1 SOUTH AFRICAN LAW COMMISSION. Project 85. THIRD INTERIM REPORT ON. ASPECTS OF THE LAW RELATING TO aids . HIV/AIDS AND DISCRIMINATION IN SCHOOLS . April 1998. (i). To Mr A M Omar, M P, Minister of Justice I am honoured to submit to you in terms of section 7(1) of the South African Law Commission Act, 1973 (Act 19 of 1973), for consideration the Commission's third interim report on Aspects of the law relating to aids . I MAHOMED. Chairperson April 1998. (ii). ACKNOWLEDGEMENT. The Commission is indebted to Prof Christa van Wyk (project committee member) who undertook additional research for Discussion Paper 73, and who assisted in compiling this interim report.
2 The project committee particularly records its appreciation for the unrelenting hard work and commitment of the researcher, Mrs Anna-Mari Havenga. (iii). INTRODUCTION. The South African Law Commission was established by the South African Law Commission Act, 1973 (Act 19 of 1973). The members of the Commission are - The Honourable Mr Chief Justice I Mahomed (Chairperson). The Honourable Mr Justice PJJ Olivier (Vice-Chairperson). The Honourable Madam Justice Y Mokgoro Adv JJ Gauntlett SC. Mr P Mojapelo Prof RT Nhlapo Ms Z Seedat The members of the Project Committee for this investigation are - The Honourable Mr Justice E Cameron (Chairperson).
3 The Honourable Mr Justice PJJ Olivier (Vice-Chairperson of the Commission). Prof RT Nhlapo (Full-time member of the Commission). Mr Z Achmat Dr PJ Haasbroek Ms M Makhalemele Dr MJ Matjila Dr GJ Mtshali Ms L Seftel Ms AE Strode Prof CW van Wyk The project leader is Mr Justice E Cameron. The researcher responsible for the investigation is Mrs A-M Havenga. The Secretary is Mr W Henegan. The Commission's offices are on the 12th floor, Sanlam Centre, cor Schoeman and Andries Street, Pretoria. Correspondence should be addressed to: The Secretary Telephone: (012)322-6440. South African Law Commission Private Bag X668 Fax : (012)320-0936.
4 PRETORIA 0001 E-mail : (iv). CONTENTS Page Acknowledgement (ii). Introduction (iii). Summary (vii). Sources with Mode of Citation (xxxi). Table of Cases (li). 1 INTRODUCTION 1. 2 BACKGROUND 4. A) Working Paper 58: 1995 4. B) Further progress since 1996: Discussion Paper 73 15. C) What is HIV/AIDS and how does it impact on children 18. 3 HIV/AIDS IN SCHOOLS 38. A) The impact of HIV/AIDS in SCHOOLS 38. B) Relevant legal provisions 40. * Legislation regulating public health and school health services 41. * Law relating to rights and duties in the school environment 43. (v). C) Balancing rights and duties 68. D) A national policy on HIV/AIDS in SCHOOLS 74.
5 4 PRELIMINARY RECOMMENDATIONS IN DISCUSSION PAPER 73 83. 5 COMMENTS ON DISCUSSION PAPER 73 97. A) Consultation with interested parties 97. B) Comment on the necessity of enacting a national policy on HIV/AIDS . in SCHOOLS 99. C) Concerns, and suggestions for amendment, refinement or extension of the proposed national policy on HIV/AIDS in SCHOOLS 102. (vi). 6 EVALUATION AND RECOMMENDATION 151. A) The necessity of enacting a national policy on HIV/AIDS in SCHOOLS and the broad principles on which such a policy should be based 151. B) The need for broader application of the policy 159. C) Addressing additional matters in the proposed policy 171.
6 D) Adapting the terms of the policy 178. E) Conclusion 192. F) Recommendation 195. ANNEXURE A: Respondents to Discussion Paper 73 in order of receipt of submissions 197. ANNEXURE B: Draft National Policy on HIV/AIDS for Learners in Public SCHOOLS 201. (vii). SOURCES WITH MODE OF CITATION. aids The Legal Issues Discussion Draft of the American Bar Association aids Co-ordinating Committee USA: American Bar Association 1988. AIDSScan November 1989. "New York Teenagers' Awareness of HIV and the Impact on Their Sexual Behaviour" AIDSScan November 1989 7. AIDSScan February/March 1991. "Some Early Observations on HIV Infection in Children at King Edward VIII Hospital, Durban".
7 AIDSScan February/March 1991 3. AIDSScan June 1992. "Female College Students Require Better Education About Protective Contraception Use Against STD's and aids " AIDSScan June 1992 7. AIDSScan December 1992. " school Placement for HIV Infected Children" AIDSScan December 1992 9. AIDSScan December 1993. " aids Risk Reduction Among Multi-ethnic High school Students" AIDSScan December 1993 6-7. AIDSScan March 1994. "Use of Post-exposure AZT Receives Careful Consideration" AIDSScan March 1994 6. AIDSScan June 1994. "Two Patterns of Childhood Acquired HIV-infection" AIDSScan June 1994 7. AIDSScan December 1994. " aids Diagnosis for Children with Prenatally Acquired HIV - May Extend to 7 Years of Age" AIDSScan December 1994 10.
8 (viii). AIDSScan March/April 1995. "Muddle Over Sex Education in UK - A Lesson for SA aids Education Programmes" AIDSScan March/April 1995 8-9. AIDSScan June 1995. "Focus on Adolescents" AIDSScan June 1995 10. AIDSScan June 1995. "Preventing aids in Teenagers in the 1990's" AIDSScan June 1995 10-11. AIDSScan March/April 1996. "SA Actuarial Society Reportback on aids in South Africa" AIDSScan March/April 1996 3-7. AIDSScan June/July 1996. "Safer Donor Populations in High HIV Prevalence Communities in East Africa" AIDSScan June/July 1996 7. AIDSScan October 1996. "Editorial" AIDSScan October 1996 4. AIDSScan October 1996. "Constructive Challenges to Sexuality Education Courses" AIDSScan October 1996 10.
9 AIDSScan October 1996. " aids Age of Initiation of Adolescents Sex - American Experience, 1987-1988" AIDSScan October 1996. 10-11. AIDSScan October 1996. "The Effect of Breastfeeding on Vertical Transmission of HIV-1 in Soweto" AIDSScan October 1996. 13. AIDSScan March 1997. "Medical SCHOOLS and Teaching Hospitals at Risk for Civil Suits by HIV-infected Students?" AIDSScan March 1997 9. (ix). AIDSScan December 1997. "South African News, Research and Views - Report on Home and Community Care of Persons Living with HIV/AIDS " AIDSScan December 1997 10-11. aids Unit Strategy 1991. Department of National Health and Population Development Background and Strategy for aids .
10 Prevention Pretoria: aids Unit 1991. Alkema 1996 HRCLJSA. Sytze Alkema "The Right to Access to Information: A Fundamental Right?" The Human Rights and Constitutional Law Journal of Southern Africa March 1996 32-35. AMFAR aids /HIV Treatment Directory June 1996. American Foundation for aids Research (AMFAR) aids /HIV Treatment Directory June 1996 94- 137. Arendse 1991 ILJ. Norman Arendse "HIV and aids Infected Employees: Some Legal Implications for the Workplace" 1991. Industrial Law Journal 218-227. Arnott 1996 Innes Labour Brief Adrian Arnott " aids in the Workplace" 1996 The Innes Labour Brief Vol 7 No 4 29-40. Australia Report on Privacy and HIV/AIDS .