Last updated on Jan 22nd, 2021 at 09:12 am
Arvitha Doodnath, Legal Researcher, Helen Suzman Foundation, believes that the bursary scheme needs urgent reviewing as it is “unconstitutional and repugnant”
(Article by Arvitha Doodnath, Legal Researcher, Helen Suzman Foundation, first published on Politicsweb.co.za)
A moral and legal evaluation
Sixteen girls in KwaZulu-Natal have been told that they have to keep their virginity if they are to stay on the bursary, known as the Maiden’s Bursary, that they have been awarded by the District Municipality of UThukela in KwaZulu-Natal in order to further higher education .
A contract of this type fails on both moral and legal grounds.
How does the bursary work?
The Maiden’s Bursary has been awarded to sixteen girls who have finished high school and subsequently wish to pursue their studies at a tertiary institution . A condition of the award is that the girls had to agree to undergo virginity testing every holiday to ensure that they have not engaged in any sexual activity in the intervening time .
The girls are also required to furnish the municipality with a certificate stating that they are virgins . Failure to meet these conditions would mean that the bursary would be taken away from them.
This new category of bursary was first introduced during the Mayoral Matric Excellence Awards on 11 January 2016 . The Mayor of UThukela District, Dudu Mazibuko, stated that these “bursaries were intended to encourage young girls to stay pure and focus on their education” .
She also said that virginity testing is not something new, as it has “existed in Zulu culture for decades” . This is an issue in itself, as it suggests that only Zulu women will be given the bursaries, to the exclusion of all other women.
This is an issue in itself, as it suggests that only Zulu women will be given the bursaries to the exclusion of all other women.
Issues around the bursary scheme:
There are a myriad of issues surrounding the bursary scheme and some of them include the constitutionality of the virginity testing practice, the right to dignity, the right to bodily integrity, right to privacy, discrimination on the grounds of gender as well as the right to reproductive health. These will each be discussed below. Firstly, we should consider virginity testing as it is traditionally practiced in Zulu culture .
It is performed by older women who inspect the vagina of a young girl or woman to look for signs of an intact hymen . According to this examination if the hymen is intact then it means that the girl or young woman is a virgin; otherwise she is not.
Medical research shows that this test for virginity testing is not reliable 
There are many ways in which a young woman or girl might break their hymen. These include falling off a bicycle, athletic activity such as gymnastics, or during medical examinations, or the use of a tampon .
Moreover, the Children’s Act  in sections 12 (4) – 12(7) states that virginity testing on a child younger than 16 years of age is prohibited. It goes on to state that if it is performed on a child older than 16 years then it may only be performed if the child has consented, after proper counselling in the manner prescribed, and the results may not be disclosed without the consent of the child. This section further states that the child who has undergone virginity testing may not have their body marked in any way.
All law has to be interpreted in the light of the Constitution, which protects the rights to dignity
Right to dignity
All law has to be interpreted in the light of the Constitution, which protects the rights to dignity; bodily integrity and privacy. All these rights are violated by this practice. Requiring the girls to submit a certificate to the municipality stating that they are virgins is a breach of their privacy.
Requiring them to remain virgins intrudes on their right to reproduction and reproductive choices as enshrined in the Constitution. The fear of these tests, as well as the trauma associated with the examination and possible stigma attached to these tests, impairs the dignity of young women or girls.
Bodily integrity is also impaired, since there is a risk of infection if the tests are not done in a sterile environment. Furthermore, making it mandatory that only the females remain virgins is discriminatory on the grounds of sex as there is no limitation on the males to conform to such standards.
Sex does not always lead to pregnancy
The municipality seems to be under the misconception that by not remaining a virgin one gets pregnant. However, this is not true as there are many ways a non-virgin can refrain from getting pregnant such as the use of contraception.
The municipality, by taking an archaic, paternalistic stand seems to believe that it must step in, as the young girls cannot think for themselves and need to be saved from themselves. If given the means and sexual education, the young women under this bursary scheme can deal with their own reproductive and sexual health and still focus on their education. There are no grounds for forcing them into remaining virgins during their studies.
There are no grounds for forcing them into remaining virgins during their studies.
The terms of the bursary are conditional on the girls remaining virgins
This condition renders the contractual terms void ab initio. The reason is that the contract places the girls in a position where they are unable to choose for themselves. They are forced into the conditions of the bursary scheme to educate themselves, without other options being available to them.
This then means that there is no consensus ad idem in order for them to conclude a valid and binding contract. Duress is present when the terms are for one to remain a virgin or else have no bursary. The bursary scheme is unlawful, even if bursary holders consent to the virginity conditions.
A better solution would be to have bursary schemes which are not dependent on any form of pregnancy or physical aspects of women. This would remove virginity maintenance, virginity testing and virginity certification from the contract altogether, achieving a legitimate educational aim of the bursary.
Customary law and practice have to be developed consonant with the Constitution. A local authority should be fully aware of this, and the implications for bursary schemes. Virginity testing under duress is simply unconstitutional and repugnant. The bursary scheme needs to be reviewed and its objectionable aspects set aside.
Various organisations such as People Opposing Women Abuse (POWA)  and the Centre for Child Law  have sharply criticised this bursary programme, pointing out that it discriminates against girls; it also argues that the practice of virginity testing per se is unconstitutional.
The DA have also stated that it has approached the South African Human Rights Commission (SAHRC) requesting that an investigation be conducted into Mayor Dudu Mazibuko for attaching the condition to this bursary scheme . The matter is currently being investigated by the SAHRC and the outcome is eagerly being awaited . Archaic and oppressive practices are not compatible with our Constitution.
Arvitha Doodnath, Legal Researcher, Helen Suzman Foundation, 13 April 2016