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DEPARTMENT OF WOMEN, CHILDREN AND PEOPLE WITH DISABILITIES
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DRAFT
FIRST COUNTRY REPORT TO THE UNITED NATIONS
ON THE IMPLEMENTATION OF THE CONVENTION ON THE RIGHTS OF PERSONS WITH
DISABILITIES
IN
SOUTH AFRICA
FINAL
DRAFT (un-edited)
13 February
2013
CONTENTS
ABBREVIATIONS AND
ACRONYMS
ACSA
Airports Company
of South Africa
CBR
Community Based
Rehabilitation
CGE
Commission on
Gender Equality
CRPD
Convention on
the Rights of Persons with Disabilities
CWP
Community Works
Programme
DBE
Department of
Basic Education
DEAFSA
Deaf Federation
of South Africa
DHET
Department of
Higher Education and Training
DICAG
Disabled Children
Action Group
DOT
Department of
Transport
DPO
Organisation
of Persons with Disabilities
DPSA
Disabled People
South Africa
DPW
Department of
Public Works
DRPI
Disability Rights
Promotion International
DWCPD
Department of
Women, Children and People with Disabilities
ECA
Electronic Communications
Act, 2005
EPWP
Expanded Public
Works Programme
FOTIM
Foundation of
Tertiary Institutions of the Northern Metropolis
GCIS
Government Communications
and Information System
GHS
General Household
Survey
HEDSA
Higher Education
Disability South Africa
HSRC
Human Sciences
Research Council
ICASA
Independent Communications
Authority of South Africa
ICT
Information and
Communications Technology
IEC
Independent Electoral
Commission
INDS
Integrated National
Disability Strategy
MDGs
Millennium Development
Goals
MODE
Medunsa Organisation
of Disabled Entrepreneurs
MQA
Mining Qualifications
Authority
NCPPDSA
National Council
for Persons with Physical Disabilities in South Africa
NDM
National Disability
Machinery
NDP
National Development
Plan, 2012
NEDLAC
National Economic
Development and Labour Council
NGO
Non-Governmental
Organisation
NSFAS
National Student
Finance Scheme
OSDP
Office of the
Status of Disabled Persons
PACSEN
Parents for Children
with Special Educational Needs
PAU
Personal Assistance
Unit
PFMA
Public Finance
Management Act
PRASA
Passenger Rail
Agency of South Africa
PSC
Public Service
Commission
SABC
South African
Broadcasting Corporation
SABS
South African
Bureau of Standards
SADA
South African
Disability Alliance
SADDT
South African
Disability Development Trust
SAHRC
South African
Human Rights Commission
SANAC
South African
National Aids Council
SANCB
South African
National Council for the Blind
SAPS
South African
Police Services
SASL
South African
Sign Language
SASSA
South African
Social Security Agency
SIAS
National Strategy
on Screening, Identification, Assessment and Support
SRSA
Sport Recreation
South Africa
StatsSA
Statistics South
Africa
UBT
Universal Ballot
Template
WSU
Walter Sisulu
University
DISABILITY STATISTICS
A lack of adequate,
reliable, relevant and recent information on the nature and prevalence
of disability in South Africa remains a challenge. The last national
census was conducted in 2011. Annual general household surveys
and the more elaborate community survey, conducted in 2007, are sample
surveys, and usage of the disability data emanating from these surveys
should therefore be treated with some circumspection.
Statistics South
Africa collected data on disability status in the population Censuses
of 1996 and 2001 and in the large scale community survey, conducted
in February of 2007, using similar questions. In the three data points,
measurement of disability was based on the definition from the 1980
WHO International Classification of Impairments, Disabilities and Handicaps
(ICIDH); which defined it as a physical or mental handicap which has
lasted for six months or more, or is expected to last at least six months,
which prevents the person from carrying out daily activities independently,
or from participating fully in educational, economic or social activities.
Two studies were
conducted in preparation for Census 2011, to test the applicability
of the Washington Group disability questions in South Africa:
Testing a disability
schedule for Census 2011; outsourced to Human Science Research Council
(2007). This was a qualitative research where 26 focus group discussions
were held nationwide.
Census content research
study on disability schedule (2006), conducted by Research and Methodology
component in Stats SA. The survey constituted 6 000 households.
Results from both
studies showed that use of Washington Group questions led to much higher
disability estimates compared to the traditional questions of ��Do
you have any serious disability that prevents your full participation
in life activities?��
In both studies,
the term ��difficulty�� instead of ��disabled�� seemed to be more
acceptable among persons with impairments that do not prevent them from
participating in life activities. Some people did not want to identify
themselves as being disabled if the question was addressed as ��are
you/is your child disabled��. Both studies recommended use of Washington
Group questions for Census 2011.
As a result of changes
in the approach of asking disability questions the Census 2011 data
are not comparable with previous Censuses. In addition, it should be
noted that the population sizes used in the 2011 General Household Survey
(GHS) and Census 2011 will differ. Population figures used by the GHS
are based on pre-census 2011 mid-year population estimates. Populations
used in sample surveys will be re-weighted towards the middle of the
2013 based on modified mid-year population estimates that include the
results of Census 2011. Although percentage estimates remain comparable,
absolute numbers might not be.
2011 National
Census
Questions on disability
were replaced by general health and functioning questions, and due to
a change in the questions, 2011 results are not comparable with previous
Censuses 1996 and 2001. The question on health and functioning
was phrased as:
Does (name) have difficulty
in the following:
A = Seeing even when
using eye glasses?
B = Hearing even when
using a hearing aid?
C = Communicating in
his/her language (i.e. understanding others or being understood by others?)
D = Walking or climbing stairs?
E = Remembering or
concentrating?
F = With self-care
such as washing all over, dressing or feeding?
1 =
No difficulty
2 =
Some difficulty
3 =
A lot of difficulty
4 =
Cannot do at all
5 =
Do not know
6 =
Cannot be determined
Disability was defined
as ��Difficulties encountered in functioning due to body impairments
or activity limitation, with or without assistive devices��, and
chronic medication was included under assistive devices. The definition
used therefore does not comply with either the Convention on the Rights
of Persons with Disabilities, ratified by South African in 2007, or
the White Paper on an Integrated National Disability Strategy.
Due to misreporting
on general health and functioning questions for children younger than
five years, data on this variable are only profiled for persons five
years and older.
2011 Census results
indicate that most people (more than 90%) had no difficulty or limitation
that prevented them from carrying out certain functions at the time
of the Census. It should however be noted that the question range
does not provide evidence with regards difficulties being experiences
as a result of psycho-social, neurological and/or emotional impairments.
This gives a disability prevalence of 10.3% (5,334,905) for South Africa.
Percentage distribution
of population aged 5 years and older by type and degree of impairment:
Seeing impairments:
0,2% could not see
at all;
1,5% experienced
a lot of difficulty seeing;
9,4% experienced
some difficulty seeing;
88,9% experienced
no difficulty at all.
Hearing impairments:
0,1% could not hear
at all;
0,5% experienced
a lot of difficulty;
2,9% experienced
some difficulty;
96,4% experienced
no difficulty at all.
Communication impairments:
0,2% were unable
to communicate at all;
0,3% experienced
a lot of difficulty communicating;
1,1% experienced
some difficulty;
98,5% experienced
no difficulty at all.
Walking or Climbing
Stairs
0,2% could not walk/climb
stairs at all;
0,7% experienced
a lot of difficulty walking/climbing stairs;
2,6% experienced
minor difficulty;
96,5% experienced
no difficulty at all.
Remembering/Concentrating
0,2% reported no
ability to remember or concentrate;
0,9% experienced
a lot of difficulty;
3,3% experienced
minor difficulty;
95,7% experienced
no difficulty at all.
Self Care
0,8% reported no
ability to care for themselves;
0,6% experienced
a lot of difficulty;
2% experienced minor
difficulty;
96,6% experienced
no difficulty at all.
Statistics South
Africa will conduct additional surveys during the course of year 2013
to address the unreliability of the responses for the 0-5 years age
groups
In addition to
the question on general health and functioning, a question was included
in the Census to measure to what extent does the population access assistive
devices to execute certain functions. However, due to poor response
to this question, only persons aged 5 years and older are profiled.
It should be noted that this question was not limited to persons that
indicated that they have difficulties.
Does (name)
use any of the following?
A =
Eye glasses?
B =
Hearing aid?
C =
Walking stick or frame?
D =
Wheelchair?
E =
Chronic medication?
1 =
Yes
2 =
No
3 =
Do not know
It should
be noted that this question was not limited to persons that indicated
that they have difficulties. However, due to poor response to this question,
only persons aged 5 years and older are profiled
14% indicated that
they wear spectacles (eye glasses);
3,2% reported that
they use a walking stick or frame;
2,8% reported using
a hearing aid(s);
2,3% reported making
use of a wheelchair.
2011 General
Household Survey
The
questions used on Impairment were developed by the Washington Group
and was first introduced in the 2009 General Household Survey questionnaire,
and were also used in the 2011 National Census.
These questions
require each person in the household to rate their ability level for
a range of activities such as seeing, hearing, walking a kilometre or
climbing a flight of steps, remembering and concentrating, self-care,
and communicating in his/her most commonly used language, including
sign language. During the analysis, individuals who said that they had
some difficulty with two or more of the activities or had a lot of difficulty/were
unable to perform any one activity, are then ranked as disabled. The
analysis was confined to individuals aged 5 years or older as children
below the age of five years are often mistakenly categorised as being
unable to walk, remember, communicate or care for themselves when it
is due to their level of development rather than any innate disabilities
they might have.
Using this classification
system, 5,2% of South Africans aged 5 years and older were classified
as disabled. Women (5,4%) were slightly more likely to be disabled than
men (5,0%). Northern Cape (10,2%), North West (7,7%) and Free State
(6,7%) presented the highest rates of disability in the country.
No clear patterns
emerge when the findings are compared to the results from 2009 and 2010.
While nationally, the percentage of disabled individuals over the age
of four years increased from 5,7% in 2009 to 6,3% in 2010, before declining
again to 5,2% in 2011; different provincial patterns emerge. The Impairment
question used before 2009 shows similar provincial variations over time.
This continued variation makes it very difficult to identify enduring
patterns and inter-provincial differences, thus making an analysis of
possible reasons impossible.
Based
on the sample of the 2011 General Household Survey, of the total of
45,345,000 South Africans aged five years and older who reported some
degree of impairment/difficulty with carrying out activities:
3,001,000 had sight
impairments;
840,000 had hearing
impairments;
1,028,000 experienced
difficulty walking;
1,107,000 reported
challenges remembering and concentrating;
1,564,000 reported
challenges with self-care; and
364,000 experienced
difficulties with communication.
4,271,000
made use of spectacles/contact lenses;
110,000 used hearing
aids;
347,000 made use
of walking sticks/walking frames;
83,000 used wheelchairs;
and
24,000 used other
assistive devices
2001 Census
Data
In Census 2001,
disability was measured based on impairment and severity as indicated
in the census question:
��Does
(the person) have any serious disability that prevents
his/her full participation in life activities such as education, work,
social life)?��
0 = None
1
= Sight (blind/severe visual limitation)
2 = Hearing
(deaf, profoundly hard of hearing)
3 = Communication
(speech impairment)
4=
Physical (e.g. needs wheelchair, crutches or prosthesis, limb hand usage
limitations)
5 = Intellectual
(serious difficulties in learning)
6 = Emotional
(behavioural, psychological)
Based on this question,
there were approximately 2.3 million people (estimated at 5% of the
total population) reported to have an impairment that significantly
hindered their full participation in life activities such as socialising,
education and work.
According to
Census 2001, the prevalence of impairment according to race group was:
African: 1 854 376 5.2%
White: 191 693 4.5%
Coloured: 168 678
4.2%
Indian: 41 235
3.7%
The table below
shows the prevalence of impairment in South Africa.
Visual Impairment:
577 000 1.3%
Physical Impairment:
558 000 1.2%
Hearing Impairment:
314 000 0.7%
Emotional Impairment:
269 000 0.6%
Intellectual Impairment:
206 000 0.5%
Communication Impairment:
75 000 0.2%
Multiple Impairments:
257 000 0.6%
Statistics South
Africa will conduct additional surveys early in 2013 to address the
unreliability of the responses for the 0-5 years age group due to the
nature of the disability-related questions.
INTRODUCTION
The 1994 elections
heralded in a new era of a South African society built on the principles
of non-discrimination, democracy and equality for all South Africans,
including persons with disabilities. The African National Congress,
whilst preparing to govern, held extensive consultations with the national
Disability Rights Movement, represented by Disabled People South Africa,
to determine the approach the incoming government should take towards
the protection and promotion of the rights of persons with disabilities.
Consensus was reached that the principles of self-representation of
persons with disabilities in all matters affecting their lives, as well
as that of mainstreaming disability considerations across the government
machinery, was non-negotiable. This consensus translated into,
among others,
the establishment
of the Disability Programme in the former Reconstruction and Development
Programme in the Presidency in 1995, evolving into the Office on the
Status of Disabled Persons established in 1997 in the Presidency, and
eventually into the Department of Women, Children and People with Disabilities,
established in 2009;
self-representation
by persons with disabilities in Parliament, provincial legislatures,
municipal Councils, human rights instruments such as the SA Human Rights
Commission, the Commission on Gender Equality, the Public Service Commission,
as well as development agencies such as the then National Youth Commission,
later restructured into the National Youth Development Agency, as well
as the Office on the Status of Disabled Persons established in the Presidency
and the majority of provinces, among others;
the release of the
White Paper on an Integrated National Disability Strategy (INDS)
in 1997, which was developed through a widely consulted process utilising
the UN Standard Rules on the Equalisation of Opportunities for Persons
with Disabilities as well as the South Africa Disability Rights
Charter. The INDS provided guidance for the mainstreaming
of disability considerations across all government departments as the
legislative and policy reform in the newly established democratic South
Africa took off.
South Africa, as
such became a leading force in the campaign for, and eventual development
of the UN Convention on the Rights of Persons with Disabilities
(CRPD), which, in its final format, embodies the principles of the South
African process embarked upon in 1994 to advance the progressive realisation
of the rights of persons with disabilities as equal citizens. Implementation
of the CRPD therefore in a way commenced in 1994 in South Africa, and
not in 2007 when the Convention was officially ratified by South Africa
or in May 2008 when it came into force.
NATIONAL DEVELOPMENT
PLAN: VISION 2030
The inter-sectionality
between disability and poverty is articulated in South Africa��s National
Development Plan (NDP) adopted in 2012, which states that:
��Disability
and poverty operate in a vicious circle. Disability often leads to poverty
and poverty, in turn, often results
in disability. People with disabilities face multiple discriminatory
barriers. Disability must be integrated into all facets of planning,
recognising that there is no one-size-fits-all approach��.
Impoverished families
for example find it difficult or impossible to ensure adequate education
and healthcare for children and adults with disabilities.
The NDP acknowledges
that many persons with disabilities are not able to develop to their
full potential due to a number of barriers that should be addressed:
Physical barriers,
which may prevent persons with disabilities from accessing educational
facilities.
Information barriers,
which may leave persons with disabilities without the use of essential
educational materials.
Communication barriers
in educational settings, which may prevent persons with disabilities
from accessing information and/or participating fully in the learning
experience.
Such barriers may
also prevent students with disabilities from interacting fully with
their peers who do not have disabilities.
Attitudinal barriers,
which may lead to assumptions about the capabilities of persons with
disabilities, and whether it is wise to commit resources to their education.
This can lead to people with disabilities receiving substandard education
– or even being denied access to education – a problem that especially
affects girls and women with disabilities.
The NDP therefore
directs that ��persons with disabilities must have enhanced access
to quality education and employment. Efforts to ensure relevant and
accessible skills development programmes for people with disabilities,
coupled with equal opportunities for their productive and gainful employment,
must be prioritised��.
It calls for accelerated
efforts in integrating issues of disability into all facets of society,
ensure equitable service provision for persons with disabilities, and
improving the safety of women, children and persons with disabilities,
in particular those living in rural areas, which face the highest levels
of unemployment and exclusion. The plan attempts to reduce hindrances
to inclusion.
It furthermore directs
that ��any programme to attain social cohesion in society should
narrow the inequality divide between men and women with measures in
place to ensure that women, girls, people with
disabilities and any other group at risk of discrimination, are able
to enjoy their rights enshrined in the Constitution��.
EXCHANGE
RATE
The exchange rate
used for purposes of this report is South African Rand (ZAR) 8 = US
Dollar (USD) 1 (April 2012 rate).
REPORTING PERIOD
The First Country
Report covers the period May 2008 to March 2012, unless stated differently.
MEASURES
TAKEN BY THE STATE TO IMPLEMENT THE OUTCOMES OF THE UN CONFERENCES,
SUMMITS AND REVIEWS
The South African
Government remains committed to implementing the outcomes of the relevant
United Nations conferences, summits and reviews.
South Africa participated
in the first five Conferences of States Parties to the Convention
on the Rights of Persons with Disabilities.
Participation in the conferences received high-level political support,
and was led by the respective Deputy Ministers and/or Ministers for
Women, Children and People with Disabilities in 2008, 2009, 2010, 2011
and 2012.
Progress in mainstreaming
disability considerations into the Millennium Development Goals
(MDGs) through disaggregated data collection following the discussions
at the second Conference of States Parties, has to date been slow, and
remains a priority on the national disability rights agenda.
This baseline country
report incorporates and consolidates all relevant recommendations that
have been made by the South African Human Rights Commission (SAHRC)
to the public sector as it affects persons with disabilities.
Consultative
Process followed
This report was
drafted over a period of just over three (3) years. Finalisation
was delayed due to the changes in organisational arrangements with the
transition from the Office on the Status of Disabled Persons in the
Presidency to the Department of Women, Children and People with Disabilities,
which impacted negatively on government��s capacity in the short term
to finalise and deposit the First Country Report on the CRPD within
two years post ratification, as required by the Convention.
The drafting process
involved, among others
all thirty three
(33) national government departments (including their state owned enterprises);
all nine (9) provincial
government administrations;
all forty-four (44)
district municipalities and eight (8) metropolitan councils;
the National Economic
Development and Labour Council (NEDLAC);
organisations of
and for persons with disabilities, including the South African Disability
Alliance (SADA), which comprises representatives from thirteen (13)
national affiliated organisations of and for persons with disabilities.
In addition, consideration
was also given to the verbal and oral submissions made to the Joint
Committee of Parliament by research institutions, organisations for
and of persons with disabilities, the South African Human Rights Commission
and parents of children with disabilities and persons with disabilities
themselves on the implementation of the CRPD during July 2012. [The debate in
both the National Assembly as well as National Council of Provinces,
which jointly constitutes Parliament, on the recommendations of the
Joint Committee, will furthermore be integrated into the report before
consideration by Cabinet].
The draft Report
was released for public comment on 25 November 2012, following approval
by Cabinet. The closing date for public comments was 25 January
2013 –
It was posted on
the Government Website under Documents for Public Comment
It was also emailed
to a total of 2,190 stakeholders, consisting of:
349 organisations
of and for persons with disabilities at national, provincial and local
level
288 individuals
with disabilities
151 stakeholders
attached to institutions of higher education
579 stakeholders
working across all national government departments and public entities
229 stakeholders
working in provincial government departments across all nine provinces
102 stakeholders
at local government level
316 stakeholders
in the private sector
70 stakeholders
attached to the organised labour sector
106 stakeholders
in general Non-Governmental Organisations
A total of 54 submissions
were received on the draft Report, comprising:
19 submissions from
Civil Society, including 10 submissions from national organisations
of and for persons with disabilities;
27 submissions from
national and provincial government departments and public entities;
2 submissions from
institutions promoting democracy, i.e. the SA Human Rights Commission
and the Public Service Commission;
1 submission a from
private sector institution involved in disability services delivery;
5 submissions from
individuals.
The Government
of South Africa acknowledges the valuable contributions made by government
institutions across all three spheres of government, as well as organisations
of and for persons with disabilities, and will work with these institutions
over the next 12 months to strengthen the knowledge management systems
required to report accurately and in detail on progress being made with
the implementation of the CRPD.
Government recognises
the role that the disability sector, and organisations of persons with
disabilities (DPOs) in particular, continue to play in promoting and
adopting a rights-based approach for persons with disabilities and their
families. Government acknowledges that capacity and resource constraints
limited the extent to which DPOs and disability service organisations
were able to participate in the development of the Country Report, and
in particular in ensuring that the voices of persons with disabilities
living in rural areas, in residential and/or institutional care, persons
with psycho-social disabilities, as well as children with disabilities,
were heard.
We remain committed
to working with the sector in creating a more enabling environment for
DPOs to realise their right to self representation, conduct their advocacy
work, capacitate their grassroots affiliates and participate in governance
processes.
THE
STATE��s ALIGNMENT WITH THE GENERAL PROVISIONS OF THE UNCRPD AS OUTLINED
IN ARTICLES 1-4
I. Definition of
Disability
The South African
government acknowledges the need to repeal of definitions which are
based on medical conditions or types of impairments in national legislation,
and is cognisant of the fact that the standardisation of the definition
of disability is a complex matter.
National legislation
regulating, among others, employment equity, social security, the built
environment and civil aviation, currently defines disability based on
medical conditions and/or impairments.
The country will
be embarking on an extensive participatory process over the next 12
months to accelerate the review the White Paper on an Integrated
National Disability Strategy and to domesticate the Convention through
the development of transversal national disability policy and legislation.
The legislative audit will focus extensively on, among others, the development
of a national definition for disability, discrimination on the basis
of disability to include denial of reasonable accommodation in line
with Article 2.
II. Implementation
of the General Principles and Obligations
The
first democratic government of South African took a conscious decision
after extensive consultation with the disability sector in general,
and the disability rights movement of the country, Disabled People South
Africa, in particular, that disability be mainstreamed across all sectors
post 1994. This led to the establishment of the Office on the
Status of Disabled Persons in the Presidency as well as the release
of the White Paper on an Integrated National Disability Strategy
in 1997, which provided guidance to the unfolding legislative and
policy reform of the post-Apartheid South Africa.
