stage is prone to infections by organisms that normally are present but do not cause disease in otherwise healthy and uninfected persons. This type of infection is referred to as opportunistic infection. In this phase such a person's body is no longer capable of withstanding opportunistic diseases, the symptoms of which were observed in the preceding phase. Unless effectively treated the person may no longer be able to work productively. He or she usually dies within two years as a result of these diseases.
2.14.1 Diseases that generally occur are pneumonia, tuberculosis and Kaposi's sarcoma (a rare type of skin cancer). Neurological and psychiatric disorders (known as AIDS dementia) may also occur in this final phase (and in rare cases may occur also earlier).[19] Symptomatic presentation differs from continent to continent. The most important opportunistic diseases in Africa are tuberculosis and chronic diarrhoea. A form of pneumonia (caused by Pneumocystis carinii [PCP]) is responsible for the majority of deaths among persons with AIDS in Europe and North America.[20] The disease conditions from which people with AIDS suffer are generally not transmissible. Persons with AIDS usually pose no threat of infecting others with opportunistic diseases as opposed to the transmission of HIV itself. A notable exception is untreated tuberculosis. Tuberculosis is transmissible in itself.[21] It is thus important that patients with pulmonary tuberculosis be on treatment before being allowed back into the workplace so as not to expose others to active disease.[22]
2.14 The course of HIV infection varies from person to person. The period before sero-conversion can last on average from six to twelve weeks. The average duration in Africa of the asymptomatic phase is estimated to be seven years, and it is generally accepted that the average period of time from infection with HIV until full-blown AIDS develops is less than 10 years. The final phase lasts on average from one to two years. However, the life expectancy of persons with HIV differs according to their general state of health, their living conditions, available health services and treatment, and the opportunistic disease in question. Although the course of the disease follows the same overall pattern in developed and developing countries, the period between becoming infected and death is much shorter in the latter. This can probably be ascribed to the prevalence of endemic diseases (for instance tuberculosis) and to a lack of adequate medical treatment.[23] In South Africa, severe poverty and malnutrition could possibly be included as reasons why patients with HIV have a shortened life expectancy.[24]
2.15 Not all persons with HIV go through all four phases. Some do not even show symptoms before they develop clinical AIDS (the final phase). During periods of symptomatic infection, a person with HIV may be able to live and work actively, but may experience fatigue or brief periods of illness.[25] In the typical course of the disease, the window period, the long asymptomatic phase and the possible occurrence of AIDS dementia in particular have implications for employment law.
2.16 New treatments are currently being developed that extend the life expectancy of people with HIV and AIDS.[26] Many of these are expensive.[27] Not enough is yet known about their long term efficacy. There is some hope that HIV and AIDS may eventually, for those who can afford treatment, become manageable in ways similar to diabetes, epilepsy, and heart disease.[28]
2.17 The most general manner in which it can currently be determined whether a person is infected with HIV is by blood tests for the presence of antibodies to HIV. Although available, blood tests to detect HIV itself (in contradistinction to the test for antibodies) are not at present generally used in the public sector.[30]
2.18 The blood tests that have been used throughout the world since 1985 to detect the presence of HIV antibodies are the enzyme-linked immunosorbent assay (ELISA) and the Western Blot (WB) tests.[31] The ELISA test for HIV antibodies is very sensitive and reacts beyond the window period positively to nearly any infection. Because of its high sensitivity, a single test can deliver a false positive result. For this reason it is necessary to carry out a second, more specific, test to confirm HIV positivity. It is also advisable to perform the tests on a second, different, blood specimen. The WB test, which is such a more specific test, is traditionally used to confirm an initial positive test. However, the WB is expensive[32] and can therefore not always be used in practice. Different types of ELISA tests with a higher degree of specificity have consequently been developed and the World Health Organisation (WHO) has compiled guidelines which indicate the circumstances under which multiple (different types of) ELISA tests will suffice in order to establish HIV infection.[33] South Africa has accepted the WHO recommendations to diagnose HIV infection with at least two positive ELISA test results.[34] The City of Cape Town Health Department has noted in comments on Discussion Paper 72 that employers may also utilise a variety of "over the counter" kits for testing and that legislation ought to control the sale and use of these kits.
