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6.1 In evaluating the comments on Discussion Paper 73 with a view to formulating recommendations and a policy for HIV/AIDS in schools, the Commission's aim was to protect the rights of all children in the school environment.
6.2 The Commission attempted to address all significant concerns (as expressed by commentators on Discussion Paper 73 and recorded in Chapter 5 above) either by accounting for it in the information supplied in Chapters 2, 3 and 6 of this interim report or by adapting the proposed national policy. As indicated above[414] several suggestions from respondents pertaining to clarification of the terms of the policy were incorporated in the revised policy attached as ANNEXURE B. Some adaptations speak for themselves and are not discussed below. The discussion below is limited to the main concerns expressed and to additions or limitations which may need explanation.
6.3 The fact that the overwhelming majority of commentators strongly supported the principle of enacting a national policy on HIV/AIDS for schools, clearly confirms the need for such a policy.
6.3.1 However, a number of concerns were raised with regard to the broad principles on which the policy should be based. It was submitted that the Commission should acknowledge and take into account the following factors:
* An HIV/AIDS policy for schools will have to operate against the background of a wide variety of social circumstances, including current "abnormal" circumstances
6.4 The comments in general reflected quite clearly that any policy on HIV/AIDS for schools will have to be formulated in such a way that it provides for a wide variety of circumstances and be capable of execution under the divergent social circumstances in South African society.
6.4.1 The variety of circumstances includes differences between school communities regarding social and religious norms, moral judgments on sexuality education, levels of affluence, availability of resources, and levels of HIV infection. The increasing incidence of abandoned and orphaned children posed specific problems.[415]
6.4.2 The "abnormal circumstances" referred to include lack of discipline, and increasing prevalence of physical and sexual abuse and violence between learners and between educators and learners.
6.4.3 Formulating a single policy suitable for ordinary public schools, independent schools, hostels, public schools for learners with special education needs (such as schools of industry and reform schools) and single-sex or mixed schools further complicates the task.
6.4.4 In this regard the Catholic Institute of Education remarked that the proposed policy did not give any real attention to what schools can actually cope with in view of their different abilities with relation to training and experience of staff, material and financial resources, soundness of administration, background of learners, educator-learner ratio and overall morale. The Institute stressed that the numbers of learners with HIV will also play a significant role in a school's ability to cope with the epidemic: any given school may be able to cope with a few learners with HIV, but be overwhelmed if the numbers become too great - then education of "healthy learners" could suffer. The Newlands Education Support Centre shared this view and especially stressed the different capabilities of more and less affluent schools.
6.5 The Commission endeavoured to cater for this need by developing broad guidelines in accordance with the constitutional principles, education law and international standards. It is recommended that these guidelines, in the form of a national policy, should apply uniformly throughout the country. In view of the variety of circumstances emphasised above and of the fact that the Schools Act stresses the importance of parent empowerment and involvement in the education of their children,[416] the national policy provides that the governing body of a school may, in addition to the national policy, adopt an HIV/AIDS policy at school level to give operational effect to the national policy within an individual school community.[417] The purpose of this is to provide a mechanism to express the special needs of individual schools and their communities within the framework of the national policy's minimum standards and norms. Moreover, by providing for the establishment, where feasible, of a Health Advisory Committee to assist the governing body in its task, broader community participation is encouraged.[418] This is particularly recommended in order to ensure that the needs of an individual community are accounted for. Furthermore, the national policy has now been adapted to provide for its regular review and adaptation if necessitated by changed circumstances (for instance a scientifically established change in the risk of transmission of HIV).[419]
* HIV/AIDS should not receive special treatment ("AIDS exceptionalism")
6.6 Some commentators expressed the view that HIV/AIDS should not be singled out for special mention in a national policy and submitted that other diseases (for instance viral diseases such as Hepatitis B requiring similar protection by way of universal precautions) or other health or social issues (for instance drug and alcohol abuse and teenage pregnancy) should be addressed in the same policy.[420]
6.6.1 The policy could probably also be applicable to learners with similar conditions (i e those that are transmitted by blood and/or sexual contact in the school environment). It was however resolved not to address similar conditions in the same policy. The scale of the AIDS epidemic is singular and the Commission is of the view that the stigma and discrimination associated with it are such that special measures are required.
6.6.2 No research was conducted on the additional social issues mentioned. These issues also fall outside the Commission's research mandate. The Commission moreover endorses the view of Prof Bondesio who, in his comments on Discussion Paper 73, implies that to include reference to socially "unacceptable" behaviour within the same policy, may contribute to the further stigmatisation of and discrimination against learners with HIV.[421]
* The rights of learners without HIV should receive equal protection to those of learners with HIV and the responsibilities of learners with HIV should be emphasised
6.7 The Commission's premise is that learners with HIV are to be accommodated in schools to the extent that their infection does not expose others to significant risks that cannot be eliminated by ordinary measures or reasonable adaptations. Universal precautionary measures are ordinary measures that will effectively eliminate the risk of HIV transmission in the school environment. They are basic measures that need not be expensive. On top of that, learners should be educated that they may not expose others to their blood or body fluids.
6.7.1 However, the Commission acknowledges concerns that were raised (for instance by the Catholic Institute for Education, Prof Bondesio and SAFET), that it fails to achieve the correct balance between the rights of "healthy learners" and those with HIV.[422]
6.8 As indicated in par 3.39 et seq above, all rights are inherently subject to corresponding duties. The Commission therefore considers that the premise set out in par 6.7 above is sound, subject to the following: In instances where learners with HIV present a medically recognised significant health risk to others (for instance because of secondary infections that cannot be treated, or aggressive behaviour[423]) which cannot be excluded by reasonable precautions, discrimination on the ground of the danger presented would be rational and fair. This viewpoint would be in accordance with that of the US Centers for Disease Control, which as far back as 1985 developed guidelines with regard to school attendance of learners with HIV. These guidelines inter alia provide that children with HIV must attend school, except those who, because of neurological problems, do not have control over their body fluids or who are inclined to bite, or who have open wounds which cannot be covered.[424]
6.9 The Commission is of the opinion that the Code of Conduct to be drawn up by every public school will constitute an ideal vehicle for dealing with behaviour which may create risk of HIV transmission.[425] The Code is in fact designed to anticipate and thus minimise the risk of such behaviour leading to transmission. Relevant behaviour could include sexual abuse, aggressive behaviour, and behaviour related to intravenous drug abuse.[426] According to the Schools Act, 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.[427] It is submitted that behaviour which may create risk of HIV transmission could well constitute serious misconduct.