The Constitution
of the Republic of South Africa, 1996, ensures an environment conducive
to the full and equal participation of men, women and children with
disabilities in society, including equal access to opportunities, accessibility
and the protection of the inherent dignity of the person. Chapter
2 subsection 9 specifically prohibits discrimination on the basis of
disability -
(3)
��The state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender, sex, pregnancy,
marital status, ethnic or social origin, colour, sexual orientation,
age, disability, religion, conscience, belief, culture, language and
birth.
(4)
No person may unfairly discriminate directly or indirectly against anyone
on one or more grounds in terms of subsection
(3). National legislation must be enacted to prevent or prohibit unfair
discrimination��.
South Africa subsequently
passed the Promotion of Equality and
Prevention of Unfair Discrimination Act, 2000
(PEPUDA). The Act gives effect to the Bill of Rights which prohibits
unfair discrimination. The Act defines ��discrimination��
as ��any act or omission, including a policy, law, rule, practice,
condition or situation which directly or indirectly— (a) imposes burdens,
obligations or disadvantage on; or (b) withholds benefits, opportunities
or advantages from any person on one or more of the prohibited grounds��.
��Equality�� as per the definition of the Act includes equality in
terms of outcomes. The South African Law Reform Commission is
currently reviewing all legislation against the equality clause in the
Constitution. The Act furthermore, Section 28(1) determines that
should it be proven in the prosecution of any offence that unfair discrimination
on the grounds of race, gender or disability played a part in the commission
of the offence, this must be regarded as an aggravating circumstance
for purposes of sentence.
The Employment
Equity Act, 1998, defines ��reasonable accommodation�� as ��any
modification of adjustment to a job or to the working environment that
will enable a person from a designated group to have access to or participate
or advance in employment��. A Code of Good Practice on
the Employment of Persons with Disabilities was subsequently released
to set standards for the employment of persons with disabilities in
the work place, with an accompanying Technical Assistance Guidelines
on the Employment of Persons with Disabilities providing more guidance
to employers.
The Code of Good
Practice defines ��unjustified hardship�� as action that requires
significant or considerable difficulty or expense. This involves considering,
amongst other things, the ��effectiveness of the accommodation and
the extent to which it would seriously disrupt the operations of the
business��. To invoke unjustifiable hardship requires an objective
process.
The interpretation
of, among others, equality and non-discrimination as well as reasonable
accommodation has been tested in a number of legal actions, and examples
thereof are discussed under the relevant Articles.
South Africa endorses
the general obligations stipulated in Article 4, and has progressively
been increasing access to free assistive devices, independent living
support and communication technologies for indigent persons with disabilities,
as well as access to broader socio-economic rights, details of which
are provided under relevant Articles in the Report.
As alluded to earlier,
the White Paper on an Integrated National Disability Strategy
is currently under review with the aim of strengthening, among others,
institutional mechanisms, the monitoring and evaluation framework, national
priorities and targets for the next 10-15 years, and finally, ensuring
full alignment with the CRPD.
Prioritisation
of implementation of CRPD articles
As stated in paragraph
14, the transition from the Office of Disabled Persons, as a programme
in The Presidency, and the delays in establishing a fully-fledged new
Department of Women, Children and People with Disabilities in 2009,
a year after the CRPD came into force, had unintended consequences for
the coordination and consolidation of a clearly articulated national
programme of action to domesticate the CRPD.
Focus therefore
fell more on popularising the Convention across government and civil
society, without this process converging into a coordinated domestication
programme of action with clear targets.
Priority areas
for implementation of the CRPD for the period 2009 – 2014 were as
such subsumed into the national priorities of government, i.e. education,
employment, health, safety and security as well as, to a lesser extent,
rural development.
It is acknowledged
that whilst significant time and resources went into raising awareness
on the need to prioritise universal access and design, to disaggregate
statistics and data collection, to put participatory institutional arrangements
in place, to build capacity of both government as well as civil society
and to conduct a legislative audit, the awareness created did not necessarily
translate into access, partly due to the lack of an effective monitoring
and evaluation system to track implementation of the CRPD in the country.
The South African
Local Government Association and the then Department of Provincial and
Local Government for example released the Disability Framework for
Local Government: 2009-2014, aimed at enabling local government
and other role-players to mainstream disability considerations in the
development programmes of municipalities, but implementation of the
Framework has regrettably been lagging behind.
Implementation
of the CRPD in rural areas have been particularly lacking due to the
compounded impact of harmful traditional beliefs, poverty, low literacy
levels and lack of access to the built environment, ICT and transport
infrastructure persons with disabilities and their families living in
rural areas have to endure on the one hand, and the tendency to prioritise
the needs of those most vocal.
The principle of
self representation, i.e. the right of persons with disabilities to
participate in the development, implementation and evaluation of all
legislation and policies through their recognised organisations of persons
with disabilities, is well established in South Africa. Giving
meaningful effect to this right across all three spheres of government
and across all disability organisations, however remain a challenge
due to severe capacity constraints, as well as tensions within the disability
sector as to who should represent the voice of persons with disabilities.
The
Department of Women, Children and People with Disabilities is now ready
to introduce systems into the government-wide planning, monitoring and
evaluation system to fast-track the systematic implementation of the
CRPD across all three spheres of government through more focused monitoring,
support and coordination.
PROGRESS
IN IMPLEMENTATION OF SPECIFIC CRPD ARTICLES
A. ARTICLE
5: Equality and non-discrimination
South Africa pursues
a ��substantive�� rather than ��formal�� approach to equality, in
other words, where the circumstances of people are taken into account
and where the focus is on ensuring equality of outcome. The Constitution
requires a focus on substance and on the purpose or effects of rules
and conduct and not merely on their form. The real social and
economic circumstances of groups or individuals are taken into consideration
when determining whether the constitutional commitment to equality was
achieved.
Various measures,
over and above those contained in the Constitution and PEPUDA, have
been taken to guarantee legal protection against discrimination. Persons
with disabilities have been included as a designated group in all affirmative
action policies and programmes to redress past discrimination, for example
in the White Paper on Affirmative Action in the Public Service, 1998,
the Broad-based Black Economic Empowerment Act, 2003 and the
Employment Equity Act, 1998.
The Constitutional
Court determined in Prinsloo v Van der Linde & Another
1997(3) SA 1012 CC/1997 (6) BCLR 759 that human dignity constitutes
a criterion to determine unfair discrimination. The Court endorses the
view that ��[a]t the heart of the prohibition of unfair discrimination
lies a recognition that the purpose of our new constitutional and democratic
order is the establishment of a society in which all human beings will
be accorded equal dignity and respect regardless of their membership
of particular groups.��
The importance
of human dignity was also emphasised in WH Bosch v
The Minister of Safety and Security & Minister of Public Works
Case no. 25/2005 (9) when the Equality Court in Port Elizabeth held
that ��[t]here is no price that can be attached to dignity or a
threat to that dignity. There is no justification for the violation
or potential violation of the disabled person��s right to equality
and maintenance of his dignity that was tendered or averred by the respondent.
�� The court therefore found the discrimination to have been unfair.��
The Promotion
of Equality and Prevention of Unfair Discrimination Act, 2000 stipulates
that all High Courts are Equality Courts. Designation of magisterial
courts as Equality Courts by the Minister of Justice and Constitutional
Development is done only once presiding officers and staff for such
courts have received appropriate training. There are currently
386 Equality Courts in South Africa.
Equality Courts
in principle should provide easy access to persons who believe they
have been discriminated against, on among others, the basis of disability.
It is important to note a complainant only needs to make out a prima
facie case of discrimination where-after the burden of proof shifts
to the respondent, who must show that such discrimination did not take
place, or if it did, that it was not unfair.
The Willem Hendrik
Bosch Court Judgement in 2005 which directed that all police stations
be made accessible, and the Esthe Muller out-of-court settlement of
2004 which focused on accessibility of all court buildings, resulted
in the creation of a dedicated programme within the Department of Public
Works to renovate existing public services buildings. The SA Human
Rights Commission was directed to monitor the accessibility of courts
following the out of court settlement.
Similarly, the
Equality Court ruled in favour of Lettie Oortman against the St Thomas
Aquinas private school in Equality Court Case 1/2010 Lettie Hazel
Oortman/St Thomas Aquinas Private School and Bernard Langton, when
it directed that not only was the school obliged to re-admit Chelsea
Oortman, but that the school had to ��take reasonable steps to remove
all obstacles to enable Chelsea to have access to all the class-rooms
and the toilet allocated to her by using a wheelchair.��
Another example
is the Standard Bank Ltd. v CCMA [2008]
4 BLLR (LR) 356-390 case,
wherethe Bank employee was dismissed after being injured
in a car accident. The Bank failed to accommodate the employee which
renders dismissal ��automatically unfair��. The Bank had not complied
with the Code of Good Practice on Dismissal. The Court noted that the
underlying constitutional rights are the right to equality,
the right to human dignity, the right to choose an occupation, and the
right to a fair labour practice. Justice Pillay noted that marginalisation
of persons with disabilities in a workplace is not because of their
ability to work BUT because the disability is seen as an abnormality
or flaw; that integration and inclusion in mainstream society aim not
only to achieve equality, but also to restore the dignity
of persons with disabilities; that dignity for employees with disabilities
is about being independent socially, and most of all, economically,
about managing their normal day-to-day activities with minimum hardship
for themselves and others and about contributing and participating in
society; and that it is about self-respect and self-worth.
It is acknowledged
that there is a persistent disjuncture between the theoretical framework
and the lack of effective implementation of such rights. So whilst
persons with disabilities are, in principle, able to use the law to
protect and pursue interests on an equal basis with others, a number
of obstacles, including persistent harmful traditional beliefs, ingrained
stigmatisation and consequent discrimination on the one hand, and the
inter-sectionality of disability and poverty on the other, the inability
to afford legal fees, lack of information in the use of equality courts,
accessibility of equality courts, communication barriers, lack of a
disability-sensitive judiciary and court staff, inaccessible buildings
and transport, detract from the equality provided for in law.
The court process
as such has in the main remained under-utilised, which can be seen in
the dearth of disability-related legal judgements that are produced
annually.
The South African
Human Rights Commission is mandated by the Constitution as an independent
body responsible for promoting and protecting the rights of all South
Africans. It is however acknowledged that capacity challenges
within the Commission cause significant delays in the effective investigation
and finalisation of complaints received.
The South African
Human Rights Commission, obligated by the Constitution of the Republic
of South Africa, 1996 and the Promotion of Equality and Prevention
of Unfair Discrimination Act, 2000 to report on, among others, the
state of equality in the country, released its inaugural Equality
Report in 2012. The report has included two chapters on disability
in the report - in the first chapter the Report focuses on the types
of barriers persons with disabilities experience which detract from
their standing as equal citizens, and in the second chapter on disability
the Report presents quantitative outcomes of a research project conducted
to determine the equality challenges youth with disabilities experience
compared to their able-bodied peers. The study found substantive
inequality in outcomes between young persons with disabilities and their
able-bodied peers in education, employment and livelihoods.
Persons with psycho-social
disabilities in particular experience significant challenges not only
in society, but even within the disability sector, in accessing their
right to equality and non-discrimination.
As the consultative
process highlighted, the right to equality and non-discrimination is
not realised through intent, but rather through implementation of well-defined
programmes. The first step is the finalisation of the legislative
review of sector legislation to ensure compliance with the equality
clause in the Constitution of the Republic of South Africa, 1996,
currently under way by the South African Law Reform Commission.
ARTICLE
8: Awareness Raising
The South African
government acknowledges that although awareness raising of the rights
of persons with disabilities in general, and the CRPD in particular
following ratification thereof in 2007 featured high on the national
agenda over the past 4 years, weaknesses in coordination, implementation
and monitoring and evaluation have to a large extent detracted from
its effectiveness and impact.
A recent desktop
study has indicated that no scientific survey has to date been conducted
to establish baseline on public perceptions and beliefs about disability
in general and the rights of persons with disabilities in particular.
South African society
at large, unless directly affected by disability, remains in the main
ignorant of the rights of persons with disabilities, and in particular
the reasonable accommodation measures required to give effect to these
rights. This is mirrored in the public service across all 3 spheres
of government, where ignorance and stereotypes detract from public services
in general being accessible and user-friendly to persons with disabilities.
Evidence on awareness
campaigns produced by government institutions, independent institutions
promoting democracy such as the SA Human Rights Commission, the Public
Service Commission and the Commission on Gender Equality, as well as
organisations of and for persons with disabilities during the drafting
of the report, was in the main anecdotal, inconsistent and un-measurable.
Activity focused
predominantly on the extensive hosting of workshops for public servants
as well as persons with disabilities, production of posters, DVDs and
brochures, awareness campaigns linked to specific commemorative days,
including the national disability awareness month in November and the
International Day of Persons with Disabilities, production of DVDs.
Workshops and sessions
to introduce the CRPD were for example conducted in all national and
provincial government departments, with over 60 district and local municipalities
in six provinces, as well as organisations of and for persons with disabilities
between 2008 and 2011. There is however little evidence that these
workshop targeted the participants at these workshops sufficiently.
A high turn-over of staff in the public sector furthermore detracted
from continuity and impact.
No evidence could
be found that the rights of persons with disabilities in general, or
the popularisation of the CRPD in particular, was a consistent, planned
aspect of Government��s political outreach programmes, including ��Taking
Parliament to the People�� (quarterly) and the ��Izimbizo��
programme, where Members of Parliament and Provincial Legislatures as
well as Cabinet Ministers and Mayors, provide a monthly platform for
communities, particularly in deep rural areas, to engage their leadership
directly on issues of human rights, development and service delivery.
Although the guidelines for these public meetings require that persons
with disabilities and their organisations be targeted as participants,
and that it be ensured that all venues are accessible and sign language
interpreters are available, this is often not the case.
The South African
Broadcasting Corporation (SABC), as the public broadcaster, as well
as eTV, a private non-subscription channel, introduced limited Sign
Language interpretation on targeted programmes such as peak hour news
broadcasts during the reporting period. The SABC runs a weekly
actuality programme, DTV, targeting Deaf viewers and raising awareness
on the rights of Deaf persons in general. The Department of Basic
Education (DBE) in collaboration with the Government Communication and
Information Service (GCIS) produced and broadcast awareness raising
programmes on national television and subsequently distributed DVDs
on the right of children with disabilities to attend school in the communities
where they live. Community radio stations, through predominantly local
action by organisations of persons with disabilities, are increasingly
featuring interviews and programmes aimed at raising awareness of the
rights of persons with disabilities. This is an important development
as it reaches marginalised rural communities where entrenched traditional
beliefs isolate persons with disabilities from their communities in
general, and opportunities in particular.
Information on
disability services and the rights of consumers with disabilities is
available on government department websites (Department of Social Development,
Department of Health, Department of Labour, Department of Home Affairs,
The Thutong Education Portal on the Department of Basic Education website
for example provides online support for educators, parents and learners),
but is often difficult to navigate and not always accessible for persons
with visual impairments. Websites of organisations of and for
persons with disabilities contain in the main impairment-specific information,
as well as information on the rights of persons with disabilities and
the Convention, although not all are accessible for persons with visual
impairments. Invaluable work is being done by these organisations
with some commendable innovation being undertaken, for example the Sponge
Project, run by activists with disabilities as an SMS information service
at extremely low operational cost.
The Departments
of Health, Basic Education as well as Justice and Constitutional Development
has developed Braille public awareness and education materials on key
legislation (for example Children��s Act, 2005, Domestic
Violence Act, 1998, and the Maintenance Act, 1998), key policies
as well as disability services.
Awareness campaigns
peak during Disability Rights Awareness Month, which is launched on
the 3rd of November every year and culminates in the commemoration
of the International Day of Persons with Disabilities on December 3.
All organs of the state participate in the Disability Rights Awareness
Month programme in collaboration with organisations of and for persons
with disabilities. Steps will be taken this year to formalise
these dates on South Africa��s events calendar to elevate its prominence.
The South African
government, through the Department of Women, Children and People with
Disabilities, is currently working towards a consolidation of awareness
raising efforts into a targeted, integrated and branded programme, which
will be reported on in the next periodic report.
ARTICLE
9: Accessibility
The Promotion
of Equality and Prevention of Unfair Discrimination Act, 2000 (PEPUDA),
subsection 9, stipulates that a lack of accessibility for persons with
disabilities constitutes unfair discrimination.
��Subject
to section 6 (��Neither the State nor any person may unfairly discriminate
against any person��), no person may unfairly discriminate against
any person on the ground of disability, including—
(b)
contravening the code of practice or regulations of the South African
Bureau of Standards that govern environmental accessibility;
(c)
failing to eliminate obstacles that unfairly limit or restrict persons
with disabilities from enjoying equal opportunities or failing to take
steps to reasonably accommodate the needs of such persons.��
Any person
with a disability could therefore prosecute any organisation through
the Equality Courts should that organisation��s building be illegal
in terms of the National Building Regulations
– Part S.
The country currently
does not have a regulatory framework that governs universal access.
Focus to date has been predominantly on accessibility in the physical
environment, where the focus has been mainly on access for persons with
physical disabilities and to a lesser extent for persons with visual
impairments, although, as illustrated below, enforcement requires significant
improvement.
Physical
environment
The Building
Standards Amendment Act, 1977, the National Building Regulations
as well as the National Guidelines for Accessibility currently
constitute the regulatory framework for accessibility to the built environment. For any building used by the public
to meet the requirements of the National Building Regulations,
its facilities must meet the standards and measurements contained in
the ��SANS 10400-S��document, published in 2011:
��The application of the National Building Regulations Part S: Facilities
for persons with disabilities��. It should be noted that
the SANS 10400-S document in its current form does not conform
to universal access principles.
The South African
Human Rights Commission made a number of recommendations in its ��Towards
a Barrier-free Society�� Report in 2002, noting that legislation
governing the accessibility of built environments must focus on improving
the preconditions for equal participation and dignity and providing
mechanisms for governance, administration and enforcement, and that
an urgent review of the South African legislative framework for accessibility
and the built environment was required to reflect Constitutional rights;
ensure safe, healthy and convenient use for all; and include international
standards for universal access.
Review of legislation
governing access to the built environment has been an open-ended process,
and it should be noted that the disability sector has raised concerns
with regards both the pace as well as extent of the review process.
Compliance with
even the flawed current regulatory framework has been historically low
due to, among others, lack of technical expertise, the lack of a regulatory
framework which accredits accessibility advisors and auditors, and a
lack of monitoring and enforcement capacity.
As a result of
the above weaknesses, audits on existing infrastructure conducted by
a number of government departments and entities across all spheres of
government, in some instances with the full participation of the disability
sector, were done outside the ambit of a comprehensive audit scheme
with prescribed scope, methodologies and minimum norms and standards.
Very little evidence could be found that audits which were conducted
within this problematic environment, were ever costed or translated
into a targeted programme of action.
In the Willem Bosch
matter that was heard in court, a precedent was set to make all South
African Police Services (SAPS) stations accessible for persons with
disabilities.
Government has
prioritised the revamping of public buildings in order to meet the diverse
needs of persons with disabilities.
There are currently
40,486 complexes/buildings under the custodianship of the Department
of Public Works (DPW), which include 709 police stations, 684 courts,
2,822 defence force buildings, 188 correctional services facilities
and 3,521 office blocks. It should be noted that the Department
is in the process of verifying immovable assets under its custodianship
and the figure might change once the verification project is complete.
A total of 249
buildings have been made accessible from 2008/09 – January 2012/13
at a cost of USD 63,5 million, and includes 159 police stations, 22
Defence buildings, 51 Correctional Services Centres, 13 Offices, 2 Training
Centres, and 2 Courts. These buildings will be included in the
current audit of all buildings under the custodianship of the Department
of Public Works. It is anticipated that the audit will be complete by
June 2014. The auditing involves inspection of buildings to determine
accessibility requirements as per SANS 10400-S: 2011.
Schools/educational
facilities, hospitals/clinics and community centres are under the custodianship
of provincial administrations and municipalities.
There are discussions
with National Treasury to increase this fiscal allocation in the future
to ensure the urgent remodelling of buildings where services are offered
to the public, for example, buildings of the Departments of Health,
Education, Social Development respectively and the South African Social
Security Agency (SASSA).
With regard to
accessible schools, the National Policy for an equitable Provision
of an Enabling School Physical Teaching and Learning Environment (2010)
includes specifications for universal design so that all new schools
that are being built are accessible. This has regrettably not translated
into universal access being incorporated into the current draft Minimum
Uniform Norms and Standards for Public School Infrastructure which
was released for public comment in January 2013.
The gap between
will and commitment, implementation and enforcement was clearly illustrated
during the 2010 FIFA World Cup, where none of the stadia complied fully
with FIFA��s own norms for accessibility, despite participation by
organisations of and for persons with disabilities in the planning phases.
The South African
government acknowledges that priority be given to address the shortcomings
identified in this Report through, among others, the finalisation of
a Universal Access and Design Framework for the physical environment
that sets minimum norms and standards for accessibility in the built
environment, the training of professionals in the infrastructure sector,
funding mechanisms to redress existing infrastructure as well as accreditation
of accessibility auditors, in order to provide substance to the commitment
contained in the National Development Plan (2012), which prioritises
��the improvement of aesthetic and functional features of the built
environment to create liveable, vibrant and valued places that allow
for access and inclusion of people with disabilities��.
Information
and Communication Technology (ICT)
The Electronic
Communications Act, 2005 (ECA) constitutes overarching legislation
addressing the universality of accessibility and redress within the
ICT sector in South Africa. As regulator for the South African electronic
communications, broadcasting and postal services sector, the Independent
Communications Authority of South Africa (ICASA), is mandated, through
the ECA, to license operators and regulate activities in electronic
communications and broadcasting services, and, by the Postal Services
Act, 1998 to regulate the postal services. Enabling legislation
also empowers ICASA to monitor licensees�� compliance with license
terms and conditions; to develop regulations for the three sectors,
to plan and manage the radio frequency spectrum as well as to protect
consumers of these services. In terms of Section 2(c) of the ECA,
ICASA is required to promote the empowerment of historically disadvantaged
persons, with particular attention to the needs of women, opportunities
for youth and persons with disabilities.
