n South African Law Journal - Privacy, HIV / AIDS and public health interventions

Volume 126, Issue 2
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



Although HIV / AIDS has claimed centre stage in public and political debates over the last few years, South African scholars largely refrain from examining and discussing the right to privacy and its limitations in the context of HIV / AIDS. Until the Constitutional Court's recent decision in NM and Others v Smith and Others, the lack of literature was accompanied by a scarcity of case law regarding the importance of the protection of privacy of HIV-infected people. This article aims to set the scene for a debate on HIV / AIDS and privacy: the scope of the right, its importance for HIV-infected individuals and the justifiability of limitations in the form of public health interventions.

As an introduction to the subject matter, the first part of this article provides a brief overview of academic discussion around the right to privacy. The article examines the scope of the right and its distinction from other human rights, before assessing its importance for people living with HIV / AIDS Although both the common law and the constitutional law protect privacy, concerns are raised as to whether the legal mechanisms are sufficient to truly protect HIV-infected individuals.
The second part of the article focuses on public health interventions that limit the right to privacy, and thoroughly analyses their implications. First, current health guidelines on HIV disclosure by health care professionals are reviewed, and, drawing on comparative health policies, it is debated whether partner notification programmes should be introduced in South Africa. Interesting questions around the justifiability of invasions of privacy and health care professional' legal duty to warn patients' partners are discussed.
The article then looks at HIV disclosures envisaged by recent legislative developments. The Criminal Law (Sexual Offences and Related Matters) Amendment Act makes provision for the compulsory HIV testing of alleged sexual and other offenders. The article undertakes a thorough examination of these statutory provisions and raises serious questions in relation to their justifiability.

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