South African rulings uphold rights of HIV+ employees

March 29, 2017

Many thanks to Godfrey Kangaude, LL.M. (UFS), LL.M. (UCLA), now an LL.D. candidate with the University of Pretoria and Executive Director of Nyale Institute for Sexual and Reproductive Health Governance in Malawi, for composing and/or editing summaries of 54 recent African court decisions for Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts, published in 2017 by Pretoria University Law Press (PULP).  All three volumes in the series are freely available in print or electronic form.

Two of the court decisions summarized in Legal Grounds III clearly upheld the rights of HIV-positive persons against discrimination, including  unjust dismissal, and exclusion from certain job opportunities.

Gary Shane Allpass v Mooikloof Estates (Pty) Ltd. [2011], Case No. JS178/09, a Labour Court of South Africa upheld the rights to equality and non-discrimination of HIV-positive persons in the workplace.  The Court ruled that a horse-riding instructor’s dismissal from employment for HIV-positivity was automatically unfair in terms of Section 187(1)(f) of the Labour Relations Act, 66 of 1995, because the reason for dismissal was his  HIV status, and was not justifiable on any other ground.   Summary for Legal Grounds III.   Decision online.

Dwenga and Others v Surgeon-General of the South African Military Health Services and Others [2014] ZAGPPHC 727, Case No. 40844/2013, the High Court at North Gauteng  reinforced an earlier ruling against discrimination toward HIV+ individuals employed by the military.  The South African National Defence Force had violated its own policies, and was unable to provide any evidence to suggest that the requisite health required for the positions sought by the Applicants could not be achieved by a person infected with HIV.  Summary for Legal Grounds III.    Decision online.

As Godfrey Kangaude emphasized regarding the Dwenga case: “Discriminatory attitudes and practices against persons with HIV are still prevalent in our societies, despite the progress that many countries have made in terms of putting in place public policies to curb these forms of discrimination. Having legislation in place or even a court decision is sometimes not enough incentive, even for public institutions such as the army, to end discriminatory practices. The Court commented that public institutions should be exemplary in complying with constitutional norms and standards, such as respect and protection of the rights of persons living with HIV. (Legal Grounds III, page 188)

Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts (Pretoria University Law Press (PULP), 2017) covers decisions from 2008 to 2016.   228 pages, 54 case summaries, onlineFlyer with Table of Contents.

Legal Grounds I and Legal Grounds II (Center for Reproductive Rights, 2005 and 2010) are online here.
Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at   For Program publications and resources, see our website, online here.     TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.

REPROHEALTHLAW Updates: Decisions, Calls, Events and Scholarship

October 15, 2015

October 15 2015

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SPAIN  [Case of Tania and Veronica, Social Court 18, Madrid, October 2015]  Court rules that same-sex couple were unjustly denied artificial insemination.  Damages awarded from hospital  for denying treatment and the Local Health Authority for discrimination.  Judgment sets a precedent affirming that the hospital and the Local Authority should have applied the higher standing regulation as opposed to a lesser standing administrative decision from Spanish Ministry of Health which excludes assisted reproductive treatments in the public health system for all women without a male partner.  English press release from Women’s Link Worldwide   Details from Women’s Link Worldwide.   Spanish news report.

KENYA:    Lucy Nyambura & Another v Town Clerk, Municipal Council of Mombasa & 2 Others [2011] eKLR, Petition No. 286 of 2009 (High Court of Kenya).  Decision online.  Case summary/analysis by Godfrey Kangaude and Winnet Shamuyarira.  [Conviction for loitering for purposes of prostitution held constitutional.]

