IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
CASE NO.: C1126/2002
In the matter between:
IRVIN & JOHNSON LIMITED Applicant
and
TRAWLER & LINE FISHING UNION First Respondent
NATIONAL CERTIFICATED FISHING &
ALLIED WORKERS UNION Second Respondent
THOSE EMPLOYEES OF APPLICANT
WHOSE NAMES ARE LISTED IN
ANNEXURE “A” HERETO Third and Further Respondents
J U D G M E N T
Introduction
[1] The applicant, which employs more than 1100 workers in its trawling
division, wishes to arrange for the voluntary and anonymous HIV
testing of these employees. It seeks an order declaring that the testing
in question does not fall within the ambit of section 7(2) of the
Employment Equity Act 55 of 1998 (“the Act”). In the alternative, the
applicant seeks an order that the testing is justifiable as contemplated
in section 7(2), subject to certain conditions set out in the notice of
motion.
[2] Of the employees in question, about 752 are members of the Trawler
& Line Fishing Union while about 90 are members of the National
Certificated Fishing & Allied Workers Union. These two unions have
filed notices of nonopposition in which they state that they support
the application.
[3] A number of the applicant’s employees work at sea on the applicant’s
vessels. These employees undergo extensive training. This applies
particularly to employees who are certificated under the Merchant
Shipping Act 57 of 1951. South Africa faces an acute shortage of
certificated officers.
[4] The applicant believes that it requires information on HIV prevalence
in its workforce to assess the potential impact of HIV/AIDS on the
workforce; to enable the applicant to engage in appropriate manpower
planning so as to minimise the impact of HIV/AIDS mortalities and
HIV/AIDSrelated conditions on its operation; to enable it to put in
place adequate support structures to cater for the needs of employees
living with HIV/AIDS; and to facilitate the effective implementation
of proactive steps to prevent employees from becoming infected with
HIV/AIDS.
[5] The applicant has already instituted various HIV/AIDS education and
awareness programmes, the objectives of which are to educate
employees about HIV/AIDS; to offer psychological support to
employees; to dispel myths and unfounded fears about HIV/AIDS; to
encourage employees to go for voluntary testing; and to help
employees to make necessary lifestyle changes. The applicant has
drafted and implemented an AIDS policy. It has established
HIV/AIDS committees to monitor the implementation of the policy.
The applicant has arranged for the supply of condoms to its employees
from dispensers located at the workplace. It offers counselling to
employees living with HIV/AIDS, and has also organised various
presentations and concerts of an educational nature. The applicant has
an equity committee which has fully endorsed the applicant’s
HIV/AIDS programmes.
[6] The applicant has been assisted in formulating its HIV/AIDS
education and awareness programmes by an enterprise called
Connections in association with Vuka (now called Isibindi), a private
nongovernmental organisation which provides HIV/AIDS support
programmes. The applicant states that it is dedicated to applying the
principle of nondiscrimination against AIDS sufferers. It permits
HIVpositive employees to perform their normal duties for as long as
they are able to do so. HIVpositive employees who disclose their
status to the Connections/Isibindi counsellors are advised of the
various nongovernmental organisations and clinics that provide
services to HIV sufferers and of the fact that they may, if they wish to
do so, consult the applicant’s doctor and enrol in the applicant’s
wellness programme. The latter programme includes weight
monitoring, the provision of vitamins, the treatment of opportunistic
diseases and counselling.
[7] The applicant wishes to arrange for the voluntary and anonymous
testing of its employees, on an ongoing basis, to allow employees to
determine their HIV status at any time and to enable the applicant to
assess its manpower planning needs on a continuing basis. The
conditions of the proposed testing (being the conditions which the
applicant intends should be incorporated in any order granted by this
Court under section 50(4) of the Act) are as follows:
[a] The Elisa and Abbott tests will be used. (The latter is a rapid test using
a small blood sample obtained via a pinprick. The former test involves
drawing samples of blood for testing in a pathology laboratory.)
[b] The tests will be conducted voluntarily and with the consent of the
individual employees.
[c] The tests will be anonymous, in that samples taken from the individual
employees will be identifiable only by a number which will enable the
individual employee concerned to enquire about the test results
without fear of being identified.
[d] The age and job category of the individual employees being tested will
be recorded for purposes of generating statistics of relevance to the
applicant in the implementation of its HIV/AIDS policy.
[e] The tests will be conducted on an ongoing basis to enable the
applicant to monitor the impact of HIV/AIDS on its workforce and to
take appropriate steps to minimise its impact on the applicant’s
employees.
