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3.1 HIV/AIDS will undoubtedly affect most schools if not directly, then in an indirect way.[153] Learners may be faced with the illness of their parents or that of educators. Learners may have to take time off to look after young ones at home, care for a sick parent and carry out household tasks. This is not only emotionally draining to the learner but may also disrupt the learning process.
3.2 Because of the rise in infection rates, learners with HIV will increasingly form part of the school population. More and more children born with HIV will, with better medical care, reach school going age and attend primary schools. Indications that adolescents are sexually active, mean that increasing numbers of learners attending secondary schools might be infected. Intravenous drug abuse may also become an increasingly important source of HIV transmission among learners. (Recipients of infected blood transfusions, primarily haemophiliacs, may be present at school, although very rarely so.) Sickness and death of a learner may also impact on both other learners and educators. In the latter stages of AIDS a sick learner may be absent for almost 80% of school days. There could be increasing discrimination because of stigma.
3.3 Because of the nature of HIV antibody testing and the window period, discussed above, it is not readily possible to know with absolute certainty who is infected and who not. Even if mandatory screening for HIV of all learners were implemented it would be impossible to know with certainty who were infected and who not, or to effectively exclude infected (or subsequently infected) learners.[154]
3.4 There are as yet no known cases of HIV transmission in schools and HIV cannot be transmitted through day to day social contact. It has been stated above that the virus is transmitted by limited ways and only through blood, semen, vaginal and cervical discharge, and breast milk. Although the virus has been identified in other body fluids such as saliva and urine, no scientific evidence exists that these fluids can cause transmission of HIV.[155] Even in the sport environment there is no risk of transmission from sweat, swimming pool water, communal bathwater, saliva or respiratory droplets.[156] In the present interim report the Commission's premise as set out in Working Paper 58 is confirmed, namely that "persons with HIV/AIDS have to be accommodated in society to the extent that their infection does not expose others to significant risks that cannot be eliminated by ordinary measures or reasonable adaptations (for instance the use of universal precautions)".[157] Children with HIV should lead as full a life as possible and should not be denied the opportunity to receive an education to the maximum of their ability. Their infection as such does not expose others to significant risks within the school environment. However, if it is ascertained that an infected learner poses a "medically recognised significant health risk" to others owing to secondary infections or behaviour which may give rise to HIV transmission, appropriate measures may be taken.
3.5 "Universal precautions" is a concept used world-wide in the context of HIV/AIDS to indicate standard infection control procedures or precautionary measures aimed at the prevention of HIV transmission from one person to another. These measures include instructions concerning basic hygiene and the wearing of protective clothing (such as rubber gloves) when dealing with blood spills or body fluids. The basis for advocating its consistent application lies in the assumption that in situations of potential exposure to HIV, all persons are potentially infected and all blood and body fluids that may be contaminated with blood should be treated as such. The insignificant risk of transmission of HIV in the school environment can be effectively excluded by following these control procedures and precautionary measures. In the school environment this would mean that all blood, open wounds, sores, breaks in the skin, grazes and open skin lesions as well as all body fluids and excretions which could be stained or contaminated with blood should be handled in a prescribed manner.
3.6 Some respondents to Discussion Paper 73 pointed to the danger of exposing learners with HIV to common infections by accommodating them in the school environment. However, this risk is probably set off by the positive impact of "normal" peer relationships, stimulation and education. The South African Paediatric Association observed in its comments that "(C)hildren with HIV infection have the normal needs for socialisation and play, stimulation and education. They bear the additional burden of a family affected by anxiety, social stigma, serious disease and bereavement. They therefore have greater emotional needs. They may be ill themselves, for them 'normal' peer relationships and educational care is vital".[158] The precautionary measures or good hygiene practices referred to in the previous paragraph would in any event also include that learners with illnesses such as measles, whooping cough and mumps should be kept from school to protect all other learners, and especially those whose immune systems may be impaired by HIV.
3.7 The rights and duties of learners can be evaluated on different levels. Constitutional provisions, national and provincial legislation, statutory regulation, common law provisions and international instruments to which South Africa is a party, are all relevant in respect of HIV/AIDS in schools.[159] Equal access to education, the management and education of learners with HIV, confidentiality of AIDS-related information, and the supply of information and education regarding HIV/AIDS to learners, are all legal aspects which need discussion.
3.8 The Regulations relating to Communicable Diseases and the Notification of Notifiable Medical Conditions, 1987[160] (the 1987 Regulations) are currently the only statutory provisions directly addressing HIV infection[161] and AIDS. The 1987 Regulations contain far-reaching measures regarding "communicable diseases" in schools. Because AIDS is by definition a communicable disease and because it is listed[162] in an ANNEXURE to the 1987 Regulations, certain coercive measures apply mandatorily to it.[163] In terms of regulation 7(2) a parent or guardian of a learner must, for instance, inform the principal of a teaching institution of his or her child's HIV infection.
3.9 The 1987 Regulations have, as far as could be ascertained, never been applied in respect of schools.[164] They have been widely criticised[165] and have in draft been revised. Draft Regulations relating to Communicable Diseases and the Notification of Notifiable Medical Conditions[166] (the Draft Regulations) had been published for comment in 1993 but were not finalised by early 1998. In the Draft Regulations AIDS, although still a communicable disease, is no longer listed with the result that the far-reaching provisions discussed above,[167] will apparently not be applicable in respect of AIDS in future. Also, the Draft Regulations explicitly prohibit a principal from refusing a learner who is "a carrier" of HIV (or who is suspected of being "a carrier"), attendance at school on this ground only.[168] In the Commission's First Interim Report on Aspects of the Law Relating to AIDS, referred to in paragraph 1.2 above, it is recommended that the Draft Regulations be finalised and promulgated, subject to certain amendments.[169]
3.10 Other legislation,[170] and regulations[171] resulting therefrom, regulate school health services and provide for the medical examination of pupils under certain circumstances. However, HIV infection or AIDS are not directly addressed in these provisions, and the regulations have, with regard to medical examinations in general, as far as could be ascertained, not been applied to testing for HIV or the exclusion of learners with HIV from school attendance. Legislation also provides for the education of "handicapped" (disabled) children.[172] The definition of "handicapped" child in the different Acts is of such a nature that a child with asymptomatic HIV infection is probably not included.[173] The medical model of "disability" has in any event been rejected in education circles as a basis on which to model children with HIV.[174]
+ The right to equality and to dignity
3.11 The 1996 Constitution provides that neither the state, nor any person,[175] may unfairly discriminate directly or indirectly against anyone. The 1996 Constitution therefore prohibits unfair discrimination not only vertically (between the state and its subjects) but also horizontally (between individuals and juristic persons).[176] The Constitution in this way expressly attaches horizontal application to the right to equality. It is further provided that national legislation must be enacted to prevent or prohibit unfair discrimination. Legislation therefore seems to be the indicated mechanism by which horizontal application should be put into operation. However, this probably does not imply that the right to equality is dependent upon the promulgation of such legislation for its horizontal operation.[177] In other cases a fundamental right may apply horizontally "if, and to the extent that it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right".[178] Apart from the right to equality everyone has inherent dignity and the right to have their dignity respected and protected.[179]
3.12 The prohibition against unfair discrimination would thus apply vertically in respect of public schools[180] (as organs of state) as well as horizontally in respect of independent schools (as juristic persons). Independent schools will therefore not be allowed to unfairly discriminate against learners.[181]
3.13 Specific grounds are mentioned in the 1996 Constitution on which discrimination may not be based. These include "disability". However, the same uncertainty as that expressed in Working Paper 58 exists about the interpretation the courts will attach to "disability" and whether HIV infection would be regarded as such. The grounds mentioned do not constitute a numerus clausus and the courts may extend them.
3.13.1 In Prinsloo v Van der Linde[182] the Constitutional Court held that these (additional) grounds should be interpreted in the light of the South African past and would have a bearing on unfair discrimination which seriously impairs human dignity. The Court also foresaw future extension which does not bear upon human dignity.[183] In extending the grounds on which unfair discrimination may not take place, the onus of proof is however reversed and there would be no prima facie presumption in favour of the unfairness of the discrimination.[184] It could be argued that HIV infection should be recognised by the courts as an additional ground on the basis of which unfair discrimination is not allowed. In the light of the Prinsloo decision it would then probably have to be proved that differentiation on ground of HIV infection is not only irrational, but also impairs the human dignity of individuals, and is therefore unfair.[185]
3.14 The Schools Act[186] (which applies to all school education in South Africa and thus covers both public and independent schools admitting learners between grades zero and twelve[187]) confirms the constitutional prohibition on unfair discrimination. In its preamble the Act states, among other things, that all forms of unfair discrimination and intolerance are to be combatted, that the rights of all learners, parents and educators are to be upheld, and that uniform norms and standards for school education are to be set throughout South Africa.
3.15 The National Education Policy Act[188] (the Policy Act) also enhances the constitutional right to equality and protection against unfair discrimination.
