Important note: Information in this article was accurate in 2003. The state of the art may have changed since the publication date.
Sunday Times (Johannesburg) - Sunday October 26, 2003
Nashira Davids
"The reason your name is on television is because they love you so much," her adoptive mother Karen lies when little Tholakele asks questions.
Karen took on the Buccleuch Montessori Nursery School in the Joburg High Court last year.
On Tuesday the year-long battle came to an end when the court ruled in favour of the elite nursery school.
The school claimed it was not ready to deal with HIV-positive pupils due to a lack of training. It recommended that Tholakele, who was two at the time, be enrolled when she was past the "biting stage".
Judge Lucy Mailula found that the school's decision was not a permanent exclusion and the application was dismissed.
But the Aids Law Project, which acted on Karen's behalf, said the judgment was of "deep concern".
" The mere fact that the school recommended that Tholakele's enrolment be deferred amounted to unfair discrimination.
"The project had hoped that the court would send a strong message to nursery schools that a failure to admit children with HIV is unconstitutional."
The project felt the judgment failed to give other nursery schools guidance on enrolling HIV-positive learners.
According to the project, there have been no recorded cases of HIV being transmitted between children by biting.
The project said it was considering appealing against the decision.
Gail Johnson, the adoptive mother of the late Nkosi Johnson, the internationally acclaimed young Aids activist, was outraged by the judgment.
Johnson made headlines when she fought for Nkosi's admission to a government primary school.
"It is absolutely perturbing. Now anyone else can refer back to this judgment when they don't want to accept an HIV-positive child at their school," she said.
Johnson felt that the school's concern about biting was unfounded.
" If an HIV-positive child bites another child, it will take 20 litres of saliva to infect the child," she said.
The legal battle has had an effect on Tholakele, who has been rejected by three nursery schools.
But her mother said she had settled down and had gone off the antibiotics she had been taking since birth.
"She is very young to know rejection. Every time she has to go to a new school she gets excited and is then turned away.
"We would just tell her the school is full. But when she gets older she is going to question things. I will fight for my daughter's rights to the bitter end because she can't," said Karen.
Karen still feels that her child was discriminated against and said children like her are innocent victims.
She said that as a result of the judgment parents would keep their children's HIV status secret.
"I was open about her status and I went through three schools. Parents are just going to be too afraid," she said.
Philani Dzanibe, assistant co-ordinator for the HIV/Aids project for Lawyers for Human Rights, said many parents had baseless fears about their children's HIV-positive peers. Lack of education among parents, teachers and learners encouraged paranoia.
Leslie Haywood, the Buccleuch school's principal, was unavailable for comment.
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