[f] The tests will be accompanied by appropriate pretest and posttest
counselling.
[g] The tests will be conducted by an independent professional testing
agency (Isibindi).
[h] The only information which the testing agency will pass onto the
applicant is the percentage and number of employees in the various
age and job categories who test positive.
[i] No employee will be discriminated against on the basis of his or her
HIV status.
[j] No prejudicial inference will be drawn from the refusal of an
employee to submit to testing or from an employee’s consent to
testing.
[8] An employee who volunteers for HIV testing will be required to sign a
form confirming that he or she has consented to the test and
indemnifying the independent agency, the pathologists and the
applicant against any claim arising from the test. This form will be
completed by the employee with the assistance of an Isibindi
counsellor. The employee’s name would appear on the form and
would thus be known to the Isibindi counsellor. The employee is
informed of this fact and may decline to proceed with the testing. The
applicant will have no access to these forms, which are retained by the
independent agency.
[9] The form is completed as part of the pretest counselling. Once the
pretest counselling has been completed, the Isibindi counsellor
administers the Abbott test, the result of which is known within about
20 minutes. If the test is negative the employee will be counselled on
lifestyle habits so as to remain uninfected. Should the test be positive,
the employee will be counselled and the Elisa test will be used to
confirm the initial result.
[10] The sample used in the Elisa testing is identified only by a number.
The number is contained in a sealed envelope. The employee selects
the number by drawing a sealed envelope from a container holding a
number of sealed envelopes. Each sealed envelope contains three
labels bearing the identical number. The one label is affixed to the
sample, another is affixed to a blank sheet retained for control
purposes, and the third is kept by the employee. The employee can
obtain the result of his or her test from the Isibindi counsellor after
two days by presenting the number. No name is required.
[11] The only information which the applicant will obtain concerns the age
and job category of the various employees who have been tested. This
information will be used for statistical purposes. The categories in
respect of which information will be provided to the applicant, and the
employee number in each category, are as follows:
Shorebased staff
Age
Categor
y
Unski
lled
Sem
i
Skill
ed
Skille
d
Mana
geme
nt
16 to
25
3 17 3 0
26 to
35
34 55 17 6
36 to
45
11 54 31 14
46 and
over
25 55 28 26
Seagoing staff
Age
Categor
y
Unski
lled
Sem
i
Skill
ed
Skille
d
Mana
geme
nt
16 to
25
105 45 3 0
26 to
35
209 141 44 59
36 to
45
43 39 18 37
46 and
over
8 17 10 33
Relevant legislative provisions
[12] Section 7(1) of the Act prohibits “medical testing” unless legislation
permits or requires the testing or unless “it is justifiable in the light of
medical facts, employment conditions, social policy, the fair
distribution of employee benefits or the inherent requirements of a
job”. Section 7(2) reads as follows:
“Testing of an employee to determine that employee’s HIV status is
prohibited unless such testing is determined to be justifiable by the
Labour Court in terms of section 50(4) of this Act”.
[13] Section 50(4) provides as follows:
“If the Labour Court declares that the medical testing of an employee
as contemplated in section 7 is justifiable, the court may make any
order that it considers appropriate in the circumstances, including
imposing conditions relating to –
(a) the provision of counselling;
(b) the maintenance of confidentiality;
(c) the period during which the authorisation for any testing applies; and
(d) the category or categories of jobs or employees in respect of which the
authorisation for testing applies.”
[14] The term “medical testing” is defined in section 1 as including:
“any test, question, inquiry or other means designed to ascertain, or
which has the effect of enabling the employer to ascertain, whether an
employee has any medical condition”.
[15] Section 7 appears to contemplate that an employer may form and act
on its own view as to whether medical testing for conditions other than
HIV infection is justifiable, whereas the justifiability of testing for an
employee’s HIV status must be determined in advance by the Labour
Court. Of course, an employer may be wrong in its view concerning
the justifiability of a medical test and this may have certain
consequences for the employer, but it is only in the case of HIV
testing that the issue of justifiability must be determined in advance by
the Labour Court. In Hoffmann v South African Airways 2001 (1) SA
1 (CC) the Constitutional Court described people living with
HIV/AIDS as “one of the most vulnerable groups in our society” (para
28), and the legislature’s concern for this group is reflected inter alia
in the more stringent requirements for HIV testing imposed by section
7(2).
