The credibility of the High Court to deal with HIV/AIDS issues in cases took a blow this week when the Sunday Times reported that a Pretoria High Court judge had prevented an HIV-positive mother custody of her children, at least partly because of her HIV status.  

Pretoria High Court Judge Johan Smit made the comments during the divorce proceedings of the woman and her husband, a well-known multi-millionaire who is HIV-negative.

“I am not, I am really not interested in her medical status. She has admitted that she is a carrier of AIDS. That is all that is, as far as I am concerned, relevant,” Judge Smit said.

When the judge was told the mother was able to work and look after her children, he allegedly said: “Well, what evidence do I have that she will not transmit the HIV to the children?”

The judge, who declined to comment to the Sunday Times, is coincidentally retiring this week. Not surprisingly, AIDS activists slammed his comments.

“This is just the type of prejudice that is outlawed in our constitution, and it is akin to racism, and there is just no room for that in this country,” Mark Heywood, head of the Aids Law Project, told the Cape Times.

The judge’s comments showed just how variable HIV/AIDS knowledge is in South African courts.

Earlier this month, Judge Willem van der Merwe admirably castigated Jacob Zuma for having unprotected sex with an HIV-positive woman.

“It is totally unacceptable that a man should have unprotected sex with any person other than his regular partner and definitely not with a person who to his knowledge is HIV positive. I do not even want to comment on the effect of a shower after having had unprotected sex,” Van der Merwe said in his judgement at the culmination of Zuma’s rape trial.

And in 2001, fellow Pretoria High Court judge, Chris Botha, gave a highly knowledgeable and lucid argument when ordering the government to supply antiretrovirals to all HIV-positive pregnant women in the public health system to reduce mother-to-child transmission of the virus.

“About one thing there must be no misunderstanding: a countrywide MTCT prevention programme is an ineluctable obligation of the State,” he said.

So it’s particularly sad that Smit bowed out of the same court in the worst possible way; by arguing rather poorly that a woman’s HIV status has a bearing on her ability to raise her children.

On the positive side, it’s good to see the Sunday Times leading with an HIV/AIDS story that doesn’t involve “Zuma”, “Manto”, or “Rath”. It’s also a gutsy move to publish details of divorce proceedings that by law aren’t supposed to be published in the media. The public interest has been served. Now what about the mother and children? – Richard Frank

This entry was posted on Friday, May 26th, 2006 at 1:50 pm and is filed under Blog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.