6.9.1 The Department of Education is currently compiling Guidelines for the Consideration of Governing Bodies in Adopting a Code of Conduct for Learners.[428] The following principles are inter alia included in a recent draft of the Guidelines: The Code of Conduct must suit the development of the learners and be appropriate to the school level - the language used must be easily understandable to make the content accessible.[429] Although the Code must contain a set of moral values, norms and principles which the school community should uphold, the Code is enforceable only against learners.[430] The need for commitment and acceptance of responsibility by other partners in education, alongside the state's obligation to make education available and accessible, should be referred to.[431] The Code should be directed towards a culture of mutual respect and the establishment of tolerance, and should prescribe behaviour that respects the rights of learners and educators.[432] As regards control and discipline of learners, it should be noted that educators have the same rights as parents to control and discipline learners during school attendance - which includes attendance at school functions, excursions or school related activities.[433] Learners' rights to human dignity, privacy, and freedom of expression (which would include the right to "seek, hear and read") should be confirmed.[434] The Guidelines propose that in cases of suspension and expulsion, placement in an alternative school environment (for instance, reassignment to another class or a special school for learners with behavioural disorders) or correctional education under supervision after school hours are options which could be considered in conjunction with a school psychologist or social worker. In this context it is stressed that the governing body may suspend a learner as a punitive measure if due process has been followed.[435] It is finally proposed in the draft Guidelines that serious misconduct (which may include offences according to the law) must be investigated by the police and referred to the court if necessary.[436]
6.9.2 According to media reports in October 1997 a draft document regarding misconduct and disciplinary procedures to be followed has been developed by the Gauteng Education Department. In terms of this draft a distinction is made between misconduct (for instance copying of work while writing a class test), serious misconduct (for instance possession of pornography and drugs) and criminal conduct (for instance rape and murder).[437] It is further proposed in the draft document that serious misconduct should be investigated by the governing body of the school involved as well as the relevant Provincial Department of Education and that learners who are found guilty of criminal conduct should receive psychological treatment and therapy, but that they could also be permanently expelled.[438]
6.9.3 In terms of our common law exposure of someone to HIV would under certain circumstances constitute a crime. Transmitting HIV intentionally could constitute assault. Civil liability could also ensue as a result of exposure to HIV.[439] The possibility of strict liability of the state is provided for in the Schools Act in instances of damage or loss caused as a result of any act or omission in connection with any educational activity conducted by a public school.[440] The state may be held responsible where adequate precautionary measures are not taken and a safe school environment is consequently not established. (Liability will generally not result from the school principal being unaware of a learner's HIV status.) In accordance with the Gauteng draft document on misconduct referred to in the previous paragraph, a Code of Conduct could for instance distinguish between misconduct, serious misconduct and criminal acts in the context of HIV/AIDS. The Code could further provide for measures to be taken against learners who misbehave. They may for instance, in terms of the Schools Act, be dealt with by way of suspension or expulsion as provided for in section 9. It should however be noted that if a learner who is subject to compulsory school attendance in terms of section 3(1) of the Act, is expelled from a public school, the Head of Department must make an alternative arrangement for his or her placement at another public school. Learners with severe behavioural problems could therefore be placed at a public school for learners with special education needs.[441] Schools for learners with special education needs include clinic schools which cater for the needs of learners with behavioural deviations.
6.10 The proposed national policy has been adapted to reflect a balance between the rights of both learners with HIV and learners without HIV by expressly referring to the duties of learners with HIV and the responsibilities of their parents and legal guardians;[442] by identifying the Code of Conduct of a school as the ideal mechanism through which to address behaviour which may create risk of HIV transmission;[443] and by revising the provisions with regard to universal precautions to effectively exclude the risk of transmission of HIV in the normal school environment, especially with regard to sport participation.[444]
6.11 As indicated in the previous Chapter, many respondents drew attention to a need for application of the same policy, or a similar policy, to institutions within the educational context (other than schools) where the same problems with regard to HIV/AIDS would present themselves. These include centres for pre-school children and day care, institutions for tertiary education, and residential institutions. It was also proposed that the policy should cover the position of educators and school staff with HIV.
* Pre-schoolers and day care centres (very young children)
6.12 The Commission acknowledges the comment of experts working with pre-school children that although the principles set out in the national policy are relevant to very young children, the solutions and suggestions proposed in the policy are, on a practical level, unsuitable for such children.[445] The reason advanced for this is that very young children are neither physically nor emotionally able to protect themselves against transmission of HIV. It was for instance mentioned that they would indiscriminately assist another child who bleeds rather than adhere to precautionary guidelines. It is also doubtful whether HIV/AIDS education would be meaningful or appropriate at pre-school level.
6.13 The Commission therefore confirms its view that the chief focus of the national policy should be children of school going age (which will include learners from pre-primary[446] school to secondary school - i e from grade zero to grade 12). If the Commission's recommendations are adopted by the Department of Education, the proposed policy will be enunciated under national legislation. As such it will signal a clear governmental commitment against unfair discrimination with respect to HIV/AIDS which persons and bodies involved with the care of very young children would not be able to ignore. The policy would also be publicly available and accessible and could constitute a broad model on which public and private entities could base similar policies more suitable for situations where very young children are cared for and educated.
* Tertiary institutions
6.14 The Commission has sympathy with respondents stressing the need for a similar policy at tertiary level,[447] but has to confirm its preliminary view that its recommendations will be applicable only to schools as defined in the Schools Act.[448]
6.14.1 The Policy Act will have to be used as a statutory vehicle to promulgate the proposed national policy. As pointed out in Chapters 3 and 4 above, neither this Act nor the Schools Act apply to university or technikon education.[449]
6.14.2 Specific protection is afforded "children" by our Constitution, and also by the United Nations Convention on the Rights of the Child (1989)[450] dealing with the rights of the child (on which certain of the principles enunciated in the policy are based). In both these instruments "children" are defined as persons under the age of 18 years.[451]
6.14.3 Although the broad constitutional principles (for instance non-discrimination, respect for privacy, freedom of association and access to information) would be applicable to persons attending tertiary institutions, it is also clear that the majority of provisions in the proposed national policy (for example those relating to compulsory school attendance, alternative provision for compulsory education in certain instances and the possibility of school level policies to be developed by [relatively small] individual school communities) would either be inapplicable to or ill-suited for persons above the age of 18 years and the much broader and bigger university and technikon communities. The problems inherent in establishing a suitable policy with regard to the wide variety of circumstances existing within our school communities alone was noted earlier.[452] In view of this the Commission is of opinion that it would be wellnigh impossible to address primary, secondary as well as tertiary institutions in a single policy.
6.15 As stated above with regard to pre-schoolers or very young children, the proposed national policy will, should it be promulgated, in any event be accessible and any institution would be free to adopt it.
* Residential institutions
+ Hostels
6.16 The project committee in Discussion Paper 73 invited specific comment on whether the proposed policy should also apply to school hostels.[453] This was done on the assumption that hostels are not included in the definition of "schools" contained in the Schools Act.[454]
6.16.1 The vast majority of commentators who responded to the invitation felt that an HIV/AIDS policy was needed in respect of school hostels. Strong arguments were presented in favour of applying the same policy in schools and hostels. On the other hand, some commentators argued that additional measures were needed in view of what was considered to be a high risk situation.
6.16.2 In discussions with representatives of the Department of Education since publication of Discussion Paper 73,[455] it was indicated that in the Department's view the definition of "school" indeed includes hostels.[456] The Department furthermore expressed the view that the proposed national policy would be suitable for hostels and other situations (for instance school excursions or tours) where learners are gathered together. In view of this, the Commission accepts that the proposed policy will also apply to school hostels.
6.17 In spite of the concerns expressed by several respondents that stronger measures, especially with regard to disclosure of HIV-related information, were necessary in the residential situation in order to ensure the safety of learners without HIV, the Commission is of the opinion that the compulsory disclosure of HIV-related information in the residential situation will not alleviate the problem. As stated above, knowledge of HIV status cannot ensure an HIV-free environment because of the window period and the nature of HIV antibody testing.[457] Genuine voluntary disclosure of HIV status (for instance to care givers such as the matron or hostel superintendent) should be welcomed.[458] Strict adherence to universal precautionary measures is essential in the residential environment. Furthermore, where special provisions are required - for instance to ensure stricter supervision of hostel boarders - the proposed national policy is in general wide enough to enable the governing body to make provision for the specific needs of an individual school community with regard to hostels through the mechanism of a school level policy.