3.15.1 National policy for education (which has to be determined and implemented by the Minister of Education)[189] has to be directed toward the advancement and protection of the fundamental rights of every person guaranteed in terms of the 1996 Constitution, and in terms of international conventions ratified by Parliament.[190] South Africa on 16 June 1995 ratified the United Nations Convention on the Rights of the Child (1989).[191]
3.15.2 National policy for education has, in particular, to advance and protect the right of every person to be protected against unfair discrimination in education on any ground whatsoever. Such policy is to be directed towards endeavouring to ensure that each student attains full personal development and that no person is denied the opportunity to receive an education to the maximum of his or her ability as a result of physical disability.[192]
+ The right to a basic education
3.16 The 1996 Constitution provides that everyone has the right to a basic education (including adult basic education).[193] The state has the duty to respect, to protect, to promote and to fulfil the right to a basic education.[194] The beneficiary has the right to require positive assistance or a benefit from the state.[195] It has been submitted that the duties created for the state by the Constitution and the right to a basic education of the individual may be linked to compulsory school attendance by children between seven and fifteen years (or grade 9).[196] Written reasons must be supplied for absence. Public schools may not refuse a learner admission on the grounds that his or her parent is unable to pay or has not paid school fees.[197] Children between the ages of seven and fifteen would thus be able to enforce their basic right to education against the state.[198]
3.16.1 However, if the nature of the right and the nature of any duty imposed by the right[199] is taken into account, the right to basic education would probably not be regarded as a right which also applies horizontally to independent schools in all four respects mentioned above. Independent schools would, for example have to respect learners' right to a basic education, but would not be expected to fulfil this right.[200]
3.17 The Schools Act confirms the constitutional right to a basic education. It provides that a public school[201] must admit learners[202] and serve their educational requirements without unfairly discriminating in any way.[203] Provinces have to provide public schools for the education of learners.[204] In terms of the Act "the provision of public schools" may include "the provision of hostels for the residential accommodation of learners".[205] The Act further provides for the administration, control and maintenance of school property, including school hostels.[206] It would seem that the definition of "public school" includes school hostels.[207]
3.17.1 In terms of this Act the governing body of a public school may not administer any test related to the admission of a learner to a public school, or direct or authorise the principal of the school or any other person to administer such test.[208] It is submitted that "any test" is wide enough to include tests for HIV. This would mean that no learner who applies for admission to a public school may be required to undergo a test for HIV. HIV testing may therefore not be a prerequisite for admission to public schools. In addition, if public schools were to require a negative HIV test result as a prerequisite for admission, this would in any event probably be considered to be unfair and irrational discrimination in view of the limitations of HIV antibody testing discussed above.[209]
3.17.2 No such prohibition, however, exists with regard to independent schools.[210] According to the Schools Act[211] and the 1996 Constitution[212] independent schools are merely required to maintain standards not inferior to the standards in comparable public schools, and their admission policies may not discriminate on the grounds of race. They would also not for instance be required to admit learners whose parents are not able to pay the school fees.[213]
3.18 The Schools Act provides for compulsory education (education from age seven up to the ninth grade or the age of fifteen).[214] The Act also provides for special education needs that learners may have. In determining the placement of a learner with special education needs the Head of Department and principal must take into account the rights and wishes of the parents of such learner.[215] A learner may be totally, partially or conditionally exempted from compulsory school attendance if it is in the best interests of the learner.[216] Parents may also apply to the Head of an Education Department[217] for the registration of a learner to receive education at the learner's home. This will be granted if it is in the interests of the learner, and if the education at home will meet the minimum requirements of the curriculum at public schools and will be of a standard not inferior to education at public schools.[218]
3.19 The constitutional right to a basic education is also enhanced by the Policy Act. National education policy has to be directed toward the advancement and protection of the fundamental rights of every person guaranteed in terms of Chapter 2 of the 1996 Constitution, and in particular the right of every person to a basic education and equal access to education institutions.[219]
+ The right to privacy
3.20 The 1996 Constitution protects every person's right to privacy.[220]
3.21 According to our common law every human being is entitled to recognition of his or her right to privacy. The right to privacy protects personal information concerning the individual's state of seclusion and is excluded from the knowledge of others; and it is for individuals themselves to decide on the content and extent of their interests in their privacy.[221]
3.22 A child is entitled to the same common law and constitutional rights in respect of the protection of his or her privacy as an adult and such rights are limited to the same extent.[222] For example, a doctor treating a child is bound by the same ethical and legal obligations of confidentiality that protect adults,[223] and the Interim South African Medical and Dental Council (SAMDC) Guidelines do not distinguish between adults and children.[224] Likewise a principal to whom confidential information regarding the HIV infection of a learner is divulged, will be ethically and legally bound to keep that information confidential.
3.23 The legal and ethical duty of confidentiality is not absolute, as there are other interests which may be more important and which may justify or necessitate the breach of confidentiality.[225] In general, disclosure can be justified if the individual gives his or her informed consent thereto; if legislation requires that the information be disclosed;[226] if a doctor or school principal is ordered by court to disclose the information; or if disclosure would be in the overriding public interest. HIV transmission involves serious potential harm for individuals and society and it is generally accepted that an overriding public interest could constitute justification for the removal of the duty of confidentiality. However, in view of the specific and limited modes by which HIV is transmitted, particular third parties whose interests may be affected are persons (such as care givers and health care workers) who have been exposed to the body fluids or blood of learners with HIV.[227]
3.24 The HIV status of a child may, therefore, not be disclosed without justification, such as consent.[228] The consent will usually be given by the child's parent or guardian.[229] According to the Child Care Act 74 of 1983, a child over the age of 14 years is competent to consent, without the assistance of his or her parent or guardian, to the performance of any medical treatment of him- or herself or his or her child.[230] This legal principle is in accordance with international findings indicating the age of 14 to 15 years as the approximate age that marks the transition from incompetence to universal competence regarding any medical treatment (which would include an HIV test) or surgical procedure.[231] This is regarded as the age at which children acquire a competence roughly comparable with that of adults.[232] It is submitted that a person who is competent to consent to an HIV test is also competent to consent to the disclosure of such test result. The Child Care Act therefore implies that a child above the age of 14 years and older may also consent to the disclosure of his or her HIV status.[233] If such a child gives consent, he or she would have to be "intellectually mature enough to understand the implications of his (or her) acts".[234] By analogy, a mother of 14 years and older, may consent to the disclosure of the HIV status of her baby to third parties.[235]
3.25 Breach of confidentiality without justification could lead to an action for damages against the person who disclosed the information.[236] Educators may also be disciplined by the South African Council for Educators (SACE) if they do not respect learners' rights to privacy.[237]
+ The right to freedom of association
3.26 The 1996 Constitution provides that everyone has the right to freedom of association.[238] This means inter alia that a parent may send his or her child to any school (public or independent) that he or she wishes.[239] Children also have the right of freedom of association and in this context refusal to study with a learner with HIV may present itself. This right of learners therefore may need to be balanced with other rights (such as the right to equality and the right to a basic education).
3.27 In respect of independent schools the right to freedom of association is of paramount importance. This right would allow for the establishment of institutions based on, for instance, a common language, culture or religion.[240] The Schools Act implies that independent schools and their governing bodies may structure their admission policies freely provided that they may not discriminate on grounds of race.[241] However, the horizontal application of the constitutional prohibition against unfair discrimination will have to be borne in mind.
+ The right to life, bodily integrity and an environment that is not harmful to health or well-being
3.28 The 1996 Constitution provides that everyone has the right to life.[242] It furthermore provides that everyone has the right to bodily and psychological integrity[243] and to an environment that is not harmful to his or her health or well-being.[244] In essence these provisions confirm the common law protection of the right to physical and psychological integrity, and physical and mental well-being of individuals.[245]
3.29 The state has to respect, protect, promote and fulfil the right of a learner to a healthy environment, and to refrain from directly infringing this right. The state also has a duty not to take any action which would deprive a learner of this right except where such infringement is justifiable in terms of section 36 of the 1996 Constitution.[246] In practice this would entail a duty on the state and governing bodies of public schools to take reasonable steps to ensure a safe school environment.[247] In accordance with the general principles of the law of delict, where all reasonable precautions have been taken to prevent the eventuation of a foreseen and possible harm, the loss created by that harm, if it ensues nevertheless, must lie where it falls. This means that someone suffering loss when damage ensues in these circumstances has no claim in law for recompense.
3.30 The preamble to the Schools Act states that the rights of all learners have to be upheld, while the Policy Act confirms that the fundamental rights of every person are to be protected.[248] The Policy Act refers to international conventions ratified by Parliament and the rights contained in these.[249] In this regard the United Nations Convention on the Rights of the Child (1989) is of importance. The Convention recognises every child's inherent right to life.[250]
3.31 Criminal or civil liability for a person with HIV could ensue as a result of exposing others to HIV infection.
3.31.1 In terms of the criminal law and the law of delict children under the age of seven years are irrebuttably presumed to lack criminal and delictual capacity.[251] There is a presumption that children between the ages of seven and 14 years are criminally and delictually unaccountable. But this presumption becomes rebuttable and weakens as the child approaches the age of 14 years. On attaining the age of 14 a child is regarded in law as being no different to an adult in respect of criminal and delictual accountability. People above the age of 14 are rebuttably considered to possess criminal and delictual capacity. In the context of HIV in schools this would imply that learners from the age of 14 years could be held liable criminally[252] and delictually[253] for exposing others to HIV infection.