2.19 The result of a blood test to detect HIV antibodies can be available within approximately 24 to 48 hours after the blood sample is taken.[35]
2.20 Currently a positive HIV antibody test means that the person concerned is infected with HIV, will remain infected for life, and can infect other persons. The ELISA and WB tests do not indicate the stage of infection which the person tested has reached. A negative HIV antibody test means that no antibodies against HIV have been traced in the blood of the person concerned. This could mean that the person is not infected. But it could mean merely that antibodies to the virus have not yet developed[36] and thus he or she is infected but is in the window period. To obtain a reliable result such a person will after a period of time have to be tested for HIV again.[37]
2.21 It is alleged that where the standard test procedure (an ELISA test followed by one or more confirmatory tests) is followed, a correct result will be obtained in more than 99% of HIV infections.[38] New tests are available that test for HIV itself, rather than antibodies to the virus.[39] These may shorten the window period to about 16 days.[40] In addition, some of these tests (for instance viral load tests[41]) may more accurately predict future health status.[42] However, because of their cost they are not yet recommended for general use.[43] Tests which detect HIV in the urine, and saliva may be less sensitive than tests on blood. The polimerase chain reaction technique (internationally known as the PCR), which detects the virus itself in the blood, is also available. It is however, complicated and difficult to execute and is thus only performed in specialised or reference laboratories.[44] PCR may reduce the window period to 11 days.[45]
2.22 A person may voluntarily request HIV testing for a variety of reasons: to determine health status and make life decisions accordingly, and to ensure appropriate therapeutic intervention. (In countries with high HIV prevalence and limited financial resources HIV testing may not be indicated since it is not financially possible to provide appropriate treatment.) A person may also need an HIV test to obtain insurance coverage or health care or because a seronegative test is a precondition for employment. It is therefore clinically recommended to test for HIV only in limited situations, such as when the result could change diagnostic procedures and treatment itself.[46] Some commentators argued that because HIV testing is used very conservatively in South Africa we are unable to manage the epidemic or motivate the government regarding the seriousness of the situation.[47]
2.23 An employer may seek to test applicants for employment for a variety of reasons. These may include the desire to limit costs of recruitment and training, to prevent occupational transmission, to protect workers with HIV from opportunistic infections or strenuous work, to limit illness-related declines in productivity, and to protect benefit pools.[48]
2.24 No reliable statistics on the incidence of AIDS itself, or of AIDS-related deaths, appear to be available. However, the prevalence of HIV can be projected from studies conducted at antenatal clinics of the public health services in South Africa. Between 1995 and 1996 the HIV prevalence rate at antenatal clinics increased by 35,7% from 10,44% to 14,17%.[49] When these figures are extrapolated, estimates are that roughly 6% of the total population or 11% of the adult (i e sexually active) population (compared to 4,3% of the total population or 7,8% of the adult population in 1995[50]) is infected.[51] The Department of Health has estimated that approximately 2,4 million adults were infected with HIV at the end of 1996.[52] The latest survey, reflecting the same pattern as seen before, shows that in all age groups under 45, HIV prevalence has increased since 1995 with women in their twenties becoming infected at the highest rate (between 15,33% and 17,74%).[53] Seroprevalence rates for the sexually active population in KwaZulu-Natal and Mpumalanga were already above 15 percent at the end of 1995.[54] The greatest single increase in prevalence was North West Province where a three-fold increase (from 8,3% to 25,13%) was found.[55]
2.25 Although the overall rate of increase has slowed down, the latest figures show that the HIV epidemic in South Africa is still growing.[56] According to experts this can be expected as the epidemic starts approaching its mature phase.[57] Although the epidemic continues, the rate of growth is no longer exponential.
2.26 Although HIV cannot be transmitted casually, and transmission in the workplace is unlikely,[58] AIDS and HIV will nevertheless have a dramatic effect on the workplace and on the economy in general. Because many of those affected are economically active, AIDS and HIV will have a significant impact on investment in training, cost of labour, and productivity.[59] The Actuarial Society of South Africa in comments on Discussion Paper 72 stated that it is clear that the HIV/AIDS epidemic is having, and will continue to have, a material impact on the productive capacity of the South African economy. This was supported in comments by the South African Chamber of Business (SACOB), the Afrikaanse Handelsinstituut (AHI) and the Chamber of Mines of South Africa.
2.27 Through the premature death and illness of economically active persons, AIDS will affect the productivity of workplaces, increase production costs, and might reduce national output.[60] The brunt of the illness is likely to be borne by the economically active population.[61] Labour productivity will decrease as employees become sick, and as skilled or experienced staff die.
2.28 In addition to loss of labour directly attributable to the disease, the productivity of seronegative individuals may decrease because of demand for their time in caring for and supporting sick spouses, dependants and other family members.[62] The costs of additional benefits, re-training, and possible depletion of workplace morale will have to be borne. Whiteside states that in Kenya the epidemic has cost private employers between 3% and 8% of company profits.[63] A large portion of this was due to absenteeism. In addition, there were costs of lower productivity and the loss of experienced staff. Doyle in addition projects that the epidemic may significantly raise the costs of employee benefits.[64] The greatest costs created by HIV may thus not be the costs of providing health care, preventing infection, or creating a cure. The largest component of costs appears likely to be that attributable to lost income and production.[65]
2.29 The scale of the epidemic will in any event impose some unavoidable costs. The epidemic will affect all workplaces. Given the current incidence of HIV (measured in the rate of daily new infections), new infections will occur amongst those already employed as well as those applying for jobs.
2.30 Nearly all experts agree that preventing HIV transmission is the most effective way to curtail its costs to the economy.[66] Employers and employee organisations can reduce the impact of the epidemic on the workplace by educating employees about HIV, and helping employees prevent HIV transmission.[67] This was confirmed in comments by the Chamber of Mines of South Africa.
2.31 Despite a widely accepted point of view that pre-employment testing is ineffective at eliminating HIV from the workplace, there are reports of pre-employment testing of applicants for employment in the public and private sectors.[68]
2.32 While reports vary, evidence suggests that a sizable number of private employers are subjecting job applicants to HIV tests and discriminating against those who test seropositive.[69] However, formal statistics do not exist. Enquiries by the project committee regarding the prevalence of pre-employment HIV testing elicited information on only one formal survey conducted in South Africa in the recent past.[70] In this survey (conducted in 1995) of 300 employers (overseeing about 350,000 employees) 18,1% admitted to pre-employment HIV testing. Of these, 30% conceded that the tests could not be described as voluntary.[71] A majority of employers surveyed said that they would discriminate against an applicant for employment (by allowing knowledge of HIV positivity to influence a decision to hire) if they knew that he or she had HIV.[72] In a follow-up of this survey, using a smaller sample of 93 employers and reaching the same varied geographical and economic locations, 36,1% of employers indicated that they test job applicants for HIV.[73] In both the survey and the follow-up several employers have cited the protection of benefit schemes as a main reason for testing applicants.[74] Further enquiries by the project committee during September 1997 to country-wide offices of the AIDS Training, Information and Counselling Centres (ATICCs) confirmed the ongoing practice of some employers to subject job applicants to pre-employment HIV testing. Independently of each other, the ATICCs invariably testified to recent experience with or assistance to prospective employees in this regard. The information supplied reflects that in particular contract workers in larger industries, prospective employees of smaller businesses, and domestic workers, are subjected to pre-employment HIV testing. It was emphasised by the ATICCs that domestic workers are frequently subjected to general medical examinations at the request of prospective employers. Frequently an HIV test forms part of a general medical examination by the employer's private practitioner, being performed under coercion or without knowledge.[75]
2.33 Apart from the private sector, three of the largest public employers - the Department of Correctional Services, the South African National Defence Force, and the South African Police Service - until recently tested applicants for employment for HIV.[76] These practices appear to have been discountenanced on 25 March 1997, when a cabinet committee announced a decision to prohibit pre-employment testing for HIV in public employment.[77] The South African Medical Service (within the South African National Defence Force) confirmed in its comment that it supports fully the principles enunciated in the cabinet memorandum. However, it has approached the Minister of Defence with suggested categories for exemption and is awaiting a final decision in this regard.