+ Institutions for learners with special education needs (including institutions for mentally and physically disabled learners)
6.18 Some commentators emphasised the need for a similar policy in respect of institutions for physically and mentally handicapped children, while others expressed concern about HIV-related problems in schools for learners with special education needs (such as reform schools and schools of industry).[459]
6.19 In a recent report of the Department of Education on special needs and support services in education and training in South Africa (Special Needs Report 1997)[460] it is stated that specialised education is currently organised in various ways and within a variety of settings which include both ordinary and specialised schools. The latter include specialised schools for learners who are blind, autistic, etc (i e physically disabled);[461] residential institutions for severe and profound types of "special needs" (which may be relevant in the context of HIV/AIDS and could serve the needs of AIDS orphans);[462] 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;[463] schools for mentally disabled children;[464] schools for children with behaviour deviations (clinic schools);[465] and hospital schools.[466] It would also include hostels for the residential accommodation of learners in these schools.[467]
6.19.1 The Special Needs Report 1997, furthermore, in analysing "barriers to learning and development", identifies certain socio-economic factors which place learners "at risk". The Report expressly acknowledges that HIV/AIDS has placed and will continue to place a large number of learners at risk. The Report states that the epidemic will affect not only those learners who have HIV, or are AIDS ill, but also those whose parents have died or who are chronically ill from the disease (AIDS orphans).[468]
6.20 According to the definition of "public school" in the Schools Act, a public school may include an ordinary public school or a public school for learners with special education needs.[469] Section 12(4) of the Act states that where reasonable and practicable education must be provided for learners with special education needs at ordinary public schools. In other instances education for such learners may be provided at schools for learners with special education needs. In terms of section 12(4) the relevant support services for such learners must also be provided. The Policy Act provides that the Minister of Education shall determine national policy in respect of the education system, and the Act includes in its definition of "education institution", "specialised education". It follows that the proposed policy will also be applicable to schools for learners with special education needs.
6.21 The Commission is of the opinion that although the broad guidelines included in the policy would be suitable for schools for children with special education needs, the policy would have to be further developed by the governing body at school level in order to provide adequately for the specific circumstances and needs prevailing at an individual school. It stands to reason that where children with special needs are gathered together in the school or residential situation, specific needs may arise with regard to HIV/AIDS, and the school principal or other responsible persons may feel an added responsibility for the safety and protection of learners without HIV. The right to life and the right to an environment that is not harmful to health or well-being of learners without HIV will, in circumstances where learners without HIV are endangered by promiscuous sexual behaviour and sexual assault, weigh heavier than the rights of children with HIV. A suitable HIV/AIDS school level policy could under these circumstances be developed within the framework of the national policy.
6.22 This approach is supported by section 24 of the Schools Act which provides that the following categories of persons must be represented on a governing body of a public school for children with special education needs: parents of learners at the school; educators at the school; members of staff at the school who are not educators; learners attending the eighth grade or higher, if reasonably practicable; representatives of organisations of parents of learners with special education needs; representatives of organisations of disabled persons; and experts in appropriate fields of special needs education. Also in the instance of an ordinary public school providing education to learners with special education needs, the governing body must, where practically possible, co-opt a person or persons with expertise regarding the special education needs of such learners.[470]
6.22.1 The critical role which parents need to play in the education and development of learners with special education needs, parent empowerment and training programmes for parents are also emphasised in the Special Needs Report 1997.[471] The Report furthermore stresses the need for an integrated approach to be followed with regard to learners who experience barriers to learning and development, including troubled young people, within a systems perspective. It is suggested that medical practitioners, school health nurses, therapists, community-based rehabilitation workers, social workers and professionals from other disciplines should assist in providing a specific service to these learners.[472] This approach is supportive of the Commission's proposals that experts from the school community (in the form of a Health Advisory Committee) should participate in formulating a school level policy within the framework of constitutional principles.[473]
6.23 The Commission is thus of the opinion that satisfactory provision exists, both in the form of existing legal provisions and in the envisaged possibility of a school level policy, in respect of schools for children with special education needs to be able to cope with HIV/AIDS.
* Independent Schools
6.24 Some commentators observed that the position of independent schools has not been clearly addressed - neither in Discussion Paper 73 nor in the proposed national policy included for comment in the Discussion Paper.[474]
6.25 The legal position with regard to independent schools has now been set out in Chapter 3 of this interim report.[475] Broadly speaking it amounts to the following:
6.25.1 Independent schools may not unfairly discriminate against learners with HIV. Although such schools are not expressly prohibited from requiring a negative HIV test result as a prerequisite for admission, the use of the test result as the sole criterion for denying admission would probably amount to unfair and irrational discrimination.[476]
6.25.2 Independent schools have a right to freedom of association and to promote their own religion, culture and values although they may not discriminate on the ground of race.[477] Such schools do not have any statutory duty to provide education.[478] They must respect the right to privacy although they may be obliged to provide information which is required for the protection of a person's rights.[479]
6.25.3 It was submitted above[480] that the definition of "education institution" in the Policy Act is wide enough also to include independent schools. This would mean that a national policy determined, published and implemented in accordance with this Act, would apply also to independent schools. The same enforcement mechanisms discussed above, and for which the Act makes specific provision, would apply.[481] However, the Educator's Employment Act (providing for the discharge of an educator on account of misconduct - which includes contravening or failing to comply with any provision of any law relating to education) does not apply to educators employed in independent schools. Nor would the direct enforcement offered by the Code of Conduct adopted by SACE be applicable without further ado to educators in independent schools.[482] The Code of Conduct does not compel educators in independent schools to register. Educators in independent schools who do not register of their own accord are therefore not bound by the Code of Conduct and could accordingly not be subjected to the disciplinary powers of SACE should they ignore the rights of learners. It has however been pointed out in Chapter 3 above that the Code is likely to carry moral authority even in the case of such educators.[483]
6.26 In view of the fact that compliance with the proposed national policy cannot otherwise be ensured in the case of independent schools, the Commission is of the opinion that compliance with the policy should in terms of section 46(2) of the Schools Act be determined as a ground on which registration of independent schools may be granted.[484] As with other institutions not directly covered, the policy will be accessible should it be promulgated, and independent schools would in any event also be free of their own accord to adopt it.
* All institutions of learning
6.27 As indicated in paragraph 5.89 et seq above, some commentators were in favour of a single policy (the proposed national policy) being applied to all institutions of learning (from institutions for very young children to tertiary institutions, hostels, and schools for learners with special education needs).
6.27.1 The Commission's response to requests in respect of each of these institutions is dealt with in par 6.12-6.23 above. In view of the motivation supplied in these paragraphs it is concluded that a single policy covering all of these institutions would not be feasible nor does legislative authority for this exist in all instances.[485] As pointed out, any institution would be free to develop suitable policies in respect of individual institutions along the broad guidelines of the proposed national policy for learners in public schools.
* Youth organisations and day care centres
6.28 The Commission supports proposals by commentators that the policy should be promoted as recommended practice to youth organisations and day care centres. There is however no legislative authority to make the proposed policy statutorily applicable to such organisations and centres or to ensure its enforcement. The Commission once again stresses that any institution or organisation would be free to adopt the policy or its broad guidelines.
* Educators and administrative staff at schools
6.29 Although the Commission appreciates that HIV-related problems could arise with respect to educators and administrative staff with HIV at school, it is of the view that the proposed policy is not suitable to deal with problems at employment level.
6.29.1 The Educators' Employment Act,[486] the Labour Relations Act 66 of 1995 and the Basic Conditions of Employment Act 75 of 1997 deal with the rights of educators as employees. The Labour Relations Act and the Basic Conditions of Employment Act will also cover the position of administrative staff at schools. In addition to this, proposals by the Commission to prohibit pre-employment HIV testing, except in narrowly defined circumstances, have been included in the Employment Equity Bill which has been released for comment by the Department of Labour in December 1997.[487] The Commission's First Interim Report on Aspects of the Law Relating to AIDS, 1997 dealt with universal work place infection control measures (universal precautions) which will also apply to educators and school personnel when implemented by the Department of Health.[488]
6.29.2 Furthermore, the education authorities and relevant professional bodies have already addressed the need for a national policy on HIV for educators. A first draft for a policy in this regard has become available in February 1998. The draft confirms principles of non-discrimination and addresses recruitment and continued employment; training, development and promotion of educators with HIV; ill-health, leave and performance; benefits; grievance and disciplinary procedures; refusal to work with an educator with HIV/AIDS; employer and employee responsibilities; HIV testing; confidentiality; colleagues' and management fears; and management, care and counselling of HIV/AIDS at work.[489]
* Multi-disciplinary approach
6.30 The Commission acknowledges the need expressed by many commentators for a multi-disciplinary approach in dealing with HIV/AIDS in schools.[490]
6.31 The Commission is of the opinion that it would be meaningful to separate education on HIV/AIDS from support services regarding HIV/AIDS. In the Commission's view the primary responsibility of schools with regard to HIV is that of information and education. This responsibility should be supported by other disciplines: For instance matters such as accessibility of condoms, access to health care, counselling, prevention of sexually transmitted diseases and teenage pregnancy, and reproductive health care could successfully be dealt with by other disciplines in a supportive role. Schools do not usually have the professional medical staff available for such support services and the Department of Health could assist in this regard. To strengthen the Department of Health's involvement in preventing the spread of HIV at school level, a representative of the Department (for instance a nurse attached to a provincial hospital) could be co-opted on the Health Advisory Committee envisaged in Clause 13 of the proposed policy.