3.31.2 A parent could be held liable for a delict committed by his or her child if the parent negligently failed to prevent the child from causing harm: "As to negligence, the parent's duty of supervision is not an absolute one: he is required to avert foreseeable harm by taking the precautions that a reasonable man would have taken in the circumstances. He need not have been present when the damage was caused, however it suffices that he should have foreseen and could have prevented it".[254]
3.31.3 Even criminal liability of a parent for the crimes of his minor children could, according to Boberg, ensue. He premises his view on the following: The parent is deemed to have conduced to the commission of an offence by the child "if the child probably would not have committed the offence if he [the parent] had taken proper care of the child".[255]
+ The right of access to information
3.32 The 1996 Constitution provides for everyone's right of access to information[256] held by the state as well as any information that is "held by another person and that is required for the exercise or protection of any rights"[257] (not necessarily being the applicant's rights). Until such time as legislation is enacted to give effect to this right,[258] persons have the right of access to information only against the state and its organs: they have the right of access to all information held by the state or any of its organs in any sphere of government in so far as that information is required for the exercise or protection of any of their rights.[259]
3.32.1 The Schools Act gives further effect to the constitutional right of access to information and provides that all schools (whether public or independent) must make information available for inspection by any person, insofar as that information is required for the exercise and protection of such person's rights.[260]
3.32.2 Parents, or learners themselves, could argue that the 1996 Constitution enables them to have access to state-held information regarding learners with HIV in public schools, the latter being conceived as "organs of state"[261] or that the Schools Act itself affords them access to such information in any school (public as well as independent[262]). Parents or learners would have to show that they need this information to protect their specific right(s).[263] The right need not be a fundamental right[264] (such as the fundamental right to life[265] or to bodily integrity[266]) but may indeed be any other right.
3.33 On the other hand, it could be argued that the constitutional right of access to information in order to protect rights, means that learners have a right to general information about HIV/AIDS held by the state and its organs (such as the prevalence of HIV infection in the country and the modes of transmission and prevention) in order to be able to protect their health. It could be argued that this kind of information would be in the best interests of children as protected in the 1996 Constitution,[267] that it would promote the constitutional right of access to (reproductive) health care[268] and that it would have a significant positive impact on public health.[269] Studies have shown that publicity about AIDS has resulted in beneficial change in the sexual practices of teenagers.[270]
3.33.1 Those in favour of AIDS education argue that schools have the capacity and responsibility to ensure that young people understand the nature of the AIDS epidemic and the specific actions they can take to prevent HIV infection, especially during their adolescence and young adulthood.[271] It is further argued that the education departments appear, through their attempts in the past, to have accepted this responsibility to provide learners with education on HIV/AIDS and sexuality,[272] and that schools do have the economic resources to implement such programmes without taking away money allocated for traditional core courses. In the US it has been found that teacher-delivered curricula could favourably modify AIDS-related knowledge and risk behaviour among learners.[273] The argument is further that issues of sexuality should be discussed before teenagers become sexually active, as they are less likely to listen to messages of sexual abstinence or safety precautions once they are already sexually active. The message needs to reach them before they reach puberty.[274] The "window of opportunity" in Africa is said to refer to children under nine years of age.
+ The right to freedom of conscience, religion, thought, belief and opinion
3.34 The 1996 Constitution provides that everyone has the right to freedom of conscience, religion, thought, belief and opinion.[275]
3.34.1 The Schools Act,[276] the Policy Act,[277] as well as the United Nations Convention on the Rights of the Child (1989)[278] reaffirm these rights.
3.34.2 Independent schools will be able to rely on their right to freedom of association discussed above[279] and the right to freedom of conscience, thought, belief and opinion in order to establish education institutions based on a common language, culture or religion, as long as there is no discrimination on the ground of race.[280] It has been pointed out above that in addition independent schools will not be allowed to discriminate unfairly in terms of the 1996 Constitution.[281]
3.34.3 The Schools Act furthermore includes parents in public school governance and establishes the idea of a partnership in which parents play a vital role.[282] This would entail that parents should, to a certain extent, be involved in the development of a school's HIV/AIDS policy - especially with regard to the ethos and values contained in such policy.
3.35 Educating young people about becoming infected through sexual contact can be controversial and may infringe on parents' freedom of conscience and opinion in relation to their children's best interests. This is even more so when issues such as safer sex practices, the use of condoms and mechanisms to make condoms available to learners in schools, are considered. Parents fear that sexuality education only increases and encourages sexual activity, undermines the morality of young adults and conveys the message that sexual activity is permissible as long as it is "safe".
3.36 Some proponents of parental rights want sexuality and HIV/AIDS education not to form part of the school curriculum, or parents to have the right to remove their children from sexuality education programmes. They contend that parents have a right not to have sexually suggestive and morally offensive material presented in school, and to control the dissemination of materials related to sexuality education with respect to AIDS, including condom use. The basis for their assertion is rooted in moral and religious grounds and the belief that parents have the right to rear their children as they please.[283] Proponents of parental rights maintain that the latter overrides the concern for public health.
+ The child's best interests
3.37 The 1996 Constitution provides that the child's best interests are of paramount importance.[284] In terms of section 28(3) of the 1996 Constitution a "child" means "a person under the age of 18 years".
3.38 This principle is confirmed in article 3 of the United Nations Convention on the Rights of the Child (1989)[285] and forms part of our South African common law.[286]
3.38.1 The inclusion of the "best interests of the child" as a general standard for the protection of children's rights in the 1996 Constitution can be regarded as a general benchmark for review of all proceedings in which decisions are taken regarding children. It implies that courts and administrative authorities are constitutionally bound to give consideration to the effect their decisions will have on children's lives.[287] It provides a minimum guarantee that the interests of the child cannot be ignored.[288]
3.38.2 The "best interests of the child" refers to the best interests of all children - those without HIV and those with HIV. "Best interests of the child" is not constitutionally defined.[289]
+ Corresponding duties
3.39 The existence of rights of course is indicative of corresponding duties and burdens placed on the state or others to respect these rights.[290] In the African context the idea of collective and individual responsibilities and duties is also emphasised.[291] When learners do not accept responsibilities an orderly school environment will not be possible.[292] All fundamental rights obviously have to be seen against the background of the requirements and aims of a proper and valid school education system.[293]
3.40 The "obligation clause" in section 7(2) of the 1996 Constitution instructs the state to "respect, protect, promote and fulfil the rights in the Bill of Rights". These obligations entail a combination of negative and positive duties, and apply to all rights. The negative duty amounts to the state and other relevant institutions refraining from infringing the stated rights directly, while the positive duty obliges the state to take steps to make sure that the enjoyment of the right is effective.[294] However, the exact scope and extent of the duty in respect of each right will depend on the nature of the right and the way in which the relevant constitutional provision was drafted.[295]
3.40.1 Few, if any rights are formulated in such a way that the protected conduct or interest may never be restricted. Both the general limitations clause[296] (which may contain indications that infringement of the right could be justifiable) and specific internal qualifications regarding the scope of the obligations engendered by the rights in question are at stake here. Even in the case of the strongest internal limitation (requiring the state to "take reasonable measures to achieve the progressive realisation of the rights within its available resources" - which limitation is not included in any of the constitutional provisions discussed in this interim report with respect to the protection of learners' rights) the obligation exists independently of an increase in resources.[297] The right to a healthy environment[298] is internally qualified in that the state is obliged to "take reasonable legislative and other measures" to realise the right. It is accepted that this internal qualification indicates that the state is under an obligation to initiate steps towards the full realisation of the relevant right.[299] This inter alia requires the adoption of economic measurers.[300] The right to a basic education[301] has no internal qualification. The state therefore has the obligation to have in place laws and policies required to enforce the proper protection of this right, and to create a framework in which learners will be able to realise their entrenched right without interference from others.[302] The state must create conditions in which the right to a basic education can be realised by the individual learner.[303]
3.41 Although the 1996 Constitution applies mainly vertically against the state (which brings about duties for the state and its organs, for example public schools acting through their governing bodies and the school principal[304]), section 8(2) stipulates that a provision of the Bill of Rights binds also natural and juristic persons (for instance learners) if and to the extent that it is applicable, taking into account the nature of the right and any duty imposed by the right. While this provision has not yet been canvassed by our courts, it can be confidently stated that private individuals (i e learners) have to respect the fundamental rights (for instance, to life, bodily integrity, freedom of association, access to information and a safe environment) of other learners and educators. The same argument would apply in respect of independent schools.[305]
3.42 Another source of duties will be the common law, which (especially through the law of delict) regulates the degree of care to be exercised in conduct which is potentially detrimental to others.[306] For example, civil liability for a person with HIV could ensue as a result of exposing others to HIV,[307] and breach of confidentiality without justification could lead to an action for damages against the person who disclosed the information.[308]
3.43 The Code of Conduct to be drawn up by every public school will constitute a further important and practical source of duties of learners.[309]
3.43.1 The governing body of a school must first consult with learners, parents and educators of the school before it may adopt a Code of Conduct.[310] The aim of the Code will be to establish a disciplined and purposeful school environment.[311] A learner is obliged to comply with the Code of Conduct but may endeavour to claim that it violates his or her constitutional right(s).[312] Such constitutional rights (as the right to equality) will then have to be balanced against the demands of a disciplined and safe school environment.
3.43.2 It has been said that learners (and especially those who know or believe that they have HIV infection) should be taught that they may not expose others to their body fluids or blood and that they have certain duties towards society in this regard.[313] Moreover, a school's Code of Conduct should contain provisions regarding behaviour which may create risk of HIV transmission (for instance aggressive sexual behaviour). The Schools Act provides for the suspension or expulsion of a learner from a public school.[314] A learner may be expelled from a public school if, after a fair hearing, he or she is found guilty of serious misconduct.[315] If the learner is between seven and 15 years of age (i e subject to compulsory school attendance) an alternative arrangement must be made for his or her placement at a public school. In terms of the Schools Act this may include a gender-specific school.[316] Behaviour which may constitute serious misconduct and the disciplinary proceedings to be followed in such cases must be determined by notice in the Government Gazette by the MEC responsible for education in a specific province.[317] It has been suggested that learners who know or believe that they have HIV and who expose others to a significant risk should at least be guilty of serious misconduct and that clear guidelines should be set in this regard in a Code of Conduct.[318] Unacceptable behaviour in general should also be addressed in such Code.[319]
3.43.3 Learners with, for instance, pulmonary tuberculosis should be on treatment before allowing them back to school.[320] Learners taking part in contact sport should know that they are not allowed to take part with open wounds.