The principle of
universal access has been mainstreamed across Communications legislation,
including the Postal Services Act, 1998, the Post Bank
Limited Act, 2010, the Independent Communications Authority Act,
2000, the ICT Charter (2011), as well as the Broadcasting
Digital Migration Policy (2008) and the National
Broadband Policy (2010), although insufficient attention has been
given to minimum norms and standards that will guarantee universal access
for persons with visual, hearing and intellectual impairments.
ICASA released
a Code on Persons with Disabilities (2009) as required by Section
70 of the ECA as well as section 2(h) of the Postal Services Act,
1998. This Code provides and regulates key aspects of access
to ICT services for persons with disabilities and compels ICT service
providers to comply with its requirements. These include:
All service providers
are required to meet specific targets in respect of the rights of access
for persons with disabilities, including access to postal services and
the built environment, as an integral component of their licences;
Annual awareness
programmes on the rights of persons with disabilities to universal access
to ICT services are coordinated through ICASA and the Code has been
made available in different formats across all nine provinces;
Awareness programmes
through the use of community radio stations in local languages
The South African
Bureau of Standards�� Sub-Committee on ICT Accessibility standards
annually review standards as it relates to access for persons with disabilities.
The Department
of Communications is currently finalising a Sector Strategy for Persons
with Disabilities in consultation with organisations of persons with
disabilities, experts, manufacturers of ICT equipment, regulators and
standard generating bodies.
A disability portal,
the National Accessibility Programme (NAP), was launched in 2008 as
a partnership project between government, the African Advanced Institute
for Information and Communication Technology and the disability sector,
with the aim of positioning it ��as an integrated service provider
to the disability community and industry offering accessible technology
services, communication services, data synthesis services and other
commercial services. NAP is thus a one-stop information, services and
communications channel that will support everyone involved in the
disability field – persons with disabilities, caregivers, the medical
profession, and those offering services in this domain.��
The website can be accessed at http://www.napsa.org.za. It is however acknowledged
that the initiative has not progressed as planned and is currently under
review. Access for persons with sensory and intellectual impairments
to websites of the public, private as well as disability sector remains
as a result in the main a challenge.
The South African
Broadcasting Corporation (SABC), as the national public broadcaster,
is required to broadcast information that is accessible to all.
Progress has been slow due to financial constraints, but selected daily
television news bulletins have dual sign language interpreting services
as well as sub-titling.
Blind SA receives
an annual government grant to run a Braille service for clients in South
Africa and some African countries at affordable prices.
Accessible
Transport
Adequate, efficient
and accessible transport is required to support productivity and assist
South Africans to access basic services, especially in impoverished
and rural communities. South Africa��s 221 000 km of rural roads
continue to pose major funding and management challenges with regard
to accessible transport, as these roads are often difficult to negotiate
by any form of vehicle, limiting access in general to and from rural
settlements. The majority of rural people walk long distances
to reach the crop marketing point, farm input supply centre, health
clinic, school, sources of water, firewood and other facilities or services
that they need in their daily lives. These challenges are compounded
for persons with disabilities, which often lock them in poverty within
their homesteads.
It is acknowledged
that the country��s public transport system does not comply with universal
access principles and continues to marginalise persons with disabilities
by denying them access not only to transport but, indirectly, to a variety
of other rights. Public transport in general is poorly developed
in the country and remains mainly inaccessible and unaffordable to the
majority of persons with disabilities. The most common forms of
public transport are subsidised bus services, privately operated minibus
taxis as well as subsidised rail and air.
The National
Land Transport Act, 2009 governs the transformation and restructuring
the national land transport system, which was initiated by the National
Land Transport Transition Act, 2000. The Act provides for
the Minister, in consultation with Members of the Provincial Executive
Councils responsible for Transport, to, among others, publish regulations
with regards ��requirements and time-frames for vehicles and facilities
to be made accessible to persons with disabilities, including principles
for accommodating such persons in the public transport system��.
These regulations have not been finalised.
In March 2007,
Cabinet approved significant road and rail transport initiatives on
the Implementation of the Public Transport Strategy and Action Plan
as well as the Provision of Transport for the 2010 FIFA World Cup.
Preparations for the 2010 FIFA World Cup was a catalyst for much change
in the area of accessible transport, including the provision of relevant
technical equipment the assurance that all public transport operations
contracts will be restructured to include accessibility as a major component.
The Department
of Transport together with its provincial counterparts, municipalities
and agencies consulted the disability sector with regard to the specifications
during the design and planning phases of the 2010 FIFA World Cup.
However, due to time pressures in rolling out infrastructure, as well
as lack of on-site expertise and monitoring capacity, only some of the
recommendations were implemented. The implementation of the Gautrain
project, a public private partnership providing a rapid rail service
between Johannesburg, Pretoria and the OR Tambo International Airport,
experienced similar challenges despite consultation with the disability
sector.
The Department
of Transport is currently updating the 2007 Accessible Public Transport
Strategy and Action Plan respectively through a consultative process
with the disability sector. These updated documents, once finalised,
will incorporate the principles of universal access by requiring all
public transportation to accommodate persons with disabilities alongside
elderly people, pregnant women, young children and those accompanying
children.
The Department
of Transport has recently introduced a formal system through which major
municipalities would start to improve both rail and road based transport
to create an integrated and universally accessible transport network.
The approach uses the concept of the travel chain and performance measurement
criteria.
Grants are in
place to improve road safety programmes and rural road development.
Consultation on universal access in rural areas began in 2012, and a
Programme of Action related to rural areas is being developed.
The Public Transport
Infrastructure and Systems (PTIS) Grant is used to prioritise new public
transport projects and Integrated Public Transport Networks (IPTNS).
Currently the IPTNS are being rolled out in twelve (12) urban and six
(6) rural municipalities. All existing modes of public transport
(for example rail, bus and mini bus taxi) need to be upgraded to form
part of this universally accessible IPTN. A key feature in the urban
networks is the introduction of the bus rapid transport systems in urban
centres. As new public transport projects, it is a requirement that
these are universally accessible from the outset and an access consultant
is appointed to oversee this. So far two municipalities are running
and extending their services (Cape Town and Johannesburg), with eThekweni,
Tshwane and Rustenburg about to ��go live��. Cape Town��s progress
is the most advanced. It has introduced acceptable universally accessible
standards for integration of modes, infrastructure (both stations and
non-motorised transport), fare collection, vehicle design and information
provision. Consultation with the disability sector in the selected
municipalities takes place at municipal, not national level. This is
due to the fact that knowledge of the locality is required for these
municipally-based projects.
It should be noted
that, similar to the World Cup 2010 and Gautrain initiatives, intent
and process to ensure universal access has not in all instances translated
to universal access on the bus rapid transport systems due to lack of
technical expertise throughout the value chain. USD 625 million
was allocated in the PTIS Grant to the 12 Cities that were identified
to implement the IPTNS for the current financial year ending on 31 March
2013. For the 2013/14 and 2014/15 financial years, USD 693,750,000
and USD 733,750,000 have been allocated respectively.
The municipality
of George, in the Western Cape, despite not being one of the selected
municipalities has positively chosen to develop a universally accessible
IPTN and is working directly with the disability sector on planning
and implementation.
The Integrated
Transport System, which provides universal accessibility on municipal
bus services, is currently being rolled out in metropolitan and larger
local municipalities. The Cape Town metropolitan is also supported in
implementing a Dial-A-Ride door-to-door specialised transportation service
for persons with disabilities. Sustainability of this service
is currently under pressure due to the consistent increase in the number
of persons with disabilities requiring the service.
Performance standards
on universally accessible buses for all users have been developed and
are being circulated for consultation.
Municipalities
receive support in the selection of buses that are universally accessible,
as well as to improve the performance standards from those currently
in use. Both Cape Town and Johannesburg have improved their bus specifications,
although there are still significant problems that have to be overcome
due to historic reasons. Other municipalities are able to use improved
performance standards from the outset.
Standards and
guidelines have been developed for universal access in Integrated Rapid
Public Transport Networks (IRPTNs). Infrastructure for the IRPTNS is
being developed for buses, trains, minibus taxis and Non-Motorised Transport
(Pedestrians). Work has begun on the development of safe pedestrian
crossings that are universally accessible. The Department of Transport
in partnership with private businesses and the South African National
Council for the Blind are finalising the process of developing Tactile
Guidance Surface Indicators.
The minibus taxi
industry provides the widest service network in the country but has
been implicated with unsafe modes of travel. If persons using wheelchairs
are mobile enough to use them, they are often required to pay an additional
sum for the space the wheelchair takes up. The representatives of the
minibus taxi industry have begun engagements with the Department of
Transport to address universal access problems. The South African Taxi
Association Council (SANTACO) and the Department of Transport have identified
and are addressing the following problems:
Minibus taxi
ranks: for historic reasons under the building regulations,
these were classified as parking garages and the classification has
never been changed. The Department of Trade and Industry, through the
National Regulator for Compulsory Specifications, has confirmed it can
be approached by the Department of Transport and SANTACO to change the
classification so that a suitable infrastructure standard, including
the minimum standards for people with disabilities, can apply to taxi
ranks.
Vehicle design:
Minibus taxi design remains a problem as it is inaccessible. Wider consultation
within the Department of Transport and the industry is required.
Service provision
and customer care: SANTACO has begun to consider the universal
access design plan and is jointly working with the Department of Transport
on how it can apply to the taxi industry.
The National Council
of Persons with Physical Disabilities (NCPPDSA) has been appointed as
agent to issue parking discs for persons with physical disabilities.
The system has however not been institutionalised across the country,
requiring different discs with different criteria applied for each municipality.
Past attempts to develop a uniform system have failed. The NCPPDSA
is also contracted by the Department of Environmental Affairs to regulate
access to beaches through 4X4 vehicles driven by persons with disabilities,
through the issuing of certificates. To date, approximately
218 applicants have been successful.
The country has
embarked on a comprehensive rail upgrade that seeks to place rail at
the centre of freight and commuter movement by allocating over USD 5
billion for passenger rail infrastructure and services.
The
South African Rail Commuter Corporation
(the predecessor of PRASA) adopted a Special Needs Passenger Policy
and Station Design Guidelines in 1998. This was updated by PRASA,
who has completed a draft on the new Universal Access Policy, in consultation
with the South African Disability Alliance (SADA), which is in line
with the Convention.
A feasibility
study has been conducted which indicated that the country required 7,224
modern coaches to be purchased over 20 years. It is acknowledged that
this provides a window of opportunity in ensuring that rail services
become universally accessible to commuters with disabilities.
The Passenger Rail
Agency of South Africa (PRASA) committed to refurbishing 700 coaches
per annum between 2009 and 2012. These coaches were refurbished and
delivered in the form of 10M3 Train Sets in Cape Town, 10M4 Train Sets
in Gauteng and recently 10M5 Train Sets to all the Regions except Eastern
Cape. These coaches do not provide full universal access due to the
design specifications. Existing station design and platform heights
also remain a challenge. The on-going station upgrade, corridor modernisation
programmes and the current procurement of new rolling stock will address
these shortcomings, among others.
The procurement
of universally accessible trains is underway and the preferred bidder
has been announced. These trains will come on stream as from 2015. Station
upgrade and corridor modernisation is on-going on the proposed 134 stations
and USD 898,4 million has been allocated for this purpose over the Medium
Term Expenditure Framework period 2012/13-2014/15.
The Airport Companies
of South Africa (ACSA) has over the past few years embarked on major
upgrading of their airports. Unfortunately in many cases the infrastructure
standards used have been below the minimum standards published by the
South African Bureau of Standards as it pertains to access for persons
with disabilities. These are expensive to retrofit and consequently
remain problematic.
ACSA has worked
with the disability sector to improve services on passenger assistance
units (PAUs) by increasing the number of units available at ACSA airports
as well as training PAU personnel. The South African Disability Alliance
was in 2012 contracted to conduct training of all PAU personnel and
is currently finalising the content for the programme.
Organisations
of and for persons with disabilities acknowledge progress made and report
that isolated instances where people with physical disabilities are
discriminated against in terms of boarding flights, but these are usually
quickly resolved by the relevant authorities.
South Africa has
few maritime services for the general public which largely consist of
cruise liners. The access to and from cruise liners is being improved
as they are being integrated with the IRPTNs projects in Cape Town and
Durban.
Bank
Notes
South Africa prides
itself on the partnership between the Reserve Bank, responsible for
producing bank notes and coins, and organisations of persons with disabilities,
which has ensured that South African money is accessible to people with
visual as well as intellectual disabilities through a range of specially
designed features.
ARTICLE
10: Right to life
The South African
Constitution recognises and protects the right to life and survival
of persons with disabilities on an equal basis with others.
The Choice
on Termination of Pregnancy Act, 1996 provides for the choice on
termination of pregnancy from the 13th up to and including the 20th
week of the gestation period if ��there exists a substantial risk
that the foetus would suffer from a severe physical or mental abnormality��,
and after the 20th week of the gestation period if ��the continuation
of the pregnancy would result in a severe malformation of the foetus��.
The on-going moral
debate within South African society in general, including the disability
sector, with regards the counselling process on the choice to terminate
disabled foetuses, is acknowledged.
ARTICLE
11: Situations of risk and humanitarian emergencies
The Disaster
Management Act, 2002 provides for, among others, ��an integrated
and co-ordinated disaster management policy that focuses on preventing
or reducing the risk of disasters, mitigating the severity of disasters,
emergency preparedness, rapid and effective response to disasters and
post-disaster recovery��. The Act requires amendments to
bring it in line with Article 11 as it is currently silent on the need
to ensure equitable access to disaster management services for persons
with disabilities during emergencies. The result is that none
of the provincial, district and local municipal disaster plans have
incorporated provisions such as mapping homesteads and/or institutions
where persons who might require special assistance during emergencies,
training of disaster management personnel, prevention of injury during
evacuations which might result in primary or secondary impairments.
The Mental
Health Care Act, 2002 supported by guidelines issued by the South
African Mental Health Federation, directs that persons with severe mental
illnesses or profound intellectual disabilities requiring the services
of the South African Police Service to transport them to hospital, be
transported in a safe and decent manner.
ARTICLE
12: Equal recognition before the law
Subsection 25(1)
of the Constitution of the Republic of South Africa, 1996 determines
that ��No one may be deprived of property except in terms of
law of general application, and no law may permit arbitrary deprivation
of property.��
Persons with disabilities
in South Africa have the right to own or inherit property, to control
their own financial affairs and have equal access to bank loans, mortgages
and other forms of financial credit. They also have the right
not to be arbitrarily deprived of their property, and can access recourse
through the courts, including the Equality Court, if this right is infringed
upon on grounds of disability. Chapter VIII of the Mental Health
Care Act, 2002 however provides for the appointment of a curator
bonis or an administrator for persons with mental disabilities and/or
persons with severe or profound mental disabilities.
South Africa law
does not currently provide for enduring Powers of Attorney. Dementia
South Africa notes in their submission that families of incapacitated
persons are therefore currently forced to incur very high legal fees
to establish curatorships to manage the financial affairs of incapacitated
persons, as an individual who has for example recently been diagnosed
with dementia, but who is currently still legally competent, is unable
to prepare a Power of Attorney to name a trusted individual to handle
financial matters once (if) he/she becomes legally incompetent.
The South African
Law Reform Commission is currently concluding its extensive, participatory
investigation on the need for alternative and additional measures of
supported decision-making for adults with decision-making impairment.
Organisations such as Dementia South Africa, Ubuntu Centre South Africa
(an affiliate of the World Network of Users and Survivors of Psychiatry)
and the SA Federation for Mental Health, among others, participated
in the process.
As noted in A/HRC/10/48,
the implementation of the obligations in Article 12 requires a thorough
review of both civil as well as criminal legislation containing elements
of legal competence. In addition to the SA Law Reform Commission��s
proposed Bill on Supported Decision-making, additional areas which will
be considered in a review of civil and criminal legislation include,
among others
the common-law test
for legal capacity, amongst others, to make a will or get married,
the common-law mechanism
for appointment of a curator bonis
or a curator personae by the High Court,
the appointment
of an administrator as provided for in Chapter VIII in the Mental
Health Care Act, 2002; and
inquiry into an
accused��s criminal capacity in criminal proceedings.
At the same time,
the notion of ��informed consent��, which features in a number of
laws (Choice on Termination of Pregnancy Act, 1996;Sterilisation
Act, 1998;National Health Act, 2003; Children��s
Act, 2005, to name only a few), will have to be re-examined in the
light of Article 12(3) and the obligation of States Parties to provide
persons with disabilities with the support they require to exercise
their decision-making.
ARTICLE
13: Access to justice
The Bill of Rights
provides for equal access to justice through the right to access courts,
the right to a fair trial, the right to appeal and the right to an interpreter
during trial. South Africa had to redress a number of challenges
in realising the right of especially black South Africans to access
to justice post-apartheid, including backlog of cases, delays in case
proceedings and a shortage of trained professionals for both the judiciary
and legal professions in general.
Some initiatives
have included the creation of special courts (including sexual offences
courts, family courts, labour courts and equality courts). Although
full accessibility of the justice system has not yet been achieved,
government has created a range of institutions and mechanisms to improve
access to justice. Among these institutions and programmes is
Legal Aid, providing legal assistance for predominantly criminal cases
at the expense of the State for impoverished persons. Another
initiative has been the Proximity of Courts Programme, which provides
periodic courts to rural and remote communities that would otherwise
have no access. The Domestic Violence Act, 1998 also makes
provision for financial assistance by the State to victims of domestic
violence who do not have the means to pay fees for any service rendered
in terms of the Act.
The Children��s
Act, 2005 recognises the needs of children with disabilities as
one of its main objectives. Section 6 of the Act calls for all proceedings,
actions or decisions in a matter concerning a child, to protect the
child from unfair discrimination on the grounds of the disability of
the child or a family member of the child, and calls for an enabling
environment to respond to the special needs that the child might have.
Section 52 of the Act calls for rules to be made to avoid adversarial
procedure in children��s court proceedings; these rules should include
appropriate questioning techniques for children with intellectual, communication
or psycho-social impairments. These rules have to date not been put
in place. Section 8(d) expressly requires that all Children��s
Courts be made accessible to children with disabilities. For the purposes
of this Act, every magistrate��s court, as defined in the Magistrate��s
Court Act, 1944 is considered as the Children��s Court. In essence,
in South Africa there are 384 Children��s Courts that adjudicate matters
that deal children��s issues, which include the protection of children
(including children with disabilities) from maltreatment, abuse, neglect,
degradation or exploitation. Evidence produced by civil society
during the consultative processes engaged upon during the drafting of
this Report, however indicate that policy has in the main not translated
into implementation, and that very few children with disabilities, and
in particular children with intellectual, communication and mental disabilities,
have equal access to justice due to lack of reasonable accommodation
measures that have been put into place.
With regard to
age appropriate accommodations, the Criminal Procedure Second Amendment
Act, 1995 governs the judicial processes and procedures associated
with all crimes including those against children. It also provides
for the use of intermediaries in cases where children have to give evidence
in court. It should however be noted that while a child with a
disability under the age of 18 has the automatic right to give evidence
via intermediary, such a right is not automatic for an adult with an
intellectual, psycho-social or communication impairment, and it rests
with the prosecutor to decide to make an application for evidence to
be given in this manner. Such an application is usually supported by
a medical expert report, describing the ��mental age�� of the victim.
Obtaining such a report is costly and can delay criminal proceedings,
placing it outside the reach of poor and rural communities.
The Criminal
Procedure Amendment Act, 2001, amended section 170A of the Criminal
Procedure Act, 1977 regulate the presentation of evidence through
an intermediary. The Child Justice Act, 2008, established
a criminal justice system for children, including children with disabilities,
who are in conflict with the law. One of the objects of the Act
is to prevent children from being exposed to adverse effects of the
formal justice system by using measures, procedures and mechanisms more
suitable to the needs and vulnerability of children.
The Act urges law enforcement officers to take into account the vulnerability
of children in respect of arrest, placement and protection when in custody.
Further compounding
the lack of access to justice is the high instance of undiagnosed intellectual
impairment and mental illness in impoverished and rural communities.
A system to impede wrongful criminal convictions due to the lack of
assessment to distinguish between intellectual disability and criminal
capacity, is urgently required.
The South African
Police Service (SAPS) prioritised the training and sensitisation of
SAPS personnel towards the rights of persons with disabilities. A total
of 9,555 staff members attended 527 workshops between the period 2010-2011,
and an additional 196 SAPS managers participated in 10 workshops during
the same period. Over 17,571 participants participated in a total
of 249 disability-related calendar events. The impact of this
exposure and training has not been determined. Some police stations
have for example taken the initiative to place community sign language
interpreters on a voluntary on-call basis, but this practice has not
been institutionalised within the South African Police Service.
The right to an
appropriate sign language interpreter currently presents a major challenge
for deaf persons within the justice system due to low education levels
and subsequently lack of knowledge of official sign language by a large
number of deaf persons, the different ��dialects�� of South African
Sign Language (SASL), often related to the specific school that the
person attended, compounded by the general lack of awareness among frontline
staff in police stations, investigating officers, prosecutors, court
staff and defence lawyers of these subtleties, and therefore not enquiring
from witnesses/the accused beforehand which variations of SASL they
use in order to arrange an appropriate interpreter. Deaf persons
residing in outlying rural magisterial districts are particularly vulnerable
to not having access to justice.
The Older Persons
Act, 2006 provides a wide definition of a ��frail older person��
to include ��an older person in need of 24-hour care due to a physical
or mental condition which renders him or her incapable of caring for
himself or herself.�� This definition therefore extends legal protection
and access to justice to older persons with disabilities.