6.31.1 Commentators for instance mentioned the inaccessible hours of public health facilities.[491] In this regard it is recommended that the Department of Health should assist in making clinical services available during school hours or on the school premises after hours. In this way care could be taken of concerns of parents that schools should not encourage sexual promiscuity by promoting for instance condom use.
6.31.2 Furthermore, social service providers should be encouraged to provide support in preventing the spread of HIV.[492] The Family and Marriage Society of South Africa for instance indicated in their comments on Discussion Paper 73 that they are equipped to assist with relaying information, with training and education.[493] The ACVV also voiced a desire to be actively involved in supplying a supportive role to schools through social workers in their service.[494]
6.32 The Department of Welfare supports the multi-disciplinary approach. Commenting recently on its Draft Social Welfare Plan on HIV/AIDS the Department observed that "in view of the need for increased family support for people affected by HIV/AIDS a support/caring community based model should be urgently developed. Support programmes addressing the needs of especially, rural residents living with HIV/AIDS are vital".[495] The Draft Social Welfare Plan on HIV/AIDS expressly stresses the need to create partnerships within state structures and with civil society in order to deal with the HIV/AIDS epidemic.[496]
* Condoms
6.33 It is confirmed, from the contradictory viewpoints held by commentators, that any provisions in a national policy regarding supply of condoms to learners, or access to condoms, will be highly controversial. The Commission is thus of the view that express provision in this regard should not at this stage form part of the broad guidelines of a national policy on HIV/AIDS in schools.
6.34 As stated above, the Commission regards information and education on HIV/AIDS as the main responsibility of schools.[497] Supply of condoms would more suitably fall within the ambit of a public health care initiative or HIV/AIDS prevention campaign by the Department of Health. The Commission is of the view that this could be an excellent example of a multi-disciplinary approach in preventing the spread of HIV among children of school going age.
6.35 However, the proposed national policy has been couched in wide enough terms to enable the governing body of a school to include provisions regarding condoms suitable to the specific school community, in a school level policy. The provisions in the Schools Act with regard to the compulsory composition of governing bodies (the principal, parents of learners, educators at the school, administrative staff members, and learners[498]) and the additional provisions in the proposed national policy regarding the establishment of a Health Advisory Committee[499] should ensure proper community-based decisions in this regard. The Commission holds the strong opinion that the controversy of the issue requires the intimate participation and final discretion of the parent community in any decision regarding supply of condoms.
* Refusal to study with a learner with HIV
6.36 Certain respondents drew attention to problems that may arise where no clear or explicit guidelines exist with regard to the refusal to study with a learner with HIV.[500]
6.36.1 In view of the Commission's conclusion that compulsory disclosure of a learner's HIV status is probably not at present enforceable,[501] it is unlikely that this situation will be widespread. Should it however become known that a learner has HIV, and other learners refuse to study with him or her, it is recommended that such learners and their parents be counselled. If counselling does not succeed in alleviating their fears, and the situation becomes unmanageable, the problem should be resolved by the principal and educators and if necessary, with the assistance of the governing body of the school. All learners' best interests and constitutional rights should be taken into account in finding a solution. The proposed policy has been adapted to include a suitable provision in this regard.[502]
* Facilities for terminally ill learners
6.37 No statutory authority exists for the inclusion in the national policy of provisions regarding facilities for terminally ill learners as requested by some commentators.[503]
6.38 According to the Special Needs Report 1997 referred to in par 6.19 above, the needs of the small percentage of learners who require high levels of support, should be accommodated in existing specialised learning contexts. In this regard it is to be noted that schools for learners with special education needs include hospital schools in which terminally ill learners could be accommodated. Where learners cannot be accommodated within a school, it is proposed in the Report that home- and community-based programmes should be provided.[504] The Schools Act also provides for the possibility that learners may receive education at home.[505]
* Proper regulation of contact sport
6.39 Several commentators were concerned that the heightened risk of HIV transmission perceived to be inherent in contact sport was not adequately addressed in the policy proposed in Discussion Paper 73.[506]
6.40 In response to this the Commission took recourse to the National Department of Sport and Recreation's Draft Position Statement: HIV/AIDS in Sport which was issued in July 1997 in conjunction with the South Africa Sports Medicine Association and the Department of Health.
6.40.1 In the Draft Position Statement it is pointed out that there has been only one alleged report of HIV transmission during sport, and anecdotal reports of transmission following fist fights.[507] It is stressed that current scientific evidence suggests that there is an infinitesimally small risk of HIV transmission during the majority of sports and that there is no risk of transmission from saliva, sweat, tears, urine, respiratory droplets, hand shaking, swimming pool water, communal bath water, toilets, food or drinking water.[508]
6.40.2 The Statement indicates that the only risk of HIV transmission during sport is if the blood from an open bleeding wound of an infected participant mixes with the blood of an open wound of a non-infected participant. The seriousness of this risk depends on the seroprevalence of HIV in the sports participants; the risk of open bleeding wounds during sports participation; the risk of viral transfer when two bleeding wounds make contact; and the risk of two participants making contact.[509]
6.40.2.1 Some researchers regard specific contact sports as presenting a higher risk of HIV transmission. These include soccer, rugby, boxing and wrestling.[510] The South African Rugby and Football Union (SARFU) in a policy statement on HIV and rugby participation dated May 1996, in fact stated that "positive individuals should be discouraged from participating in rugby despite the absence of any scientific evidence to suggest that asymptomatic HIV (positive) players are 'unfit' to play".[511] Undoubtedly, boxing by its very nature (repeated blows) is a unique sport and in South Africa, the United Kingdom and certain states in the US, mandatory HIV testing of professional boxers is, for instance, required.[512]
6.40.3 It is however stressed in the Draft Position Statement that the above observations regarding the low risk of transmission of HIV during sport participation hold true only if adequate wound management takes place at the sport field when a player sustains an open bleeding wound.[513]
6.41 The Commission is of the view that also in respect of sport, undue reliance should not be placed on the knowledge of a participant's HIV status.[514] It has been shown above that because of the window period HIV tests currently used cannot with 100% surety indicate at a specific point in time who is infected and who not.[515] Both the World Health Organisation and the International Olympic Committee hold the view that there is no medical or public health justification for testing or screening for HIV infection prior to participation in sports activities.[516] Routine HIV testing provides no guarantee and instead creates a false sense of security and may result in the greater likelihood of HIV transmission.[517]
6.41.1 In the Draft Position Statement referred to in the previous paragraphs, sport participants with HIV are advised to inform medical personnel of their condition if they sustain an open wound or skin lesion during sport so that these can be managed appropriately.
6.41.2 Educating sport administrators and role players about HIV/AIDS and the risks and routes of HIV transmission, and strict compliance with universal precautions when providing medical attention in the case of bleeding as a result of injury can effectively exclude the risk of HIV transmission on the sports field.[518]
6.42 The Commission, in acknowledging the concerns expressed by commentators, adapted the proposed national policy by expressly including guidelines regarding sport participation.[519] These have been compiled in accordance with the National Department of Sport and Recreation's Draft Position Statement referred to above, although not all guidelines were adopted.