3.44 The consistent application of universal precautionary measures is better able to protect learners in the school environment from infection than HIV antibody testing and the refusal of admission of those identified as HIV positive. This approach would also be much less invasive of the rights of learners. Therefore it would probably be irrational and unfair to attempt to determine which learners are HIV positive and to discriminate against learners so identified. It could also possibly be successfully argued that irrational discrimination on the ground of HIV status alone would trench upon their human dignity as protected in section 10 of the 1996 Constitution.
3.45 In the light of current scientific knowledge, and of the (competing) fundamental rights set out above, compulsory testing of learners as a prerequisite for admission to any school (public or independent), or any unfair discriminatory treatment, is not justified.
3.46 However, there could be justification for withdrawing a learner with HIV from school or reasonably accommodating him or her elsewhere (such as allowing him or her to receive education at home) in cases where he or she poses a medically recognised significant health risk to others which cannot be excluded by ordinary precautionary measures. A significant health risk would for instance be present where a learner has a serious secondary infection which cannot be treated and could be transmitted to other persons in the course of day to day contact, or where the learner behaves in an aggressive manner (sexually or otherwise). In instances like these, discrimination would probably be fair and rational. Where his or her health condition permanently restricts a learner's ability to attend classes, such learner should be accommodated elsewhere. This approach is in accordance with the 1996 Constitution, the Schools Act, the Policy Act and the premise already adopted in Working Paper 58, namely that persons with HIV/AIDS should be accommodated in society to the extent that their infection does not expose others to significant risks which cannot be eliminated by ordinary measures or reasonable adaptations.
3.47 Although disclosure to the school principal is probably not legally enforceable (in view of the fact that the 1987 Regulations have apparently never been applied and will probably shortly be replaced by new Regulations), it may generally be in the best interests of the learner with HIV if the principal, or other member of staff directly involved with the learner's care, is informed of his or her condition either by his or her parents or guardians (in the case of learners under the age of 14) or by the learner him- or herself (if the learner is above the age of 14 years).
3.47.1 Awareness of a learner's HIV infection would facilitate informed decisions regarding his or her management. It would also allow a person in direct care of such learner to offer the learner support and understanding, and would enhance mutual trust between parents, learners and the school.
3.47.2 It is acknowledged that an effective policy of confidentiality, as well as what has been called an "enabling environment", needs to be created for such disclosures to occur.[321] It may also generally be in the interest of all other learners to inform members of staff of a learner's HIV infection. The National Department of Sport and Recreation, for instance, advised in their Draft Position Statement: HIV/AIDS in Sport (July 1997) that sports participants should inform medical personnel of their HIV infection if they sustain an open wound or skin lesion during sport so that these can be managed appropriately.[322]
3.47.3 HIV-related information may not be used as a ground for unfair discrimination against learners with HIV and the confidentiality of information should be ensured. Other parents, or other learners, would have no right of access to such information if they are unable to show that they need this information to protect their specific right(s). If universal precautions are adhered to in all circumstances, it would in any event be difficult to conceive of a right which may be threatened by maintaining confidentiality.
3.48 The question arises whether the learner above the age of 14 years, or the parent of a learner below 14 years, could incur liability by not disclosing HIV status to the school authorities.
3.48.1 It could be argued that during school hours the school acts in the place of the parent and assumes responsibility for learners in its care.[323]
3.48.2 It is furthermore accepted that in certain circumstances an omission to prevent harm to others may lead to delictual liability.[324] Community values will be decisive in this regard. Factors that have been accepted in our law as being indicative of a positive duty to act in order to prevent harm to others include the following:
3.48.3 In view of the common law position set out above (namely that schools have to take positive steps to create a safe school environment), and in view of the 1996 Constitution and other relevant legislation providing for the right to a basic (school) education and for compulsory school attendance, the Commission is of the view that the primary duty to protect the well-being and health of all learners lies with the state and public schools. Parents have a right to be informed by schools about the precautionary measures taken to prevent the transmission of HIV. Parents should also be informed of any coercive measures to be taken in terms of a school's Code of Conduct. Parents should be able to rely and insist on the adequacy of these measures to prevent the transmission of HIV in the school environment.
3.48.4 As the law of delict regulates the degree of care to be exercised in conduct which is potentially detrimental to others, the question arises of how the potential detrimental situation is to be handled. If adequate precautionary measures are adhered to, it could be argued that the potential detrimental effect to others is averted. According to this argument there would consequently be no legal duty on parents (or learners) to disclose HIV status. However, when disclosure of HIV status would be the only way of averting potential harm from others, a legal duty to disclose will arise.[327] In view of comments on Discussion Paper 73 stressing the need for openness, the Commission is of the opinion that the genuine voluntary disclosure of HIV status should be welcomed since this could be in the interests of all learners.
3.48.5 The common law duty of schools to act positively to ensure a safe learning environment is confirmed by the Schools Act. The Act provides that the state is to be held liable for any damage or loss caused as a result of any act or omission in connection with any educational activity conducted by a public school and for which such public school could have been liable but for the provisions of section 60 of the Act.[328]
3.48.5.1 Schools should be sensitised to HIV/AIDS and the need for universal precautions. Furthermore, no learner may be refused admission to a public school on the grounds that his or her parent has refused to enter into a contract in terms of which the parent waives any claim for damages arising out of the education of the learner.[329] The state is in any event strictly liable for damage in respect of which a public school as a juristic person would normally have been liable. Educators and staff may in specific instances be held personally liable for damage or loss.[330] It is not exactly clear what the position will be if a school for some reason requires a parent to sign an agreement limiting the amount of damages payable in some instances, or excluding the personal liability of members of its staff or of people not employed by the state.[331]
3.49 It is submitted that learners have a right to be educated on HIV infection, sexuality, healthy lifestyles, and life skills in order to protect themselves against HIV infection and to be able to cope in society. The public interest in containing the epidemic also necessitates the provision of such education. It should further be borne in mind that the state, through the courts, is the upper guardian of all children and that parental rights regarding the education and upbringing of children are not unlimited. It has been submitted that parental rights will be viewed by the courts not as intrinsic rights but as incidents of responsibilities or duties owed to children and that they will be enforced only to the extent that they are necessary to protect the child.[332] Any rights that the parent might have will simply be factors to be taken into account prior to reaching a decision consonant with the best interests of the child.[333] It is however acknowledged that there is a need for consultations with parent communities in an open manner to help allay any unfounded fears, improve understanding[334] and above all, inform them that sexuality education will accord with universally accepted values.[335] The information about AIDS should be designed to fit the developmental level and background of learners.
* The need for a national policy
3.50 The general legal position with regard to issues relevant to HIV/AIDS in the school environment has, since publication of Working Paper 58 in 1995, not changed. Rather, the legal requirements with regard to non-discrimination have been strengthened by the 1996 Constitution and the Schools Act as indicated in the preceding discussion in this Chapter. Moreover, as stated at the outset of this interim report, the need for clarity and practical guidance is as strong as it was in 1995.
3.50.1 Although it may be argued that the recent constitutional and legislative inhibitions on unfair discrimination and the disclosure of confidential information in the school environment are sufficient, this assumes extensive knowledge regarding HIV and the ability to apply this knowledge effectively.
3.50.2 Recent experience confirmed the need for a precisely directed and clearly targeted policy that would create legal certainty and help prevent injustice to learners with HIV. It would also signal a clear public and governmental commitment to action against unfair discrimination, and eliminate misconceptions and uncertainties.
3.50.3 Furthermore, a clear national policy on a core curriculum on HIV/AIDS education and on universal precautions to prevent infection with HIV in the school environment, including contact sport, will bring about much needed guidance on these issues.
* The National Education Policy Act, 1996
3.51 As stated above, the Policy Act provides for, inter alia, the determination and implementation of national policy for education by the Minister of Education.[336]
3.51.1 The Policy Act provides that national policy for education has to be determined in accordance with the provisions of the 1996 Constitution and of the Act itself,[337] and that in determining such national policy for education at education institutions,[338] the Minister shall take into account the competence of the provincial legislatures in terms of the 1996 Constitution[339] and the relevant provisions of any provincial law relating to education.
3.51.2 In terms of the 1996 Constitution the national and provincial legislatures have concurrent legislative competence on education at all levels, excluding tertiary education.[340] If there is a conflict between national legislation and provincial legislation on education, the national legislation that applies uniformly with regard to the country as a whole prevails over provincial legislation if inter alia the national legislation deals with a matter that, to be dealt with effectively, requires uniformity across the nation, and the national legislation provides that uniformity by establishing norms and standards, frameworks or national policies.[341]
3.51.3 Whenever the Minister wishes a particular national policy to prevail over the whole or a part of any provincial law on education, the Minister has to "inform the provincial political heads of education accordingly", and has to make a specific declaration in the policy instrument to that effect.[342]
3.51.4 The Minister must determine national policy on matters such as financing and staffing,[343] and may determine national policy for inter alia development in education, compulsory school[344] education, the admission of students[345] to education institutions, curriculum frameworks, core syllabuses, education programmes, and education support services (including health and welfare development and counselling).[346] It is specifically provided that the Minister's powers include determining national policy for "the organisation, management, governance,[347] funding, establishment and registration or education institutions".[348] An "education institution" is defined in the Policy Act as "any institution providing education, whether early childhood, education, primary, secondary ... education and also an institution providing specialised ... education".[349] It is accordingly submitted that "education institution" is wide enough to also include independent schools.