[16] As Landman J pointed out in Joy Mining Machinery, a Division of
Harnischfeger (SA) (Pty) Ltd v National Union of Metal Workers of
SA & Others (2002) 23 ILJ 391 (LC), section 7(2) is not happily
worded. It contemplates a determination of justifiability in terms of
section 50(4) yet the latter section does not in express terms empower
the Labour Court to declare testing to be justifiable. Rather, the section
sets out the orders that may be made and the conditions which may be
imposed if the Labour Court has declared the testing to be justifiable.
Nevertheless, it is clear that the Labour Court was intended to have,
and does have, the jurisdiction to determine the justifiability of
medical testing. If the conferral of that power is not necessarily
implicit in section 50(4), it would at least fall under section 50(1)( j).
[17] The primary relief which the applicant seeks in this case is a
declaratory order that the testing which it wishes to arrange does not
fall within the ambit of section 7(2). There are two grounds on which
such a view might notionally be supported. The first is that the
proposed testing is anonymous and the second is that it is voluntary.
Anonymous testing
[18] Section 7 forms part of a chapter dealing with the prohibition of unfair
discrimination. One of the main purposes of the Act is to achieve
equity in the workplace by promoting equal opportunity and fair
treatment in employment through the elimination of unfair
discrimination (see section 2( a)). In this context, the purpose of
section 7 seems to me to be clear. An employer should not unfairly
discriminate against an employee on the basis that the latter suffers
from some or other medical condition. One of the ways of reducing
the likelihood of such discrimination is to limit the circumstances in
which an employer may ascertain the employee’s medical condition
through testing.
[19] Where employees are tested in such a way that the employer is unable
to identify which employees are suffering from the medical condition
in question, the risk of discrimination based on medical condition is
absent. It would thus not be surprising to find, and would not be in
conflict with the broad purpose of the Act, that anonymous testing
should fall outside the ambit of section 7. I believe there is support in
the language of the Act for this view.
[20] I have already quoted the statutory definition of “medical testing”.
This is the term used in section 7(1). Section 7(2) refers to “testing”,
but it is clear from the context that this is simply an abbreviated
reference to “medical testing”. Section 50(4), to which section 7(2)
refers, concerns the orders which the Labour Court can make when it
declares that the “medical testing” of an employee as contemplated in
section 7 is justifiable.
[21] The statutory definition of “medical testing” is not a model of clarity.
Grammatically, it appears to describe two different situations, namely:
[a] a test designed to ascertain whether an employee has any medical
condition;
[b] a test which has the effect of enabling the employer to ascertain
whether an employee has any medical condition.
[22] The criterion in the first situation is the purpose or intention of the test
whereas the criterion in the second situation is its effect. In the second
situation, a test only constitutes “medical testing” where the effect is
to enable the employer to ascertain whether the employee has any
medical condition. On the other hand, the portion of the definition
covering the first situation does not in terms identify the person for
whom the test is designed to provide information. However, I have no
doubt that this is a consequence of clumsy formulation rather than
deliberate design and that the first situation is limited to testing
designed to enable the employer to ascertain whether an employee has
any medical condition. The Act is not concerned with medical testing
other than in the context of an employment relationship or a
prospective employment relationship.
[23] Accordingly, when section 7(2) prohibits the “testing” of an employee
to determine that employee’s HIV status, what it is prohibiting is a test
which is designed to enable, or which will have the effect of enabling,
the employer to ascertain the HIV status of an employee. And it is
clear from the language of section 7(2) itself that the testing will be
prohibited only if the employer is thereby enabled to determine the
HIV status of a particular employee (the expression used is “ that
employee’s HIV status”).
[24] The aforegoing view is based on the language of the Act itself,
interpreted in the light of the purpose of the legislation. However, it is
a view which is supported, I think, by clause 7.1.8 of the Code of
Good Practice: Key Aspects of HIV/AIDS and Employment issued
under section 54(1)( a) of the Act. This clause is quoted in
paragraph 18 of Landman J’s judgment in the Joy Mining case. As the
learned Judge observed in paragraph 21 of his judgment, clause 7.1.8
of the Code appears to permit anonymous testing (i.e. without the need
for an order from this Court). Section 3( c) of the Act states that the
Act must be interpreted taking into account any relevant code of good
practice issued in terms of the Act.