It is acknowledged
that, as so eloquently illustrated through numerous case studies and
submissions presented during the consultative process in drafting this
Report, that laws and policies cannot, in and of themselves, change
the lives of persons with disabilities, but that it requires coordinated
planning and provisioning by government to ensure that persons with
disabilities have access to the services that the law promises to them.
This is particularly relevant in relation to equal access to justice
for children with sensory, communication, intellectual and psycho-social
disabilities from poor and/or rural households.
Specific areas
of intervention will include review of existing legislation, structured
training of officials across the justice system on reasonable accommodation
measures, as well as universal access to the physical environment and
communication systems in the justice system.
ARTICLE
14: Liberty and security of the person
The Mental
Health Care Act, 2002 provides for procedures for application for
involuntary mental health care, including a 72 hour assessment following
which the Mental Health Review Board considers such an application for
involuntary mental health care for referral to the High Court for consideration.
The Act furthermore provides for legal representation when admission
is made and reviewed.
There are still
residential mental health care facilities as well as public and private
residential institutions for persons with disabilities whose families
cannot take care of them, and where admission is voluntary. However,
there is a move towards focussing on community-based care where possible.
Although there are norms and standards that govern the quality of care
and governance matters, there is currently a need to strengthen monitoring
of quality of care more vigilantly and address the gap that exists in
terms of overseeing private residential facilities.
Section 21 of
the Older Persons Act, 2006, outlaws direct and indirect discrimination
against an older person applying for admission to a residential facility
on, among others grounds of disability, and requires that a residential
facility provide reasons in writing for such refusal. The Act
furthermore requires consent by the affected older persons to a residential
facility, ��unless his or her mental condition renders him or her
incapable of giving such consent, in which case a person authorised
to give such consent in terms of any law or in terms of a court order
may give the required consent.�� The Act allows for consent
to be given by the spouse or partner of the older person concerned or,
in the absence of such spouse or partner, an adult child or sibling
of the older person, alternatively the Minister only after a registered
medical practitioner has certified that any delay in the admission of
the older person might result in his or her death or irreversible damage
to his or her health. The Act also requires that an older person who
is ��capable of understanding must be informed of the intended admission
even if his or her mental condition renders him or her incapable of
giving the required consent.��
South African
legislation agrees that mental disability should not be a ground for
depriving a person of their liberty and has several legal articles in
different laws to this effect. However, the Judicial Matters
Amendment Act, 2002, amended the Criminal Procedure Act, 1977,
in order to bring certain provisions of that Act in line with the
Mental Health Care Act, 2002 does allow for involuntary admission
of persons with psycho-social disabilities to healthcare facilities
for treatment, in particular if a person is a danger to self or others.
The Gauteng Consumer
Advocacy Movement supports involuntary admissions, and takes a view
that ��mental health organisations and facilities of treatment should
not be seen as depriving people of their liberty but rather facilitating
people to obtaining their liberty��. Their concerns centre around
the capacity of police officers to assist with transporting people with
psycho-social disabilities to hospital for treatment where involuntary
admission is required or considered. Ubuntu Centre South Africa
in contrast calls for a total ban on involuntary institutional care
in line with the Convention.
The review of
the Mental Health Care Act, 2002 and the Judicial Matters
Amendment Act, 2002 will also allow for a platform for civil society
to engage with government on the phasing out of involuntary admissions
in a responsible manner.
ARTICLE
15: Freedom from torture or cruel, inhuman or degrading treatment or
punishment
The Constitution
states that ��Everyone has the right to be free from all forms of
violence from either public or private sources; not to be tortured in
any way; and not to be treated or punished in a cruel, inhuman or degrading
way.��
South Africa signed
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1984) on 29 January 1993.
In ensuring compliance
with the Constitution and the above Convention, our Parliament has adopted
the Prohibition of Torture Bill, which is currently awaiting
passing into law. It takes cognisance of the provision of Article 15
of the CRPD, and has also defined ��torture�� in line with the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment.
The Prevention
and Combating of Trafficking in Persons Bill, currently before Parliament,
includes abuse of vulnerability as one of the means used to traffic
persons. The definition of ��abuse of vulnerability��
in the Bill specifically includes disability.
It is acknowledged
that persons with disabilities in general, but in particular those from
poor and/or rural communities, as illustrated in the numerous testimonies
and submissions, still too often experience inhumane, degrading and
cruel treatment by people, services and systems due to the persistent
attitudinal, physical and communication barriers pervasive in society.
Of particular
concern is the lack of effective monitoring of conditions and treatment
of people in residential care in general, and in particular in mental
health institutions, where civil society stakeholders are in consensus
that the majority of Mental Health Review Boards appointed for all mental
health hospitals as well as care and rehabilitation centres in all 9
provinces are either dysfunctional or not carrying out their duties
to monitor human rights and ensure quality of care and receive complaints
with regards ill-treatment and torture which might occur.
Article 40(8)
of the Mental Health Care Act, 2002 authorises the South African
Police Services to ��use such constraining measures as may be necessary
and proportionate in the circumstances when apprehending a person with
mental illness or severe or profound intellectual disability��.
A training manual for law enforcement officers was developed detailing
their role, responsibilities and procedures to be followed when requested
to intervene when a person is deemed in danger to self or others, as
well as procedures for handling reports of abuse. These provisions
require review to ensure compliance with Article 15 of the Convention.
The SA Human Rights
Commission (SAHRC) has conducted a number of investigations into allegations
of human rights violations in mental health facilities over the past
few years, and has made recommendations with regards both prevention
of re-occurrence as well as improving conditions in general. The SAHRC
monitors implementation of these recommendations.
The Department
of Health is in the process of planning the roll-out of utilisation
of the WHO QualityRights toolkit.
ARTICLE
16: Freedom from exploitation, violence and abuse
Freedom
from Violence and Abuse
The Constitution
guarantees ��the right to freedom and security of the person, which
includes the right not to be deprived of freedom arbitrarily or without
just cause; not to be detained without trial; to be free from all forms
of violence from either public or private sources; not to be tortured
in any way; and not to be treated or punished in a cruel, inhuman or
degrading way.��
However, persisting
violence against women and girls in general, and rape and sexual abuse
of girls and women with disabilities in particular, remains a major
challenge in South Africa. A study conducted by Phasha &
Nyokangi, 2012, School-Based Sexual Violence Among Female Learners
With Mild Intellectual Disability in South Africa,
Violence Against Women, (Sage), highlights the systematic failure
of policies and programmes aimed at protecting women and children against
sexual harassment, intimidation, coercive sex, rape (including child-on-child
rape) and pornography. These systemic failures manifests itself
in, among others:
That sexual abuse
of children with disabilities is underreported in South Africa;
The capacity of
children with disabilities to report sexual abuse, and correctly recall
and relay details of such abuse as witnesses, is not sufficiently recognised
by State systems; nor are standardised psychological tests implemented
to assist the courts to determine such abilities in the majority of
cases;
Information on any
form of public assistance, support services or facilities provided by
government departments remain very difficult to access by persons with
disabilities or families of children with disabilities;
Police, health,
social and justice services remain to a large extent disability-insensitive;
Facilities, such
as places of safety, are not trained to care for children with disabilities,
and there is a lack of specific protection for children with disabilities
and advocacy training within organisations dealing with child abuse;
Exploitation,
violence and abuse of learners with disabilities in boarding facilities
attached to special schools remain unacceptably high. Preliminary
results of a follow up survey of special schools following a 2002 audit
by the Department of Education which revealed unacceptably high levels
of abuse in special schools, are indicating that interventions have
in the main been sporadic, insufficient with insufficient monitoring
taking place. This despite the almost USD 125 million that was
spent on strengthening 295 special schools.
The Cape Mental
Health Society in the early 1990s established the Sexual Assault
Victim Empowerment (known as ��SAVE��) programme to provide assessment,
support and court preparation services to persons with intellectual
disabilities who have been the victims of sexual assault through, among
others, assistance with investigation, evaluation of the victim��s
competence to act as witness, evaluation of the victim��s capacity
to consent to sexual intercourse, compilation of court reports, and
the provision of expert evidence in court. The programme
also trains members of the police force and public prosecutors to develop
the skills they need to conduct interviews with complainants with intellectual
disabilities with greater sensitivity to and understanding of their
special needs. It should be noted that this programme, which is by its
nature ��cost-intensive�� in terms of requiring specialised staff
such as social workers and psychologists, is currently administered
and funded (through fund-raising initiatives) by the Cape Mental Health
Society.
Persons with severe
physical, communication, intellectual and psycho-social disabilities
who are resident in large overcrowded, under-resourced facilities or
in homes and care centres where there is significant poverty and /or
social disruption in the family or area or residence, are particularly
vulnerable to deprivation and abuse.
The South African
government acknowledges that urgent, coordinated action is required
to turn the above situation around despite significant protection being
provided on the statutes:
The Children��s
Act, 2005 provides for protective measures for children in residential
care. The regulations to the Act requires of the Minister of Social
Development to conduct regular audits of such facilities to ensure that
the minimum norms and standards prescribed by the regulations, are adhered
to.
The Domestic
Violence Act, 1998 legislates against any forms of violence within
domestic relationships. This includes relationships between family members
or caregivers and persons with disabilities, and further allows for
a person who has a material interest in the well-being of the survivor
of domestic violence who has a mental impairment to apply for a protection
order in court on behalf of such person. By virtue of the mental disability
status of the victim, the Act waives the requirement of the submission
of a written consent by the survivor to court and without their direct
participation in the court process.
Chapter 4 of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007
creates various offences against persons who have mental disabilities.
These include sexual exploitation and sexual grooming of, exposure or
display of or causing exposure or display of child pornography to persons
who have mental disabilities and using persons with mental disabilities
for pornographic purposes or benefiting therefrom. To ensure the
prevention of sexual violence against persons with mental disabilities,
Chapter 6 of the Act establishes a National Register for Sex Offenders.
In this Register particulars of sex offenders convicted of any sexual
offence against a child or a person who is mentally disabled are recorded.
The purpose of the Register is not only to maintain a record of sex
offenders in the country, but also to ensure that such convicted offenders
are prevented access to persons who have mental disabilities, and this
includes prohibition from working in environments that are exposed to
persons with mental disabilities.
The Older Persons
Act, 2006 criminalizes abuse of older persons and provides special
measures to combat such abusive behaviour. In terms of this Act the
frail older person is defined as ��an older person who is in need
of 24-hour care due to a physical or mental condition which renders
such person incapable of caring for himself/ herself.�� This Act
further allows abused older persons access to legal remedies provided
by the Domestic Violence Act, 1998. This therefore means that
in addition to the recourse outlined by the Older Persons Act, 2006
an abused older person may also apply for Protection Order in terms
of the Domestic Violence Act, 1998.
The National
Guidelines for Victim Empowerment (2009) prioritises persons with
disabilities as a target group for intervention.
The National Prosecuting
Authority has established 52 Thuthuzela Care Centres to provide support
services to survivors of sexual offences and domestic violence.
An audit pertaining universal access for survivors with disabilities
is outstanding.
In line with the
UN Secretary-Generals�� UNiTE to End Violence against Women Campaign,
the country is intensifying the dedicated, comprehensive and integrated
programme on the 365 Days National Action Plan, including the 16 Days
of Activism Campaign on No Violence against Women and Children campaign.
Disability considerations have been mainstreamed in the Action Plan
as well as 16 Days Campaign, and the sector is represented on the Council
against Gender-Based Violence, established to develop a more holistic
and proactive response to the unacceptably high levels of gender-based
violence.
The South African
Human Rights Commission also monitors matters relating to exploitation,
violence, abuse and violation of human rights in general, and functions
as an independent monitoring body.
Freedom
from exploitation
The Consumer
Protection Act, 2008 prohibits a
supplier taking advantage of the fact that ��a consumer was substantially
unable to protect the consumer��s own interests because of physical
or mental disability, illiteracy, ignorance, inability to understand
the language of an agreement��. Despite
on-going intensive media campaigns by the National Consumer Commission
in partnership with national and provincial government departments,
very few persons with disabilities exercise their right as consumers
by appealing for protection under the Consumer Protection Act, 2008.
Periodic reporting
of exploitation and abuse of social grant recipients by their families,
especially persons with intellectual and psychiatric disabilities, require
further investigation.
ARTICLE
17: Protecting the integrity of the person
The forced sterilisation
of persons with disabilities is prohibited by the Constitution and the
National Health Act, 2003. The Sterilisation Act, 1998,
however, makes provision for non-consensual sterilisation if the person
is deemed incompetent to consent owing to a mental disability, and if
the person is regarded as incapable of: ��(i) making his or her
own decision about contraception or sterilization; (ii) developing mentally
to a sufficient degree to make an informed judgement about contraception
or sterilization; and (iii) fulfilling the parental responsibility associated
with giving birth��, and as such requires review.
The conditions
under which pregnancies might be terminated have been discussed under
Article 10, but it should be noted that forced termination of pregnancy
is prohibited by law.
The Mental
Health Care Act, 2002 allows for involuntary treatment and requires
review to bring it in line with the Convention.
ARTICLE
18: Liberty of movement and nationality
The Bill of Rights
in Chapter 2, Section 21 (1-4) guarantees freedom of movement and residence.
South Africa put in place measures, including promulgation of the
South African Citizenship Act, 1995 and the Births and Deaths
Registration Act, 1992 which respectively facilitate legislative
or administrative measures to ensure the rights of persons with disabilities
to equal access to a nationality, and make provision for the registration
of all new-born children within 30 days after birth.
ARTICLE
19: Living independently and being included in the community
The White Paper
on an Integrated National Disability Strategy definition for independent
living is in full compliance with the Article 19. The transversal
nature of support services and access provisions required to enable
persons with disabilities, particularly in poor and rural communities,
to live in the community, with choices equal to others, remain a challenge,
as the basket of services required are not sufficiently structured and
coordinated at community level to create a conducive environment.
The Department
of Social Development supports residential facilities predominantly
through subsidisation of non-governmental organisations (NGOs). There
are approximately 149 residential facilities (101 urban, 19 peri-urban
and 29 rural) with an estimated budget, for the period under review,
of USD 4,575,125. These 149 facilities provide residential care
for a total 7,982 persons with disabilities (6,416 persons in urban
and 1,566 in rural areas. It should be noted that a number of
NGOs have highlighted the increased vulnerability experienced by residents
due to late payment of subsidies as well as non-inflation related adjustments
to annual subsidies. A number of challenges are receiving attention
to improve the quality of care in these facilities, especially in rural
and peri-urban areas.
Supported/assisted
living and independent living programs constitute a move towards units/homes
that are more open and smaller and within the community to facilitate
de-institutionalisation. State subsidisation to these units is currently
limited. The Social Security Act,
2004 provides for among others, an additional Grant-in-aid for disability
grant recipients who require full-time attendance by another person
owing to his/her physical or mental disabilities.
The Road Accident
Fund provides for home visits by qualified staff to assess adaptations
required and living conditions of clients who became disabled as a result
of vehicle accidents. Benefits include specialised assistive devices,
adaptations to homes, as well as the appointment of full-time or part-time
personal assistance, if relevant.
Community-Based
Rehabilitation (CBR), which should constitute a key pillar of any Independent
Living Programme, is still predominantly NGO-driven, with only two of
the nine provincial governments providing CBR subsidies to organisations
of disabled persons, and the Western Cape providing CBR services through
a disability service organisation.
Although the
Mental Health Care Act, 2002 provides for community-based care,
treatment and rehabilitation services, and the regulations to this Act
prescribes standards for residential and/or day care community based
mental health services, it should be taken under review to ensure compliance
with the CRPD.
Strengthening
coordination of support services and setting minimum norms and standards
for independent living in the community will form a cornerstone of the
National Disability Policy which is currently being developed.
ARTICLE
20: Personal mobility
To give effect
to the right of persons with disabilities to move freely and with independence,
the National Rehabilitation Policy (2006) and Standardisation
of Assistive Devices in the Public Sector Guidelines, provide for
funding for assistive devices. The latter states that ��there
shall be no discrimination against clients on the grounds of Impairment,
age, gender, social conditions, financial situation, disease, medical
condition, or any other basis in the assessment for issuing an assistive
device.�� Assistive Devices form part of the public sector
health service package offered free of charge to qualifying members
e.g. children under six and persons with disabilities qualifying for
free health care. Challenges include that the issuing of augmentative
and alternative communication devices take place only at tertiary level
of health care, placing these devices outside the reach of the majority
of persons with disabilities, severe capacity constraints in the assessment
and issuing of assistive devices, lack of state funding for orientation
and mobility instructors. Stringent safety measures are taken to make
sure that the devices are of high quality and are user-friendly.
The provisioning
of assistive devices is prioritised on rehabilitation budgets, although
waiting periods between date of application and date of issuing remain
a challenge. Accurate and updated statistics are currently not
available, but work is being done to include the issuing of assistive
devices on the District Health Information System.
The Western Cape
Rehabilitation Centre is the only WHO accredited/acknowledged Training
Centres in Wheelchair Seating in South Africa according to the WHO ��Guidelines
on the provision of Manual Wheelchairs in less resourced settings��.
It is acknowledged that every province should have at least one such
a centre.
The South African
Disability Development Trust (SADDT), which receives part-funding through
government subsidies, fills a critical gap by providing assistive devices
that are critical to maintain or retain employment, whether in the open
labour market or for self-employment purposes, but not in instances
where the employer has an obligation to provide equipment for
the workplace under reasonable accommodation, where these devices are
available through the Department of Health policy or whereby medical
aid schemes provide funding for the required devices. The SADDT for
example assisted 30 employed persons with disabilities in 2009/10 with
a range of assistive devices at a total cost of USD48,750.
The Department
of Public Services and Administration is currently costing the draft
policy on reasonable accommodation in the public service, which will
bring uniformity across the public service in the provisioning of assistive
devices, personal assistance services and technology for public servants
with disabilities. The South African Police Services (SAPS) have
for example procured an extensive range of personal assistive devices
for employees with disabilities, including manual and motorised wheelchairs,
prosthesis, white canes, vehicle adaptations, as well as a range of
technological equipment, to promote independence and productivity during
the period 2008-2011.
The significant
challenges with public transport, discussed under Article 9, significantly
impacts on persons with disabilities�� choice of mobility at an affordable
cost, in particular in rural and poor communities, but increasingly
also on urban freeways which are being tolled.
ARTICLE
21: Freedom of expression and opinion, and access to information
The Bill of Rights
in Chapter 2, Section 16 (1) and (2) guarantees freedom of expression
and opinion. It is acknowledged that negative attitudes detract from
the value afforded to the opinions and ideas of people with intellectual
and psycho-social disabilities in particular, and engagement between
these user groups and the rest of government requires further work.
It is acknowledged
that persons with disabilities do not have equal access to information
intended for the general public in accessible formats due to the barriers
discussed under Articles 6 and 7.
The Department of Arts and
Culture has just completed an investigation into national braille production
needs and related braille policy matters with the aim of developing
a braille production strategy for the country.
Sign language
does not enjoy recognition as one of South Africa��s official languages.
The South African Constitution however mandates the Pan South African
Language Board with the responsibility to promote the development, usage
and recognition of sign language as the first language of deaf South
Africans. The deaf community is represented on the Board, and
the public entity also employs deaf persons to give effect to this responsibility.
The deaf community has raised concerns that government measures are
insufficient for the effective promotion of the linguistic identity
of deaf persons, including ensuring the availability of specific skills-training
services for children, adults or teachers who require sign language
to access their rights.
ARTICLE
22: Respect for privacy
The Bill of Rights
in Chapter 2, Section 14 (a-d) guarantees the right to privacy.
The Older Persons Act, 2006 similarly provide for the right to
privacy for older persons residing in residential facilities.
Persons with disabilities
enjoy the right to privacy of personal, health and rehabilitation information
on an equal basis with others.
It is acknowledged
that the right to privacy of persons in subsidised residential and care
facilities are often compromised as people often share rooms, and that
the right to privacy of persons making use of guides and/or interpreters
are at times infringed upon due to a lack of regulation and professionalization
of these roles.
The right to privacy
of persons with psycho-social disabilities is often violated by the
media, for example when they are charged with criminal offences. Sensationalist
reporting and inaction on the part of court officials contribute to
the rules relating to confidentiality of medical records being flaunted.
ARTICLE
23: Respect for home and the family
The inter-sectionality
between poverty, disability and inequality plays itself out in particular
with regards Article 23. Households with disabled members in poor
communities on average spend more to access relevant information with
regards disability-related services (Article 8), to access disability-related
social grants and services, including community based rehabilitation,
due to, among others, high transport costs in these areas (Article 9),
scarcity of specialised services (Articles 25 and 26), inability to
secure income due to the need to care for children with disabilities
as well as older persons with disabilities in particular. This,
together with the stigma still attached to disability in traditional
communities, often resulting in locking children with disabilities and
their mothers at home, adds to the emotional burden families carry.
The lack of reasonable accommodation in community schools (Article 24)
furthermore add to the burden, as children with disabilities still often
have to school far away, with families carrying the financial burden
of the additional transport and/or accommodation costs. It should
furthermore be noted that this burden falls disproportionally on women.
State support
to give effect to the right to family for children, is guaranteed in
Section 28(1)(b) of the Constitution of the Republic of South Africa,
1996 as well as Section 7 and Chapter 9 of the Children��s Act,
2005, which prescribes considerations to be taken into account when
acting in the best interest of the child, including when a decision
is to be taken to remove a child from his/her family to be placed in
temporary safe care.
The Social
Security Act, 2004 provides for, among others, access to a care
dependency grant for parents (including foster parents) and/or care-givers
of children with permanent, severe disabilities between the ages 0-18
years of age, on condition that these children are not permanently cared
for in a state institution.
The Department
of Social Development is in the process of finalising a strategy for
orphans in order to provide them with places of safety if the immediate
family is unable to care for a child with a disability. South Africa
remains committed to undertake every effort to provide alternative care
within the wider family, and failing that, within the community in a
family setting.