* Responsibility for implementation of a national policy on HIV/AIDS in schools
+ Funding
3.52 The state's duties with regard to the right to a basic education and the right to a safe environment have been set out above.[350] In addition to the positive duties referred to and the fact that the right to a safe environment would require the state to take (reasonable) economic measures, it is further accepted that the obligation to ensure the achievement of rights exists independently of resources.[351] Regardless of constraints on resources, the state will have to demonstrate that it is taking steps to realise the rights in question. The state has a "minimum core obligation" that would ensure, at the very least, minimum essential levels of the protected rights. Failure will constitute a prima facie breach of guaranteed rights. Every effort has to be made to use all resources that are at its disposal in an effort to satisfy, as a matter of priority, those minimum obligations. Vulnerable members of society, can and must be protected by the adoption of relatively low-cost targeted programmes.[352]
3.53 According to section 34 of the Schools Act, the state must fund public schools from public revenue on an equitable basis in order to ensure the proper exercise of the rights of learners.[353] Section 12 of the Act further provides that the MEC (of a province who is responsible for education in that province) must, provide public schools[354] for the education of learners out of funds appropriated for this purpose by the provincial legislature.[355] The state must, on an annual basis, provide sufficient information to public schools regarding the funding referred to, to enable public schools to prepare their budgets for the next financial year.[356] In terms of the Act the Minister of Education may moreover determine norms and minimum standards for the granting of subsidies to independent schools.[357]
3.53.1 It is further provided that a governing body of a public school must take all reasonable measures within its means to supplement the resources supplied by the state in order to improve the quality of education provided by the school to all learners at the school.[358] This would have to be done from the school fund (which would include school fees and voluntary contributions).[359]
3.53.2 Section 3(4) of the Policy Act provides that the Minister of Education may in general determine national policy for the financing, management, governance and well-being of the education system. Particularly, he may determine national policy for the funding of education institutions[360] and such policy should be directed toward cost-effective use of education resources and sustainable implementation of education services.[361]
3.53.3 From the above exposition of the statutory provision it is deduced that the state should facilitate the implementation of a national policy on HIV/AIDS for schools by providing funding required for such implementation.[362] Indeed HIV/AIDS education represent an investment in the country's future for which the state itself is duty bound to make adequate provision. It would however, not be wrong, to expect a governing body to contribute to this if it is within its means to do so.[363]
+ Practical implementation
3.54 As regards responsibility for the practical implementation of a national policy on HIV/AIDS at each school, the principal,[364] as the professional manager of a school in terms of the Schools Act,[365] would be the proper person to take responsibility.
* Possible mechanisms for enforcement of a national policy on HIV/AIDS in schools
3.55 The Policy Act provides for the annual monitoring and evaluation of standards of education by the Department of Education, in co-operation with the provincial departments of education. The object is to assess progress in complying with the provisions of the 1996 Constitution and with national education policy.[366] The Department prepares and publishes a report on the results of each investigation after providing an opportunity for the competent authority to comment.[367] If this report indicates that the standards of education do not comply with the 1996 Constitution or with national policy, the Minister is required to inform the provincial political head of education concerned and require the submission within 90 days of a plan to remedy the situation. This plan is prepared by the provincial education department in consultation with the national Department of Education, and tabled in Parliament with the Minister's comments.[368]
3.56 In addition, the Educators' Employment Act 1994[369] provides for the discharge of an educator on account of incompetence or inability to perform the duties attached to his or her post, and on account of misconduct. (Misconduct is defined as contravening or failing to comply with any provision of the Act or any law relating to education, and as negligence or indolence in the performance of duties.[370]) Other action can include transfer to another post and even lowering of salary or rank or both.[371] It has to be borne in mind, however, that this Act does not apply to educators employed in independent schools. These educators however constitute a small minority of educators in South Africa.[372]
3.57 Thirdly, a Code of Conduct was adopted by SACE[373] and will eventually apply to educators registered with SACE. It is envisaged that all educators[374] (excluding educators in independent schools, independent colleges, universities and technikons[375]) will register with SACE in the course of 1998.[376] Although educators in independent schools, independent colleges, universities and technikons fall outside the definition of educators obliged to register, they are nevertheless invited to also register. It is envisaged by SACE that the Code of Conduct will become operative in June 1998. Complaints against educators registered with SACE may be investigated, a fine of up to R1 000 may be levied and an educator's name struck from the register if he or she is found guilty of a breach of the Code - which implies that such educator can no longer teach in a public school in South Africa. By registering, educators undertake, among other things, to respect the fundamental rights of learners, (including their right to privacy and confidentiality), to help each learner attain his or her full potential, to take reasonable steps to ensure the safety of learners, not to be negligent or indolent in the performance of their professional duties, to recognise that schools serve their communities, to accept their professional obligation towards the education profession and to accept the disciplinary powers of SACE.[377] Although the Code will not be applicable to educators in independent schools (unless they register of their own accord with SACE), the Code is likely to carry moral authority even in the case of such educators.
* The position of independent schools
3.58 Although the definition of "education institution" in the Policy Act is wide enough to include independent schools, and the national policy may conceivably be made applicable to independent schools by the Minister of Education, there is at present no mechanism by which to ensure compliance with the policy in independent schools. The Educator's Employment Act does not apply to educators in independent schools. Nor does SACE's Code of Conduct. Independent schools will of course be free to adopt the policy of their own accord.
3.58.1 A mechanism whereby compliance with the proposed policy could be ensured in the case of independent schools is for the relevant MEC to determine compliance with the national policy to be a ground on which the registration of an independent school may be granted.[378] Such determination will have to be done by notice in the Provincial Gazette.[379] The Commission recommends in paragraph 6.26 below that this route should be followed.
[152] Refer also to par 3.163-3.170 of SALC Working Paper 58.
[153] Cf the remarks of Kwitshana (Unpublished).
[154] Par 2.41-2.45 above.
[155] Par 2.20-2.23 above.
[156] Draft Position Statement: HIV/AIDS in Sport 1997 4.
[157] SALC Working Paper 58 par 2.21
[158] Cf also the US decision in District 27 Community School Board v Board of Education 502 NYS 2d 328 (1986) on the positive impact of main-stream education on children with HIV's psychological and intellectual well-being.
[159] Cf Visser 1997 Obiter 15-17.
[160] GN R 2438 of 1987 in GG 11014 of 30 October 1987.
[161] Cf eg the reference to "carrier of a communicable disease" in reg 14(1).
[162] See Annexure I of the 1987 Regulations. Note that AIDS (but not HIV infection) is listed. The terminology used in the 1987 Regulations is followed in this section.
[163] These include the following: The parents of a child who has been in contact with a person suffering from AIDS, shall immediately inform the principal thereof (reg 7(2)). If a principal is aware, or suspects, that a pupil (currently referred to as "learner" in legislation) or a person employed at the school suffers from AIDS, or has been in contact with a person suffering from AIDS, he or she shall without delay inform the medical officer of health (reg 7(1)(a)). The principal may not, except on the strength of a medical certificate, allow such pupil or employee to enter the school (reg 7(1)(b)). When AIDS is present in a particular district, a local authority or medical officer of health may close a school and restrict attendance thereat by any person (reg 2). A medical officer of health may medically examine (and therefore have a test for HIV carried out on) any pupil or employee in order to prevent or restrict the spread of AIDS (reg 6), and may also have a pupil or employee removed to a hospital or place of isolation (reg 14(3)), or place such person under quarantine (reg 2(1)).
[164] Cameron and Swanson 1992 SAJHR 217; cf also Van Wyk 449; .
[165] A more detailed discussion followed in Chapter 4 of SALC Working Paper 58; see also par 5.4-5.9 of SALC First Interim Report on Aspects of the Law Relating to AIDS.
[166] Published under Notice 703 of 1993 in GG 15011 of 30 July 1993.
[167] See fn 163 above.
[168] The Draft Regulations, draft reg 7(4). See also SALC First Interim Report on Aspects of the Law Relating to AIDS par 5.2.
[169] Which will remove unnecessary restrictions on the conveyance of the body of a person who was known to have been a "carrier of HIV" at the time of his or her death (SALC First Interim Report on Aspects of the Law Relating to AIDS par 5.8, 5.9 and 5.15).
[170] Education and Training Act 90 of 1979, sec 41(1), (2) and (3)(e); Education Affairs Act 70 of 1988, sec 112(fA); Coloured Persons Education Act 47 of 1963, sec 34(i); Indians Education Act 61 of 1965, sec 33(i).
[171] Reg 2 of the Regulations relating to Medical, Psychological and Dental Examinations of Pupils at Public Schools, GN R 707 of 1990 in GG 12381 of 30 March 1990 (made in terms of Act 90 of 1979); reg 2 and 3 of the Regulations regarding the Medical Examination of Pupils in Schools, GN R 2088 of 1979 in GG 6665 of 21 September 1979 (made in terms of Act 70 of 1988); and reg 2 of the Regulations relating to Medical and Psychological Inspections at Indian Schools, GN R 1799 of 1966 in GG 1591 of 11 November 1966 (made in terms of Act 61 of 1965). (As far as could be ascertained similar regulations have not been made in terms of Act 47 of 1963.)
[172] Education and Training Act 90 of 1979, sec 1 and 5; Education Affairs Act 70 of 1988, sec 1 and 12(1)(d); Coloured Persons Education Act 47 of 1963, sec 1 and 3(1)(a); Indians Education Act 61 of 1965, sec 1 and 3(1)(a).