[25] In paragraph 21 of his judgment in the Joy Mining case, Landman J
seems to have had reservations about clause 7.1.8 of the Code. Who,
he asks, was to decide whether a test would or would not guarantee
anonymity and when should this decision be made? It may be that
there will be borderline cases in which views may differ as to whether
the test will enable the employer to ascertain the HIV status of an
employee, but the existence of borderline cases cannot be a reason for
disregarding the fact that the legislature only intended “medical
testing” as defined to be hit by section 7. As I have already observed,
where medical testing relates to a condition other than HIV status,
section 7(1) does not require nor contemplate prior authorisation from
the Labour Court. The employer would have to form and act on its
own view as to the justifiability of the testing. The fact that there may
be borderline cases where the employer will subsequently be found to
have been wrong does not alter this fact. In the same way, there may
be borderline cases where it is difficult to say whether the HIV testing
for which the employer is arranging falls within the ambit of “medical
testing” as regulated by section 7(2), but one cannot on this account
ignore the fact that not all testing for which an employer arranges is
covered by the Act.
[26] In the present case the testing does not have as its purpose to enable
the applicant to ascertain the HIV status of any identifiable employees.
Will this nevertheless be its effect? During argument I expressed to Mr
Loxton (who appeared for the applicant) a concern that in certain of
the job categories in the 16 to 25 age group the numbers were very
small. In response, he stated that the applicant was willing to combine
persons in the 16 to 35 age range in a single group for statistical
purposes or alternatively to eliminate the distinction between shore
based and seagoing staff for purposes of receiving information on the
age group 16 to 25. It seems to me that either of these adjustments
would be sufficient to eliminate any reasonable possibility that an
individual’s HIV status could be deduced from the statistical
information.
Voluntary testing
[27] Since this conclusion can be reached purely on the strength of the
anonymous nature of the testing, it is perhaps not necessary for me to
consider the issue whether a test which will enable the employer to
ascertain the HIV status of an identifiable employee is permissible
without this Court’s authority where the testing is voluntary
(a question also left open in the Joy Mining case – see para 20).
However, I think it is desirable to deal with the issue. Mr Loxton put
his argument on both bases. Furthermore, if anonymity were the only
basis for taking the testing outside the ambit of section 7(2), the
applicant would be required (in order to allay the concern mentioned
previously) to broaden certain of the categories in which it receives
information. If, on the other hand, the voluntary nature of the testing
were a further basis for rendering section 7(2) inapplicable, the
applicant would be entitled to receive information in the categories
initially envisaged, even though in certain categories there might be
some risk (though I would still not regard it as high) that the applicant
could deduce the HIV status of certain individuals.
[28] I should explain what I mean by compulsory and voluntary testing.
Compulsory testing is not limited to the case of taking a sample from
an employee by physical force. In the absence of consent, such
conduct would amount to an assault, and it would not require any
statutory provision in order to render it unlawful. By compulsory
testing is meant, in this context, the imposition by the employer of a
requirement that employees (or prospective employees – see section 9
of the Act) submit to testing on the pain of some or other sanction or
disadvantage if they refuse consent. This is to be contrasted with
voluntary testing, where it is entirely up to the employee to decide
whether he or she wishes to be tested and where no disadvantage
attaches to a decision by the employee not to submit to testing.
[29] In considering the permissibility of voluntary testing, it is perhaps
appropriate to observe that the avoidance of discrimination against
those infected with HIV is not likely to be best served by encouraging
a climate of secrecy. It is one thing to protect employees against
compulsory testing. It is quite another thing to place obstacles in the
way of voluntary testing. Clause 15.2 of the code to which I have
referred recommends that every workplace works towards developing
and implementing a workplace HIV/AIDS programme, and it is
recommended that the programme should inter alia encourage
voluntary testing. The programme should also “create an environment
that is conducive to openness, disclosure and acceptance amongst all
staff”. Clause 7.2 of the code, while acknowledging an employee’s
right to privacy, states that mechanisms should be created “to
encourage openness, acceptance and support” for employers and
employees who voluntarily disclose their HIV status within the
workplace.
[30] If section 7(2) were interpreted as applying to voluntary testing, it
would mean that although voluntary testing is regarded in the code as
something to be encouraged, an employer would not (without the
expense of a court application) be entitled to assist in the attainment of
this objective by making its own testing facilities available to its staff.
[31] In determining the sort of medical testing contemplated by
section 7(2), I believe some assistance can be derived from a
consideration of the provisions of section 7(1). As I have already
observed, the latter provision applies to medical testing other than for
HIV status. Such testing is prohibited unless legislation permits or
requires the testing or unless the testing is justifiable “in the light of
medical facts, employment conditions, social policy, the fair
distribution of employee benefits or the inherent requirements of a
job”. Although the quoted criteria are expressed in fairly broad terms,
they appear to refer to considerations which would make it objectively
justifiable for an employer to require employees to undergo testing.