Republic v Jackson Namunya Tali [2014] eKLR, High Court Criminal Case No. 75 of 2009 (High Court of Kenya at Nairobi). Decision online.   Case summary/ analysis by Godfrey Kangaude and Annagrace Rwehumbiza.   [Kenyan High Court convicts nurse of murder over abortion related death. ]

NAMIBIA:    LM and Others v. Government of the Republic of Namibia, [2012] NAHC 211 (High Court of Namibia) Decision online.  Brief abstract by Andy Sprung.   New: Case summary/analysis by Godfrey Kangaude and Phillipa Tucker.    [Court found forced sterilization of women without informed consent; unproven link to HIV-positive status]

Government of the Republic of Namibia v L.M. & 2 Others [2014] NASC 19 (Supreme Court of Namibia). Decision onlineCase summary/analysis by Godfrey Kangaude and Philippa Tucker.  [Supreme Court links forced sterilisation to infringement of constitutional rights]

ZIMBABWE:   Mildred Mapingure v Minister Of Home Affairs and 2 Others [2014], Judgment No. SC 22/14, Civil Appeal No. SC 406/12 (Supreme Court of Zimbabwe). Decision online. Brief abstract by Michelle Hayman.   New:  Case summary/analysis by Godfrey Kangaude and Rudo Chigudu.   [State held liable for hindering access to emergency contraception, but not abortion]

The five case analyses mentioned above have been prepared for a new book,  Legal Grounds III:  Reproductive and Sexual Rights in Sub-Saharan African Courts, forthcoming 2016.  Decisions,  case summaries and previous volumes.    How you can help.


[HIV stigma in health care] UNAIDS seeks input from individuals and organizations who use tools to assess and/or address HIV-related stigma and discrimination in health care settings.    Inquiries? Contact: Program on Global Health and Human Rights, University of Southern California {uschealthhumanrights [at} gmail {dot] com.   Respond to online questionnaire by October 23, 2015 in  English    Spanish   Russian  Arabic.


“What’s the Harm?: Understanding Reproductive Injustice” full day symposium at New York University School of Law on Friday, October 30, 2015 at 9:00am.  Symposium details;  Registration required.

El IV Congreso Latinoamericano Jurídico sobre Derechos Reproductivos Lima, Peru, November 2-4, 2015   Latin American Legal Congress.


Abortion is still illegal in the UK, thanks to this Victorian law ” by Sally Sheldon, The Conversation, Oct 6, 2015.  Article online.

Abortion Law in Transnational Perspective:  Cases and Controversies, ed. Rebecca J. Cook, Joanna N. Erdman and Bernard M. Dickens, 16 chapters.  University of Pennsylvania Press, 2014, 482 pages. Introduction by the editors. Table of Cases online  Table of ContentsPurchase from U Penn Press. A Spanish edition was published in August, 2016.  Ahora disponible en español.

“Conscientious Objection, Harm Reduction and Abortion Care,” by Ruth Fletcher , in Mary Donnelly and Claire Murray eds., Ethical, Legal and Policy Debates in Irish Healthcare: Confronting Complexities (Manchester University Press, 2015,  Abstract and chapter online.  Book forthcoming 2015

“Human-rights-based approaches to health in Latin America,” by Alicia Ely Yamin, Ariel Frisancho,  The Lancet, 385(9975), e26-e29, 4 April 2015   Abstract and article online.

Rwanda:  When Abortion is a Crime  (Ipas, Sept 2015) [research study based on case summaries and interviews with prisoners  28-page report

United Nations: Draft General Comment 36 on Article 6: Right to Life  now available for consideration by UN Human Rights Committee. CCPR/C/GC/R.36/Rev.2  Draft online.

Worldwide Abortion Policies, updated Oct 5, 2015.  Pew Research Center report.   “How abortion is regulated around the world”.


[Brazil – abortion]  “Sexual Politics in Brazil:  wider frontline to cope with.” by  Sonia Corrêa and Fábio Grotz *  Article online  [re current  bill to legalize abortion]

Rwanda:  “Government Moves to Ease Process of Seeking Legal Abortion”  by Rodrigue Rwirahira And Michel Nkurunziza.  Article online.

US-focused news, resources, and legal developments are available on Repro Rights Prof Blog. View or subscribe.


Links to employers in the field of Reproductive and Sexual Health Law are online here

Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.