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1.INTRODUCTION

1.1 The South African Law Commission has been investigating reform of the law relating to AIDS and HIV since 1993. An extensive discussion document (Working Paper 58) was published for general information and comment in September 1995. A reconstituted project committee - assisting the Commission in resolving differences of opinion between interest groups reflected in the comments on Working Paper 58 and in developing final recommendations - decided to adopt an incremental approach to this large and difficult task.

1.2 The Commission has already adopted the project committee's first interim report. In this report^[1] the project committee addressed matters which are largely uncontroversial and which commanded almost universal support. The report deals with disposable syringes, needles and other hazardous material; universal work place infection control measures (universal precautions); a national compulsory standard for condoms; descheduling of HIV/AIDS as a communicable disease in the Regulations Relating to Communicable Diseases and the Notification of Notifiable Medical Conditions^[2] (the 1987 Regulations)^[3]; and a national policy on HIV testing and informed consent. This interim report was tabled in Parliament by the Minister of Justice on 28 August 1997. The National Assembly resolved on 18 September 1997 that the recommendations in the First Interim Report should be implemented urgently by the government.

1.3 The project committee's second interim report addresses the question whether statutory intervention to prohibit pre-employment testing for HIV is warranted. The Commission approved a draft interim report in this regard on 17 April 1998.

1.4 The current interim report covers the issue of HIV/AIDS and discrimination in schools and contains final recommendations with regard to the promulgation of a national policy on HIV/AIDS in public schools. Preliminary recommendations in this regard were presented in Discussion Paper 73 which was distributed for comment during the latter half of 1997.

1.4.1 Background information on the work of the previous project committee with regard to HIV/AIDS in schools and further progress since the appointment of the present project committee in 1996 are recorded in Chapter 2. Comments on Discussion Paper 73 are set out in Chapter 5 and evaluated in Chapter 6.

1.4.2 Extensive legal comparison was done in compiling Working Paper 58. Part of this is reflected in Chapter 2. The current interim report is based on the research done for Working Paper 58. Where new developments in other countries came to our attention, these were incorporated in the text and footnotes of the current interim report.

1.4.3 It was from the outset the Commission's intention to protect children (learners^[4]) in public^[5] and independent schools. These are schools that enroll learners in one or more grades between grade zero and grade 12. The recommendations in Discussion Paper 73 were drafted with this age group in mind. Strong submissions were however received from commentators to expand the policy to cover the entire education setting (including pre-schoolars, students in tertiary institutions, teachers [educators] and administrative staff at schools). These submissions were given careful consideration but the Commission has resolved to limit its recommendations to the age group originally intended. The research recorded in this interim report is accordingly limited to the position of learners between grade zero and grade 12. Submissions regarding the expansion of the preliminary recommendations are evaluated and the applicability of the proposed national policy to independent schools is dealt with in Chapter 6.^[6]

1.5 Senior officers of the Department of Education have been closely involved throughout the Commission's consultation process in the development of the recommendations and policy contained in this interim report. Conversely, project committee members participated in a number of departmental meetings. Details of the Department's involvement are recorded in Chapter 2.^[7]

1.6 It is to be noted that this interim report deals only with the issue of HIV/AIDS and discrimination in schools. Subsequent interim reports will deal with other matters identified for reform.

[1] SALC First Interim Report on Aspects of the Law Relating to AIDS.

[2] GN R 2348 in GG 11014 of 30 October 1987.

[3] This recommendation does not concern the notification of HIV or AIDS.

[4] The term "learner" is used in this interim report in accordance with its meaning in sec 1 of the South African Schools Act 84 of 1996 (the Schools Act) ("any person receiving education or obliged to receive education in terms of [the] Act") . Reference to "school children" is retained in the discussion of research done by the former Commission as recorded in Chapter 2 below.

[5] "Public schools" is defined in fn 201, par 3.17 below.

[6] Par 6.11-6.29.2 below. See also par 3.17.2, fn 210 and par 3.58 for the position of independent schools, and par 6.70 and 6.73 for the Commission's recommendation in this regard.

[7] See par 2.14-2.16 and the accompanying footnotes.