The individual employee’s attitude to the testing is not stated to be a
relevant factor and would not seem to be naturally accommodated
within any of the stated criteria of justifiability. It follows that if
medical testing under section 7(1) were to include voluntary testing,
the employee’s desire and willingness to undergo the testing would
not be relevant in assessing the justifiability thereof. Since there is no
procedure for the court to approve testing other than in respect of HIV
status, such employees could not be tested at an employer’s facility at
all (even though keen and willing) unless this were objectively
justifiable with reference to the factors listed in section 7(1)( b) or
unless legislation permitted or required the testing.
[32] I doubt whether this could have been the legislature’s intention. There
must be many large employers which provide medical or nursing
facilities to employees. In the ordinary course of the operation of such
facilities, employees who choose to consult the medical or nursing
staff would undergo tests or be asked questions designed to ascertain
whether they are suffering from some or other medical condition. I do
not believe that the legislature could have intended that before
assistance could be offered by an employer to such employees a
decision would in each case need to be made as to whether the
undertaking of medical investigation was objectively justifiable on one
or other of the grounds set out in section 7(1)( b) of the Act.
[33] There is thus good reason to conclude that the legislature did not
intend section 7 to apply to voluntary testing. This is a view which in
my opinion is fortified by a consideration of the consequences which
attach to a violation of section 7. Medical testing is not itself an act of
discrimination. Section 7 is a preemptive measure designed to reduce
the risk of discrimination on the grounds of medical condition. Section
10, which deals with disputes concerning chapter II of the Act, appears
only to make provision for the referral to the CCMA of disputes
concerning alleged unfair discrimination . (Section 10(2) requires the
referral to be made within six months after the act or omission
allegedly constituting unfair discrimination.) If the dispute remains
unresolved it may be referred to the Labour Court (section 10(6)( a)).
In terms of section 50(2) this Court may order compensation or
damages for unfair discrimination , but there is no jurisdiction to make
such an award merely because a person has been medically tested. In
terms of section 50(1)( g) the Labour Court can impose fines in
accordance with schedule 1 for contraventions of certain provisions of
the Act, but section 7 is not one of them. A contravention of section 7
is not stated by the Act to be a criminal offence.
[34] It thus appears that a dispute concerning medical testing cannot be
referred to the CCMA nor can a contravention of section 7 be visited
with a fine or an order for damages or compensation. What then is the
consequence of a violation or threatened violation of section 7? Where
testing is compulsory and is not objectively justifiable (under section
7(1)) or, in the case of HIV testing, has not been authorised by this
Court (under section section 7(2)), an employee would be entitled to
approach this Court for an order declaring that the compulsory testing
is prohibited and interdicting same. Where, on the other hand, the
testing is voluntary, it is difficult to see what remedy would either be
required or be possible. A person who does not wish to be tested and
who is not required to undergo testing would have no need for the
protection of a declaratory order and an interdict. A person who
volunteers for testing would in the nature of things not seek redress. If
such an employee were later to regret that he had volunteered for
testing, I doubt whether he would have any ground for approaching
the Court, given that he volunteered for the testing. If future testing
remained voluntary he would require no ongoing protection. And as I
have said, the Act does not appear to impose any penalty for a past
infraction of section 7 per se , so that no effective order could be made
at the instance of such an employee.
[35] In short, it seems to me that there are no circumstances in which
voluntary medical testing could ever be the subject of legal
proceedings or legal redress. This being so, it strikes me as most
improbable that voluntary testing was intended to be within the ambit
of section 7.
[36] I thus find that section 7 as a whole applies only to compulsory testing
(in the sense described above) and does not apply to voluntary testing.
Provided testing is truly voluntary, I do not believe it matters whether
the initiative for testing comes from the employer or the employees. I
imagine that in many instances the initiative might come from the
employer, in the sense that the employer would establish medical
facilities and convey to employees that these facilities are available for
any members of staff wishing to take advantage thereof.
[37] Support for the view that voluntary testing does not fall within the
ambit of section 7(2) is to be found in clause 7 of the code. The
provisions of clause 7 are quoted in full in paragraph 18 of
Landman J’s judgment in the Joy Mining case. Clauses 7.1.4 and 7.1.5
distinguish between “authorised testing” (i.e. cases where the authority
of the Labour Court is required under section 50(4)) and “permissible
testing” (i.e. where the Labour Court’s authority is not required).