2.34 Despite widespread acceptance that the chance of a health care worker infecting a patient with HIV during routine procedures is negligible, and that universal precautions are the only way to prevent the transmission of blood-borne pathogens in the workplace,[78] many health care workers are apparently subjected to tests for HIV.[79]
2.35 A fundamental question posed by some opponents of a legislative prohibition on pre-employment HIV testing is whether pre-employment HIV testing with its possible costs is more likely than other methods of containment to prevent HIV transmission in the workplace and limit the costs of the epidemic.[80] And further, whether a legislative prohibition on pre-employment HIV testing has a role to play in reducing the spread of HIV.
2.36 The role of the law in the field of HIV/AIDS is undoubtedly complex. It has been said that in its approach to HIV/AIDS the law has to protect two conflicting interests: the law must recognise the right of the public to be protected against the disease and it must recognise the right of the individual not to be unfairly restricted because he or she is infected or perceived to be infected. Consequently the law must make some compromise which, while protecting the public health of the community, also protects the individual so that the individual will feel free to come forward for available treatment.[81] How is this compromise reached?
2.37 It has been accepted that the goal should be to link health and human rights to contribute to advancing human well-being beyond what could be achieved through an isolated health- or human rights-based approach.[82]
2.38 However, health and human rights have traditionally rarely been linked in an explicit manner. In seeking to fulfill its core functions and responsibilities (collection of data on important health problems in a population, developing policies to prevent and control priority health problems, and assuring services capable of realising policy goals) public health may unavoidably impact upon human rights. In the past, restrictions on human rights were often simply justified on the basis that they were necessary to protect public health. Indeed, public health has a long tradition, anchored in the history of infectious disease control, of limiting the "rights of the few" for the "good of the many".[83] Thus, public health approaches in combatting disease have been based upon erecting barriers between the healthy and the infected. This has resulted in coercive measures being used against individuals in an effort to limit the impact of an epidemic.[84]
2.38.1 In an HIV context barriers have been created in the form of both direct and indirect measures. Indirect measures have involved efforts to stop the spread of HIV through criminalising or discouraging conduct which can lead to further transmissions (by, for instance, criminalising homosexuality or sex work), whilst direct measures have included targeting the movement or conduct of persons known or presumed to have HIV (by, for instance, placing people in quarantine or requiring certain sectors of the population to undergo mandatory testing).[85] In the early stages of the epidemic many governments used various forms of these coercive public health measures in an attempt to contain the spread of the disease.
2.39 Unfortunately decisions to restrict human rights, supposedly based on public health considerations, have frequently been made in an uncritical, unsystematic and unscientific manner.[86] There is convincing evidence that the use of traditional public health measures involving coercion has failed to halt the rate of new HIV infections.[87]
2.39.1 A mandatory testing program of all federal prisoners in the United States introduced in May 1987 was scrapped six months later because the costs outweighed the benefits of testing: during the first three months of universal testing, 16, 372 prisoners were tested; only 3% were found to be positive. The universal testing program was replaced with a restricted programme that involved, inter alia, testing inmates who asked to be tested and those with clinical indications of HIV infection.[88]
2.39.2 A now-classic University of South Carolina (United States) study, presented at the Fourth International Conference on AIDS in Stockholm in 1988, charted changes in HIV testing patterns after South Carolina repealed anonymous HIV testing in 1986 and established mandatory name reporting. The number of gay men tested dropped by 51%. While the total number of people tested increased slightly, the overall rate of seropositivity among those being tested decreased by 43%. The study demonstrates that ending anonymous testing and requiring the reporting of names, serve to scare away from diagnostic information and health care those people at greatest risk.[89]
2.39.3 In January 1988 Illinois and Louisiana adopted mandatory premarital screening for HIV. During the first months of statutorily mandated premarital testing in Illinois only eight of 70 846 applicants for marriage licences were found to be seropositive. In the same period the number of marriage licences issued in Illinois decreased by 22,5%. But during this time the number of licences issued to Illinois residents in surrounding states increased significantly. Evaluation suggests that applicants for marriage licences with a history of previous or present risk behaviour may have left the state to avoid the test.[90] A documented study on compulsory pre-marital testing claimed that national mandatory premarital testing would not be a cost-effective way to slow HIV transmission and should not be implemented.[91] In this regard the claim that cost-effectiveness alone should warrant the rejection of mandatory testing was questioned, and the role of intrusion into privacy emphasised.[92] Both Illinois and Louisiana subsequently repealed their mandatory premarital testing laws.[93]
2.40 Therefore, the assumption that public health, as articulated through specific policies and programs, is an unalloyed public good that does not require consideration of human rights norms has come under considerable challenge.[94]
2.40.1 Contemporary thinking about optimal strategies for disease control has evolved significantly. Efforts to confront the most serious global health threats, including cancer, cardiovascular disease and other chronic diseases, injuries, reproductive health and infectious disease increasingly emphasise the role of personal behaviour within a broad social context.[95] Thus the traditional public health paradigm and concomitant strategies developed for diseases such as small pox, often involving coercive approaches and activities which may have burdened human rights, are accepted to be inapplicable in the context of HIV.
