TAC Electronic Newsletter

24 October 2003

Contents


ALP STATEMENT ON  HIV/AIDS IN THE SANDF

23 October 2003

The AIDS Law Project was pleased to note the comments made by Cabinet yesterday about the SANDF's position on HIV/AIDS.  In particular the ALP was pleased to note that there is no government policy to exclude individuals from the SANDF solely on the basis of their HIV status.  

The ALP is however extremely concerned to note that despite this pronouncement, the SANDF has however excluded and continues to exclude job applicants with HIV from employment in the SANDF.  The ALP is currently dealing with a number of cases where this has occurred:


It is clear that, despite the Cabinet position, the SANDF continues to practice a blanket policy of excluding job applicants with HIV.  The official policy of the SANDF on sexually transmitted diseases including HIV, issued by the Surgeon-General, Lt Gen D P Knobel, explicitly states that "sero-positive cases ? are by definition unfit for employment as uniformed members?"

The ALP hopes that the statement by Cabinet will clarify the confusion that appears to exist between Cabinet and the SANDF. The ALP calls on Cabinet to instruct the SANDF to resolve the cases referred to above without litigation and to ensure that its policies are immediately brought into line with the Cabinet position.

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ALP STATEMENT ON JUDGMENT IN KAREN PERREIRA V BUCCLEUCH MONTESSORI NURSERY SCHOOL


 22 October 2003


Judgement in this matter was handed down today by Judge Lucy Mailula in the Johannesburg High Court.  The matter was argued fifteen months ago.

The facts

Karen Perreira applied to enrol her foster daughter, Tholakele, at the Buccleuch Montessori Nursery School in January 2001.  At the time she made the application, she informed the principal of the school, Lesley Heywood, that Tholakele is living with HIV.  Although Ms Perreira was advised that the school had three vacancies, she was told that a teachers' meeting had taken place to discuss the possible enrolment of Tholakele, and that serious concerns had been expressed about the readiness of the school to deal with learners with HIV and also with concerns about the risks of HIV transmission in the school setting.  The school indicated that they wished to defer Tholakele's application until she was three years old and "past the biting stage".

The case

The AIDS Law Project, acting on behalf of Ms Perreira, took the matter to the High Court on the basis that the failure to admit Tholakele on the basis of her HIV status amounted to unfair discrimination in terms of section 9 of the Constitution.  The matter was argued in September 2002.

The judgement

The court found that the school had indeed expressed concerns about its readiness to deal with learners with HIV and the lack of training undergone by its teachers in this regard.  The court also found that the school had therefore recommended that Tholakele's enrolment be deferred for at least six months when she would be "past the biting stage".  On this basis, the court found that the school had not taken a final decision to exclude Tholakele.  The court therefore dismissed the application with costs.

It is of deep concern to the AIDS Law Project and Ms Perreira that this judgement seems to suggest that it is permissible for nursery schools to use a lack of preparedness as a justification to defer the enrolment of children with HIV.  The judgement fails to give any guidance to what nursery schools need to do to ensure that they are able to admit children with HIV and further, fails to comment on and deal with the fact that it is unreasonable for any school in South Africa to consider themselves unequipped to admit children with HIV.   The judgement acknowledges that the school raised concerns about the risks of HIV transmission through biting.  Again the judgement fails to deal with the reasonableness of this fear, despite the expert evidence adduced by the ALP that unequivocally indicated that it is extremely unlikely that a child will contract HIV as a result of a bite from another child.  To date, there are no recorded cases of transmission between children as a result of biting.

The judgement fails to consider the implications of the deferral of the enrolment and impact of this on Tholakele. As a result of the deferral, Ms Perreira was forced to seek an alternative school.

It is the view of the ALP that the mere fact that school recommended that Tholakele's enrolment be deferred amounted to unfair discrimination This discrimination is unquestionably linked to her HIV status.  As such, the ALP had hoped that the court would send a strong message to nursery schools that a failure to admit children with HIV is unconstitutional and unlawful.

The ALP intends to appeal against the decision.

FOR FURTHER INFORMATION PLEASE CONTACT LIESL GERNTHOLTZ  ON 083 600 3592 OR MARK HEYWOOD ON  083 634 8806

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