The South African
Human Rights Commission in their submission points out that families
or care-givers who care for a person who is predisposed to violence
due to an intellectual, psycho-social or neurological disability, often
utilise the criminal justice system as entry point to have them removed
from family care in lieu of lack of enabling policy in this regard.
Section 12 (2)
of the Constitution of the Republic of South Africa,
1996 provides for the right to bodily and psychological integrity,
including decisions about reproduction and control of one��s body.
The National Health Act, 2003 stipulates that all persons including
those with disabilities have a right to reproductive health services
including family planning. The need to review the Sterilisation
Act, 1998 has been discussed in depth-in Articles 12 and 17.
Section 3 of the
Divorce Act, 1979 provides that decree of divorce could be granted
on grounds of mental illness or continuous unconsciousness of a spouse.
The Act requires that the Court hears the evidence of at least two psychiatrists,
of whom one shall have been appointed by the Court, that the defendant
is mentally ill and that there is no reasonable prospect that the defendant
will be cured of his or her mental illness. The SA Law Reform Commission,
as part of its investigation into compliance of national legislation
with the equality clause in the Bill of Rights, reviewed, amongst others,
the Divorce Act, 1997. Discussion Paper 130 on Legislation
Administered by the Department of Justice and Constitutional Development(Family law and marriage), proposes an updating of the Divorce
Act, 1997 in order to update out-dated references to the Mental
Health Act, 1973 (repealed).
It is however noted that a broader review of the Divorce Act, 1997
is required simultaneously with a review of the Mental Health Care
Act, 2002, as alluded to under Article 19, to bring it in line with
the CRPD.
ARTICLE
24: Education
Legislative Framework
Section 29 of the Constitution
of the Republic of South Africa, 1996 guarantees the right to basic
education, including adult basic education, to everyone.
The South African Schools
Act, 1996 governs education for all children between the ages of
7 and 18 years. Section 3(2) of provides for the Minister of Education
to set out ages for compulsory school attendance for learners with special
learning needs. This has not yet been done but will be addressed as
part of the revision of the Act which is currently under way.
It should be noted that this section only refers to admission of learners
with special needs under the compulsory school going age of 7 or older
than the exit age of 18 years.
Section 12 of the South
African Schools Act, 1996 places an obligation on Members of Executive
Councils responsible for education at provincial level, to ensure that
education for learners with special needs be provided, where reasonably
practicable, at ordinary public schools. In determining the placement
of a learner with special education needs, the Head of Department and
principal must take into account the rights and wishes of the parents
of such learners and uphold the principle of ��what is in the best
interest of the child�� in any decision making.
Education White
Paper 6 on Special Needs Education: Building an Inclusive Education
and Training System (2001) outlines government��s strategy to transform
the current education system to make it more efficient, more equitable
and more just, recognizing the right of all learners to attend their
local neighbourhood school and to receive the necessary support.
The policy embodies the principles of Article 24 of the CRPD as it sees
inclusive education as a means through which society can be transformed
to promote tolerance and respect for diversity and the human rights
of all people, specifically persons with disabilities who have been
and are marginalized and excluded to a great extent.
Education White
Paper 6 did not make specific provisioning for children with severe
or profound intellectual disabilities. The Western Cape High Court
directed in the Cape Forum for Intellectually Disabled v Government
of the Republic of South Africa
2011 (5) SA 87 (WCC) judgement, that the education authorities
take reasonable measures in order to give effect to the rights of the
affected children and granted a structural interdict allowing government
twelve months to develop an intervention plan that would provide access
to education for children with severe and profound intellectual disabilities.
An extension was granted by the court allowing for the development of
an integrated strategy and programme of action for the provision of
educational support to learners with severe and profound disabilities
for submission to the High Court by April 2013. The integrated strategy
and programme is being developed through a consultative process involving
a number of government departments.
The National
Development Plan (2012) promotes the accelerated roll-out of inclusive
education that enables everyone to participate effectively in a free
society, and acknowledges that education provides knowledge and skills
that persons with disabilities can use to exercise a range of other
human rights, such as the right to political participation, the right
to work, the right to live independently and contribute to the community,
the right to participate in cultural life, and the right to raise a
family.
Statistics
The significant
challenges still experienced with disability-related statistical data
capturing and analysis discussed in the preamble to this report as well
as under Article 33, come to the fore when analysing statistical data
pertaining education. This remains a highly contested terrain.
Not attending
School –
The Department of
Basic Education (DBE) estimates that the number of children with disabilities
of school going age who are out of school, could be as high as 480,036,
based on their own calculations and StatsSA 2010 General Household Survey
data.
Enrolment in Ordinary
Schools –
DBE reports that
118,490 learners with disabilities were enrolled in ordinary schools
in 2010 and 104,633 in special schools adding up to a total of 223,123
learners with disabilities, constituting approximately 1,7%.
However, the General
Household Survey of 2011 indicated that 6% (758,652) of children in
the schooling system were children with disabilities. There is
therefore a discrepancy of 535,524 learners for whom the system cannot
account.
According to the
General Household Survey the percentage of learners with disabilities
as a percentage of all learners attending school has increased from
at least 1% in 20021 to approximately 7% in 2010.
Of the 124,559 learners
admitted to ordinary schools in 2009, 17.6% were in separate classes.
The drop in numbers can be ascribed to an inconsistency in data collection
procedures.
DBE, utilising their
own calculations based on StatsSA General Household Survey data for
2010, estimates that 94% of 7 to 15 year old of children with disabilities
attended an educational institution in 2010, against 73% in 2002.
DBE, utilising their
own calculations based on StatsSA General Household Survey data for
2010, furthermore reports that 68% of 16 to 18 year old children with
disabilities attended an educational institution in 2010, compared to
the overall figure of 83% for all children in this age group. The participation
of this age category of children with disabilities in educational institutions
increased significantly from 51% in 2002 to 68% in 2010.
Enrolment in the
Reception Year (5year olds)
DBE, utilising their
own calculations based on StatsSA General Household Survey data for
2010, estimates that 85% of 5 year olds children with disabilities attended
an educational institution2.
Enrolment in Special
Schools3 –
The DBE reports
that the enrolment in public special schools was 104,633 in 2010.
DBE furthermore
reports a gradual improvement in the number of learners in special schools
who wrote matric between 2007 (727 learners), 2008 (804 learners), 2009
(872 learners), 2010 (942 learners), but dropping in 2011 to 847.
The pass rate for
matriculants in special schools improved from 481 learners (2007), to
636 (2008), 697 (2009), 745 (2010), but dropping in 2011 to 697.
63 special schools
currently offer matric for their students, detracting significantly
from employability of school-leavers accommodated in special schools.
Post-School Qualifications/Enrolment
Enrolment of students
with disabilities at institutions of higher education (excluding Stellenbosch
University) does not show any significant improvement, from 4,861 (2008),
to 4,662 (2009) and 5,027 (2010)4
Students with disabilities
graduating at institutions of higher education (excluding Stellenbosch
University) show a similar lack of improvement, and has in fact worsened
from 995 (2008), to 904 (2009) and 801 (2010)
Adult Education
The Kha Ri Gude
Mass Adult Literacy Campaign, launched in 2008, has achieved exceptional
results in terms of training adults with disabilities. The programme
distributed Perkins braillers, braillette boards, ping-pong balls, shapes,
talking calculators and Braille paper to learners with visual disabilities.
129,121 adults with
disabilities enrolled between 2008 and 2011. A total of 43,135
(33%) had visual disabilities, 18,092 (14%) were deaf, 28,498 (22%)
had physical disabilities, and 13,544 (0.1%) had disabilities not specified
3,843 adults with
disabilities were involved in the training programme as tutors and supervisors
between 2008 and 2011.
The DBE introduced
the Learner Unit Record Information Tracking System (LURITS) in 2008
to track individual learners (including learners with disabilities).
It should however be noted that the quality of the data is not in all
cases reliable and up to date and currently focuses on tracking only
learners who are enrolled in special schools.
There is also
no reliable system in place to track children with disabilities who
are out of school and/or have been denied admission to school.
This will receive urgent attention.
Implementation
of Inclusive Education (Education White Paper 6)
The Constitution of the
Republic of South Africa, 1996 stipulates that the provisioning
of basic education is a concurrent national and provincial function.
So although the national policy framework promotes primary and secondary
education of all children and youth (including those with disabilities)
in one system, this is not always carried through at the provincial
level where new segregated special schools (in many cases with residential
facilities) are still being built, leading to separation of children
with disabilities from their families and communities. Criteria for
eligibility to be admitted to special schools have been developed to
ensure that these schools in the medium to long term only cater for
learners with very high level support needs and also serve a dual function
as resource centres.
Legislative and policy barriers
to the inclusion of children, youth and adults with disabilities in
early childhood development, primary, secondary, post-secondary and
adult education have to a large degree been removed but need to be further
strengthened through regulations to strengthen provisioning and enforcement.
It is acknowledged
that although the policy framework is in place, challenges remain with
implementation, with the result that a large percentage of children
with disabilities are currently either completely excluded from compulsory
education, or unable to effectively access the curriculum in either
special school or ordinary school settings.
Significant challenges are
still being experienced in providing appropriate support to learners
with disabilities in both special schools as well as ordinary school
environments. The National Strategy on Screening, Identification,
Assessment and Support (SIAS), currently being finalised, is a response
to this and will require that support is no longer organised according
to category of disability but according to level and nature of support
needs, and will drive the implementation of inclusive education policies.
The strategy should be implemented by 2014.The SIAS strategy will overhaul the process of
identifying, assessing and enrolling of learners in special schools
and to curb the unnecessary placement of learners in special schools;
improve the nature and quality of support that has to be provided to
learners who require additional support; strengthen early identification;
and strengthen the central role that parents and teachers play in implementing
the strategy as well as on the alignment of services by various government
sectors.
The curriculum
offered at special schools is currently under review to ensure that
more learners are encouraged to follow academic programmes which do
offer access to higher education learning opportunities and positively
impacts on the percentage of young adults who can enter the formal job
market.
The support outlined
in SIAS includes the following:
Accommodation to
assure physical access to the school and classroom, including accessible
transport and other technical support. The measures are reinforced through
norms and incremental increase in budgets dedicated for this purpose.
Strengthening the
capacity of school managers and districts in the procurement, management
and maintenance of assistive devices and technology with regard to assistive
technologies for communication and other instructional purposes.
Utilisation of para-professionals
or peers, on an as-needed basis for the implementation of Individual
Support Plans which outlines the frequency and intensity with which
professionals such as therapists and part time learning support facilitators
should provide individual support in the face of the shortage of specialists
in rural areas. A model has been developed for a peripatetic service
to be rendered.
Appropriate provision
of supports such as sign language interpretation, Braille training and
associated equipment and materials, and other individualized supports
is currently being addressed through short-term interventions and the
development of a system for sustainable provision.
It is acknowledged that
the incremental implementation of White Paper 6 over 20 years is not
compliant with Section 29 of the Constitution of the Republic of South
Africa, which requires of the state to implement measures and make budgetary
allocations to give effect to the right as a matter of priority, and
as such requires urgent revision.
It is furthermore acknowledged
that the scale for the first stage of implementation of inclusive education
was too small and the time frame too extended to make a significant
impact and to ensure that all learners with disabilities have access
to free education in an inclusive education system.
The absence of
stronger legislative measures, weak monitoring systems and lack of funding
norms to ensure that more dedicated funding would be redirected to mainstream
education and support, led to an increase of learners not necessarily
requiring very specialised or high levels of support being referred
to and admitted to special schools.
In spite of several
measures taken, there are still insufficient legal actions introduced
against ordinary schools that exclude learners with disabilities and
refer them to segregated special education without having taken any
steps to introduce reasonable accommodation. The Equality Court
judgement in the Oortman case in 20105
therefore set an important legal precedent.
The implementation
of the policy was furthermore significantly impeded by the fact that
it has not been seen as a central driving force of educational change
as intended. Support from various levels of the education system has
been limited. This has, and continues to contribute to the observed
slow, poorly coordinated, unsystematic implementation of inclusion in
most provinces. Up to 2012, inclusive education has not been mainstreamed
in most of the intervention programmes and senior managers within departments
have therefore not been held accountable for implementing the policy
directives. This is of particular importance in the context of
the significant challenges the school education system are facing in
general, with poor outcomes, a lack of culture of learning and teaching
in large numbers of schools, large numbers of under-qualified teachers
and poor infrastructure in many schools.
The introduction
of the policy of inclusive education mainly targeted the general education
band, and to a limited extent the Reception Year intake (part of Early
Childhood Development, which are in more detail discussed under Article
7).
In the first stage
of policy implementation (2002–2009) 30 of the 81 districts in the
country were targeted for development, utilising predominantly donor
funding -
30 ordinary schools
were selected in the poorest parts of the country for conversion into
full-service schools to serve as model sites of full inclusion.
34 special schools
were selected for upgrading and conversion into resource centres.
An extensive public
advocacy campaign was launched as reported under Article 8.
In all 30 districts
transversal district-based support teams were established and trained
to provide support services in an integrated way, thus maximizing existing
services through coordination and inter-sectoral collaboration.
A comprehensive
audit of all special schools conducted in 2002 to determine where schools
were dysfunctional, under-resourced, lacked training and needed upgrading
or other interventions, including addressing abuse of learners, revealed
huge disparities in provision and quality between schools in urban and
metropolitan areas and those in townships and especially rural areas.
The audit found
135 special schools highly neglected and dysfunctional. Neglect
led to high incidents of learner abuse, buildings falling apart especially
hostels, no effective teaching and learning, no appropriate and effective
support to learners and in many instances, a total breakdown in the
culture of learning.
In 60% of districts
in the country, there were no special schools at all. The National Treasury
made additional funds available in 2006– 2011 for the improvement
of the most neglected special schools, training of teachers and provision
of assistive devices and specialised equipment. As part of this programme,
more new special schools were also built.
During this period
attention has been given to up-scaling strategies for provincial implementation
of inclusive education, increasing the number of ordinary schools to
be converted into full service schools from 30 to 513, strengthening of transversal support
structures at all levels such as district and school support teams through
the creation of more specialist posts, training on inclusive education,
screening, identification, assessment and support, curriculum differentiation,
use of assistive technology and other areas of specialisation.
912 learners in
34 schools have received appropriate assistive devices that will enable
them to access education and become integrated into society.
The South African
government re-confirmed its commitment to the implementation of the
policy by recognising inclusive education as a national priority area
in education and allocating approximately USD250m over four years (2008
– 2012) for taking the system to scale.
At least 30% of
the budget allocated by the National Treasury has been made available
to raise standards of physical infrastructure and curriculum delivery
to improve quality teaching and learning. Regrettably, more than
50% were spent on other priority areas at the provincial level and only
5 of the 9 provinces have utilised the funding made available for the
expansion of inclusive education. As a consequence the impact of the
programme was seriously compromised. Steps are currently being taken
by the Department of Basic Education to improve accountability measures
in provincial departments of education and to raise the level of awareness
about the critical need to strengthen this sector.
The education and health
authorities are rolling out an Integrated National School Health Programme
through which mass screening has been conducted in the poorest schools
in the country to identify disabilities and other developmental delays.
Since the inception of the programme in 2010, more than 200,000 children
have been screened. Once identified, they will be more fully assessed
through the SIAS process to ensure that they acquire relevant support
in their local schools.
The right to early identification
and assessment is however not yet universal and availability of support
and services is limited due to a shortage of health professionals in
especially rural areas. Early Childhood Educators are also incrementally
being trained on strategies for early identification and intervention.
Reasonable accommodation
and provision of effective individualised support measures
Section 29 of the Constitution
of the Republic of South Africa, 1996
guarantees the right to receive education in the official language of
choice in public educational institutions. In order to ensure the effective
access to, and implementation of, this right, the state must consider
all reasonable educational alternatives, taking into account equity,
practicability and the need to redress the results of past racially
discriminatory laws and practices. Subsection 2 requires education
to be provided in a language that ensures effective and equitable access
to that education, which may include sign language and braille.
Section 12 of the Schools
Act 84, 1996 places an obligation on Members of Executive Councils
responsible for education at provincial level, to ensure that these
learners be provided with the relevant support services and that reasonable
measures should be taken to ensure that physical facilities at public
schools are accessible to persons with disabilities. It is acknowledged
that large disparities continue to exist between provinces, as well
as between rural and urban areas –
The Eastern Cape
has 3 designated resource centres, 18 designated full service schools,
4 accessible full service schools, 23 functional District Based Support
Teams but a shortage of therapists employed at district level.
Gauteng Province has 15 designated
resource centres and 68 designated full service schools, but only 7
accessible full service schools. The province has 188 inclusive education
officials employed at district level, as well as 15 functional District
Based Support Teams.
Limpopo Province has 6 designated
resource centres and 11 accessible full service schools; a further 11
schools have been designated as full service schools, 5 inclusive education
officials are employed at district level and there are no fully functional
District Based Support Teams.
The Free State Province has
87 inclusive education officials employed at district level and 3 functional
District Based Support Teams; only 3 designated resource centres, 2
accessible full service schools and has commenced with converting 26
further designated full service schools.
The Northern Cape has 1 accessible
and 4 further designated full service schools, as well as 4 designated
resource centres, there are 37 inclusive education officials employed
at district level. The province is putting in place functional District
Based Support Teams in 5 districts.
Mpumalanga has 21 designated
resource centres and 141 designated full service schools of which only
1 is accessible. The province has 39 inclusive education officials employed
at district level and are strengthening 4 District Based Support Teams.
KwaZulu-Natal has 14 designated
resource centres, 120 designated and 50 accessible full service schools;
and has 33 inclusive education officials employed at district level
and 12 functional District Based Support Teams.
The Western Cape has 24 designated
resource centres, 122 designated full service schools of which 14 are
accessible, 76 inclusive education officials employed at district level
and 8 functional District Based Support Teams.
The North West has 8 designated
resource centres, 224 designated full service schools, 112 accessible
full service schools, 47 inclusive education officials employed at district
level; and is strengthening 4 District Based Support Teams.
Several policy implementation
guidelines have been made available to managers across the education
system to develop a common understanding of the concept ��reasonable
accommodation�� in education. These include the Guidelines for Inclusive
Teaching and Learning (2009), the National Strategy on Screening,
Identification, Assessment and Support (2008), the Guidelines
to Ensure Quality Education and Support in Special Schools and Special
School Resource Centres (2007), the Guidelines for Full-Service/Inclusive
Schools (2010), and the Guidelines for Responding to Learner
Diversity in the Classroom (2011).
A National Protocol on
Assessment (2011) and the Policy on the Conduct of Assessment
(currently being reviewed) include chapters on Adapted Methods of Assessment
for system wide implementation from Grade R to Grade 12. The policy
not only addresses adaptations and concessions in final examinations
but throughout the teaching and learning process and in continuous assessment.
There are no accurate statistics
available on the percentage of schools that comply with norms for environmental
accessibility. A survey of 25,156 ordinary schools conducted by the
Department of Education across all nine provinces in 2006,
revealed that 97,1% had no accessible toilets and 97,8% had no ramps.
A total of 202 ordinary
schools have been upgraded to improve physical access and to serve as
model full-service/inclusive schools between 2006 and 2011. These
schools were also supplied with a wide range of assistive technology
and teachers were trained on basic principles and practices of inclusive
education. Provinces have committed funds to convert a further
553 selected schools for conversion to full-service schools by 2014.
An audit is to be conducted to determine to what extent the upgraded
infrastructure complies with the national building regulations.
The drafted Minimum Uniform
Norms and Standards for Public School Infrastructure currently out
for public consultation does not integrate universal design principles,
and will be amended before approval.
Learners with physical disabilities
who are unable to make use of ordinary minibus taxis or school buses
are currently excluded from scholar transport provided to learners whose
homesteads are more than 4km from their nearest school. Accessible and
affordable scholar transport poses a significant barrier to access to
education, and the scholar transport policy currently being developed
will incorporate norms and standards for accessibility.
The 2009 DBE audit
of all (22) schools for learners with visual disabilities culminated
in the implementation of a strategy for improving quality of teaching
and learning at these schools as well as introducing support measures
in ordinary schools.
In 2011, training
of school managers to improve quality of curriculum delivery in these
schools, took place.
The University of
Pretoria has developed a short course in the field for introduction
in 2013 and which could be expanded to a full qualification at post-graduate
level. The aim is to ensure that 700 out of 900 teachers teaching in
schools specialising in visual impairment have knowledge of Braille
by 2014.
The changes in the
curriculum resulted in a delay of issuing Braille and large print textbooks
to learners with visual disabilities in both special and ordinary schools.
Donor funding has been made available to expedite the adaptation and
printing of the Learner Workbooks for grades R–9 in Braille as well
as textbooks and prescribed works. Progress has been delayed because
of lack of capacity in the national Braille printing facilities. The
investigation into the status of Braille production in the country reported
on earlier, with a view to establish a national facility, should alleviate
this challenge. Negotiations are underway with the publishing industry
to make prescribed works and textbooks available in digital format.
Children with
disabilities who are also incontinent experience major challenges in
both ordinary and special schools. The roll-out of incontinence
clinics at special schools, initiated by parents organisation PACSEN
with private sector support, and subsequently followed through by a
few provinces, require more focused attention.
A Curriculum for
South African Sign Language is currently being drafted by a Ministerial
Task Team for introduction into the system in 2014. Once this curriculum
is completed Higher Education Institutions will be required to increase
the number of teacher training courses for teachers using Sign Language
as medium of instruction across subject fields as well as for the introduction
of South African Sign Language as a subject within the National Curriculum
Statement. Currently there are only 3 teacher training programmes for
Sign Language, namely at Free State University, University of the Witwatersrand
and UNISA.
The National Treasury
has committed to prioritise funds to ensure that more accessible learning
and teaching support materials are made available at ordinary and special
schools that include learners with visual and hearing disabilities.