2.40.1.1 Studies undertaken indicate that HIV prevention and care programmes that were based on coercive measures resulted in reduced public participation and an increased alienation of those at risk of infection.[96] Since most HIV infection is spread through voluntary activities, both infected and uninfected individuals are themselves in the best position to slow the spread of the disease: "The spread of AIDS can be halted only by appealing to the rationality of human beings bent on personal survival ... The HIV virus is not easily transmitted - people can protect themselves from it. But they can protect themselves only by behaving in accordance with information targeted at safe behaviour and behaviour change".[97] If confidentiality, informed consent and non-discrimination are not guaranteed, individuals will not come forward for early counselling, testing and treatment. Instead they will remain outside of the public health services thus posing a greater risk to the community at large.[98] Finally, it has been said that the best approach to convince people to change their behaviour requires cooperation - not coercion.[99]
2.40.1.2 As Harms AJA stated in relation to the preservation of confidentiality in Jansen van Vuuren v Kruger[100] at 850B-D:
The reason for the rule is twofold: On the one hand it protects the privacy of the patient. On the other it performs a public interest function. This was recognised in X v Y and Others [1988] 2 All ER 648 (QB) at 653a-b where Rose J said: 'In the long run, preservation of confidentiality is the only way of securing public health; otherwise doctors will be discredited as a source of education, for future individual patients "will not come forward if doctors are going to squeal on them". Consequently, confidentiality is vital to secure public as well as private health, for unless those infected come forward they cannot be counselled and self-treatment does not provide the best care ...'
2.40.2 This finding reflects more generally the enhanced current understanding of the role of respect for human rights in the preservation of public health.
2.40.3 It has thus been recognised that health and human rights are complementary approaches to the central problem of defining and advancing human well-being. Modern concepts of health recognise that underlying "conditions" establish the foundation for realising physical, mental and social well-being. In the HIV/AIDS context the underlying reasons why some communities are more susceptible to the epidemic include developmental factors such as poverty, malnutrition, lack of legal protection, gender inequality and an absence of basic health care services. Therefore any successful public health approach to the epidemic has to recognise these vulnerability factors and deal with them.[101] This is particularly pertinent in assessing whether it is legitimate to deny an otherwise healthy person with HIV employment purely on the basis of the infection.
2.41 The idea that human rights and public health must inevitably conflict has thus been adjusted to recognise that they are complementary.[102] Specifically in the context of HIV/AIDS, new approaches have therefore been developed, seeking to maximise realisation of public health goals through simultaneously respecting and promoting human rights. HIV/AIDS is not unique in this regard. Efforts to harmonise health and human rights goals are clearly possible in other areas. At present an effort to identify human rights burdens created by public health policies, programs and practices, followed by negotiations towards an optimal balance whenever public health and human rights goals appear to conflict, is a necessary minimum.[103] An approach to realising health objectives that simultaneously promotes - or at least respects - rights and dignity is clearly desirable.
2.42 In practice it has been shown that non-discrimination is not only a human rights imperative but also a technically sound strategy for ensuring that persons with HIV are not driven underground, where they are inaccessible to education programmes and unavailable as credible bearers of AIDS prevention messages for their peers.[104] The effect of discrimination is also to alienate. People living with HIV are often members of already stigmatised groups who experience discrimination and who may suffer lower self-esteem and reduced motivation to make sustained and responsible behaviour change. Fear of discrimination is a significant impediment to persons coming forward for counselling, testing, support and treatment.[105] Therefore upholding human rights principles assists public health efforts to protect the health of the whole community in promoting the individual behaviour change necessary for a reduction in infection rates.
2.42.1 As Harms AJA held in Jansen van Vuuren v Kruger regarding special circumstances justifying the protection of confidentiality in the case of HIV and AIDS:[106]
By the very nature of the disease, it is essential that persons who are at risk should seek medical advice or treatment.
2.43 In the United Nations Guidelines on HIV/AIDS and Human Rights[107] (adopted March 1997) the shared goals of public health and human rights in the HIV/AIDS context are seen as -
2.44 In comments on Discussion Paper 72 this approach has been confirmed and the Commission has been reminded why, as part of public health, prevention, and care efforts, human rights must be protected: First, because it is right to do so; second, because preventing discrimination helps ensure a more effective HIV prevention programme; third, since marginalisation intensifies the risk of HIV infection; and fourth, because a community can respond effectively to HIV/AIDS only by expressing the basic right of people to participate in decisions which affect them.[109]
2.45 The new approach has also been confirmed through recent studies in countries such as Thailand, Uganda and Tanzania. These show a decreasing HIV prevalence rate following the introduction of prevention strategies based upon non-coercive, voluntary principles in which persons with HIV participate fully.[110]
2.46 In our country a legislative prohibition on pre-employment HIV testing will also promote the goals and objectives of the NACOSA National AIDS Plan[111] in that it will send a clear message to the community at large that discrimination and stigma against persons with HIV is unacceptable. Furthermore, it will reinforce the Plan's prevention programme which aims at, amongst others, giving a human face to the epidemic, involving people living with HIV/AIDS in all prevention programmes and empowering communities to respond to the epidemic in a caring and non-discriminatory fashion. The aim of the Plan has been re-confirmed in the Department of Health's National HIV/AIDS and STD Directorate's latest public education programme of 1997 - the "beyond awareness campaign" - which focuses on individual behaviour change and risk assessment rather than relying on the knowledge of a sex partner's HIV status for protection.
2.46.1 More significantly, this approach has been expressly endorsed by the Minister of Health, Dr N D Zuma, with regard to pre-employment HIV testing when she stated in Parliament in 1994 that "pre-employment HIV testing is unacceptable and discriminatory because it stigmatises prospective employees and infringes their human rights by excluding them from prospective employment".[112]
2.47 Recently some Governments have initiated legislative changes to promote the more traditional public health approach to curbing the epidemic. These include proposed legislation in Zimbabwe criminalising the intentional spread of HIV, and the proposed HIV Prevention Act of 1997 introduced into the House of Representatives (United States) in March of this year. The proposed Act (which is currently still at committee discussion stage) covers a range of more traditional public health interventions such as improved HIV epidemic measurement; partner notification; HIV testing of sexual offenders; protection for patients and health care providers; HIV notification for insurance applicants and adoptive parents; criminalisation of intentional HIV transmission; and strict confidentiality for implementation of the provisions of the Act.
