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Equal Education (EE) and the Treatment Action Campaign (TAC) welcome the launch of the Integrated School Health Programme (ISHP). In particular, we welcome what appears from President Zuma’s announcement to be a commitment to provide condoms in schools. (Below we examine the scientific evidence for providing condoms in schools, and the legal basis for doing so under South African law.)

We particularly welcome the President’s frank statement in regard to youth sexual activity:

“We know that this subject makes parents uncomfortable, understandably so. But we have to face the reality that some learners are sexually active, no matter how much this knowledge troubles us as parents.

To deal with this reality and promote primary health care, the school health nurse and team will provide sexual and reproductive health services including contraception as well as HIV Counselling and Testing, where appropriate.

It is a fact that our young people are at risk of contracting HIV infection.”[1]

The President has our full support in sensitively but honestly confronting parents and communities with these important considerations.

President Zuma further said:

“These services will be made available after consultation with the school community led by the school governing body.”

This last statement requires urgent clarification. If it means that the intervention will be explained in parents meetings then that is positive. But if it means that SGB’s have a veto over the programme, and can in fact prevent students accessing condoms, then that would be a very serious problem.[2] In fact, as we show below, given Minister of Health Aaron Motsoaledi’s stated commitment to make condoms available, refusing to provide them may be a breach of the law.

We call on the Depart of Health (DoH) and the Department of Basic Education (DBE) to make clear that it is a public health and educational imperative that this programme – including the availability of condoms in schools – goes ahead.

What does the science say about condoms in schools?

Research from various parts of the world supports the use of condoms in schools. In 2001, the highly reputable US Institute of Medicine published a report titled, No Time To Lose: Getting More from HIV Prevention. [3] The report considered the available evidence on HIV prevention programmes. The report stated:

Studies reviewing the scientific literature, as well as expert panels that have studied this issue, have concluded that comprehensive sex and HIV/AIDS education programs and condom availability programs can be effective in reducing high-risk sexual behaviors among adolescents ... In addition, these reviews and expert panels conclude that school-based sex education and condom availability programs do not increase sexual activity among adolescents.

It recommended that policy makers, "eliminate requirements that public funds be used for abstinence only education, and that states and local school districts implement and continue to support age appropriate comprehensive sex education and condom availability programs in schools."

A meta-analysis of US and international studies on condom availability systematically searched the medical literature and found 21 high quality studies on condom interventions, some of which looked at condom distribution in schools. The report stated:

This systematic review supports the structural-level condom distribution intervention as an efficacious approach to increasing condom use and reducing HIV/STD. Given the urgency of the HIV epidemic, making condoms more universally available, accessible, and acceptable, particularly in communities or venues reaching high-risk individuals, should be considered in any comprehensive HIV/STD prevention program. Further exploration around how best to implement condom distribution programs to maximize their reach and impact should be considered. [4]

A highly regarded report in the United States titled, Emerging Answers: Research Findings on Programs to Reduce Teen Pregnancy and Sexually Transmitted Diseases, stated:

According to a small number of studies of mixed quality, making condoms available in schools does not hasten the onset of sexual intercourse or increase its frequency. Its impact on actual use of condoms is less clear. Using condoms reduces the risk of acquiring and transmitting HIV. [5]

On balance, the evidence shows that it is not harmful to make condoms available in schools and that it is possibly beneficial. Condoms should be made available in schools, along with compehensive sex education with a strong emphasis on how to avoid contracting and transmitting HIV. Whilst condoms are made available in schools as fast as possible, there should simultaneously be a large-scale randomised controlled trial comparing different HIV prevention programmes in schools, including condom availability. The Medical Research Council and the Southern African HIV Clinicians Society, together with the Department of Basic Education and and the Department of Health are ideally placed to lead such an important study.

What does the law say about condoms in schools?

The Children’s Act states:

“No person may refuse to sell condoms to a child over the age of 12 years; or to provide a child over the age of 12 years with condoms on request where such condoms are provided free of charge.” [6]

This section recognises that young people over the age of 12 years having sex should rather do so safely.