No specific provision has as yet been made for learners who are deaf-blind.
It is expected
that the initiatives mentioned above will improve the availability of
Braille and teachers training in Braille as well as in Sign Language.
The Guidelines for Responding to Learner Diversity in the Classroom
will also support teachers to create enabling learning environments
and accessible teaching and learning materials. Appropriate augmentative
and alternative communication devices and training for teachers have
been introduced and this training will be expanded to more schools over
the next three years.
It should be noted that
only USD 57,8 million of the USD 68,750 million budget for ��Inclusive
Education�� by provincial government departments in the 2012/13 financial
year, was allocated for the expansion of inclusive education.
The balance was for special school financing.
Schools in the
country are classified in terms of poverty. The methodology applied
in determining the relative poverty of schools for the purpose of quintile
placement (the geographical location of the school and the relative
poverty of the surrounding community) is not suitable to be used for
special schools because a sizable number of learners enrolled at special
schools are from outside the surrounding community. Funding for
special schools is therefore not differentiated in terms of poverty
related criteria. Possible poverty targeting of special schools with
consequent possible differentiation in funding of special schools based
on this poverty targeting as well as subsequent subsidization of the
loss of income due to fee exemption are aspects which are being considered
in developing funding strategies applicable to special schools.
Educator and Auxiliary
Staff Development
The National
Policy Framework for Teacher Education (2007) determines that the
identification and addressing of barriers to learning should be a key
component of all teacher education at pre-service and in-service levels.
The Draft Policy on the Minimum Requirements for Teacher Education
Qualifications (2010) emphasises the
criticalneed for all teachers to be conversant with the requirements
of implementing inclusive education practice. The need has also been
identified for reintroducing teacher education certificates with specialisation
in areas such as education of learners with hearing and visual disabilities
and learners with Autistic Spectrum Disorders and intellectual Impairment.The National Strategy for Continued Professional Teacher Development
(CPTD) emphasises inclusive education as a priority area and the Minister
of Basic Education has set the goal of ensuring that at least one educator
in each of the 26,000 schools in the country is trained to screen and
support learners who experience barriers to learning by 2014.
The Guidelines
for Inclusive Teaching and Learning (2010) and the Guidelines
for Responding to Learner Diversity through the National Curriculum
Statement (2011) have been utilised as a manual for training educators
undergoing orientation to implement the National Curriculum Statement
Grades R–12. Inclusivity has been reconfirmed as a key principle of
the National Curriculum Statement Grades R–12 completed in 2011.
The programme aims at deepening educators�� understanding of the principles
and practice of curriculum differentiation and inclusive classroom management.
Lack of qualified
and skilled educators is not only a challenge in ordinary schools, but
in particular also in special schools:
59 special schools
providing education for learners with visual and hearing disabilities
lack qualified teachers;
There are 781 educators
with basic Braille knowledge but without any qualification;
89 teachers educators
visually impaired learners do not have any knowledge of Braille at all;
985 educators teaching
Deaf learners know basic South African Language but without qualifications;
266 educators (21%)
teaching Deaf learners have no South African Sign Language knowledge
at all.
More than 39,515
educators and 7,148 officials received in-service training between 2008
and 2011 on the key policy implementation guidelines listed above. These
guidelines introduce radically new approaches to determine the measures
for reasonable accommodation needed by learners with disabilities and
for making the curriculum accessible. In addition, 8,696 schools established
School-based Support Teams and 16,672 team members received training;
1,415 Learning Support Educators were appointed and trained, and 7,148
district officials received training.
The national inclusive
education advocacy strategy will be strengthened with the aim of mobilising
communities to be inclusive and capacitating parents, parent organisations
and organisations of and for persons with disabilities as key partners
of government.
Post School Education
Section 29 of the Constitution
of the Republic of South Africa, 1996 guarantees the right to further
education, which the state, through reasonable measures, must make progressively
available and accessible.
The Department
of Basic Education in 2011 introduced the process of developing a skills
and vocational orientated exit level qualification at Grade 9 level
for learners with intellectual disabilities which would enable them
to enter into the world of work or in further vocational training programmes
at Further Education and Training level.
It is acknowledged that
Further Education and Training (FET) colleges lag behind in creating
barrier free access and inclusive environments. This is receiving
attention.
The research findings
and recommendations contained in the 2011 Disability in Higher Education
Report based on research commissioned by the now disbanded The Disability
in Higher Education Project was mandated by the Foundation of Tertiary
Institutions of the Northern Metropolis (FOTIM), taken further by Higher
Education Disability South Africa (HEDSA), representing Disability Units
at universities, contributed significantly to policy development and
implementation.
The Department
of Higher Education and Training (DHET) consulted in 2012 on the Green
Paper for Post School Education and Training, which states that ��The
DHET will works towards developing a National Disability Policy and
Strategic Framework which will seek to create an enabling and empowering
environment across the system for staff and students with
disabilities. Institutions may then customise the policy in line
with their institutional plans as the policy will act as a benchmark
for good practice��.
Support services
are available through disability rights units at 11 Higher Education
Institutions for students with disabilities, albeit at various levels
of development. A unit has been established in the DHET to expand these
services to all Universities and other Higher Education Institutions,
and the Department is in the process of establishing a Task Team to
accelerate inclusive practices across this sector.
The DHET allocated
USD 15,479 million for disability equity funding as part of the 2012/13-2013/14
infrastructure funding allocation for institutions of higher education.
It is noted that not all universities applied for funding to improve/expand
facilities and infrastructure for students and staff with disabilities.
Going forward, all universities are required to provide a universal
access infrastructure audit before 31 January 2014 to enable the DHET
to consolidate and finalise the costing of a universal access infrastructure
plan for universities.
The former Department
of Education (now DHET) introduced a bursary scheme for students with
disabilities studying at one of the 23 public higher education institutions
in 2008 to provide financial support for students with disabilities
who are academically able but need financial aid. The bursary covers,
among others, tuition, books and other study materials, accommodation,
and important, transport as well as assistive device or human support
required to access the curriculum. The scheme is administered
by the National Student Finance Scheme (NSFAS), which annually publishes
updated Guidelines for Students with Disabilities for the Department
of Higher Education and Training Bursary programme.
The Government
of South Africa acknowledges the need to prioritise the unacceptable
sustained high levels of abuse of especially girls with disabilities
taking place within special schools in particular and will accelerate
actions aimed at putting in place a multi-sectoral programme to eradicate
this scourge from our schools.
It furthermore
acknowledges the need to place inclusive education at the centre of
education reform in South Africa. This requires that meaningful participation
by organisations of and for persons with disabilities, and parents organisations
in particular in the planning, implementation and monitoring impact
of interventions and campaigns be strengthened going forward. The DBE
has therefore declared 2013 The Year of Inclusive Education.
ARTICLE
25: Health
Section 27 of
the Constitution, guarantees the right of every South African to health
care services, including reproductive health care.
The National
Health Act, 2003, the Mental Health Care Act, 2002, the
Sterilisation Act, 1998 and the Medical Schemes Act, 1998
and related policies and protocols governs health care to South Africans.
The National
Health Act, 2003 regulates national health and to provide uniformity
in respect of health services across the nation by establishing a national
health system which encompasses both public and private providers of
health services. Subsection 2(c)(iv) identifies persons with disabilities
as a designated group whose constitutional right of access to health
care services, including reproductive health care, to be protected,
respected, promoted and fulfilled. Subsection 70(1) furthermore
requires that research priorities include the health needs of, among
others, persons with disabilities, as well as contributing to the prevention
of, among others, disability (subsection 73(2)(a).
The Medical
Schemes Act, 1998 provides among others for the registration and
control of medical schemes and the protection of the interests of members
of medical schemes. Section 24(2)(e) rules out unfair discrimination
on the grounds of disability.
As discussed under
Articles 12, 14, 15, 17, 19 and 23, both the Mental Health Care Act,
2002 and the Sterilisation Act, 1998 require review to bring
it in line with the CRPD.
All health (inclusive
of rehabilitation) services at the primary level of care (at a home
based or community level) are free. Persons with disabilities
who meet nationally determined criteria for eligibility based on household
income, are able to access free health care and rehabilitation services
at a hospital level in the public sector.
Health treatment
is provided to persons with disabilities on the basis of their free
and informed consent. The National Health Act, 2003 emphasises
the importance of obtaining the user��s consent to a health service
and that the health care provider must take all reasonable steps to
make sure that the user makes an informed decision. The Act provides
for informed consent by a person with legal capacity to do so, and invokes
the Mental Health Care Act, 2002, when a person does not have
legal capacity. Review of the Mental Health Care Act, 2002
will therefore bring the National Health Act, 2003 in line with
the CRPD.
Various protocols
have been developed to facilitate early detection to prevent and minimise
the emergence of secondary disabilities. The Human Genetics Policy
Guidelines for the Management and Prevention of Genetic Disorders, Birth
Defects and Disabilities focuses both on prevention of disability
through genetic counselling as well as management of disabilities once
identified. Whilst the Policy requires urgent review to bring
it in line with the CRPD, it should also be noted that these guidelines,
as with other protocols, lack effective implementation due to, among
others, lack of availability of appropriately trained human resources,
high turn-over of specialised personnel within the public health sector
and poor living conditions for people discharged from hospital.
There is furthermore currently no system in place which tracks and refers
persons, and especially children, who have been identified either at
risk of acquiring a disability, or have been diagnosed with a disability,
through the health system, between the health system and other services
such as social security, skills development, education and early childhood
development; or between health services and disability service organisations.
The lack of such a system places a disproportionate emotional and financial
responsibility on already over-burdened and impoverished families, lock
persons with disabilities in a social security trap, and often cause
secondary disabilities.
As discussed under
Article 9, accessibility to health facilities for persons with disabilities
in general remain a major challenge, due to, among others, lack of access
to the physical environment, lack of access to information in accessible
formats, discriminatory and negative attitudes towards persons with
disabilities displayed by health and support personnel, lack of appropriately
trained and skilled health personnel pertaining disability, lack of
effective appeal and reporting mechanisms in the health sector where
a client��s rights have been infringed upon, aggravated by challenges
outside the health sector such as inaccessible and unaffordable transport,
in particular in rural and impoverished communities.
Consistent reporting
of violation of the rights of persons with psycho-social disabilities
in mental health care facilities, as well as frequent unavailability
of psychotropic medication at primary health care level in particular
in rural areas, is receiving attention.
In acknowledgement
of the significant challenges facing the health system, and as an integral
component of the planning of full-scale roll-out of National Health
Insurance, a National Health Facility Baseline Audit of 4,210 public
health facilities (including clinics, community health centres and district,
regional, specialised and tertiary hospitals) in all nine provinces
was commissioned and is currently being finalised. The scope of
the audit includes, among others, the range of health services provided,
the state of the physical infrastructure in terms of condition, safety
and compliance with building regulations, the degree of compliance of
the values and attitude of staff with national quality standards, the
allocation and availability of human resources in the various categories
of occupation and skills breakdown.
The National
Health Amendment Bill, 2011, currently before Parliament for consideration,
once passed, makes provision for the establishment of the Office of
Standards Compliance follows government`s commitment to improve the
quality of healthcare in public health facilities and the strengthening
of health systems effectiveness through enhanced accountability by ensuring
that complaints from healthcare users are independently investigated
as well as advising the Minister of Health on the development of standards,
norms and quality management systems for the national health system;
inspect and certify health establishments as compliant with prescribed
norms and standards; and monitor indicators of risk as an early warning
system relating to breaches of standards.
Weak to non-existent
partnerships between the health system and organisations of and for
persons with disabilities at all levels of service delivery, has detracted
from the impact of efforts made to ensure that health promotion programmes
and campaigns are accessible to persons with disabilities, and in particular
to people with visual, hearing and intellectual disabilities through
publication of information in Braille, cartoons, audio, different official
languages as well as subsidisation of organisations of and for persons
with disabilities.
South
Africa has one of highest HIV prevalence in the world. The
activism of organisations of persons with disabilities over the past
10 years has raised awareness of not only the prevalence of HIV and
AIDS among persons with disabilities, but also the challenges they experience
in accessing preventative information and effective treatment as a result
of attitudinal and communication barriers. The
partnership between the disability sector through the South African
Disability Alliance (SADA), the South African National AIDS Council
(SANAC), Office on Status of Disabled People (OSDP), and the Joint United
Nations Programme on HIV/AIDS (UNAIDS) culminated in the Report on HIV, AIDS and Disability in South
Africa, published by the South
African National Aids Council (SANAC) 2008.
The National Strategic Plan
for HIV and AIDS, STIs and TB, 2012-2016, recognises the relationship
between disability and HIV, and provides for the removal of communication,
physical and attitudinal barriers which detract from equal access to
prevention campaigns, counselling and treatment.
In the 2009
Report on the Public Inquiry on the Right to Health, the South African
Human Rights Commission made a number of recommendations with regards
ensuring that all health care facilities being physically accessible
for persons with disabilities. The following progress has been
recorded against the recommendations contained in the report:
Budget and
resource allocations to mental healthcare should be reviewed and addressed
accordingly - Due to the integrated nature of the budget it
has been difficult to quantify expenditure for mental health services.
There should
be substantial mental health research that clearly quantifies varying
mental disabilities by region for resource allocation - The
department collaborates with various research institutions on mental
health research.
Mental healthcare
facilities and services by trained staff should be available throughout
the country at a community level - Community based services
are developed by provinces incrementally as recommended by mental health
policy.
There should
be incentives to train and retain psychiatric staff in public sector
- The Minister of Health launched the Health Sector Human Resources
Strategy 2012/13-2016/17 in October 2011. Mental health practitioners��
training is prioritised. The recently introduced ��occupation specific
dispensation�� has improved the retention of practitioners except for
psychiatric nurses where there were problems with the translation of
the policy. This is being addressed through a review process.
There should
be consistent access to prescribed medicine for persons with disabilities
- Chronic medication for those who need monthly supplies is pre-packed
and distributed monthly. There is also prescribed minimum benefits expected
from medical schemes that address chronic medication as well.
The nursing
staff should be trained on sensitivities and symptoms of different disabilities
- Nurses�� training has incorporated a module on disability and nurses
are placed in rehabilitation units during their training. Sensitivity
training for health workers is done on an on-going basis.
There should
be awareness programmes at a community level that seeks to eliminate
discrimination and stigmatisation around mental health so that people
with mental disabilities requiring treatment can access services
- The department provides financial resources for advocacy and creating
public awareness on mental health through a National Treasury approved
grant to the South African Federation for Mental Health. All health
care points also conduct public education campaigns during dedicated
dates and months indicated in the health calendar.
There should
be relevant considerations for clients with disabilities when issuing
wheelchairs rather than a one-size-sits-all approach - All assistive
devices in the department are prescribed and fitted by appropriately
trained professionals. The department also has seating specialists who
go around training others on the science of seating. It is acknowledged,
as discussed under Article 26, that significant challenges remain with
regards equal access.
Healthcare
facilities should be technologically advanced so that new technologies
are introduced as they emerge to facilitate the highest quality of health
- The department has embraced the use of technology in healthcare and
the many facilities have state of the art technology. For instance more
than 90% of all hearing aids issued as well as the diagnostic equipment
is digital. Mayo-electrical technology has also been introduced for
fitting artificial limbs in some major centres in South Africa.
The code
of conduct for healthcare staff should be monitored.The
quality of services and implementation of policy should be monitored.
The client feedback mechanism must be monitored -
The Office of Standards Compliance will look at all service standards,
including conduct of healthcare personnel. The Health Professionals
Council of South Africa (HPCSA) and the SA Nursing Council are also
responsible for disciplining errant practitioners and the public has
direct access to these bodies.
Guidelines
for the treatment of vulnerable groups and individuals should be developed
to ensure acceptable quality of treatment for all health care users
– As alluded to earlier, the guidelines are in place, but require
review to ensure compliance with the CRPD and attention is required
for strengthening implementation thereof and public access thereto.
Article
26: Habilitation and Rehabilitation
Rehabilitation
services in South Africa are provided by the Departments of Health,
Education, Social Development and organisations of and for persons with
disabilities. Habilitation support is discussed under Article
19.
Poverty is a major
barrier for persons with disabilities and their families in accessing
rehabilitation services, even where these are available at community
level, and in particular to specialised services available in only major
centres, due to the high cost and inaccessibility of public transport,
lack of accessible information on what services are available where,
and poor referral services within the health sector, but also between
the health sector, the social security system, social development services,
the education system and employment and skills development programmes.
The shortage of
qualified rehabilitation practitioners in the public sector in general,
and in rural districts and communities in particular, detracts from
both rehabilitation outcomes as well as access to basic early identification
and intervention -
The number of qualified
rehabilitation practitioners registered with the HPCSA as at March 2012,
with those working in the public service in brackets, is:
3816 (794) Occupational
Therapists(OT); 344 OT Assistants; and 354 OT Technicians
6162 (1040) Physiotherapists
and 270 Physiotherapy assistants
2267 (403) Audiologists/
speech therapists and 22 community speech/hearing workers;
419 Medical orthotists
and prosthetists and 57 Orthopaedic footwear technicians;
369 Psychologists
A major challenge
remains the unequal access to services between the public and private
sector. As at August 2012,
there was on average
one occupational therapist per 14 500 population, and one physiotherapist
per 9 000 population;
in the public sector
there was one occupational therapist per 53 000 population, and one physiotherapist
per 50 000 population;
in the private sector,
there was one occupational therapist per 2 800 population, and one physiotherapist
per 600 population;
The Tshwane University
of Technology is currently the only institution that trains medical
orthotists/prosthetists in South Africa. The intake of students was
capped at 25 per annum due to capacity problems but this is due to increase
to 30 and grow on an annual basis. The Walter Sisulu University (WSU)
and the Durban University of Technology are currently in the process
of introducing new training programmes in Medical Orthotics/prosthetics.
The WSU is in the process of obtaining accreditation from the Health
Professions Council of South Africa and the Council on Higher Education.
There are about
sixty (60) orientation and mobility instructors practising in South
Africa. Almost all of them are employed by NGOs that receive some funding
from provincial health departments, but relies on the majority of their
funding from corporate funders. The Department of Health is working
with the College of Orientation and Mobility, a programme of the SA
Guide Dogs Association, to increase capacity to produce more instructors.
The Department is also working with other stakeholders to clear the
way for public sector employment by addressing accreditation issues
with both the sector as well as the Health Professions Council of South
Africa.
Rehabilitation
services offered by the Department of Health are guided by the National
Rehabilitation Policy (2006).
This policy adopts Community Based Rehabilitation (CBR) as the underlying
philosophy to the provision of rehabilitation services.
All nine provinces
have rehabilitation programmes within the Primary Health Care or related
programmes. The availability and quality of rehabilitation services
offered by the Department of Health however varies significantly across
provinces as well as between districts and health service points within
provinces, with emphasis on the types of rehabilitation services varying
greatly.
The National
Integrated Strategy of Offenders and Policy Procedures of Offenders
provides for the rehabilitation of offenders whilst incarcerated to
strengthen re-integration post incarceration. It is however acknowledged
that not all attitudinal, physical and communication barriers have been
addressed to ensure that offenders with disabilities have equal access
to such programmes.
Particular challenges
are reported with persistent long waiting lists as well as waiting periods
for assistive devices, and poor access to maintenance services both
in the health and educator sector. Progress has been made in building
the capacity of therapists to provide more specialised seating services
for especially children with physical disabilities.
Public sector
financial support for community-based rehabilitation services through
the health authorities are currently restricted to three (3) provinces,
namely Mpumalanga, Eastern Cape and Western Cape, with Mpumalanga providing
the most extensive programme through a contract with Disabled People
South Africa.
The Department
of Social Development funds day care centres and home based care projects
through financial subsidies to 91 organisations of and for persons with
disabilities, benefiting 4,161 children with disabilities in day care
centres. Support for 41 home based care projects benefits 1,134
persons.
The National
Development Plan (2012) notes that the current model of shifting
the burden of care, treatment and rehabilitation to the non-governmental
sector and the poorest communities is not working, and that statutory
services for, among others, children and adults with disabilities need
well-conceived state and community interventions.
It is acknowledged
that challenges exist with inter-sectoral funding of community-based
rehabilitation services and this will be given priority attention to
ensure equitable roll-out to all nine provinces over the next few years.
ARTICLE
27: Work and employment
The Labour
Relations Act, 1995, the Employment Equity Act, 1998 and
the Broad-Based Black Economic Empowerment Act, 2003,
give effect to the equality clause and the right to fair labour practices
contained in the Constitution of the Republic of South Africa, 1996,
as well as the international norms in respect of fair labour treatment
of persons with disabilities. The Technical
Assistance Guidelines on the Employment of People with Disabilities published by the Department of Labour, complements the
Code of Good Practice on the Employment of People with Disabilities,
2002 to assist with the practical implementation of aspects of the
Employment Equity Act, 1998 relating to the employment of people
with disabilities in the workplace. It builds on the Code to set out
practical guidelines and examples for employers, employees and trade
unions on how to promote equality, diversity and fair treatment in employment
through the elimination of unfair discrimination.
It is acknowledged
that, despite enable legislation establishing reasonable accommodation
mechanisms as well as targets for the economic empowerment of persons
with disabilities, insufficient progress is being made in translating
these into economic independence for persons with disabilities due to
the lack of access to the built environment and public transport, the
inter-sectionality between poverty and disability, as well as persistent
attitudinal and communication barriers. The particular challenges
experienced by persons with psycho-social disabilities due to stigma
and ignorance pertaining reasonable accommodation measures required,
are also acknowledged.
Employment
Equity for Persons with Disabilities
The Employment
Equity Act, 1998 requires of designated employers, i.e. employers
employing more than 50 employees, to develop and submit annual employment
equity plans and reports to the Department of Labour. These plans
should include self-determined targets for, among others, the employment
of persons with disabilities, as well as reasonable accommodation measures
that will be undertaken.