6.43 The clauses referred to in the headings below correspond with the proposed policy as published for comment in Discussion Paper 73 and duplicated in Chapter 4 above. Comments in respect of broader application of the policy and additional matters to be included in the policy have been discussed in paragraph 6.11 to 6.42 above.
* Preamble
6.44 Suggestions by commentators regarding additional information that should be included in a preamble to the policy[520] (for instance a brief description of the course of HIV in children, reference to sexual abuse as a way of transmission of HIV, and clarification of what constitutes a "medically recognised risk") have been catered for under "Premises" in the revised policy. The provisions under "Premises" contain the background against which the policy should be understood. If further information is needed, it is suggested that Chapter 2 (which deals with the course of HIV) and Chapter 3 (which provides information on rights and duties in the school environment and balancing of rights) of this interim report could be made available to interested parties.
* Definitions (Clause 1)
6.45 Some commentators submitted that the concept of "universal precautions" should be clearly defined in the national policy. This has been done in the definitions clause (clause 1.1). The concept was however further clarified under "Premises" (clause 2.6.1) and in the additional clause on a safe school environment (clause 7.1-7.12).
* Admission and testing (Clause 2)
6.46 Some respondents to Discussion Paper 73 saw a need for HIV testing, especially of learners who are resident in school hostels, in order to protect learners without HIV. However, because of the window period and the nature of HIV testing discussed above,[521] an HIV-free school environment would not be guaranteed by requiring compulsory testing as a condition for admission to schools or hostels. Such approach could only lead to a false sense of security as it would not be possible to establish with certainty who is infected and who not. The most successful ways to prevent exposure to HIV in the normal school environment would be by constantly adhering to standard infection control procedures or precautionary measures aimed at the prevention of HIV transmission, and by ensuring that proper information regarding the transmission of HIV reaches the school population through a continuous education programme on HIV/AIDS.
6.47 The Commission is of the opinion that the proposed policy cannot, as requested by some commentators, prohibit HIV testing for whatever reason (for example the granting of bursaries). The policy is drafted within the ambit of a learner's right to a basic education as enunciated in the Schools Act and the 1996 Constitution. Furthermore, circumstances may conceivably arise which would justify HIV testing.[522]
6.48 The Commission is of the opinion that in general, information regarding the health of learners is offered on a voluntary basis by parents[523] and that this could be regarded as being in the learner's best interest (for example in the instance where parents supply the school with information regarding allergies suffered by their child). In a similar manner parents are free to offer information regarding their child's HIV infection. Consequently the South African National Council for Child and Family Welfare's submission in comments on Discussion Paper 73 (that even though HIV testing should not be a prerequisite for admission to schools, this information should be required in instances where parents supply the school with medical information regarding their child[524]) is not tenable.
* No unfair discrimination (Clause 3)
6.49 Some commentators argued that by prohibiting unfair discrimination it is implied that a learner with HIV may be fairly discriminated against. This they found unacceptable and they therefore requested that the term "unfair" be deleted throughout the proposed policy.[525]
6.49.1 The Commission's view is that the language used is in accordance with the constitutional provision on equality in section 9(3) and (4) of the 1996 Constitution[526] as well as with corresponding provisions in the Schools Act[527] and the Policy Act.[528] These provisions indeed mean that in some instances it may be fair to treat a learner with HIV differently. Discrimination may for instance be fair and rational where learners with HIV present a significant risk to the life and limb of others which cannot be excluded by reasonable precautionary measures. The right to life and bodily integrity of the learner without HIV will in such cases outweigh the right to equality of the learner with HIV.[529]
6.49.2 Suggestions that a culture of non-discrimination should be established through education, is discussed in paragraph 6.65 below.
6.50 In response to NAPWA's emphasis in its comments on the necessity for parents of learners with HIV to be informed about all inoculation programmes, the original provision to this effect has been retained in the proposed national policy but has now been included under "Premises".[530]
* Disclosure (Clause 4)
6.51 A significant number of respondents requested that disclosure of HIV status to some or other school staff member should be compulsory. The reasons for this view were that otherwise no relationship of trust between educators and learners would be possible; contact sport would not be properly regulated; and uncertainty with regard to possible liability in the case of transmission of HIV or exposure to HIV would ensue. Respondents suggested that the relevant person who should receive this information could be the school principal, the hostel superintendent, the class educator, governing bodies, the school matron or school nurse, the guidance teacher, or sports master. It was even suggested that the entire staff should be allowed access to HIV-related information.[531] Although not expressly endorsing the idea of compulsory disclosure, the Department of Health suggested that the "need-to- know" concept could be indicative of persons who may possibly be the relevant persons to be informed of the HIV status of a learner.[532] According to this concept (which already enjoys wide recognition in the health care setting), and given the limited ways in which HIV can be transmitted, only those persons for whom AIDS-related information in regard to the care and treatment of children is indispensable, should be informed.[533] Such persons could, depending upon the circumstances in the school environment, include the school principal, class educator, guidance councillor, sports master or coach, hostel superintendent, matron or school nurse.[534]
6.52 Contrary to the above, other commentators were of the view that disclosure is unnecessary if universal precautions were applied in all instances of exposure to blood and body secretions, and if adequate information and education regarding the prevention of HIV transmission were given to all learners.[535] The consistent application of universal precautions implies that all persons are regarded as being potential carriers of HIV. Furthermore, it is accepted that the risk of transmission of HIV is effectively excluded by the application of universal precautionary measures. Commentators pointed out that these measures are of a basic nature and are in essence aimed at providing a barrier against blood contact.[536] It has moreover been stressed by experts from the Department of Education that young children can be effectively taught never to touch blood.[537] Consequently there is no need for HIV status to be divulged. This would be the case even in respect of sport contact and school excursions, school hostels and schools for learners with special education needs. In instances where learners are sexually active, the heads of relevant institutions should timeously take adequate measures.[538] A healthy and safe school environment will not be enhanced by disclosure of HIV status but by taking adequate precautionary measures. Furthermore, since an HIV-free environment cannot possibly be ensured because of the window period inherent in HIV antibody tests in current use, a false sense of security could ensue.
6.53 Commentators were also concerned that HIV-related information will not be treated as confidential. In discussions with representatives of the Department of Education[539] these views were confirmed. In the Department's opinion disclosure of HIV status of learners would serve no meaningful purpose. The Department stressed that such information could only lead to increased discrimination against learners with HIV since the South African community has not yet developed a culture of non-discrimination and tolerance towards persons with HIV.
6.54 Although the legal position at present is not absolutely certain[540] and has since publication of Discussion Paper 73 not been clarified, the Commission confirms the view expressed in the Discussion Paper that disclosure of HIV status to a school is probably not legally enforceable. The Commission accepts the submission that universal precautions, information and education on HIV/AIDS and a Code of Conduct are better vehicles to bring about a safe school environment. Any learner with HIV (above the age of 14 years) or his or her parent would however be free to disclose voluntarily the learner's HIV status. The Commission is of the opinion that genuine, voluntary disclosure of the HIV status of learners should be welcomed. Voluntary disclosure of HIV status on a need-to-know basis could promote the development of an enabling environment, a culture of openness and of non-discrimination. This would imply that different "caretakers" could be informed depending on the nature of the institution (for instance the matron in the case of a school hostel or the resident school nurse at an independent school). The need-to-know concept could be expanded on by the governing body of a specific school through a school level policy on HIV/AIDS.[541]
6.55 The confidentiality of personal information regarding HIV status is already adequately protected by the law.[542] The legal position is confirmed by the Code of Conduct adopted by SACE.[543] It naturally follows that educators who disclose the HIV status of learners without legal justification could be held liable in terms of the law or could be subjected to the disciplinary measures and penalties of the SACE Code of Conduct.[544]
6.56 It should be noted however that breach of confidentiality may in certain instances be justified by the overriding public interest.[545] An overriding public interest may exist where learners without HIV have been exposed to the blood or body secretions of learners with HIV (for example where precautionary measures failed or could not be taken). In such instances it could be justified for the school principal, who knows the HIV status of a learner to whose blood or body secretions another learner was exposed, to divulge this information. It is recommended however that the procedure to be followed under these circumstances should accord with the guidelines of the Interim South African Medical and Dental Council.[546]
6.57 The proposed national policy accordingly provides for universal precautions, information and education on the prevention of HIV, voluntary disclosure of HIV-related information and for the protection of confidentiality.[547]
* Attendance (Clause 5)
6.58 Objections by commentators against the specific requirement that written reasons for absence have to be given in the case of learners with HIV[548] have been addressed by removing this requirement from the amended clause 5 of the proposed policy.