[173] The definitions of "handicapped" child in the Acts mentioned in the previous fn are virtually the same and require that such a child "deviates to such an extent from the majority of persons of his age in body, mind or behaviour that he - (a) cannot derive sufficient benefit from the instruction normally provided in the ordinary course of education; (b) requires special education to facilitate his adaptation to the community; and (c) should not attend an ordinary class in an ordinary school because such attendance may be harmful to him or to other pupils in that class" (cf sec 1 of each of the Acts mentioned in the previous fn).
[174] Cf the representative of the Commission on Special Needs in Education who stated this view at a Department of Education Branch meeting attended by project committee member A Strode on 4 April 1997.
[175] Sec 9(4) provides that national legislation must be enacted to prevent or prohibit unfair discrimination between private parties.
[176] Sec 9(3) and (4). Subsection (4) provides expressly that "(N)o person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3)". Sec 8(2) provides that "(A) provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right".
[177] See sec 9(4) of the 1996 Constitution. Cf also Van Wyk (Unpublished) 9-10.
[178] The 1996 Constitution sec 8(2).
[179] Ibid sec 10.
[180] Public schools are inter alia defined as schools that are funded by the provincial legislatures, and include ordinary public schools and public schools for learners with special education needs (sec 1(xviii) and Chapter 3 of the Schools Act). See Baloro v University of Bophuthatswana 1995 4 SA 197 (B) 235-246 in which Friedman JP held universities to be organs of state as they were institutions established by statute and under the control of the Minister of Education. The same arguments could apply to public schools which are funded by the state (sec 34(1) of the Schools Act). These arguments may possibly even apply to independent schools which are registered by the Head of an Education Department (Ibid, sec 46) and which may receive subsidies from the state (Ibid, sec 48).
[181] Cf also Van Wyk (Unpublished) 10.
[182] 1997 (6) BCLR 759 (CC). See also President of the Republic of South Africa v Hugo 1997 4 SA 1 (CC) (1997 (6) BCLR 708 (CC)).
[183] "Where discrimination results in treating persons differently in a way which impairs their fundamental dignity as human beings, it will clearly be a breach of section 8(2). Other forms of differentiation, which in some other way affect persons adversely in a comparably serious manner, may well constitute a breach of section 8(2) as well" [Referring to the 1993 interim Constitution] (Prinsloo v Van der Linde supra 774).
[184] Cf also van Wyk (Unpublished) 11.
[185] Ibid 11-12.
[186] See fn 39. This Act became operative on 1 January 1997.
[187] See sec 1(xix) read with sec 2(1) of the Schools Act.
[188] Act 27 of 1996. This Act became operative on 24 April 1996.
[189] The Policy Act sec 1 read with sec 2.
[190] The Policy Act sec 4(a).
[191] The Convention was adopted by the United Nations General Assembly on 20 November 1989 and came into force on 2 September 1990. For the purpose of the Convention a child means every human being below the age of 18 years, unless under the law applicable to the child, majority is attained earlier (article 1). States Parties inter alia undertake to ensure children such protection and care as is necessary for their well-being, to ensure to the maximum extent possible the survival and development of children and to ensure that children have access to information and material aimed at the promotion of inter alia their physical health. States Parties shall furthermore respect the responsibilities, rights and duties of parents, and the right of the child to freedom of association and to freedom of conscience and religion; and shall recognise that every child has the inherent right to life (art 3, 5, 6, 14, 15 and 17). Significantly, the Convention requires that in all actions concerning children, the best interest of the child shall be a primary consideration (art 3). Furthermore, guidelines regarding the protection of human rights in the context of HIV and AIDS which were adopted by resolution of the United Nations Commission on Human Rights at its 57th meeting on 11 April 1997 include the following: States should enact or strengthen anti-discrimination and other protective laws that protect vulnerable groups and people with HIV or AIDS from discrimination and emphasise education (Guideline 5); States should ensure that community consultation occurs in all phases of HIV/AIDS policy design, programme implementation and evaluation (Guideline 2); States, in collaboration with and through the community should promote a supportive and enabling environment for women, children and other vulnerable groups by addressing underlying prejudices and inequalities through community dialogue, specially designed social and health services and support to community groups (Guideline 8); States should promote the wide and ongoing distribution of creative education and training, explicitly designed to change attitudes of discrimination and stigmatisation associated with HIV/AIDS to understanding and acceptance (Guideline 9); States should ensure that governments develop codes of conduct regarding HIV/AIDS issues that translate human rights principles into codes of professional responsibility and practice with accompanying mechanisms to implement and enforce these codes (Guideline 10); and States should ensure monitoring and enforcement mechanisms to guarantee the protection of HV-related human rights (Guideline 11).
[192] The Policy Act sec 4(b) and (d).
[193] Sec 29(1). This section in addition provides that everyone has the right to "further education which the state must make progressively available and accessible through reasonable measures".
[194] Sec 7(2) of the 1996 Constitution.
[195] De Vos 1995 S A Public Law 245-246.
[196] Van Wyk (Unpublished) 13-14. Sec 3 of the Schools Act requires that every parent must cause every learner for whom he or she is responsible to attend a school from the first school day of the year in which such learner reaches the age of seven years until the last school day of the year in which such learner reaches the age of fifteen years or the ninth grade, whichever occurs first. Any parent who, without just cause, prevents a learner who is subject to compulsory attendance from attending a school, is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding six months (sec 3(6)(a)). In fact any other person who, without just cause, prevents a learner who is subject to compulsory attendance from attending a school, is guilty of an offence and liable on conviction to a fine or to imprisonment of a period not exceeding six months (sec 3(6)(b) of the Schools Act).
[197] The Schools Act sec 5(3).
[198] Cf also Van Wyk (Unpublished) 14.
[199] Cf sec 8(2) of the 1996 Constitution.
[200] Cf the discussion in par 3.41 and par 6.24 et seq below.
[201] Sec 1(xviii), read with chapter 3 of the Schools Act, defines "public schools". They are schools that are funded by the provincial legislatures and may be ordinary schools or schools for learners with special education needs. Public schools for learners with special education needs include schools for the physically disabled; schools for children with behavioural deviations (clinic schools); schools for mentally disabled children; hospital schools; schools of industry, reform schools and places of safety for learners who have found themselves in trouble with the law or are in need of protection (Special Needs Report 1997 30; information supplied by Dr Nelia Louw, Member of the National Task Team: Life Skills and HIV/AIDS Education Programme on 24 February 1998). The Member of the Executive Council (MEC) responsible for education in a specific province must, where reasonably practicable, provide education for learners with special education needs at ordinary public schools and provide relevant educational support services for such learners. The MEC must take all reasonable measures to ensure that the physical facilities at public schools are accessible to disabled persons (sec 12 of the Schools Act). The governance of public schools vests in governing bodies (Ibid sec 16).
[202] Sec 1(ix) defines a "learner" as any person receiving education or obliged to receive education in terms of this Act. Cf sec 3(1) on compulsory education.
[203] Sec 5(1).
[204] Sec 3(3), sec 12(1) and sec 34.
[205] Sec 12(1) and (2).
[206] Sec 20(1)(g) and 21(1)(a).
[207] According to sec 1(xviii) a "public school" means "a school contemplated in Chapter 3" of the Act. Chapter 3 (sec 12(2)) provides as follows: "The provision of public schools referred to in subsection (1) [which requires the MEC to provide public schools for the education of learners out of funds appropriated for this purpose by the provincial legislature] may include the provision of hostels for the residential accommodation of learners". In an informal discussion with senior officers of the Department of Education on 24 February 1998 it was indicated that the Department, on the basis of these provisions, regards hostels to be included in the definition of a "public school"(see fn 46 for particulars regarding the discussion with the Department).
[208] Sec 5(2). Cf also sec 3(6)(b) - this subsection is referred to fully in fn 196 above
[209] See par 2.41-2.45.
[210] Independent schools may not be established or maintained unless they are registered by the Head of the Education Department which is responsible for education in a province (sec 46(1) of the Schools Act). The Head of the Education Department must register an independent school if he or she is satisfied that the standards to be maintained by such school will not be inferior to the standards in comparable public schools, the admission policy of the school does not discriminate on the grounds of race, and the school complies with the grounds for registration which the MEC has given notice of in the Provincial Gazette as grounds on which the registration of an independent school may be granted (sec 46(2) and (3)). Independent schools may be subsidised by provincial funds under certain circumstances (sec 48 and sec 50).
[211] Sec 46(3).
[212] Sec 29(3).
[213] Van Wyk (Unpublished) 16.
[214] Sec 3(1) provides that every parent must cause every learner for whom he or she is responsible to attend a school from the first school day of the year in which such learner reaches the age of seven years until the last school day of the year in which such learner reaches the age of fifteen years or the ninth grade, whichever occurs first. Any parent who fails to comply, and any other person who prevents such learner to attend school, is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding six months (sec 3(6)). "Parent" is defined in sec 1(xiv) of the Schools Act as "(a) the parent or guardian of a learner; (b) the person legally entitled to custody of a learner; (c) the person who undertakes to fulfill the obligations of a person referred to in paragraphs (a) and (b) towards the learner's education at a school".
[215] Sec 5(6) of the Schools Act.
[216] Sec 4(1).
[217] Meaning the Department established by sec 7(2) of the Public Service Act, 1994 which is responsible for education in a province (sec 1(iii) and (vii) of the Schools Act).
[218] Sec 51(1) and (2).
[219] The Policy Act sec 4(a)(ii).
[220] Sec 14.