The Commission
for Employment Equity Annual Report (2011/12), reporting on employment
equity progress amongst designated employers (employers employing more
than 150 employees), notes the slow pace of improvement in the employment
of persons with disabilities in both the public and private sector over
the past 4 years with 2007/08 reported 0,5%, 2009/10 reported 0,9% and
2011/12 reported 0,8%.
Persons with disabilities
accounted for approximately 0.8% (43,666) of the total number of employees
by all employers in 2011/12, down from 0.83% (43,913) in 2010/11.
More than 60% of
employees with disabilities occupy semi-skilled, unskilled position
and temporary positions in 2011/12;
Persons with disabilities
constitute 1,9% of top management against 1,4% in 2010/11;
Persons with disabilities
constituted 1,2% of senior management, the same as in 2010/11;
Persons with disabilities
in the professionally qualified category constituted 1% of the total
work force, the same as in 2010/11;
Persons with disabilities
constituted 0,8% of the skilled workforce, the same as in 2010/11.
The public sector,
as a designated employer, set its employment equity target for 2005
at 2% of the total work force. It has had to extend this target
annually due to the slow progress being made, with a final deadline
for the attainment of the 2% target set for March 2013 –
Disability representation
within the public service improved from 0,16% in December 2005 to 0,32%
in 2010/11 and 0,36% in 2011/12;
4,830 persons with
disabilities out of a total workforce of 1,316,564 were employed in
the public service by March 2012. 1,955 (40,4%) of the latter were female
and 2,875 (59,6%) were male. This represented an increase of 427
persons with disabilities in the 12 month period (out of a total of
11,027 positions that were filled between April 2011 and March 2012);
Senior managers
with disabilities increased from 62 (0,7%) to 67 (0,8%) between April
2011 and March 2012, constituting 5 of the 386 (1,3%) vacancies filled
at this level being filled by persons with disabilities;
Middle managers
with disabilities increased from 190 (0,9%) to 192 (0,9%), constituting
2 of the 250 (0,8%) vacancies filled at this level being filled by persons
with disabilities;
102 national and
provincial departments did not achieve the 2% target by March 2012;
16 (8 national and
8 provincial) departments met the 2% target in 2011/12, compared with
only 10 in 2010/11.
49 departments had
disability representation of between 1-2% at the end of 2011/12 compared
to 45 in 2010/11;
81 (22 national
and 59 provincial) departments had representation below 1% by March
2012, compared to 91 at the end of March 2011;
The slow progress
reported above is of particular concern in light of the concerted efforts
made by Parliament and the Public Service Commission (PSC) as part of
their oversight responsibilities, the inclusion of the target in President
Zuma��s 2012 State of the Nation Address, as well as efforts by the
Department of Public Service Administration and the Department of Women,
Children and People with Disabilities to strengthen support and oversight
towards attainment of the 2% target. The PSC provided practical
guidance with regards steps that should be taken by national and provincial
government departments in its 2006 Audit of Affirmative Action in
the Public Service and 2008 Assessment on Disability Equity in
the Public Service. These reports were handed over to
Parliament and Provincial Legislatures to support them in performing
their oversight role and copies were also provided to all Executive
Authorities and Heads of Departments in the Public Service.
Initiatives since
2008 to address policy compliance with regard to representation of persons
with disabilities in the public sector have included:
The JobACCESS
Strategic Framework for the Recruitment, Employment and Retention of
Persons with Disabilities in the Public Service Workplace (2009).
A baseline study to assess how the Framework has been used by departments
to guide their planning and programmes will be conducted in the next
financial year.
The Handbook
on Reasonable Accommodation for People with Disabilities in the Public
Service (2007). This handbook will be reviewed to align it to the
Policy on Reasonable Accommodation and Assistive Devices, once finalised,
to incorporate the funding model for assistive devices.
Capacity development
- An accredited training course in Disability Management based on the
JobAccess Strategic Framework was developed in 2011 by Public Administration
Leadership and Management Academy (PALAMA). The purpose of this training
course is to provide officials with skills that would contribute to
the inclusion of persons with disabilities in the workplace, and remove
barriers that prevent their successful participation in the job market.
The pilot training started in October 2011 and will run until 31 March
2013. 574 officials have undergone training to date.
Targeted Recruitment
- The strategy also advocates for the establishment of a database for
persons with disabilities which is intended to assist in widening the
pool from which to recruit persons with disabilities for employment
in the Public Service. Furthermore, departments are encouraged, in their
targeted recruitment drive, to establish partnerships with organisations
of persons with disabilities.
The draft Policy
on Reasonable Accommodation and Assistive Devices in the Public Service
was widely consulted and is ready for submission Cabinet. This policy,
once approved, will guide departments on planning and budgeting processes
and requirements to improve reasonable accommodation measures.
The draft policy provides gives guidelines on key barriers to employment
of persons with disabilities such as provision of transport for employees
with disabilities who may not otherwise be able to use public transport,
leave for repairs of assistive devices, acquisition and disposal of
assistive devices and provision of personal assistants and caregivers.
The policy incorporates
Resolution 3
of 1999 Par X (2), which bestows power to an Executive Authority
(Minister/MEC) in the provision of transport for an employee with disabilities
from home to work subject to a development of a travel policy for the
department.
The implementation
of Resolution 1 of 2007, which provided a determination on leave
of absence for persons with disabilities to repair assistive devices
and training for guide dogs users (section 18 (1.2) and (1.3).
The Mining Qualifications
Authority (MQA) developed and launched a Disability and Reasonable
Accommodation Toolkit in 2011. The toolkit assists companies in the
mining and minerals sector to ensure that persons with disabilities
are included in various learnerships.
The Department
of Labour has awarded a total of USD85,125 in annual subsidies to three
organisations for persons with disabilities (National Council for Persons
with Physical Disabilities, the Deaf Federation of South Africa and
the South African National Council for the Blind) to support the placement
of persons with disabilities in the open labour market between 2008
and 2011. This subsidy was suspended at the end of the 2011/12
financial year and is currently under review within the context of the
Employment Services Bill, 2012, currently before Parliament.
598 persons with
disabilities were placed into the formal and informal sector as well
as in training during 2008/2009, while 812 were placed during 2009/2010.
271 persons with disabilities were trained in 2008/2009 in short skills
development programmes and 123 in 2009/2010. A total of 1,746
job-seekers with disabilities were registered in the employment register
database in 2010/11; and 961 job-seekers with disabilities were placed
during the same period.
Supported
Employment Initiatives
A range of supported/subsidised
employment placement options are available, to a large extent due to
the high general unemployment rate in South Africa:
Sheltered Work -
work undertaken by persons with disabilities in workshops specifically
established for that purpose. People working in sheltered workshops
retain their social welfare benefits, typically Impairment Allowance,
and usually receive a small discretionary additional weekly payment
from the work provider
Integrative Enterprises
- sheltered workshops with normal wages
Supported Employment
- a system of support for persons with disabilities in regard to on-going
employment in integrated settings
Open Labour Market
Sheltered Employment
Factories were established more than 60 years ago with ownership vested
in the State to provide employment and empowerment opportunities to
persons with disabilities who could not compete in the open labour market.
The Department of Labour currently subsidises twelve (12) Sheltered
Employment Factories There are currently 12 SEF factories in Gauteng,
Western Cape, North West, Eastern Cape, Northern Cape, Free State and
KwaZulu Natal, all situated in urban centres, employing 926 persons
with disabilities. State subsidies increased from USD 4,375,000
(2009) to USD 8,750,000 (2011).
The Department
of Social Development subsidises 293 protective workshops, managed by
organisations for persons with disabilities, in 2012, providing household
income support for 14,212 persons with disabilities. This is a
significant increase from the 260 workshops with a total of 6,585 beneficiaries
subsidised in 2010. Expenditure for subsidisation of protective
workshops since 2008 was USD6,750,000. It should be noted that
the majority of these facilities are situated in urban centres, despite
the majority of persons with disabilities living in rural areas, which
also has the poorest education access outcomes, the least access to
public transport, as well as highest general unemployment rates –
141 urban and 34
peri-urban protective workshops provided income opportunities for 10,911
persons with disabilities;
118 protective workshops
in rural areas provided income opportunities for 3,301 persons with
disabilities.
A lack of minimum
norms and standards for management and subsidisation of protective workshops
resulted in inconsistencies between provinces, impeded monitoring and
evaluation and in instances, lack of conducive environments for persons
with disabilities employed in these workshops. The Department
of Social Development has subsequently finalised policy guidelines on
the management and transformation of protective workshops aimed at providing
decent work and wages, strengthening skills development in these centres
and improving employability of persons with disabilities in the open
labour market. A training manual to give effect to the guidelines
was developed and has been implemented nationally and in all nine provinces,
targeting government officials, national organisations of and for persons
with disabilities and representatives from protective workshops.
A weakness in
the subsidised supported employment environment has been the lack of
financial support for organisations of persons with disabilities who
offer income-generating opportunities to their members.
Supporting
Entrepreneurship among Persons with Disabilities
The Preferential
Procurement Policy Framework Act, 2000 recognises the economic rights
of persons with disabilities to engage in entrepreneurial activities
that promotes self-reliance and independent living. Measures include
access to opportunities within public sector procurement systems, whereby
the supply chain management process aims to empower historically disadvantaged
communities and a target of 5% access of all preferential procurement
has been set aside for entrepreneurs with disabilities.
It is regrettably
not possible to report on the extent to which this target has been achieved
as the National Treasury information system did not disaggregate reporting
on the basis of Impairment by national departments and entities, provincial
departments and entities as well as district and local municipalities
and metropolitan councils. This gap will be addressed.
The Industrial
Development Corporation (IDC) has set aside USD6,250,000 for financing
of enterprises specifically owned by persons with disabilities.
Uptake has however been slow and this is being addressed in consultation
with the Department of Women, Children and People with Disabilities
and the Department of Trade and Industry.
It is acknowledged
that organisations of and for persons with disabilities play a major
role in supporting persons with disabilities to become entrepreneurs.
The Medunsa Organization for Disabled Entrepreneurs (MODE) has for example
between 2004 and 2011 established 532 persons with disabilities in their
own income generating micro enterprises, generating between USD187-740
per month for the owners and their families. Approximately 900 jobs
have been created through this initiative. The success rate is 74%,
which for micro enterprise development is very good.
Education
and Training
As reported in
Article 23, the education system is currently not sufficiently en-skilling
young persons with disabilities for the open labour market or as owners
of economically viable small enterprises.
Almost 33% of
the enrolled 4,977 students were students at institutions of higher
education in 2010 were persons with visual disabilities, and this group
constituted 44% of graduates. This is however also the group said
to be the least likely to access decent work in the open labour market.
A study conducted at the Nelson Mandela Metropolitan University in 2010,
(published in 2011) highlighted a number of factors which contribute
to this low labour market absorption rate which need to be addressed.
The Sectoral Education
and Training Authorities (SETAs) were established in terms of the
Skills Development Act, 1998. The 21 SETAs are expected to direct
and facilitate the delivery of sector-specific skills interventions
that help achieve the goals of National Skills Development Strategy
and address employer demand for skilled labour. The National
Skills Development Strategy III,2012, acknowledges that
previous programmes have failed to achieve equal access for persons
with disabilities, despite the 4% target that had been set, and re-commits
to ��significantly open up opportunities for skills training for
people experiencing barriers to employment caused by various forms of
physical and intellectual disabilities.��
A total of 5,133
out of 9,541 enrolled learners with disabilities registered in learning
programmes across 15 SETAs for the reporting period successfully completed
their learnerships, with 2,339 successfully gaining employment after
the completion of their learnerships. Ten of the 15 reporting
SETA��s reached the 4% target, with 2 SETAs exceeding the target and
the remaining 3 under-performing. The Services SETA introduced
a reasonable accommodation subsidy for learners with disabilities requiring
such support to improve participation in their learnership programmes
in 2012.
Young people with
disabilities who have been denied access to education up to matric (grade
12) level, find it difficult to access learnership programmes.
There are however pockets of innovation where this barrier has been
overcome.
One such
example is the Athena Private Further Education and Training College,
which renders a mobile service taking training to especially rural communities,
and have since 2006 targeted persons with disabilities, and in particular
persons with disabilities from deep rural areas, persons with disabilities
from social and economically challenging communities, and persons with
disabilities who have very few or no opportunities of receiving post��matric
education.
Taking
into account the generally low levels of formal education among persons
with disabilities in rural town and villages, Athena utilises the National
Certificate: Business Administration NQF 2 level qualification as entry
into learnerships for people who do not have matric, as this exposes
these learners to a range of career environments which they can explore
after exiting the programme. They have also negotiated top-up
subsidies with the Services SETA to improve turnaround times on the
provisioning reasonable accommodation measures to improve access to
the learning and work environment.
Out of
a 200 enrolment on a Services SETA programme, 103 accessed gainful employment,
73 remain unemployed, 4 learners are deceased, 18 dropped out and 2
progressed to the Business Administration NQF level 4 qualification
post completion of the learnership.
ARTICLE
28: Adequate standard of living and social protection
The focus of the
South African Government��s National Programme of Action aims to address
the fundamental challenges of poverty, inequality and unemployment.
Whilst there has been a significant increase in uptake of social assistance
grants over the past 15 years, the medium and long-term focus is on
providing social grant beneficiaries with alternative income sources
through useful work as well as training.
The National
Development Plan (2012) acknowledges the continued need for social
protection measures that seek to ��support those most in need, including
children, people with disabilities and the elderly and promote active
participation in the economy and society for those who are unemployed
and under-employed through labour market activation measures, employment
services, income support programmes and other services to sustain and
improve quality of life��.
The Plan estimates
that about 6 percent of the working-age population receives disability
grants, and acknowledges that exclusion errors disproportionately affect
the poorest, especially orphans and children, persons with disabilities
and the aged on farms, in remote rural areas and hard-to-reach informal
settlements. These are the groups who need social protection the most
and it is important to ensure they can access the appropriate social
protection.
Social
Security
Persons with disabilities
who are indigent qualify for a range of social assistance grants, including
disability grants (USD150 per month, 2012); child support grants (children
aged 0-14 years, USD35 per month, 2012), care dependency grants (children
with disabilities requiring 24 hour care) (USD150 per month, 2012),
grant-in-aid (persons who require regular attendance by other persons,
USD35 per month, 2012), foster care grant (USD96,25 per month, 2012),
war veterans grant (USD152.50 per month, 2012) and older persons grants
(USD150 per month plus USD2,500 per annum for those over 75 years, 2012).
Workers are furthermore protected through unemployment insurance benefits
as well as compensation for injury on duty.
2011/12 uptake
and expenditure rates on social assistance grants to persons with disabilities
were:
1,198,131 persons
accessed disability grants (permanent and temporary) at a cost of USD
155,5 million. This constitutes a decrease of 218,079 compared
to the 1,416,210 recipients in 2008/09 following a major anti-corruption
clean-up of the social security system in 2010/11;
114,993 recipients
accessed care dependency grants at a cost of USD 4,7 million, compared
to 107,065 recipients in 2008/09. It should however be noted that there
was a 44,3% growth rate between 1996/07 and 2008/09 in this grant;
536,747 persons
accessed a grant-in aid at a cost of USD 51,6 million in 2011/12 compared
to 46,069 in 2008/09, constituting an increase of 490,678 recipients.
Disaggregation for
older persons grants, war veteran grants, foster child grants and child
support grants is not available.
The Compensation
for Occupational Injuries and Diseases Act, 1993 regulates the rights
of workers with occupation-related injuries or diseases to compensation.
Compensation for the period 2008 – 2011 amounted to:
USD 9,6 million
was paid out for permanent disability and USD 11,4 million for temporary
disability in 2008/09;
USD 12,5 million
was paid out for permanent disability and USD 15 million for temporary
disability in 2009/10;
USD 19,4 million
was paid out for permanent disability and USD 13,9 million for temporary
disability in 2010/11.
Tax Benefits
and Deductions
Taxpayers 65 years
and older, and those with disabilities or with disabled dependants,
can claim all medical scheme contributions and out-of-pocket medical
expenses as a deduction against their taxable income.
The South African
Revenue Services (SARS) Tax guide on the deduction of medical, physical
impairment and disability expenses provides for an extensive list
of disability-related expenses that can be claimed back, including attendant
care expenses (home, school and work); travel & other related expenses
(including transport costs specifically incurred in respect of a learner
with a disability who attends a specialised school; acquisition, insurance
and maintenance of assistive devices, artificial limbs and technology
required to enable persons with disabilities to perform daily activities
(including computer or other electronic equipment required in order
to convert printed material or image files into text, Braille, speech
or any other accessible format, including peripheral equipment such
as scanners, Braille printers, speakers and headphones for the personal
use by or for a person with a disability); service animals and alterations
or modifications to assets acquired or to be acquired.
Household
Income Support through Useful Work
The Expanded Public
Works Programme (EPWP) is one of government��s flagship programmes
aimed at providing poverty and income relief through temporary work
for the unemployed to carry out socially useful activities. All
public bodies from all spheres of government (in terms of their normal
mandates and budgets) and the non-state sector (supported by government
incentives), are expected to deliberately optimise the creation of work
opportunities for unemployed and poor people in South Africa through
the delivery of public and community services.
Phase 2 of the
EPWP was launched in April 2009 with the aim of creating 2 million full
time equivalent jobs for poor and unemployed people in South Africa
so as to contribute to halving unemployment by 2014, through the delivery
of public and community services. This translates to 4,5 million (short
and on-going) work opportunities. The average duration of employments
is assumed to be 100 days. The Community Work Programme (CWP),
launched in 2009, provides an employment safety net by giving participants
a minimum number of regular days of work, typically two days a week
or eight days a month, thus providing a predictable income stream over
a number of years for participants. The programme targets to reach
1 million beneficiaries by 2014, bringing the overall total target for
2014 for the EPWP to 5,5 million direct beneficiaries.
The EPWP as well
as CWP has a set target of 2% of the opportunities in its programme
being directed to beneficiaries with disabilities, which translates
to a total of 110,000 persons with disabilities for the period 2009-2014.
The programme has increasingly under-performed against the 2% target,
with 0,48% (2009/10), 0,45% (2010/11) and 0,19% (2011/12). Work
is currently being done to understand the root causes that have to be
remedied to achieve targets. It is important to note that the
Non-State Sector was able to meet the disability target due to a targeted
approach.
Food
Security
The Constitution
of the Republic of South Africa, 1996 provides that everyone has
the right to have access to sufficient food and water. In the
2010/2011 financial year food security was reprioritised as one of the
top priorities for South African government (State of Nation Address,
2010). This is in line with South Africa��s millennium development
goal which aims to halve the proportion of people who go hungry over
the period 1990 and 2015. Several government departments work
in a coordinated manner to ensure food security in South Africa –
The Department of
Health runs the Integrated Nutrition Programme,
The Department of
Agriculture, Forestry and Fisheries develops and facilitates the implementation
of agrarian reform policies and targeted programmes aimed at enhancing
the contribution of subsistence and smallholder producers to food security.
The Department of
Social Development provides social support to those who are most vulnerable
to food insecurity.
The school nutrition
programme provides a basic meal per day to indigent learners
Disaggregated
statistics on the number of beneficiaries with disabilities and/or participants
in food security programmes are currently not available.
Adequate
housing and basic services
Persons with disabilities
with an income less than USD 438 per month (and meeting other relevant
criteria as indicated in the National Housing Code) are eligible for
government housing subsidies. The subsidies are supplemented with additional
funding to provide for the specific needs in relation to the disability
and impairment and the environmental barrier experienced.
Government and
the disability sector acknowledge that many persons with disabilities
living in informal settlements and in shacks are further disadvantaged
by not having access other basic amenities including sanitation and
clean water. Municipalities are therefore required to keep a register
of persons with disabilities living in informal settlements with the
aim of accelerating housing provision for this group.
A total of 25,361
beneficiaries with disabilities applied and qualified for access to
the housing subsidy between 2008 and March 2012. Progressive access
has been slow, with 163 beneficiaries accessing the additional amount to
cover reasonable accommodation measures in 2008/09, a total of 195 in
2009/2010, a total of 203 beneficiaries in 2010/11, and a total of 299
in 2011/2012.
Seventy three (73)
residential facilities providing accommodation to 2,304 residents with
disabilities received government subsidies in 2011/12. The total
budget for 2011/12 was USD 4,575,126, which was insufficient to meet
the national minimum norms and standards adopted for residential facilities.
Training aimed at improving the quality of care in these facilities
benefited 7,853 staff. It is acknowledged that inequalities between
urban and rural facilities remain.
The country remains
committed to improve community-based supported housing for persons with
disabilities through more constructive partnerships between the three
spheres of government and organisations for and of persons with disabilities.
ARTICLE
29: Participation in political and public life
The right to participate
fully in political and public life for persons with disabilities has
been evident in South Africa since the historic 1994 elections.
The content of
the submission by the South African Human Rights Commission, in its
August 2011 to the UN High Commissioner for Human Rights on Human
Rights of Persons with Disabilities
– Human Rights Council Resolution 16/15, is noted and has been
incorporated into the body of this Report.
The Right
to Vote
The Constitution
of the Republic of South Africa, 1996 in Section 19 guarantees the
right of all citizens to make political choices, to form political parties,
to participate in the activities of political parties as well as to
vote in elections for any legislative body established in terms of the
Constitution, and to do so in secret; and to stand for public office
and, if elected, to hold office. However, in terms of Section
47(1) of the Constitution ��Every citizen who is qualified to vote
for the National Assembly is eligible to be a member of the Assembly,
except...(d) anyone declared to be of unsound mind by a court
of the Republic..�� A corresponding provision relating
to provincial legislatures is to be found in sec 106(d) of the Constitution.
