You can come to school once you're 'past the biting stage'

Judge Lucy Mailula of the Johannesburg High Court handed down judgement in October 2003 in an important case that had been argued before her more than a year before. The case, the first of its kind in South Africa to deal with issues concerning children with HIV and their right to attend pre-school, raised a number of complex issues, including questions about the safety of children without HIV, the risks of HIV transmission in pre-schools and the steps that such schools need to take to ensure that they are equipped to accommodate children with HIV.

Unfortunately, the judgement failed to deal with any of these issues in a meaningful way, and lost an important opportunity to protect the rights of a vulnerable group of children and also give clear guidance to schools that may be grappling with these questions.

The facts

In January 2001, Karen Perreira applied to the Buccleuch Montessori Nursery School to enrol her foster daughter, Tholakele, who was two-and-a-half years old at the time. She told the school that Tholakele had HIV.
Perreira said in her affidavit to the court that when she visited the school she was told that it was concerned about the risks of HIV transmission through biting, and that the teachers had had a meeting and decided to defer Tholakele’s enrolment until she was ‘past the biting stage”. In Perreira’s view, this amounted to unfair discrimination against her foster daughter.

As the school was a nursery school, the Department of Education’s (DoE) HIV policy did not apply to it. Nursery schools are regulated by the Department of Social Development and, although the DoE indicated that it does not condone any form of discrimination, the Department of Social Development does not have a similar policy.

The school denied that it had discriminated against Tholakele on the grounds of her HIV status. However, in its affidavit, the school admitted that it had recommended that her application be deferred until she was past the biting stage, which was over the age of three years, and that it was ‘not ready” to deal with children with HIV as none of the teachers or staff had received any training. It was also clear from the court papers and various interviews given by the principal of the school, Lesley Heywood, that the school had very serious misconceptions about how HIV was transmitted - in addition to biting, concerns were raised about the scratching of mosquito bites and the sharing of sweets.

The case

The Aids Law Project (ALP) acted on behalf of Perreira and Tholakele. As part of the case, the ALP obtained an affidavit from an HIV clinician that indicated that the risk of HIV transmission in the school setting was not significant if universal precautions were taken. He also stated that there was only one recorded case of HIV being transmitted through a bite, and it involved a serious injury. The school did not challenge this evidence in any way.

The judgement

In the judgement handed down in October, the judge did not deal with this important evidence. Nor did she make any comments about the fact that the school admitted that, in 2001, they were not ready to admit children with HIV. She merely found that although the school had recommended that Tholakele’s application be deferred, it had not made a final decision to exclude her and therefore it had not discriminated against her. The judge also failed to consider any of the international cases that had dealt with similar issues in the United States, Australia and Canada. In all these cases it had been found that the risk of HIV transmission in a school setting was not sufficiently serious to warrant excluding children with HIV and to do so amounted to a violation of a number of the child’s human rights.

The judgement has important implications for young learners with HIV. It seems that as long as no final decision is made to exclude a child with HIV from a nursery school or crèche, temporary exclusion is acceptable. The judgement did not provide any guidance as to how long an application could be deferred. In Tholakele’s case, she would have been kept out of school for at least six months, until she turned three years old, had her foster mother not decided to look for another school for her. The court also failed to deal with what steps a school should take to get ready to accommodate children with HIV. The Buccleuch

Montessori school suggested that HIV was a ‘new” issue for them and their staff would need a lot of training to cope with children with HIV. The court did not challenge any of these myths and did not examine the problems with this statement.

Finally, the court failed to recognise the vulnerability of children with HIV and to ensure that their rights are protected.

The ALP intends to appeal against the judgement.

Liesl Gerntholtz is the head of the Legal Unit, AIDS Law Project at the Centre for Applied Legal Studies.

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