[221] Neethling 31 et seq.
[222] Cf also Viinikka HIV Infection and Children in Need 41 and AIDS The Legal Issues 201.
[223] Par 3.47-3.57 of SALC Working Paper 58. In these paragraphs the confidentiality of AIDS-related information is discussed.
[224] See par 3.54-3.56 of SALC Working Paper 58 for relevant extracts from the SAMDC Guidelines. One such guideline is: " The principle of professional secrecy applies in respect of the patient. The decision whether to divulge the information to other parties involved must therefore be in consultation with the patient. If the patient's consent cannot be obtained, the health care worker should use his or her discretion whether or not to divulge the information to other parties involved. Such a decision must be made with the greatest care, after explanation to the patient and with acceptance of full responsibility at all times". (The parents of a child under 14 will of course be informed by a medical practitioner of the child's medical condition.)
[225] Van Wyk AH 1991 Stell LR 46; cf also Strauss Huldigingsbundel vir WA Joubert 145; Van Wyk 386-388; Jansen Van Vuuren v Kruger 1993 4 SA 842 (A); cf the limitation clause, sec 36, of the 1996 Constitution.
[226] Provided that this legislation conforms to the provisions of sec 36 of the 1996 Constitution. See eg the 1987 Regulations which requires that a child's HIV status be disclosed to the school principal - refer to par 3.8-3.9 above.
[227] Cf Strauss 15; Van Wyk 1993 De Jure 145.
[228] Cameron AIDS Bulletin March 1993; cf also Neethling 258-259.
[229] Cameron AIDS Bulletin March 1993; cf also Viinikka HIV Infection and Children in Need 41.
[230] See sec 39(4)(b). (In the case of an operation this age limit is 18 years - sec 39(4)(a).)
[231] Ngwena 1996 Acta Juridica 138.
[232] Ibid.
[233] The Child Care Act sec 39(4)(b); see also Cameron AIDS Bulletin March 1993.
[234] Neethling 259, 97-98 (our translation).
[235] Cf the Child Care Act sec 39(4)(b).
[236] Neethling 268 et seq.
[237] Par 3.57 below.
[238] The 1996 Constitution sec 18.
[239] Visser 1997 TSAR 628.
[240] Cf sec 4(a)(vi) of the Policy Act.
[241] The Schools Act sec 46(3)(b).
[242] The 1996 Constitution sec 11.
[243] Ibid sec 12(2).
[244] Ibid sec 24(a).
[245] Neethling et al 29 et seq.
[246] De Vos 1995 S A Public Law 253-254.
[247] Visser 1997 Obiter 21. Governance of public schools is vested in its governing bodies (sec 16 of the Schools Act).
[248] Sec 4.
[249] See par 3.15.1 above for more detail.
[250] Article 6.
[251] Burchell 83-84; Burchell and Hunt 158 et seq.
[252] In terms of our common law intentionally exposing somebody to HIV could constitute a crime, while transmitting HIV could, depending on the circumstances, amount to assault, attempted murder, manslaughter or even murder.
[253] In terms of delictual law children could be held liable for causing damage to another person. A delict is an unlawful, blameworthy (i e intentional or negligent) act or omission which causes another person damage to person or property or injury to personality and for which a civil remedy for recovery of damages is available (Burchell 10). In Venter v Nel 1997 4 SA 1014 (D) the court granted the plaintiff damages on the ground that the defendant had infected her with HIV during sexual intercourse. Damages was granted for future medical expenses as well as for the possibility of a reduction in life expectancy, psychological stress, contumely and pain and suffering. It was held that the plaintiff's condition was one which called for "extremely high damages". Factors taken into account by the court in assessing the damages were inter alia the stress and inevitable fear of the unknown, the feelings of helplessness and hopelessness, the adverse effects that the condition had on her general relationship with all others, the adverse effects on her sex life and psychological and social suffering.
[254] Boberg 677-678.
[255] Ibid 660.
[256] According to Alkema 1996 HRCLJSA 32-35, South Africa is the only country in the world which recognises this right as a constitutional right. He argues that the aim of the right of access to information is to create a participatory and accountable form of government on all levels.
[257] Sec 32(1).
[258] Sec 32(2). This legislation has to be enacted within three years of the date the 1996 Constitution took effect (sec 23(3) of the Transitional Arrangements). The Open Democracy Bill (published under General Notice 1514 of 1997 in Government Gazette 18381 of 18 October 1997), aims to give the public a right of access to information held by governmental and private bodies.
[259] Sec 32(1) of the 1996 Constitution read with sec 23(2) of Schedule 6 (Transitional Arrangements).
[260] Sec 59(1).
[261] See fn 180 above.
[262] The Schools Act sec 59(1) read with the definition of "school" in sec 1(xix) of the Act.
[263] Cf sec 32(1) of the 1996 Constitution read with sec 23(2) of the 1993 interim Constitution; see also sec 59(1) of the Schools Act.
[264] Uni Windows CC v East London Municipality 1995 8 BCLR 1091 (E). Cf Director Advertising Cost Cutters v Minister for Post, Telecommunications and Broadcasting 1996 3 SA 800 (T) and Van Niekerk v City Council of Pretoria [1997] 1 AllSA 305 (T).
[265] The 1996 Constitution sec 11.
[266] Ibid sec 12(2).
[267] Ibid sec 28(2).
[268] Ibid sec 27(1)(a).
[269] American studies have shown that sex education programmes favourably influenced high risk behaviour (AIDSScan October 1996 10). A national survey in the United Kingdom also found that children who received sex education at school experienced first intercourse later than children who gained the information from friends (AIDSScan March/April 1995 8-9).
[270] Studies quoted in AIDSScan November 1989 7.
[271] Morbidity and Mortality Weekly Report 29 January 1988 2; McNary-Keith 1995 Journal of Law and Education 69; Lachman 454.
[272] Cf Strode and Small Rights December 1995 29.
[273] See AIDSScan December 1993 6 for a discussion of a study carried out among multi-ethnic high school children in New York City.
[274] With regard to AIDS sexuality education, it has been recommended that teenagers should be informed that sexual intercourse is imprudent in people under the age of 17. Although it may be difficult, the message should be brought across that teenagers should delay intercourse as long as possible but that they should use effective precautionary measures when they do become sexually active. Policies that promote abstinence should not be silent regarding appropriate action if a young person decides to become sexually active. Abstinence and condom promotion should therefore not be seen as conflicting strategies or as mutually exclusive goals for HIV prevention in teenagers. Teenagers and young adults should know how to engage in sexual intercourse in as safe a manner as possible. For a discussion of this viewpoint, see AIDSScan June 1995 10.
[275] Sec 15(1).
[276] See the preamble and sec 7 of the Act.
[277] Sec 4(a)(i)-(viii) provides that national policy shall be directed towards the advancement and protection of inter alia the right of every person to the freedom of conscience, religion, opinion and association within education institutions.
[278] For more detail see fn 191 above.
[279] Par 3.27 above.
[280] Sec 4(a)(vi) of the Policy Act. In a pending application before the Pretoria High Court against an independent school and the Education Department, a parent has recently applied for her child's right to freedom of belief to be respected in terms of the 1996 Constitution. The 15-year-old learner is allegedly forced to attend compulsory prayer sessions and instruction in the Christian religion. According to a media report the learner's parent submits that instruction in the Christian religion with the exclusion of other religions trenches upon her child's right to freedom of belief. The governing body of the school holds that the Constitution does not bind an independent school. It is reported that the school receives an annual subsidy of R700 000 from the government (Beeld 12 March 1998 6).
[281] Cf par 3.12 and 3.27 above.
[282] Visser 1997 TSAR 636.
[283] See discussion of and comments on challenges to sexuality education courses and the American experience in AIDSScan October 1996 10-11.
[284] Sec 28(2).
[285] Article 3 states that: "(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (2) States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. (3) States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision".
[286] Sloth-Nielsen 1996 Acta Juridica 8.
[287] Ibid 25.
[288] Some writers regard this principle as the "determinative criterion" in matters pertaining to the child: "... any rights that the parent might have ... will simply be factors to take into account prior to reaching a decision consonant with the best interests of the child ..." (Ngwena 1996 Acta Juridica 146).
[289] It has been suggested that "the child's best interests" refers to a paramountcy test - that is, the child's best interests (or his or her "welfare" as it was for instance previously referred to in sec 64 of the Australian Family Law Act 1975) is to be the court's paramount consideration in any matter concerning a child (Bailey-Harris and Dewar 1997 FamLQ 161-162).
[290] Cf also Visser 1997 Obiter 22-23.
[291] It has been suggested that concern expressed by Mahomed (DP - as he then was) in Fraser v Children's Court, Pretoria North 1997 2 BCLR 153 (CC) that new legislation should take account of the reality of the conditions that prevail for women and children in South Africa today, has placed the "Africanisation" of new legislation firmly on the agenda (Sloth-Nielsen and Van Heerden 1997 Stell LR 265). In contrast to the Western notion of individual rights, the African ethos places "rights" within the context of collective and individual responsibilities. The main difference, for instance, between the United Nations Convention on the Rights of the Child (1989) and the Organisation of African Unity Charter is that the latter includes a section on the responsibilities of children, which is entirely absent from the former (Parry-Williams 1993 Int J of Children's Rights 49 57-58, as referred to by Sloth-Nielsen and Van Heerden 1997 Stell LR 274). An indication of this African nuance is to be found in Ghanian legislative proposals for reform of the Law for Children (1996) where it is expressly provided that "the proposals try to give effect to the notion that the child needs less protection and takes on more responsibility for her actions as she gets older" (Sloth-Nielsen and Van Heerden 1997 Stell LR 274). In recent Namibian draft legislation reference is also made to the child's "responsibility for ... obligations" (Ibid.) Although South Africa is to date not a signatory to the African Charter, the possible inclusion of children's responsibilities in proposed child care and protection legislation has been raised in various forums in our country: The opinion has been expressed that children's rights cannot be viewed in isolation and that emphasis should not be placed solely on children's rights to the exclusion of the rights of their parents and the community at large (Ibid.)