Under the heading of permissible testing, clause 7.1.5( a) provides as
follows:
“(a) An employer may provide testing to an employee who has requested a
test in the following circumstances:
(i) as part of a health care service provided in the workplace;
(ii) in the event of an occupational accident carrying a risk of exposure to
blood or other body fluids;
(iii) for the purposes of applying for compensation following an
occupational accident involving a risk of exposure to blood or other
body fluids.”
[38] Admittedly the distinction drawn in the code between authorised and
permissible testing must be read subject to clauses 7.1.2 and 7.1.3 of
the code, which states as follows:
“7.1.2 Whether s7(2) of the Employment Equity Act prevents an employer
provided health service supplying a test to an employee who
requests a test, depends on whether the Labour Court would accept
that an employee can knowingly agree to waive the protection in the
section. This issue has not yet been decided by the courts.
7.1.3 In implementing the sections below, it is recommended that parties
take note of the position set out in item 7.1.2.”
[39] Notwithstanding the warning sounded in clauses 7.1.2 and 7.1.3 of the
code, it nevertheless seems clear to me that the framers of the code
considered that voluntary testing in the circumstances set out in clause
7.1.5 of the code should be permitted without prior authorisation from
the Labour Court. This is something which can be taken into account
by this Court in interpreting the Act (see section 3(c)).
[40] Clause 7.1.2 suggests that the issue now under consideration turns on
whether or not employees can waive the protection of section 7(2)
(and see also para 20 of the judgment in the Joy Mining case). On the
approach I have taken to the matter, the question is not one of waiver
but rather whether section 7 properly construed applies to voluntary
testing at all. However, if one were instead to take as one’s starting
point that all testing falls within the ambit of section 7(2) and then to
enquire whether an employee may waive the protection of
section 7(2), I think one would arrive at the same answer.
[41] It is a wellestablished principle of our law that a statutory provision
enacted for the special benefit of any individual or body may be
waived by that individual or body, provided that no public interests are
involved (see Road Accident Fund v Mothupi 2000 (4) SA 38 (SCA)
para 15). Section 7(2) is, as I have said, a preemptive measure
designed to reduce the risk of discrimination against employees on the
grounds of their HIV status. It obviously exists for the benefit of
individual employees, and I do not see why an individual employee
should not be entitled to waive the protection of the section. It is
important to remember, in this regard, that the employee would not be
waiving his right to protection against unfair discrimination. He would
still enjoy such protection under section 6 of the Act. Medical testing
is not in itself an act of unfair discrimination. The Act does not seek to
prohibit an employer from knowing an employees’ HIV status. After
all, an employee is always free to volunteer this information to his
employer. In these circumstances, if an employee considers that the
benefit to himself in taking advantage of testing offered by his
employer outweighs the risk that the employer might thereafter use the
information to discriminate against him (something which in any event
the employer would be prohibited by section 6 from doing), I do not
perceive there to be any public interest standing in the way of such a
course. It is also significant that while section 51(3) states that no
person may favour, or promise to favour, an employee in exchange for
that employee not exercising any right conferred by the Act or not
participating in any proceedings in terms of the Act, the waiver of
rights by an employee is not in terms prohibited.
Conclusion
[42] I thus conclude that the anonymous and voluntary testing which the
applicant wishes to arrange for its employees does not fall within the
ambit of section 7(2) and that the applicant does not require the
authority of this Court before allowing its employees to be tested. If
this conclusion had been reached solely on the basis of the anonymous
nature of the testing, some slight adjustment might have been required
to the manner in which statistical information is reported to the
applicant. However, in the light of the view I have reached on the
issue of voluntary testing, it seems to me that such an adjustment is
not obligatory.
[43] Since the applicant is, in my view, entitled to the declaratory order
sought in paragraph 1 of the notice of motion, it is not necessary to
consider the question of justifiability under section 50(4). Mr Loxton
said that if I was with the applicant in regard to the primary
declaratory relief sought, his client did not require the comfort of any
further order under section 50(4) ex abundanti cautela (assuming such
a further order were permissible).
[44] I accordingly grant the following order:
[a] It is declared that the anonymous and voluntary medical testing on the
third to further respondents, details of which are set out in the
founding affidavit of Trevor Earl Brodrick, does not fall within the
ambit of section 7(2) of the Employment Equity Act 55 of 1998.
[b] No order as to costs is made.
OL ROGERS AJ
C1126/02
Date of Hearing: 13 December 2002
Date of Judgment: 17 December 2002
Applicant’s Attorneys: D.A. Loxton
Unopposed Application