HIV/AIDS and the South African Bill of Rights, with specific reference to the approach and role of the courts

Abstract

An outstanding feature of the 1996 South African Constitution is the inclusion of a Bill of Rights, which contains all the categories of human rights that are ordinarily included in most international human rights instruments. Section 27 provides for, among other things, the right to health care services and the right to emergency medical treatment. Several other provisions in the Bill of Rights are quite relevant to the fight against HIV/AIDS and to protecting the rights of those who are infected. The South African courts, particularly the Constitutional Court, have often been called upon to interpret and give effect to some of these rights. Judgements regarding confidentiality, HIV testing, access to medication and related issues have been passed in the courts. In that sense, the courts can and have played a pivotal role in the fight against the HIV/AIDS pandemic. In spite of that, South Africa is still perceived as a country that has failed to address the issue of HIV/AIDS with the urgency that it deserves. This article discusses the extent to which the South African Bill of Rights provides for those rights relevant to persons with HIV/AIDS and it examines some decisions by the courts regarding the enforcement of those rights. The article also explores how and whether or not particular court decisions have been implemented and honoured.

African Journal of AIDS Research 2004, 3(2): 113–119