Case Summary: Hoffmann v South African Airways (CCT 17/00) [2000] ZACC 17 (28 September 2000)

Hoffmann v South African Airways

Project code¹

SAF

URL

http://www.saflii.org/za/cases/ZACC/2000/17.pdf

Citations

(CCT17/00) [2000] ZACC 17; 2001 (1) SA 1; 2000 (11) BCLR 1211; [2000] 12 BLLR 1365 (CC) (28 September 2000)

Country

South Africa

Date of judgment

28 September 2000

Court

Constitutional Court of South Africa

Location

Braamfontein

Case type²

Appeal

Result

Allowed

Flynote³

Human rights and fundamental freedoms - Bill of Rights - violation of the right to equality, human dignity and fair labour practices

Legislationand International Instruments⁴

Legislation

• Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000

• Employment Equity Act, 55 of 1998

International instruments

• The African Charter on Human and Peoples’ Rights

• the Convention on the Elimination of All Forms of Discrimination Against Women

• The International Covenant on Civil and Political Rights

• the International Convention on the Elimination of All Forms of Racial Discrimination.

• ILO Convention 111, Discrimination (Employment and Occupation) Convention.

• Code of Conduct on HIV/AIDS and Employment in the Southern African Development Community (SADC), 1997

Cases cited as authority⁵

• Harksen v Lane NO and Others 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC) at para 53. In Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour Intervening) 1999 (2) SA 1 (CC); 1999 (2) BCLR 139 (CC)

• National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC); 1998 (12) BCLR 1517 (CC)

• President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC); 1997 (6) BCLR 708 (CC)

• S v Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC)

• MX of Bombay Indian Inhabitant v M/s ZY and another AIR 1997 (Bombay) 406

• August and Another v Electoral Commission and Others 1999 (3) SA 1 (CC); 1999 (4) BCLR 363 (CC)

• Fose v Minister of Safety and Security 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC)

• National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC)

• National Union of Metalworkers of South Africa and Others v Henred Fruehauf Trailers (Pty) Ltd 1995 (4) SA 456 (A)

Facts⁶

In September 1996, the appellant applied for a cabin attendant position with South African Airways (SAA). After a four-stage selection process, including interviews and role-playing, he was deemed suitable pending a medical examination. The examination indicated that he was clinically fit but tested positive for HIV. As a result, the medical report was altered to label him "H.I.V. positive" and considered "unsuitable" for employment. The appellant challenged the refusal to hire him based on constitutional grounds in the Witwatersrand High Court but was unsuccessful. However, he successfully appealed the matter directly to the Constitutional Court under rule 18 of the Constitutional Rules.

Summary⁷

The Constitutional Court determined the constitutionality of South African Airways' (SAA) policy of excluding HIV-positive individuals from cabin attendant positions. They addressed whether this practice violated the Bill of Rights and determined the appropriate remedy. SAA justified their policy based on safety, medical factors, and operational requirements, citing other airlines with similar practices. The High Court supported SAA's position, emphasizing the importance of passenger and crew health and the airline's reputation. However, the Constitutional Court, with input from the Aids Law Project, found SAA's justifications to be unfounded. In a unanimous decision, the court ruled that SAA violated the appellant's constitutional right to be free from discrimination. They emphasized that not all HIV-positive individuals pose the alleged risks and that the practices of other airlines were irrelevant. Therefore, the court concluded that SAA's refusal to employ the appellant based on his HIV status was unconstitutional.

Decision/ Judgment⁸

The Constitutional Court allowed the appeal, overturning the High Court's decision. They ordered SAA to offer immediate employment to the appellant and ruled that SAA must bear the costs of the application in both the High Court and the Constitutional Court.

Basis of the decision⁹

The Constitutional Court held that reinstatement was the appropriate remedy for the individual who was unfairly denied employment due to discrimination. However, taking the specific circumstances into account, it was deemed unfair to SAA to apply the order retroactively.

Reported by

Date

Abongile Nkamisa

16 June 2023