Hoffmann v South African Airways [2000] ZACC 17 (28 September 2000)

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

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.

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.

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.

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.