6.59 The Commission acknowledges the suggestions (as recorded in paragraph 5.41 above) that specific provision should be made for computerised home education. The Commission suggests that the Department of Education should investigate the proposal that supportive education by computer could secure continued education on the same level - even when a learner is being hospitalised.
6.60 Concerns about the lack of clarity regarding the accommodation of learners with HIV-related behavioural problems[549] have been addressed in the amended clause 5 of the policy. Representatives of the Department of Education[550] pointed out that existing structures within the "education system" (as opposed to the "same institution" proposed in Discussion Paper 73) could adequately cater for these needs. This is confirmed by the information in the Special Needs Report 1997 referred to in paragraph 6.19 above. Clause 5 of the policy has been adapted accordingly.
6.61 The Commission is of the view that concerns raised regarding behavioural problems (i e that they would become apparent only when it may be too late[551]) could be adequately addressed in a school's Code of Conduct for learners. The Code should make it clear that certain conduct is unacceptable. This approach is in accordance with the draft Guidelines for the Consideration of Governing Bodies in Adopting a Code of Conduct for Learners issued by the Department of Education recently.[552] The Draft inter alia provides that a Code of Conduct must be displayed at the school and be given to each learner in the official language of teaching of the learner when he or she enrols at a school. Learners must be informed of its contents, which must list the things learners may not do, or should do.[553]
* Education on HIV/AIDS (Clause 6)
6.62 Although not examinable in the formal sense of the word,[554] HIV/AIDS education will form part of the compulsory curriculum for learners and will be included in the learning area "Life Orientation" of Curriculum 2005. Life Orientation is aimed at developing life skills and includes the building of self-esteem, survival skills and a healthy lifestyle. The values and attitudes necessary for a healthy and balanced lifestyle are demonstrated.[555] The fact that HIV/AIDS education will form part of the compulsory curriculum implies that parents will not be able to withdraw their child from such education.
6.63 The main concern expressed by commentators regarding HIV/AIDS education relates to the need for parents to be actively consulted and not only informed about the content of HIV/AIDS education.[556]
6.63.1 The Department of Education confirmed[557] that parents are never actively consulted on the contents of curricula. The role of parents in outcomes-based education (which is central to Curriculum 2005) is that "they are required to share the responsibility of the education of their children with the state. They are encouraged to further their own education (a)nd ... to use any knowledge gained to build and develop their own community and country. The first step for most parents is to understand the new curriculum and get involved with the governing bodies of schools".[558] The Department pointed out in discussions[559] that HIV/AIDS education will relate to values as well as knowledge, and described the values imparted in the Life Skills Programme as being of a universally accepted nature. The Department mentioned that parents will be invited to guidance sessions where they will be informed about the contents of and methods used in the Life Skills Programme. In these sessions parents will be made aware of their role as primary sexuality educators and imparters of values.
6.63.2 Support is found for the Department of Education's view in the comments of the South African Paediatric Association, the Department of Health and the Department of Environmental Affairs.[560] These commentators stressed that the education programme should have a uniformly standardised content in order to ensure proper control over what is actually taught.
6.63.3 However, in view of the important role of parents and governing bodies in the education partnership as envisaged in the Schools Act, and the overwhelming support for parent participation reflected in comments on Discussion Paper 73, the Commission recommends that parents should be involved in HIV/AIDS education at school level. This would imply that parents should be informed of HIV/AIDS education programmes presented at the school and of universal precautionary measures adopted by the school to prevent the transmission of HIV. It also implies that they should be involved in the development of a school level policy on HIV (which may contain provisions regarding condom supply). The proposed national policy has been adapted to clearly reflect this intention.[561]
6.64 Several commentators also expressed a need for parental education on HIV/AIDS. As indicated in the previous paragraphs, the Department of Education in discussions confirmed that parents will be involved in guidance sessions. It is in fact already done as part of the implementation of the Life Skills Programme. As indicated, the adapted national policy also provides for some parent participation in the proposed clause 9.4. The Commission further supports the suggestion of the Department of Health that education of parents could be addressed through parent-educator organisations.[562] In addition, a school level policy on HIV/AIDS could probably provide for parent education according to the needs of a specific community.
6.65 The Commission included in the revised clause 9 (previously clause 6) of the proposed national policy several of the suggestions for a specific content of an HIV/AIDS education programme - for instance that it should contain information on basic first aid principles and on proper behaviour towards persons with HIV, and that it should cultivate a culture of non-discrimination.[563] The Commission is however of the opinion that specific needs of specific communities could be better addressed in a school level policy. The latter could, for instance, address gender education in view of the low status of women,[564] and the formation of support groups for learners with HIV.[565] It is further believed that a multi-disciplinary approach could take care of needs with regard to support and guidance in relation to sexual violence, sexual abuse and rape. Learners with needs in this regard should be referred to other disciplines or service organisations.[566]
6.66 The proposal by the South African National Council for Child and Family Welfare that HIV/AIDS education should be given by experts is not feasible.[567] The Department of Education indicated that training of educators would be done by experts.[568] However, the adapted national policy does provide for information on HIV/AIDS to be given in an accurate and scientific manner.[569] Likewise training of all educators to contribute to HIV/AIDS education is probably not practically possible[570] although it has been set as an ideal under "Premises" in the adapted national policy.[571]
* Universal precautions (Clause 7)
6.67 The provisions relating to a safe school environment have been completely redrafted and extensively adapted according to the strong concerns raised by various commentators as reflected in par 5.55 - 5.69.5 above.[572]
6.67.1 The adapted clause 7 now includes clear and specific directions with regard to universal precautionary measures as well as directions on alternative or less sophisticated measures (should resources or circumstances make traditional universal precautions inaccessible).[573] Provisions regarding the availability of first aid kits and the training of educators and learners in the application of precautionary measures have been included in the revised policy in response to concerns emphasising the need for express provision in this regard.[574]
6.67.2 An additional and separate clause on the prevention of HIV transmission during sport participation has been included in view of comments on the lack of information and the uncertainty in this regard.[575] In drafting this provision the Commission made use of the National Department of Sport and Recreation's Draft Position Statement: HIV/AIDS in Sport which was issued in July 1997 in conjunction with the South Africa Sports Medicine Association and the Department of Health. This has been discussed in more detail in paragraph 6.39 et seq above.
6.67.3 In addition to the above, provisions setting out the duties of learners with HIV, responsibilities of parents and educators, and liability for damage caused in the context of HIV have been included in the revised national policy.[576] It has been expressly provided that the Code of Conduct adopted for learners of a school should include provisions regarding behaviour which may create risk of HIV transmission.[577]
6.67.4 The adaptations referred to in the previous paragraphs are further supported by additions to the background information and argumentation in Chapters 3 and 6 of this interim report. Rights and duties of learners, and criminal and civil liability for HIV transmission are discussed in view of the uncertainty reflected in comments in this regard. It is suggested that interested parties take recourse to this information if necessary.[578]
6.67.5 A new clause in the revised policy identifies those responsible for the practical implementation of universal precautionary measures.[579] The clause was drafted in accordance with the provisions of the Schools Act and is supported by background information supplied in Chapter 3.[580] It is accepted that the state, through the provincial structures, is responsible for creating a safe school environment and that funds for this will have to be made available.