2.47.1 Some of the comments on Discussion Paper 72 supported this re-introduction of the traditional public health approach to prevent the further spread of HIV. The Chamber of Mines of South Africa, for instance, referred the Commission to the proposed HIV Prevention Act and submitted that a prohibition on pre-employment HIV testing would seriously hamper public health responses to the HIV epidemic through preventing the identification of individuals with HIV. The Chamber believes that new infections can be prevented only through knowledge of those members of the community with HIV.
2.48 But attempts to return to the traditional public health approach with regard to HIV/AIDS, have met with fierce opposition in the United States.[113] Although containment and prevention efforts could play an important role as part of an overall strategy for combatting HIV/AIDS, they have been shown not to be overly effective by themselves.[114] A major problem with this may be a lack of understanding and education on the public's part. This may permit HIV-related prejudices to flourish which may drive persons with HIV underground in an effort to avoid the discrimination associated with the disease. As a result, as observed earlier, persons with HIV often do not receive adequate treatment and care and may thus be more likely to infect others. Discrimination also perpetuates misinformation and stereotypes about how the disease is spread and the types of people who are affected. The resulting negative attitudes cause HIV/AIDS to remain a forbidden subject, and in consequence people are likely to remain uninformed about risky behaviour they should avoid in order to remain uninfected.[115]
2.49 If pre-employment HIV testing is allowed to continue, it may create the impression that persons with HIV are a risk to our workplaces and thus in turn that their children may be a risk to our schools and their family members a risk to our communities. This would clearly undermine the Government's national prevention programme. In other words, by expressly prohibiting pre-employment HIV testing the messages contained within the Government's "beyond awareness campaign" of protection through behaviour change, acceptance of individual responsibility for sexual health, non-discrimination, and support and care for persons with HIV/AIDS, are endorsed.
2.50 The Commission is therefore of the view that a legislative ban on pre-employment HIV testing would promote the aims and objectives of the Government's National AIDS Plan and the public health goal of reducing the spread of HIV.
[1] This discussion paper presents a relatively simple and synoptic description of HIV/AIDS. South African sources consulted include: AIDS Unit Strategy 1991 1-13; Arendse 1991 ILJ 218-219; De Jager 1991 TSAR 212-216; FitzSimons Facing up to AIDS 13-33; Matjila (Unpublished) 1-7; Van Dyk 1-22; Van Wyk 1-80; Van Wyk 1988 De Jure 326-329; Van Wyk 1988 THRHR 317-320; Whiteside Facing up to AIDS 3-12. Foreign sources on the medical background include: Australia Report on Privacy and HIV/AIDS 9-12; Green AIDS and the Law 28-36; Gunderson et al 9-29; Jarvis et al 5-26; Miller 1-20; Volberding AIDS: Principles, Practices and Politics 97-112; Krim AIDS an Epidemic of Ethical Puzzles 15-20; Carr AIDS in Australia 3-23; Crofts AIDS in Australia 24-32; Gostin AIDS and Patient Management 3-8.
[2] For a complete discussion of medical aspects of HIV and AIDS, see AMFAR AIDS/HIV Treatment Directory June 1996 135-137. See also Nolan AIDS an Epidemic of Ethical Puzzles vii; De Witt 8; Evian 1993 3.
[3] Nolan AIDS an Epidemic of Ethical Puzzles viii; De Witt 8-9; Evian 1993 4-9.
[4] DNA is the abbreviation for "desoxyribonucleic acid".
[5] Gostin et al 1986 AMJLM 8.
[6] Ibid; Evian 1993 23; De Witt 8.
[7] McCormack 1995/1996 The Journal of Air Law and Commerce 305, 306; Evian 1991 16.
[8] Although some scientists apparently no longer wish to differentiate between persons with HIV and persons with AIDS (cf Van Wyk 25), this differentiation is nevertheless maintained in the majority of sources consulted and is explicitly accepted in Canada and Australia where recommendations for law reform were made in 1992 (Ontario Report 6-7; Australia Report on Privacy and HIV/AIDS 9).
[9] See par 2.11-2.12, 2.14-2.15, 3.6.3, 4.10.2-4.10.3 and fn 151 below.
[10] Evian 1993 11. See also eg Curran 1980 Columbia Law Review 720 fn 2; Deloach 1990 Creighton Law Review 693 fn 8; Lachman 131.
[11] Arnott 1996 Innes Labour Brief 35; Greenlaw 1992 Journal of Health and Hospital Law 80.
[12] WHO Report of an International Consultation on AIDS and Human Rights 1989 50; Goss and Adam-Smith 1, 2.
[13] This can occur, inter alia, by the use of dirty or used syringes and/or needles for intravenous drugs. Intravenous drug users inject drugs directly into their bloodstream. To ensure that the needle has struck a vein, they usually draw blood into the syringe before the drug is injected (without removing the needle). Thus a small amount of blood always remains in the needle and/or syringe and may consequently be injected directly into the bloodstream of the next injector (Van Dyk 18).
[14] Van Dyk 19; CDC Morbidity and Mortality Weekly Report 12 July 1991 5, 7; Evian 1991 9.
[15] Van Wyk 1988 De Jure 328; Transvaler 21 July 1992; The Star 22 July 1992; Van Dyk 29-30.
[16] Keir AIDS Analysis Africa December 1990/January 1991 9; Van Wyk 1988 De Jure 328; Krim AIDS an Epidemic of Ethical Puzzles 19; Carr AIDS in Australia 7.
