Important note: Information in this article was accurate in 2002. The state of the art may have changed since the publication date.
South African Press Association (Johannesburg) - June 14, 2002
Judge Meyer Joffe said the child should be allowed to go through the normal assessment process followed by all children who wanted to be admitted to the school.
Karen Pereira, the foster mother of Tholakele Nkosi, has brought a lawsuit against Buccleuch Montessori Nursery School saying the school discriminated against her daughter by denying her enrolment based on her HIV status.
However the school's counsel has denied the allegation saying that the school never told Pereira that it would or would not admit the girl.
Counsel for Pereira, Sharise Weiner, SC, told the court on Thursday that Pereira phoned the school in December 2000 and told its principal Lesley Heywood she wished to enrol her daughter. Heywood told Pereira there were three places available.
Heywood then called a staff meeting in January 2001 explaining that the child was HIV-positive. There was mixed reaction and some teachers expressed concerns over the HI virus being spread through biting and scratching.
Weiner said that at a meeting Heywood told Pereira about the teachers' concerns and told her to come back a few months later when Tholakele was three as she would then be over the biting stage.
Heywood had also said the teachers were not equipped to deal with HIV-positive children.
Earlier this year Pereira sent a letter to Heywood asking that Tholakele be admitted to the school. But there was no response to the letter.
Tholakele is now four years old.
Heywood has denied receiving the letter.
Advocate Paul Strathern, for the school, argued on Thursday that the application was premature because none of the necessary admission procedures had been followed.
He also said the enrolment process did not go further because Pereira did not complete the necessary forms.
Pereira has denied receiving all the relevant documents.
Strathern said that Heywood had told Pereira it would be "preferable" if Tholakele went back to the school after turning three, but had never said outright that the girl would not be considered for admission.
In court papers Heywood said teachers had undergone the necessary HIV training and that there would space available at the school next year.
Joffe said on Friday that he did not think one extra child this year would make a difference to the school.
He said that if Tholakele was not accepted at the school the matter would go back to court and the reasons for this decision would be looked at.
Heywood told reporters on Friday the assessment took about three days. This included taking the child in for a day and assessing her emotionally and socially. The child and her parents would also have to decide if they liked the school.
"The school has a very holistic approach," she said.
Heywood said pupils' parents were aware of the case and had been "very supportive".
She also said teachers at the school were now undergoing annual training to deal with HIV-positive children.
The Aids Law Project's Liesel Gerntholtz said: "We are very pleased because they are being forced to consider her... on the basis that she is a normal child and not that she has HIV status."
The ALP has been assisting Pereira in the case.
Pereira said she would consider whether she wanted her daughter to apply to the school over the next few days.
She has 10 working days to make an application to the school. Tholakele is currently at a Crawford school which Pereira said "followed the law of the land".
Pereira also brought a lawsuit against the Sister Helga Creche, which also accused of discriminating against her daughter because she is HIV-positive. The application against Sister Helga Creche was postponed indefinitely on Thursday due to technical matters.
Gerntholtz said it had not yet been decided whether the case against Sister Helga Creche would continue.
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