In addition, South African law recognizes the rights and autonomy of children to consent to:
• Terminations of Pregnancy at any age; (although health providers are required to advise them to “consult with their parents, guardian, family members or friends” before the termination, such consultation is not a prerequisite); [7]
• Contraceptives from the age of 12, including emergency contraceptives; [8]
• HIV testing from 12 years of age; [9]
• Medical treatment from the age of 12 if the child has the maturity to understand the benefits, risks and other implications of treatment, including HIV treatment; [10]

It would be absurd to allow terminations of pregnancy, without parental consent, at any age, but for government policy to refuse to provide condoms. Firstly, the decision to terminate pregnancy is arguably a weightier one than the decision to engage in sexual activity. Secondly, availability of condoms has the potential to reduce unwanted pregnancies requiring termination.

Minister Motshekga needs to urgently clarify her position on the matter. Her spokesperson, Panyaza Lesufi, was quoted in the Sowetan on 4 October making a statement in direct contradiction to what President Zuma said yesterday. Lesufi indicated that the DBE would not allow condoms in schools.

“We have children in our schools. Sexual consent is above 16 and we cannot encourage them to break the law.”

In light of the above, is Minister Motshekga in breach of the law? Given that the Minister of Health, Dr Motsoaledi, is willing to provide such condoms free of charge, it is arguable that Minister Motshekga’s refusal to provide said condoms is in breach of Section 134 of the Children’s Act. Were that the case, she would be committing a statutory offence, for which she could be prosecuted. It is clear that the Children’s Act makes this an offence because of the serious danger inherent in unprotected sex.

Two questions arise here:
1. Is sex between minors against the law?
2. Would providing condoms amount to encouraging sex, thereby encouraging minors to break the law?

The answer to the first question is that, yes, consensual sex between minors is illegal. [11] This applies where two minors over the age of 12 but under the age of 16 engage in sex. In addition where a learner over the age of 16 engages in sex with a child under the age of 16 he/she is guilty of statutory rape.

The likelihood of prosecution for consensual sex in terms of the Act is potentially reduced by the requirement that any prosecution of two children under the age of 16 for engaging in consensual sex be “authorised in writing by the National Director of Public Prosecutions”. The section also makes clear that this is a power which the “National Director of Public Prosecutions may not delegate”. [13]

This shows that Parliament was aware that this was not an “offence” that should be prosecuted in the ordinary course and that special considerations and a heightened level of scrutiny should occur before instituting charges against minors for underage consensual sex. [14]

However, these are not adequate safeguards. The constitutionality of criminalising sex between children under the age of 16 and the obligation to report such an “offence” to the police is currently the subject of a court challenge.  This obligation to report directly contradicts the Children’s Act which makes it clear that, subject to the exception in instances of suspected physical and sexual abuse or deliberate neglect of a child, a child who obtains condoms in terms of the Children’s Act is entitled to confidentiality.
The Minister’s reliance upon the provisions of the Sexual Offences Act criminalising consensual sex amongst children younger than 16 and older than 12 must be judged against the constitutionally suspect nature of these provisions and the stark statutory contradictions which exist between the Sexual Offences Act and the provisions protecting children’s health needs and interests in the Children’s Act. [12]

The answer to the second question depends on evidence. There is no evidence to show that providing condoms increases sexual activity. Therefore providing condoms in schools would not amount to encouraging children to break the law. It is arguable that the availability of condoms would help to confront young people with some of gravity and consequences of sex, and thereby amount to the opposite of encouragement.

Mr Lesufi also told the Sowetan:

“We won’t have condoms in the classrooms, but we will tell them where to go if they want information.”

Children have a right to privacy regarding contraceptive information and use. Requiring children to indicate that they “want information” would compromise their privacy and likely dissuade them from seeking such information.

The law also requires a “person who has knowledge that a sexual offence has been committed against a child must report such knowledge immediately to a police official.” [15] This includes sex between two minors. [16]  Requiring learners to approach teachers for “information” may place teachers in an invidious position. Providing condoms in a discrete location protects everyone.

There  exists a need to develop policy that will enable condoms to be distributed in a manner that safeguards learner privacy  and confidentiality, as well as protects learners from feeling vulnerable to unfair treatment as a result of wanting to protect themselves and their loved ones from the spread of HIV/AIDS.