[17] Ferbas et al 1996 Journal of Virology 7285-7289; The University Record 9 January 1995, points to a study of Koopman, Simon and Longini suggesting that people with HIV may be as much as 100 to 1,000 times as infectious during the period before seroconversion than afterwards. See also Evian 1993 15.
[18] Regarding the kinds of opportunistic diseases, see AMFAR AIDS/HIV Treatment Directory June 1996 94-136; Nolan AIDS an Epidemic of Ethical Puzzles viii; Lachman 201-203.
[19] AMFAR AIDS/HIV Treatment Directory June 1996 135-138.
[20] Hawkes and McAdam 1993 Medicine International 70-71.
[21] Lachman 202. Cf AMFAR AIDS/HIV Treatment Directory June 1996 97-134. Comment from the City of Cape Town Health Department on Discussion Paper 72 pointed out that 40% of HIV positive patients with TB are sputum negative and thus not infectious.
[22] Comment offered by the City of Cape Town Health Department.
[23] Ibid; Carr AIDS in Australia 8.
[24] Comments on Discussion Paper 72 by the City of Cape Town Health Department. Cf also the discussion of HIV/AIDS and possible life expectancy in Africa in par 3.6.3 below.
[25] Evian 1991 16.
[26] Cf Groopman The New Republic 12 August 1996; Gyldmark and Tolley The Economic and Social Impact of AIDS in Europe 30-37.
[27] Cf Papaevangelou et al The Economic and Social Impact of AIDS in Europe 70.
[28] Cf Farnham 1994 Public Health Reports 312.
[29] On HIV testing generally, see Levine and Bayer AIDS an Epidemic of Ethical Puzzles 21-22; Confronting AIDS 304-307; Moodie 1988 SA Journal of Continuing Medical Education 58-63.
[30] See par 2.21 below. The City of Cape Town Health Department pointed out that viral load testing is extensively used for private patient management and for monitoring of patients in drug treatment trials.
[31] See CDC Morbidity and Mortality Weekly Report 14 August 1987 509; Chavey et al 1994 Journal of Family Practice 249 et seq.
[32] The cost of a WB test is approximately R276 to R751; the cost of an ELISA test carried out by a private body varies from R74 to R203 (information supplied by Prof A Heyns of the SA Blood Transfusion Service on 27 October 1997).
[33] According to the WHO guidelines the prevalence of HIV in the population to which the person belongs on whom the blood test is performed, is decisive. The scientific premise is that the higher the prevalence of HIV infection, the greater the probability that a person who in the first instance tests positive, is truly infected (cf Fleming and Martin 1993 SAMJ 685-687).
[34] Fleming and Martin 1993 SAMJ 685-687.
[35] Information supplied by Prof A Heyns of the SA Blood Transfusion Service on 27 October 1997. See also Gostin 1991 American Journal of Law and Medicine 110.
[36] Gostin et al 1986 American Journal of Law and Medicine 10; Banta 5.
[37] A very small percentage of infected people never develop antibodies against HIV and will therefore repeatedly show false negative tests (Van Dyk 13).
[38] Australia Report on Privacy and HIV/AIDS 11; cf also the remarks of Van Dyk 12 and Van Wyk 1988 De Jure 327 on the accuracy of the tests. Moodie (1988 SA Journal of Continuing Medical Education 63) alleges that the WB test theoretically provides "the ultimate confirmation" while Volberding (AIDS: Principles, Practices and Politics 102) is of the opinion that if a combination of antibody tests is properly carried out in population groups with a high prevalence of HIV infection, such testing is "highly accurate".
[39] Orthmann Law and Policy Reporter April 1996 55.
[40] Information supplied by Prof A Heyns of the SA Blood Transfusion Service on 27 October 1997.
[41] Viral load testing is the direct measurement of the amount of HIV virus in the blood of people with HIV infection. (HIV mostly lives in the lymph system. Only 2% lives in the blood.) It is currently regarded as the best marker for the progression of HIV disease and is becoming a standard of HIV treatment monitoring. Studies has, for instance, determined that patients who have a higher virus load will progress more quickly to AIDS than persons with lower virus loads. Viral load testing is therefore used as an adjunct in treating HIV and is not used to initially diagnose HIV infection (Viral Load Testing - Reports from the Vancouver AIDS Conference [Internet accessed on 10 November 1997]; HIV- Infogram: Viral Load Testing [Internet accessed on 10 November 1997]; The Body: Viral Load Testing [Internet accessed on 10 November 1997]).
[42] Saag et al 1996 National Medicine 625-629.
[43] Colebunders and Ndumbe 1993 The Lancet 601; Chavey et al 1994 Journal of Family Practice 249. But see also Volberding 1996 The Lancet 71-73.
[44] Information supplied to the Commission by Prof A Heyns of the SA Blood Transfusion Service on 27 October 1997; see also van Dyk 12; Crofts AIDS in Australia 26-27.
[45] Information supplied to the Commission by Prof A Heyns of the SA Blood Transfusion Service on 27 October 1997.
[46] Colebunders and Ndumbe 1993 The Lancet 601; cf also MASA Guidelines 7.
[47] Comment of the City of Cape Town Medical Officer of Health.
[48] See par 3.4, 3.5, 3.6, 3.7 and 3.8 below.
[49] Department of Health Report on Seventh National HIV Survey 1996.
[50] Epi Comments October 1996 11.
[51] Doyle and Muhr (Unpublished) 1.
[52] Taking into consideration that the survey was limited to women of child bearing age, estimates refer to the 15-49 year age group. The Department further estimates that 157 000 babies born since 1990 are infected with HIV (Department of Health Report on Seventh National HIV Survey 1996).
[53] Ibid.
[54] Epi Comments October 1996 6, 10 (figure 5).
[55] Department of Health Report on Seventh National HIV Survey 1996.
[56] Ibid; cf also Epi Comments October 1996 2.
[57] Doyle and Muhr (Unpublished) 1-2.