* School level policies and Health Advisory Committee (Clause 8)
6.68 The provision regarding school level policies and the establishment of a Health Advisory Committee has now been separated into two clauses.[581] The main concern of commentators, namely that the school principal should not necessarily chair the Health Advisory Committee[582] (as previously provided), has been addressed in that it is now provided that a person with knowledge in the field of health care should chair the committee.[583] The policy was also adapted in response to comment by the Department of Education during discussions[584] that not all schools will have access to the necessary community resources to establish a Health Advisory Committee and that this could be resolved by drawing on available expertise at provincial, regional or sub-regional level within the education and health systems.[585]
6.69 Having evaluated the comments of persons and bodies responding to Discussion Paper 73, the Commission confirms its preliminary conclusion in Working Paper 58 and Discussion Paper 73 that a national policy for HIV/AIDS in schools is urgently required in order to protect learners with HIV from unfair discrimination in the school environment. However, such intervention will have to take into account the rights of all learners and should aim for a fair balance between the rights of learners with HIV and those without HIV.
6.70 The Commission confirms its preliminary view that the policy should apply nationally, that it should prevail over any other policy instrument on HIV/AIDS in public schools,[586] and have children of school going age (including children in the pre-primary phase) as its chief focus. In view of the fact that compliance with the proposed policy cannot otherwise be ensured in the case of independent schools, the Commission concludes that Members of Executive Councils responsible for education should in terms of section 46(2) of the Schools Act determine compliance with the policy to be a condition on which registration of independent schools may be granted.[587]
6.71 The Commission further confirms its view that the policy should set out broad guidelines in accordance with constitutional principles. In view of the wide variety of circumstances prevailing in South African schools and of the fact that the Schools Act stresses the importance of parent empowerment in the education of their children, a governing body of a school should be able to adopt an HIV/AIDS policy at school level to give operational effect to the national policy in an individual school community. The purpose of the school level policy would be to provide a mechanism to express the needs of individual schools and their communities, especially with regard to their ethos and values, within the framework of the national policy's minimum standards and norms.
6.72 In view of the current legal position and the comments received on preliminary proposals in Discussion Paper 73, the Commission concludes that the proposed national policy should contain the following basic principles:
6.73 It is recommended that the Minister of Education should, in terms of section 3 of the National Education Policy Act 27 of 1996 determine the policy attached as ANNEXURE B to this interim report as national policy to be applied in respect of HIV/AIDS in public schools; and that Members of Executive Councils responsible for education should, in terms of section 46(2) of the Schools Act 84 of 1996, by notice in the Provincial Gazette, determine compliance with the proposed national policy to be a ground on which registration of independent schools may be granted.
[414] Par 5.21 above.
[415] Par 5.13 et seq.
[416] Par 3.43.1 above.
[417] Clause 12.
[418] Clause 13.
[419] Clause 15.
[420] Par 5.15 et seq above.
[421] Cf par 5.45.1 above.
[422] Par 5.20 et seq above.
[423] Cf Van Wyk (Unpublished) 12; Treatment for HIV infection with some medicines could present side effects which could lead to aggressive behaviour (McNary-Keith 1995 Journal of Law and Education 69, 78).
[424] Van Wyk (Unpublished) 13.
[425] See par 3.43 above for more detail on the Code of Conduct as provided for in the Schools Act.
[426] Cf par 2.21 above.
[427] Sec 9(3).
[428] According to the 2 March Draft of the Guidelines the proposals have been compiled by the Department of Education and reflect discussion documents received from the provincial departments of education. The draft has been made available to stakeholder organisations of learners, governing bodies, provincial departments of education and unions of educators for comment and discussion. As required by section 8(3) of the Schools Act, the Minister of Education will consult the Council of Education Ministers before publishing the final guidelines for governing bodies in the GG (Guidelines for the Consideration of Governing Bodies in Adopting a Code of Conduct for Learners).
[429] Guidelines for the Consideration of Governing Bodies in Adopting a Code of Conduct for Learners par 1.8.
[430] Ibid par 1.9.
[431] Ibid par 2.2.
[432] Ibid par 2.3 and 3.3.
[433] Ibid par 3.7.
[434] Ibid par 4.3 and 4.5.
[435] Ibid par 4.7(c). (According to the Schools Act [sec 8 and 9 - as confirmed in the proposed Guidelines par 13.1-13.4] due process will include the principal informing parents in writing of any proposed action after hearing the evidence of the learner; the principal arranging for a fair hearing by a number of members of and designated by the governing body; and the disciplinary committee so appointed conducting the hearing in accordance with the provincial regulations laid down by the MEC. In the case of very young learners special arrangements must be made. Parents or guardians could represent learners.)
[436] Guidelines for the Consideration of Governing Bodies in Adopting a Code of Conduct for Learners par 14.
[437] Beeld 15 October 1997 4.
[438] Ibid.
[439] See also par 3.31 et seq above.
[440] The Schools Act sec 60(1).
[441] Cf the Schools Act sec 12(3).
[442] Clause 10.
[443] Clause 10.2.
[444] Clauses 7 and 8.
[445] Cf par 5.76 et seq above.
Dr N Louw during informal discussions with Prof C van Wyk (project committee member) and the researcher on 24 February 1998, stressed that children in the pre-primary stage should not be under-estimated: They have the ability to understand that they are not to touch blood (see also fn 46).
[447] Cf par 5.77 et seq above.
[448] See par 3.16 and 3.17 as well as fn 201, 202 and 196 in this regard.
[449] Par 3.51.4 and 4.5.
[450] See fn 191.
[451] Cf par 3.16, 3.17, 3.37, 4.5 and fn 191 above.
[452] Par 6.4 et seq above.
[453] Cf par 4.11 and 4.13 above.
[454] Par 3.15.2 of SALC Discussion Paper 73. Cf also par 4.11 above.
[455] See fn 46 above.
[456] The Department based their conclusion on the provisions of sec 12(3) read with the definition of "school" in sec 1(xix) of the Schools Act.
[457] Cf par 2.41-2.45 above.
[458] Refer also to par 6.54 below where disclosure of HIV-related information is evaluated in general.
[459] Cf par 5.84 et seq above.
[460] "Quality Education for All: Overcoming Barriers to Learning and Development" Report of the National Commission on Special Needs in Education and Training (NCSNET) and the National Committee for Education Support Services (NCESS): Department of Education, Pretoria 28 November 1997.
[461] Special Needs Report 30.
[462] Ibid.
[463] Ibid.
[464] Information supplied by Dr N Louw, Member of the National Task Team: Life Skills and HIV/AIDS Education Programme of the Department of Education and the Department of Health on 24 February 1998.
[465] Ibid.
[466] Ibid.
[467] The Schools Act sec 12(2) and (3).
[468] Special Needs Report 1997 34.
[469] Sec 1(xviii) read with sec 12.
[470] The Schools Act sec 23(5).
[471] Special Needs Report 1997 47.
[472] Ibid 46.
[473] Cf clause 13 of the proposed national policy.
[474] Cf par 5.87 et seq above.
[475] Par 3.58 et seq. See also par 3.12, 3.16.1, 3.17.2, 3.27, 3.34.2 and 3.41.
[476] Par 3.12 above.
[477] The 1996 Constitution sec 18 and the Policy Act sec 4(a)(vii).
[478] Cf par 3.16 et seq.
[479] Cf par 3.23, 3.32.2, 3.47.3 and 3.48 above.
[480] Cf par 3.51.4 and 3.58 above.
[481] Cf par 3.55 et seq above.
[482] Par 3.57 above.
[483] Ibid.
