The short answer
You shouldn't be discriminated against because of your HIV status.
The whole question
I live in South Africa on a Retired Person Visa. I need to know if Home Affairs will still be extending my visa as I'm now HIV infected. I'm married to a South African woman but she has almost no income, which means spousal visa won't be possible.
The long answer
Thank you for your email asking whether Home Affairs would extend your Retired Person’s Visa now that you have become HIV-positive. You say that although you are married to a South African woman you don’t think the spousal visa will be possible as she has hardly any income.
To begin with, the Constitution gives rights to all people to access basic health services, which include HIV/AIDS treatment. National health policy is that antiretroviral treatment is freely available to everyone in South Africa, irrespective of documentation, status or nationality.
The Constitution also protects the right to privacy and confidentiality. The National Health Act says that medical confidentiality may only be breached if a patient consents to the disclosure in writing; if a court or law requires the disclosure, or if non-disclosure represents a serious threat to public health.
The Promotion of Access to Information Act (PAIA) says that access to information or records can be refused if it amounts to an unreasonable disclosure of third party personal information. This means that where another person or institution requests health information, particularly HIV-related information, that information cannot be disclosed unless the person whose information it is, gives permission in writing for it to be made known.
According to the Home Affairs website, the diseases that must be excluded in terms of good health are “cholera, pestilence, yellow fever and any other diseases as determined by the Department of Health from time to time”. The required radiological report means you would also need to submit a recent chest XRAY to exclude TB.
There is no mention of HIV/AIDS. B. This would apply whether you wanted to extend your Retired Persons Visa or apply for a spousal visa.
The main emphasis for Home Affairs when granting or extending a Retired Persons Visa seems to be that the applicant has sufficient funds. I quote from Home Affairs:
“Proof that applicant has the right to a pension or irrevocable annuity or retirement account which will give such foreigner a prescribed minimum payment per month (R37 000) for the rest of his or her life, as determined from time to time by the Minister, by notice in the Gazette or Proof that the applicant has a minimum prescribed net worth per month (R37 000) realising from the combination of assets, as determined from time to time by the Minister, by notice in the Gazette.”
But because it’s hardly ever easy or straightforward when it comes to dealing with Home Affairs, you may want to approach the following organisations for advice and assistance:
Legal Resources Centre: Email: firstname.lastname@example.org. Tel: 011 836 9831
SECTION27: University of the Witwatersrand. Tel: 011 7178600.
Answered on Feb. 5, 2020, 4:16 p.m.
Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.