[58] Matjila (Unpublished) 4, 5, 8; Van Wyk 1988 De Jure 328; Albertyn and Rosengarten 1993 SAJHR 77; Strauss Huldigingsbundel vir WA Joubert 141; Australia Discussion Paper Employment Law 9, 32; Ontario Report 64.
[59] Arnott 1996 Innes Labour Brief 35; Doyle Facing up to AIDS 110; Sifris Trends Transforming South Africa 146; Labour Sector 1997 Response to SALC Presentation 1.
[60] Whiteside Guidelines for Developing a Workplace Policy and Programme on HIV/AIDS and STDS 1997 5; Strode and Smart (Unpublished) 1.
[61] Albertyn and Rosengarten 1993 SAJHR 77.
[62] Cross Facing up to AIDS 138, 155.
[63] Whiteside Guidelines for Developing a Workplace Policy and Programme on HIV/AIDS and STDS 1997 6. Costs may be different in South Africa, where seroprevalence rates are lower but employment costs may be higher.
[64] As quoted in Whiteside Guidelines for Developing a Workplace Policy and Programme on HIV/AIDS and STDS 1997 6.
[65] Massagli et al 1994 American Journal of Public Health (Lexis Nexis); Leigh et al 1995 AIDS 81-88; see also Whiteside Guidelines for Developing a Workplace Policy and Programme on HIV/AIDS in the Workplace 5. See also fn 59-61 above.
[66] Loewenson (Unpublished 1996)2-4; Whiteside Guidelines for Developing a Workplace Policy and Programme on HIV/AIDS and STDS 1997 5-7; Kimball and Myo 1996 The Lancet 1670. See also BSA Draft National HIV/AIDS Employment Code of Conduct 1994.
[67] Whiteside Guidelines for Developing a Workplace Policy and Programme on HIV/AIDS and STDS 1997 7; Kerkhoven (Unpublished) 1-2; Sibeenzu (Unpublished) 2-3.
[68] See eg London and Myers 1996 SAMJ 329-330; Cameron and Adair (Unpublished) 3-4; Labour Sector 1997 Response to SALC Presentation 1-2.
[69] Albertyn and Rosengarten 1993 SAJHR 78; Baggaley et al 1995 Environmental Medicine 9-10; London and Myers 1996 SAMJ 329-330; see also Labour Sector 1997 Response to SALC Presentation 1-2.
[70] The research was carried out by a final year LL B student at the University of the Witwatersrand with the assistance of the management labour consultancy Andrew Levy and Associates. The research results are contained in an unpublished paper The Blood in the Pool - AIDS and Employment Benefits (A Research Report by Bradley Silver LL B III 1995). The survey engaged the responses of businesses involved in activities that varied from manufacturing to fishing to mining. It reached the three major cities of Durban, Johannesburg and Cape Town and reflects results from a wide range of enterprises, public and private (Silver [Unpublished] 5).
[71] Silver (Unpublished) 5 and Annexure A.
[72] Silver (Unpublished) Annexure A; see also Holding 1991 Boardroom 12.
[73] Silver (Unpublished) Annexure B. Cf the results of similar research undertaken in Zambia where in a survey of 33 employers more than half required HIV tests; while nine excluded applicants on HIV status (Baggaley et al 1995 Occupational Environmental Medicine 9).
[74] Silver (Unpublished) 14.
[75] The information was supplied to the project committee confidentially by ATICCs from the Gauteng, Western Cape, Eastern Cape, and KwaZulu Natal regions.
[76] 9 October 1996 Hansard 2381; 15 October 1996 Hansard 2437; see also Labour Sector 1997 Response to SALC Presentation 1-2.
[77] The Citizen 26 March 1997. The Cabinet committee comprised Public Service and Administration Minister Z Skweyiya, Provincial Affairs and Constitutional Development Minister V Moosa, Health Minister N Zuma, Safety and Security Minister S Mufamadi and Correctional Services Minister S Mzimela. Defence Minister J Modise was unable to attend. Standing in for him was Deputy Defence Minister R Kasrils. Dr Mzimela is reported to have said: "The decision we took this morning is that we are doing away with tests for HIV [in the public service] altogether, with immediate effect. As of today, anyone who applies for a job will be treated as anybody else applying for a job, whether in the Education Department or Water Affairs or any other Department".
[78] Jansen van Vuuren v Kruger 1993 4 SA 842 (A).
[79] See Muller (Unpublished) 1-2; Fleming (Unpublished) 3-8.
[80] Cf the comments on Discussion Paper 72 of RS Green, the Afrikaanse Handelsinstituut (AHI), the City Council of Pretoria Medical Officer of Health, and the Chamber of Mines of South Africa. The Actuarial Society of South Africa, without expressing a view either in favour of or against the project committee's preliminary proposals, suggested that the macro-economic impact the proposed statutory intervention may have in the long term, be examined.
[81] Fluss International Law and AIDS 24.
[82] "The most widely used modern definition of health was developed by the WHO: 'Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.' Through this definition, WHO has helped to move health thinking beyond a limited, biomedical and pathology-based perspective to the more positive domain of 'well-being'. Also, by explicitly including the mental and social dimensions of well-being, WHO radically expanded the scope of health, and by extension, the roles and responsibilities of health professionals and their relationship to the larger society. The WHO definition also highlights the importance of health promotion, defined as 'the process of enabling people to increase control over, and to improve their health.' To do so, 'an individual or group must be able to identify and realize aspirations, to satisfy needs, and to change or cope with the environment.' The societal dimensions of this effort were emphasized in the Declaration of Alma-Alta (1978), which described health as a ' ... social goal whose realization requires the action of many other social and economic sectors in addition to the health sector. Thus, the modern concept of health includes yet goes beyond health care to embrace the broader societal dimensions and context of individual and population well-being. Perhaps the most far-reaching statement about the expanded scope of health is contained in the preamble to the WHO Constitution, which declared that 'the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being'" (Mann et al 1994 Health and Human Rights 9-12; see also Fluss International Law and AIDS 24-25).