[484] Cf fn 210 above.
[485] Cf par 6.14.1 above.
[486] Proclamation 138 of 1994.
[487] General Notice 1840 of 1997 in GG 18481 of 1 December 1997.
[488] The National Assembly resolved on 18 September 1997 that the recommendations in the report should be implemented urgently by the government. The Department of Health indicated on 23 February 1998 that it is addressing the implementation.
[489] National Policy on HIV/AIDS for Educators.
[490] Cf par 5.52 et seq.
[491] Par 5.104 et seq.
[492] This multi-faceted approach was also advocated in the Special Needs Report 1997 71 et seq.
[493] Par 5.52.1 above.
[494] Par 5.52.2.
[495] Correspondence received by the Secretary SALC from the Director Special Needs in the Department of Welfare on 14 January 1998 regarding the SALC's current investigation into the review of the Child Care Act.
[496] Ibid.
[497] Par 6.31 above.
[498] The Schools Act sec 23 and 24.
[499] Clause 13 of the proposed policy.
[500] Cf par 5.101.
[501] Par 3.47 above.
[502] Clause 11 of the proposed policy.
[503] Cf the requests of commentators referred to in par 5.106.
[504] Special Needs Report 1997 156.
[505] Sec 51(1).
[506] Cf par 5.64 et seq.
[507] Draft Position Statement: HIV/AIDS in Sport 1997 3. According to Hassan however, the alleged report from Italy - which concerned a case of possible HIV transmission between soccer players - was not shown to be conclusive (Hassan [Unpublished] 3).
[508] Draft Position Statement: HIV/AIDS in Sport 1997 3.
[509] Ibid.
[510] Schwellnus (Unpublished) 2.
[511] As quoted in Hassan (Unpublished) 5.
[512] Hassan (Unpublished) 11.
[513] Draft Position Statement: HIV/AIDS in Sport 1997 3.
[514] See also Hassan (Unpublished) 2 and 10.
[515] Refer to par 2.42-2.45 above where the significance of the window period with regard to HIV testing is explained.
[516] Hassan (Unpublished) 12, 17.
[517] See also Hassan (Unpublished) 2-3.
[518] Ibid.
[519] Clause 8.
[520] See par 5.22-5.25 above.
[521] Par 2.41-2.45.
[522] Cf par 3.39 et seq above.
[523] This was confirmed in discussions with representatives of the Department of Education on 24 February 1998. For more detail on these discussions see fn 46 above.
[524] Cf par 5.27 above.
[525] Cf par 5.29 above.
[526] See par 3.11 et seq above for a full discussion of these provisions.
[527] Sec 5(1).
[528] Sec 4(a)(i).
[529] See par 3.44 et seq above.
[530] See Clause 2.7 of the proposed national policy.
[531] Par 5.31 et seq above.
[532] Par 5.31.2 above.
[533] Cameron AIDS Bulletin March 1993.
[534] See the comments discussed in par 5.33 et seq above.
[535] Cf par 5.34 et seq above.
[536] Refer to the comments recorded in par 5.61 and 5.67. (The City of Durban Health Department pointed out in its comments that unsophisticated alternative measures may be used, eg plastic packets instead of latex gloves.)
[537] Information supplied by Dr N Louw (member of the National Task Team: Life Skills and HIV/AIDS Education Programme) - see fn 46 above.
[538] Eg by the segregation of children (according to age group and gender), disciplinary measures against sexually aggressive learners and adequate supervision where this is deemed to be necessary.
[539] See fn 46 above for detail.
[540] The 1987 Regulations (in terms of which the parent or guardian of a child who attends a teaching institution as a pupil, and who, to the knowledge of the parent or guardian, suffers from AIDS or was in contact with any person suffering from AIDS, shall inform the principal of the teaching institution concerned immediately of such condition [reg 7(2)]) have, as far as could be ascertained never been applied to HIV or AIDS. Draft regulations intended to replace the 1987 Regulations were published for comment in 1993 but have since not been finalised or promulgated. For more detail see par 3.8 et seq above. The 1987 Regulations are also discussed in SALC Working Paper 58 (par 3.164-3.165)and in SALC First Interim Report on Aspects of the Law Relating to AIDS (par 5.1-5.16).
[541] Requirements relating to membership of governing bodies of ordinary public schools and public schools for learners with special education needs in the Schools Act would ensure that adequate knowledge of the particular circumstances of a specific institution would be brought to bear on decisions in this regard. See also par 4.3.2 above.
[542] Refer to par 3.20 et seq above.
[543] By registering with SACE educators undertake, among other things, to respect the fundamental rights of learners, which include learners' right to privacy and confidentiality. See also par 3.57 above.
[544] Complaints against educators may be investigated, a fine of up to R1 000 may be levied, and the educator's name struck from the register if he or she is found guilty of a breach of the Code. This would imply that such educator can no longer teach in a public school in South Africa. See also par 3.57 above.
[545] See also par 3.32 et seq and 3.47 et seq above.
[546] According to the SAMDC Guidelines the decision whether to divulge the information to other parties involved must be in consultation with the person with HIV (in the case of learners under the age of 14 years it would have to be in consultation with the parents of such learner). If the person's consent cannot be obtained, the person seeking consent should use his or her discretion whether or not to divulge the information to other parties involved. Such decision must be made with the greatest care, after explanation to the person with HIV (or his or her parent) and with acceptance of full responsibility at all times (Cf 5-6). Knowledge of a person's HIV status would be in the interest of the exposed learner and would enable him or her to use AZT or similar prophylaxis to prevent HIV transmission.
[547] Clauses 7, 9 and 6 respectively.
[548] Cf par 5.40 above.
[549] Cf par 5.42 et seq above.
[550] See fn 46 for detail of these discussions.
[551] See par 5.42.1 above.
[552] See par 6.9.1 above for more detail.
[553] Par 3.4 of the Guidelines for the Consideration of Governing Bodies in Adopting a Code of Conduct for Learners.
[554] The Department of Education indicated in discussions on 24 February 1998 that the teaching content would be evaluated on a continuous basis (see fn 46 for detail on these discussions).
[555] Curriculum 2005 220 et seq.
[556] Cf par 5.44 et seq above.
[557] In discussions with representatives on 24 February 1998. See fn 46 for more detail.
[558] Curriculum 2005 - Lifelong Learning for the 21st Century 27.
[559] See fn 46 above.
[560] See par 5.45.10 above.
[561] See clauses 9.4, 12 (especially 12.4) and 13.
[562] Cf par 5.49.2.
[563] Refer to the requests recorded in par 5.45 et seq above.
[564] Refer to the comments recorded in par 5.45.6 above.
[565] Cf par 5.45.7 above.
[566] Cf par 5.45.8 above.
[567] Cf par 5.46.2
[568] In discussions with representatives of the Department on 24 February. See fn 46 above for more detail.
[569] Clause 9.3.
[570] Cf par 5.46.2.
[571] Clause 2.8.3.
[572] See adapted clause 7.
[573] See clause 7.3.
[574] See clause 7.1.1-7.12.
[575] See new clause 8.
[576] Clauses 10 and 14.4.
[577] Clause 10.2.
[578] See par 3.39-3.49 and 6.39-6.42.
[579] See clause 14.
[580] Par 3.52 et seq.
[581] See clauses 12 and 13.
[582] Cf par 5.72 above.
[583] Clause 13.2.2.
[584] See fn 46 above.
[585] See clause 13.1.
[586] The Western Cape Department of Education has an HIV/AIDS policy in place (cf par 5.79 above). Sec 3(3) of the Policy Act empowers the Minister of Education to declare that a particular national policy should prevail over the whole or a part of any provincial law on education (which would include any policy). In such an instance the Minister should inform the provincial political heads of education accordingly and a specific declaration to this effect should be included in the policy instrument concerned (see also par 3.51 et seq above).
[587] See par 6.25 et seq as well as fn 210 above.
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