[292] Visser 1997 Obiter 22-23. Cf also fn 16 above for the proviso in US legislation that the (education) programme of other learners should not be disrupted by learners with HIV.
[293] Ibid.
[294] De Vos 1997 SAJHR 79-83.
[295] Ibid.
[296] Sec 36 of the 1996 Constitution. This section operates as a uniform qualification on the scope of the obligations engendered by all the rights included in the Bill of Rights. According to this section the rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including inter alia the nature of the right, the nature and extent of the limitation and less restrictive means to achieve the purpose. Sec 36 will be relevant specifically where the obligation engendered by the right is limited in terms of "law of general application" (which would include the common law) (Cf De Vos 1997 SAJHR 92).
[297] De Vos 1997 SAJHR 91-97. (This limitation is eg present in sec 26 [Access to housing] and 27 [Access to health care, food, water and social security] of the 1996 Constitution.)
[298] See also par 3.28 and 3.29 above regarding the duties engendered by this right.
[299] De Vos 1997 SAJHR 94.
[300] Ibid 95.
[301] See also par 3.16 above regarding the duties engendered by this right.
[302] De Vos 1997 SAJHR 67-101.
[303] Ibid.
[304] The Schools Act sec 16.
[305] Visser 1997 Obiter 18-19.
[306] Ibid 24.
[307] Refer to the discussion in par 3.31 above.
[308] Par 3.25 above.
[309] Visser 1997 Obiter 19.
[310] The Schools Act sec 8(1).
[311] Ibid sec 8(2).
[312] Ibid sec 8(4) and sec 9. See also Visser 1997 Obiter 24.
[313] Van Wyk (Unpublished) 8-9.
[314] The Schools Act sec 9.
[315] Ibid sec 9(2).
[316] Ibid sec 9(5) and 12(6).
[317] Ibid sec 9(3).
[318] Eg in instances of biting (Van Wyk [Unpublished] 22).
[319] Ibid.
[320] The Department of Education's draft policy on admission of learners to public schools will, according to information received from representatives of the Department (see fn 46) require that learners should have received immunisation against (other) communicable diseases before they are admitted to public schools.
[321] See the joint statement by the Ministers of Health and of Education dated 25 February 1997 in which is stated: "... The South African public needs to be made aware that the most effective way to combat the spread of the HIV/AIDS virus is to demystify the disease and remove the unfortunate and unnecessary stigma attached to it ... This stance is in line with international trends ... (and) would greatly assist the commendable efforts of HIV/AIDS activists, create an enabling environment for disclosure, and a conducive climate for counselling and comfort ... We believe that the introduction of a life skills programme at an early age in schools should help change our attitudes about HIV/AIDS ...".
[322] See par 6.39 et seq below for more detail.
[323] Cf the discussion of parents' duties in par 3.31.2 and 3.31.3 above.
[324] Minister van Polisie v Ewels 1975(3) SA 590 (A). See also Neethling, Potgieter and Visser 59.
[325] Ibid 60, 63.
[326] Ibid 65.
[327] See Van Wyk 1993 De Jure 147 for a different viewpoint, namely that even where precautionary measures are in place, a duty to inform remains.
[328] The Schools Act sec 60(1). (See also the provisions of the State Liability Act 20 of 1957 which would apply to any such claim.)
[329] Ibid sec 5(3).
[330] Cf Burchell 215 et seq.
[331] Visser 1997 TSAR 630.
[332] Ngwena 1996 Acta Juridica 141. In the US the Supreme Court has interpreted the US Constitution as giving parents substantial autonomy and discretion in child-rearing. The rationale for this approach has been a presumption that parents are the best or most appropriate decision-makers for their children, and that to interfere with how they raise their children would be a violation of parents' constitutionally implied right to privacy. The Supreme Court has however held that parents' interests have to be balanced against other interests, including the child's interest in making private and independent decisions, provided he or she has the requisite capacity (Ngwena 1996 Acta Juridica 142).
[333] Ibid 146.
[334] Gie et al 1993 SAMJ 636-637.
[335] Sec 4(m) of the Policy Act provides that national policy should be directed to ensuring broad public participation in the development of such policy.
[336] The Policy Act sec 2, read with sec 1.
[337] Ibid sec 3(1).
[338] "Education institution" means any institution providing education, including early childhood education, primary, secondary, further or higher education, other than a university or technikon, and also an institution providing specialised, vocational, adult, distance and community education (sec 1 of the Policy Act).
[339] Sec 3(2) of the Policy Act still refers to sec 126 of the 1993 interim Constitution. Provinces had concurrent competence with Parliament to make laws for the province with regard to matters falling within the functional areas specified in Schedule 6, including education at all levels, excluding "university and technikon" education. An Act of Parliament would prevail only to the extent that it dealt with a matter which could, inter alia, not be regulated effectively by provincial legislation, or required uniform norms throughout the country, or was necessary to set minimum standards.
[340] Schedule 4 of the 1996 Constitution. (Schedule 6 of the 1993 interim Constitution contained a similar provision - see fn 339 above.)
[341] See sec 146 of the 1996 Constitution. Cf also In re: The National Education Policy Bill No 83 of 1995 1996 4 BCLR 518 (CC).
[342] Sec 3(3) of the Policy Act.
[343] After consultation with stakeholders such as the organised teaching profession, and with the concurrence of the Minister of Finance in so far as the policy involves expenditure from the State Revenue Fund (sec 5(1) and (2) of the Policy Act).
[344] "School" means a pre-primary, primary or secondary school (sec 1 of the Policy Act).
[345] "Student" means any person enrolled in an education institution (sec 1). For the meaning of "education institution", see fn 338 above.
[346] The Policy Act, sec 3(4).
[347] In terms of sec 16 of the Schools Act, the governance of every public school is vested in its governing body, while the professional management of a public school must be undertaken by the principal under the authority of the Head of Department.
[348] The Policy Act sec 3(4)(g).
[349] Ibid sec 1. See also fn 337 above.
[350] Par 3.40-3.40.1 above.
[351] Cf par 3.40.1 above.
[352] Cf De Vos 1997 SAJHR 97-98.
[353] The Schools Act sec 34(1).
[354] The provision of public schools may include the provision of hostels for the residential accommodation of learners (The Schools Act sec 12 (2)).
[355] The Schools Act sec 12(1).
[356] Ibid sec 34(2).
[357] Ibid sec 48(1).
[358] Ibid sec 36.
[359] Ibid sec 37(1), (2) and (6). Sec 37(6) inter alia provides that the school fund must be used only for educational purposes, at or in connection with the school; the performance of the functions of the governing body; or another educational purpose agreed on between the governing body and the Head of Department.
[360] The Policy Act sec 3(4)(g).
[361] Ibid sec 4(n).
[362] Cf also De Vos 1997 SAJHR 97-98.
[363] Eg by raising money for additional first aid kits. Cf sec 36 of the Policy Act.
[364] I e the educator appointed or acting as the head of a school (sec 1(xv) of the Schools Act).
[365] The Schools Act sec 16(3).
[366] The Policy Act sec 8(1) and (3).
[367] Ibid sec 8(5).
[368] Ibid sec 8(6) and (7).
[369] Proclamation 138 of 1994, sec 8(1)(d).
[370] Ibid sec 12(1)(a) and (d).
[371] Ibid sec 19.
[372] According to the latest verified statistics (those for 1995) of the Department of Education 8 359 educators are employed in independent schools while 253 328 educators are employed in public schools (figures made available to the researcher on 16 June 1997 by Mr F Kruger, Directorate: Labour Relations in the Department of Education).
[373] The decision to establish SACE (the South African Council for Educators) was taken in the Education Labour Relations Council in 1994. This was done in terms of sec 12(5)(a)(xiv) of the Education Labour Relations Act 146 of 1993. This Act has been repealed in its entirety by the Labour Relations Act, 1995, but the Education Labour Relations Council continues to exist as a bargaining council. SACE was established as a statutory body under GG Notice No 16037 of 17 October 1994. The primary role of the Council is the maintenance and enhancement of professional standards. It seeks to do this by establishing minimum criteria for the registration of educators, maintaining a register of educators eligible for appointment, and exercising its disciplinary powers. The 48 members of the Council represent the Department of Education and the organised teaching profession (see SACE Brochure 1 [available from the Chief Executive Officer: Mr Reg Brijraj, SACE, PO Box 8228, Pretoria 0001]).
[374] As defined in the Educators' Employment Act, 1994 (as amended by sec 63 of the Schools Act).
[375] These categories are not covered by the definition of "educational institution" in the Educators' Employment Act, which definition in turn is used to define "educator". See also SACE Brochure 1.
[376] Although the SACE Code of Conduct mentions the cut-off date of end 1997, this date was extended and educators are still registering with SACE. Registration certificates will only be issued by SACE as from middle June 1998 when it is envisaged that the Code will become operative (information supplied by Ms C Ngobeni, Registrar of SACE on 19 March 1998).
[377] SACE Code of Conduct.
[378] Cf sec 46(2) of the Schools Act. See also fn 210 above.
[379] Ibid.
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