[83] Mann et al 1994 Health and Human Rights 15-17.
[84] Ibid.
[85] Cameron and Swanson 1992 SAJHR 201-202.
[86] Mann et al Health and Human Rights 15.
[87] Kirby 1993 SAJHR 10, 12-13; Fluss 1988 World Health Forum 368. Cf also Van Wyk 109-110.
[88] Gunderson et al 205; Jarvis et al 267-268.
[89] Katz AIDS Readings on a Global Crisis 276.
[90] Lachman 128; see also Gunderson et al 213 and Jarvis et al 266-267.
[91] Paul Cleary et al "Compulsory Premarital Screening for the Human Immunodeficiency Virus: Technical and Public Health Considerations" Journal of the American Medical Association 258 (1987) 1757-62 as referred to in Gunderson et al 214.
[92] Gunderson et al 214.
[93] Jarvis et al 266.
[94] Mann et al 15-17.
[95] Ibid 16-17.
[96] J Dwyer "Legislating AIDS Away: The Limited Role of Legal Persuasion in Minimizing the Spread of HIV" 1993 Journal of Contemporary Health Law and Policy Vol 9 167 as quoted in the UN Guidelines on HIV/AIDS and Human Rights 1996. See also Cameron and Swanson 1992 SAJHR 222-225.
[97] Katz AIDS Readings on a Global Crisis 278. See also Gunderson et al 49, 98; Berge 1992 Florida Law Review 782-786.
Gunderson et al 49, 98; Katz AIDS Readings on a Global Crisis 276; Berge 782-786. See also Ontario Report 27-29 where the same principle with regard to sexually transmitted diseases (STDs) in general was explained thus: Identification is a central element in what has been called the classical biomedical model of infectious disease control. Mandatory testing theoretically permits the identification, treatment, and, if necessary, isolation of all infected persons, and the prevention of further infection outside this group. Notwithstanding the historical and legislative predominance of the biomedical model, most public health officials agree that the model has serious drawbacks that limit its effectiveness as a public health measure in all cases of infectious diseases. These draw backs are particularly evident in the failure of past attempts to apply the model to control the spread of STDs. In the past the stigma associated with STDs seriously restricted the ability of the biomedical model either to identify infectious persons or to sever routes of transmission. Measures to identify infected persons were hampered by fears of stigmatization and prejudice. Those who knew that they might be at risk for infection learned ways to avoid identification by public health authorities . Follow-up measures to control the spread of the infection may only have increased the fear of identification particularly if those measures were highly invasive, coercive, or threatening or if they resulted in the disclosure of highly sensitive identifying information.
[99] Berge 1992 Florida Law Review 805.
[100] 1993 4 SA 842 (A).
UN Guidelines on HIV/AIDS and Human Rights 1996 3-4.
[102] Mann et al 1994 Health and Human Rights 16-17.
[103] Jonathan Mann, a former director of the WHO's Global Programme on AIDS has described the new approach as follows: "It is not a question of the 'rights of the many' against 'the rights of the few'; the protection of the uninfected majority depends upon and is inextricably bound with the protection of the rights and dignity of infected persons (as quoted by Cameron and Swanson 1992 SAJHR 232). Justice Michael Kirby (former Chairman of the Australian Law Reform Commission and Member of the WHO Global Commission on AIDS) goes further by referring to the new approach as the 'AIDS paradox' and explaining it thus: "The AIDS paradox arises from a reflection on the nature of this epidemic and the features of the virus. By a paradox, one of the most effective laws we can offer to combat the spread of HIV which causes AIDS is the protection of persons living with AIDS, and those about them, from discrimination. This is a paradox because the community expects laws to protect the uninfected from the infected. Yet, at least at this stage of the epidemic, we must protect the infected too. We must do so because of reasons of basic human rights. But if they do not convince, we must do so for the sake of the whole community which has a common cause in the containment of the spread of HIV" (Kirby 1993 SAJHR 3-4.) See also Mann et al 1994 Health and Human Rights 16-17.
[104] Item 54 of the Global Strategy for the Prevention and Control of AIDS: 1992 Update Forty Fifth World Health Assembly Provisional Agenda Item 33 (Appendix I to International Law and AIDS -International Response, Current Issues, and Future Directions - edited by Gostin and Porter USA: American Bar Association 1992 278); Jansen van Vuuren v Kruger 1993 4 SA 842 (A) at 850B-D.
[105] Australia Final Report on AIDS 31.
[106] 1993(4) SA 842 (A) at 854B-D.
[107] Prepared at the Second International Consultation on HIV/AIDS and Human Rights 22-25 September 1996, Geneva by the Joint United Nations Programme on HIV/AIDS and the United Nations Centre for Human Rights.
[108] UN Guidelines on HIV/AIDS and Human Rights 1996.
[109] Comments of HIV Management Services (Pty) Ltd.
[110] W Poolcharoen and S Phonghpit "HIV Prevention Works: The Experience of Thailand" and Dr E Madraa "HIV Prevention Works: The Uganda Case Study" (Unpublished papers presented at the XI International Conference on AIDS Vancouver, July 1996) as quoted in the UN Guidelines on HIV/AIDS and Human Rights 1996; Grimm 1997 Human Rights Brief (Internet accessed on 10 November 1997).
[111] This Plan was developed by the National AIDS Convention of South Africa (NACOSA) through a consultative process in 1992. It was formally adopted by the Department of Health on 21 July 1994. The Plan still forms the core of the Department of Health's operational plans in respect of HIV/AIDS.
[112] As quoted in the Department of Health's comments on Discussion Paper 72.
[113] Burr The Atlantic Monthly June 1997 65-67. For more detail see par 8.19.9-8.19.10 below.
[114] Grimm 1997 Human Rights Brief (Internet accessed on 10 November 1997).
[115] Ibid.
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