In 2014, SANAC, in partnership with Legal Aid SA, Webber Wentzel, Section 27 and International Labour Organization, launched a programme to address discrimination against people living with HIV and TB. Approximately 80 Legal Aid staff were trained to handle HIV and TB related calls to the Legal Aid call centre, and, where applicable, refer cases of gross discrimination to an attorney. Between the period of July 2014 and August 2015, Legal Aid received a total of 177 cases which fall into this category. A majority of the calls are received because the client has seen or heard the SANAC-run “Zero Stigma. Zero Discrimination” campaign in the media.
Most cases are related to the work place, that is, “a person disclosing his or her HIV or TB status, employers who require the HIV or TB status of their employee, or dismissals based on HIV or TB status,” says Tshepang Monare, Legal Support Practitioner at Legal Aid SA. “We also see unfair treatment at work based on status, or employers requiring medical reports or medical testing of employees,” he added. A few of the cases relate to discrimination at health care facilities.
While Legal Aid SA paralegals have been trained, qualified attorneys to take on cases have not. To fill the gap while the training takes place, attorneys from Webber Wentzel Attorneys, a well-known Johannesburg-based law firm, and Section 27, a non-governmental advocacy organization, have stepped in to fill the gap.
Ayanda Nqubo, an attorney at Webber Wentzel who has been involved in pro bono work of this nature for many years before it fell under the custodianship of SANAC, says she is seeing a lot of TB-related cases coming through. One of the cases she is currently dealing with involves a case of gross discrimination – an employer who sent an employee home after she disclosed her TB status and, after a number of failed attempts at unfairly dismissing her, is instituting retrenchment proceedings against her. The case is currently with the Commission for Conciliation, Mediation and Arbitration (CCMA).
There are, however, a number of challenges that legal practitioners handling the cases are experiencing. “Most people who approach Legal Aid SA have already been assisted by a union representative. Because the union rep is not necessarily putting the correct legal case upfront it becomes difficult to handle the case at a later stage,” says Nqubo. She believes that union representatives should be trained to identify complicated cases and refer them to the correct channels early in the process. She also encourages clients to come forward to Legal Aid SA as soon as possible after the incident of discrimination occurs. “In many cases, the case has already been prescribed [essentially, has expired in terms of law] and so we have lost a lot of good cases because of that,” adds Nqubo. If the claim has not been instituted after 30 days at the CCMA – usually the first port of call – and after three years at the Labour Court it is considered prescribed.
More training is needed, especially of attorneys who can practice in locations not covered by Webber Wentzel and Section 27. The idea going forward is that once Legal Aid attorneys have been trained, the two organizations will act as correspondent attorneys. “We also need ongoing training of the Legal Aid SA call centre agents,” says Nqubo. “To ensure that they identify the cases that need referral so that we can continue to help people who cannot afford legal services or cannot speak for themselves.”