The Electoral
Act, 1998 and the Local Government: Municipal Electoral Act,
2000 respectively govern elections in South Africa. In terms
of the Electoral Act, 1998, a ��voter�� is a South African
citizen who is 18 years or older and whose name appears on the national
common voters�� roll. In order to place their names on this voters��
roll, citizens are required to register as voters; the chief electoral
officer, who is responsible for registering voters, may however not
register (among others) persons who have been declared by the High Court
to be ��of unsound mind or mentally disordered��
or are detained under the Mental Health Act, 1973 (repealed and
replaced by the Mental Health Care Act, 2002). The Electoral
Act, 1998 makes provision for persons with disabilities to register
as special voters, which allows them to vote on a predetermined day
before election day either at the voting station or at their place of
residence, as well as for voters with disabilities to be assisted by
a person of their choice where necessary.
The Independent
Electoral Commission (IEC), established in terms of Chapter 9 of the
Constitution, oversees all national, provincial and local elections
in South Africa.
The numbers of
voters with disabilities who participate in elections are not available
given the constitutional imperative to maintain the secrecy of the vote
and the regulatory requirements on the details to be entered into the
national common voters roll, the Electoral Commission does not record
the details of disabilities for registered voters.
The 2011 Human
Sciences Research Council (HSRC) IEC Voter Participation Survey 2010/11:
An Overview of Results, conducted in collaboration with the IEC,
showed that
persons with disabilities
had a marginally higher ��intention to vote�� (81%) than those without
disabilities (79%);
satisfaction with
voting stations in the most recent local government elections were rated
by 85% of respondents as ��very or fairly satisfied�� against a rating
by 5% of respondents of ��very/fairly dissatisfied��;
53% of those interviewed
indicated that needs of special groups in electoral procedures and processes
had been taken into account ��to a great extent��;
about 3% of participants
found that facilities to register and vote were inaccessible;
persons with disabilities
experienced more voting irregularities;
overall, the findings
of the IEC Voter Participation Survey in 2011 indicated ��(g)eneral
agreement that the needs of women, youth, persons with disabilities
and the elderly are being taken into account in electoral procedures.��
In preparation
for the 2011 municipal elections, the IEC signed a Memorandum of Understanding
with the South African National Council for the Blind which, among others,
resulted in availing a braille based Universal Ballot Template (UBT)
to visual impaired voters who wished to vote without having to disclose
their choice to anyone. The Electoral Commission has indicated
that, due to the positive feedback received on the use of the UBT, the
use thereof will be extended to other categories of voters who are at
risk of spoiling their votes due to for example unstable hand-writing.
The electoral legislation is currently under review to, among others,
legally provide for the use of the UBT in the voting process.
Specific initiatives
aimed at levelling the playing fields for voters with disabilities that
were undertaken by the IEC at provincial level during past elections
have included:
The Western Cape
provincial office is a member of the Western Cape Impairment Network,
which serves as a platform to exchange election-related information
between the sector and the IEC. In 2009 the provincial office
printed a Braille information pamphlet for blind and visually impaired
voters;
Ten deaf voter education
trainers were trained in Limpopo Province. These deaf trainers
provided nine workshops throughout the province to deaf voters.
A workshop was also held targeting voters with visual impairments.
The Mpumalanga
Provincial Electoral Office hosted a workshop targeting organisations
of and for persons with disabilities before the 2009 as well as 2011
respectively;
Eight workshops
were undertaken in KwaZulu Natal for persons who are blind and deaf
ahead of the 2009 elections, and a further six workshops were conducted
for these target groups before the 2011 elections;
Twenty four deaf
voter education facilitators were trained ahead of the 2009 elections
in the Northern Cape, and a voter education workshop was conducted for
deaf and blind voters ahead of the 2011 elections;
Six workshops targeting
organisations of persons with disabilities were held in the North West
province ahead of the 2009 and 2011 elections respectively;
Seven persons with
disabilities were trained as voter education facilitators in each of
the regions of the Eastern Cape;
Four civic and voter
education workshops targeting organisations of persons with disabilities
were conducted in the Free State Province;
One provincial workshop
targeting organisations of and for persons with disabilities in Gauteng
Province were held before the 2009 and 2011 elections respectively.
A major challenge
which remains is the physical inaccessibility of voting stations in
particular in rural areas, as well as the right of persons with psycho-social
disabilities to participate in elections, as anecdotal evidence shows
that persons admitted in mental health institutions are excluded from
voting, with the result that these institutions are often not included
in voter education programmes or special voting procedures.
As alluded earlier,
both the Constitution of the Republic of South Africa, 1996 as
well as section 8(c) and (d) of the Electoral Act, 1998 exclude
certain categories of persons with psycho-social disabilities from inclusion
on the voters roll, and will require to be taken under review with regards
compliance with the CRPD.
Holding
Public Office
Much advancement
has been made for persons with disabilities as candidates in elections.
Persons with disabilities have been included on the election lists of
various political parties, but in particular on the national, provincial
and local proportional lists of the African National Congress.
2012 figures for self-representation of persons with disabilities as
public representatives are:
Parliament (National
Assembly and National Council of Provinces): 16
National Cabinet:
01 (Deputy Minister for Women, Children and People with Disabilities);
Nine Provincial
Legislatures: 8
Provincial Executive
Councils: 3
Municipalities (eight
metropolitan councils, 226 local and 44 district councils): 72
In addition, persons
with disabilities represent the interests of the disability sector on
a number of other public institutions such as the SA Human Rights Commission,
the Commission on Gender Equality, the National Youth Development Agency,
the Public Service Commission, the National Economic Development and
Labour Council (NEDLAC), the National Lotteries Board and its Distributing
Agencies, the Unemployment Insurance Fund, the Commission on Employment
Equity, the National Development Agency, the
Pan South African Language Board, the National Skills Authority and
the South African National Aids Council (SANAC).
Organisations
of Persons with Disabilities
The government
of South Africa recognises the right of persons with disabilities to
be represented through persons with disabilities as well as parents
organisations, rather than through organisations for persons with disabilities.
Financial support
from government to organisations for and of persons with disabilities
at national and provincial level is predominantly through subsidisation
by the Departments of Social Development, Health and Labour, with a
strong bias at this stage towards organisations for persons with disabilities,
rather than organisations of persons with disabilities. Organisations
of persons with disabilities at local level currently receive virtually
no direct financial support from government, but do have access to funds
through the National Development Agency (funded by the Department of
Social Development) as well as the National Lottery Development Distribution
Fund (funded by the National Lottery). The National Lottery distributed
a total of USD 65,2 million between 2008 and 2011 to organisations of
and for persons with disabilities. A few local organisations have
managed to secure financing support through the Expanded Public Works
Programme Non-Government Sector.
It is acknowledged
that there is an urgent need to finalise a framework for the creation
of an enabling environment for organisations of persons with disabilities
to strengthen their capacity to advocate, empower and monitor the rights
of persons with disabilities more effectively, as well as to develop
a social contract with agreed upon minimum norms and standards for consultation
and participation by organisations of and for persons with disabilities
to regulate these processes both between government and the disability
sector, but also within the sector itself.
ARTICLE
30: Participation in cultural life, recreation, leisure and sport
Section 31 of
the Constitution of the Republic of South Africa, 1996 provides
that all persons ��belonging to a cultural, religious or linguistic
community�� not to be ��denied the right, with other members of that
community, to enjoy their culture, practise their religion and use their
language; and to form, join and maintain cultural, religious and linguistic
associations and other organs of civil society��.
Section 185 of
the Constitution furthermore provides for the establishment of the Commission
for the Promotion and Protection of the Rights of Cultural, Religious
and Linguistic Communities, mandated to, among others promote respect
for the rights of cultural, religious and linguistic communities, and
to recommend the establishment and/or recognition of cultural councils
in South Africa.
Noteworthy is
that the Older Persons Act, 2006 include the establishment of
recreational opportunities as well as spiritual, cultural, medical,
civic and social services as components of community-based programmes.
Sport
Sport and Recreation
South Africa (SRSA) must, in accordance with its funding policy in terms
of section 10(1) (d) of the National Sport and Recreation Act, 1998
increase the profile and financial assistance to volunteers, women,
senior citizens, neglected rural areas and persons with disabilities,
in sport and recreation. Section 10(3) (a) (ii) of the Act prohibits
funding to national sport federations where federations exclude persons
from the disadvantaged groups, particularly women and persons with disabilities,
from participating at top level of sport.
The SRSA Funding
Policy of 2008 gives preference to national federations whose activities
clearly impact on government priorities, including the advancement of
persons with disabilities.
The Norms and
Standards for Sport and Recreation Infrastructure Provision and Management
Volume 1, stipulates that all sport and recreation centres must be designed
to allow access to persons with disabilities.
The draft Safety Regulations stemming from the Safety at Sports and
Recreational Events Act, 2010 make provision that stadiums and other
venues in the Republic must have accessible accommodation and facilities,
approved by the local authority, for use by spectators with disabilities
at an event, setting minimum norms and standards for stadia and venues.
Although there are no accurate statistics regarding accessibility of
sport and recreation facilities for persons with disabilities, statistics
will be available on completion of a sports facility audit planned for
the 2012/13 financial year.
The draft Fitness
Industry Bill makes provision that a fitness establishment must,
amongst others, have at least a defibrillator and a first aid kit for
persons with disabilities; and sufficient number of staff that is specifically
trained to assist persons with disabilities.
The National
Sport and Recreation Plan (NSRP), approved in 2011, provides for
the inclusion of special schools for children with disabilities in the
Talent Identification and Development Programme through participation
in the National Top School Games as well as the SA Youth Olympic Games.
Although there
is no specific school sports policy for children with disabilities,
the Memorandum of Understanding signed between the Ministers of SRSA
and Basic Education provides for inclusiveness in all programmes. This
inclusiveness is also captured in the school sports policy that was
published for public comments until 31 Mach 2012. This policy is now
in the process of being finalised.
Most mass sporting
events organised at national and provincial level, involve learners
with disabilities from ordinary and special schools –
10,632 children
with disabilities participated in 2008/09;
10,410 children
with disabilities participated in 2009/10;
8,999 children with
disabilities participated in 2010/11;
7,854 children with
disabilities participated in 2010/11;
The number of schools
participating increased from 74 (2009/10) to 105 (2010/11) and 268 (2011/12).
Three hundred
and seven (307) athletes young athletes with disabilities (athletics,
equestrian (para-dressage), judo (blind and visually impaired), para-cycling,
adaptive rowing, swimming, wheelchair tennis and table tennis) have
received scientific support services (scientific testing and interventions,
medical interventions and medical team support) since 2009, with a total
of twenty (20) athletes being accommodated on the residential programme,
where they receive a full sponsorship for their tuition, books, school
uniform (USD 23,125 annual allocation per athlete) and access to sporting
facilities, coaching, accommodation and meals.
Additional financial
support from SRSA over the past three years (2008-2011) has been made
available through subsidisation of sport organisations of and for persons
with disabilities:
SA Deaf Sport Federation
received a grant of USD75,749.
SA Sport Association
for Physically Disabled received a grant of USD 46,581.
People with intellectual
disabilities received a grant of USD50,625.
Stakeholder engagement
takes place in the form of attending Annual General Meetings of the
relevant federations, annual consultation workshops with programme stakeholders
such as the South African Sport Association for the Physically Disabled
(SASAPD). One-on-one meetings are also held annually with SASAPD and
all National Federations inclusive of athletes with Impairment to plan
services that will be received by the athletes in the following year.
The South African
sport sector agreed in November 2011 that the following indicators should
be included in the Transformation Scorecard:
Percentage of facilities
accessible to sports persons with a disability.
Percentage of managers
with a disability at national and provincial levels.
Percentage of participants
with a disability at national and provincial levels.
The impact of
South Africa��s approach to and support for sport for persons with
disabilities was amplified during the 2008 and 2012 Olympic Games when
swimmer Natalie du Toit and athlete Oscar Pistorius both qualified for
both the South African Olympic and Paralympic teams.
Recreation
and Tourism
As reported under
Article 9, significant progress has been made over the past few years
in promoting accessibility to tourism facilities for persons with disabilities.
Consultative workshops were held from 2010 to develop norms and standards
for universal access in the tourism industry, culminating in the
Universal Accessibility in Tourism Action Plan and the Universal
Accessibility in Tourism Declaration in 2011.
The South African
National Parks, under whose authority major tourism attractions such
as the Kruger National Park and Table Mountain falls, has progressively
been working with Impairment organisations on improving accessibility
for tourists with physical and visual disabilities. Its website (http://www.sanparks.org/groups/disabilities/) is accessible to persons with visual
disabilities and provides detailed accessibility information for each
of its national parks.
Major tourism
attraction facilities in South Africa will be audited during 2012/13
to assess compliance with universal access principles.
Arts
and Culture
The Department
of Education provided training to teachers with regard to adapting the
Arts and Culture Curriculum in General Education to accommodate learners
with disabilities during 2009.
A SANS 10400-S
compliance accessibility audit of facilities being administered by the
Department of Arts and Culture (including 25 public entities) conducted
in 2009, revealed that 92 facilities required upgrading at an estimated
cost of USD 2,875,000. The Department budgets annually to progressively
redress this shortcoming.
The Performing
Arts Policy ensures that 5% of performers contracted for celebration
and/or commemoration of national days constitute performers with disabilities.
The Department
of Arts and Culture supports a number of initiatives to promote arts
and culture among persons with disabilities –
The Annual Zwakala
DeafTV National Championships (in partnership with the South African
Public Broadcaster, the Pan South African Language Board) reaches approximately
300 deaf children;
The Afrika Sinakho
��In the Blood�� national touring production showcases performing
arts abilities of persons with disabilities in a 80 person cast of both
able-bodied artists and artists with sight, physical and mental disabilities;
The Market Theatre��s
��Listen with your Eyes�� Festival in 2010 which produced two
plays that were aimed at both the Deaf and hearing community;
Ad hoc financial
support to various disability arts projects upon request;
The South African
Library for the Blind, established under the South African Library
for the Blind Act, 1998 receives an annual grant;
Sign
Language and Deaf Culture
As discussed under
Articles 8, 9, 21 and 24, the development and recognition of Sign Language
as an official language, remains a challenge and is receiving urgent
attention.
The Bill of Rights
guarantees all South Africans freedom of association, and prohibits
discrimination that interferes with the right of South Africans to enjoy
their culture, or use their language, or to form, join or maintain cultural,
religious and linguistic associations.
D THE
SPECIFIC SITUATION OF BOYS, GIRLS AND WOMEN WITH DISABILITIES
ARTICLE
6: Women with Disabilities
South Africa remains
committed to the attainment of gender equity and equality, also as it
pertains women and girls with disabilities, and as illustrated in the
country��s extensive legislative and policy framework. South
Africa has as such ratified the UN Convention on the Elimination of
all forms of Discrimination against Women (CEDAW), as well as the SADC
Protocol on Gender and Development.
It is however
acknowledged that women and girls with disabilities still do not enjoy
all human rights and fundamental freedoms on an equal basis with boys
and men with disabilities. Black women with disabilities, in particularly,
bear the brunt of inequality based on race, disability, gender, socio-economic
status and class.
A major concern
with regard to disability and gender is the persisting violence against
and victimisation of women and children, and in particular women and
girls with disabilities, as discussed under earlier Articles.
Estimates of the
extent of violence vary, as there is widespread of under-reporting.
Disaggregated statistics for violence against women and children with
disabilities are not available, and as reported under Article 13, women
with communication and/or intellectual and/or psycho-social disabilities
experience particular difficulties in accessing justice when their right
have been violated. This lack of information in itself constitutes
a potential threat to the realisation of the rights set out in the CRPD.
A number of studies
are currently under way to gather information on the extent as well
as service delivery weaknesses in the justice value chain to sharpen
an accelerated programme of action aimed at strengthening protection
for women and girl-children with disabilities as well as improve access
to justice when abuse has occurred. One such study, commenced
in January 2012 by the Centre for Disability Law and Policy (University
of the Western Cape), in partnership with the Cape Mental Health Society
and the Gender, Health and Justice Unit (University of Cape Town) aims
gather knowledge on the barriers making the South African criminal justice
system less accessible to women with disabilities experiencing gender-based
violence, with specific reference to women with intellectual disabilities
and with psycho-social disabilities, gather knowledge on examples of
existing ��good practices�� in addressing these barriers; and formulating
recommendations on improving access to justice for disabled women experiencing
gender-based violence in South Africa. The study will also assess
the feasibility of extending the Cape Mental Health Society ��SAVE��
programme, discussed under Article 16, and which has developed protocols,
training manuals and other material to facilitate such expansion to
other sites. The outcomes of these studies and its impact on service
delivery improvements will be reported on the next periodic report.
Women with disabilities
are represented on the Commission on Gender Equality (CGE), established
in terms of Chapter 9 of the Constitution, with the mandate to evaluate
government policies, promote public education on gender issues, make
recommendations to government for law reform, follow up on complaints
and monitor government��s compliance with international conventions.
An example of
good practice in the economic empowerment is the Norad-funded Women��s
Entrepreneurship Development and Gender Equality (WEDGE-SA) project,
coordinated by the International Labour Organisation (ILO). The
project mainstreamed disability considerations from inception stage
to ensure that the project benefits women entrepreneurs with disabilities,
to encourage social dialogue that is inclusive through the inclusion
and awareness raising of the issues that face entrepreneurs with disabilities,
and to reduce the stigma attached to disability through inclusion and
demonstration of the abilities of entrepreneurs with disabilities.
Efforts to include people with disabilities in all the projects outcomes
have included, among others, training 2 trainers from the disability
sector in the ��Women��s Entrepreneurship Association capacity
building tool��, training 1 trainer from the disability sector
in the ��Women��s Entrepreneurship Development capacity Building
tool��, training 18 front line staff and advisors of the Small
Enterprise Development Agency on mainstreaming disability considerations,
and training 2 trainers from the disability sector in the ��Expand
your Business tool��. The outcomes of the above was that
5,72% of growth-oriented women entrepreneurs trained were disabled;
3,7% of trainees
in ��Expand your business�� was disabled;
6,01% of trainees
in ��Action my Business�� was disabled;
0,97% of trainees
in ��Improve your Exhibition Skills�� was disabled;
9,82% of business
association members trained was disabled;
10,56% of business
development service providers trained was disabled;
5,18% of trainers
trained in WEDGE tools was disabled.
Challenges
in the inclusion of women with disabilities in the project identified
by the project mirror those experienced by similar government programmes,
i.e. a limited number of women entrepreneurs who fit the criteria for
support and the limited capacity of disabled peoples organizations to
engage consistently with the project management teams.
Women with disabilities
are affirmed through a range of targeted programmes and events by a
range of government departments, although it is acknowledged that improved
coordination and targeting of these efforts will significantly strengthen
impact.
ARTICLE
7: Children with disabilities
Section 28 of
the Constitution of the Republic of South Africa, 1996 protect
every child��s right
��to
a name and a nationality from birth;
to family
care or parental care or to appropriate alternative care when removed
from the family environment;
to basic
nutrition, shelter, basic health care services and social services;
to be
protected from maltreatment, neglect, abuse or degradation;
to be
protected from exploitative labour practices;
not
to be required or permitted to perform work or provide services that
are inappropriate for a person of that child's age, or place at risk
the child's well-being, education, physical or mental health or spiritual,
moral or social development;
not
to be detained except as a measure of last resort, in which case, in
addition to the rights a child enjoys under sections 12 and 35, the
child may be detained only for the shortest appropriate period of time,
and has the right to be kept separately from detained persons over the
age of 18 years; and treated in a manner, and kept in conditions, that
take account of the child's age;
to have
a legal practitioner assigned to the child by the state, and at state
expense, in civil proceedings affecting the child, if substantial injustice
would otherwise result; and not to be used directly in armed conflict,
and to be protected in times of armed conflict.��
It further
states that ��A child's best interests are of paramount importance
in every matter concerning the child.�� These rights underpin
all decision-making with regard to legislation, policies and programmes
in South Africa.
The South African
Human Rights Commission, in their submission, draws attention to the
fact that ��it is important to note that children have a priority
claim on state resources. Their socio-economic rights, for example,
are not subject to progressive realisation.
This is especially true in the case of children that are particularly
vulnerable. It is important to highlight these principles in explaining
the commitment to realising the rights of disabled children and to highlight
the sense of urgency in this regard.��
The Children��s
Act, 2005 mandates the State to respect, promote and fulfil the
child��s rights set out in the Bill of rights.
Subsection 6 of
the Act calls for all proceedings, actions or decisions in a matter
concerning a child, to protect the child from unfair discrimination
on the grounds of the disability of the child or a family member of
the child, and calls for an enabling environment to respond to the special
needs of children with disabilities.
Subsection 11 provides
that in any matter concerning a child with a disability, due consideration
must be given to providing the child with parental, family or special
care when appropriate; enabling the child to participate in social,
cultural, religious and educational activities, recognising the special
needs of the child; facilitating conditions that ensure dignity, promote
self-reliance and facilitate active participation in the community;
and providing the child and the child��s caregiver with necessary support
services. It also prohibits the exposure of children with disabilities
to ��medical, social, cultural or religious practices that are detrimental
to his or her health, well-being or dignity.��
As acknowledged
and discussed throughout the report, South Africa��s children with
disabilities remain extremely vulnerable to exclusion, abuse and inequality,
in particular in impoverished communities due to failures in the service
delivery system pertaining, among others, persistent harmful traditional
beliefs pertaining disability, lack of access to relevant information
by parents and families, lack of effective early identification and
intervention across sectors for young children, lack of equal access
to compulsory education, failure in the justice system to protect children
with disabilities, but also to ensure justice where abuse has occurred,
as well as inadequate training for care-givers working with children
with moderate to severe intellectual and/or severe physical disabilities
also remains a challenge, particularly in impoverished communities.
Measures
taken to ensure the full enjoyment by children with disabilities of
all human rights and fundamental freedoms on an equal basis with other
children
Approximately
1,393,236 (27.5%) of the total population (5,063,500) of children between
the ages of 0 and 4 years are children with disabilities. However only
665,247 children attend ECD facilities. (Source: Statistics South Africa,
General Household Survey Interactive dataset, 2009-2010, DBE calculations)
As discussed under
Articles 24, 25 and 26, the early identification of children with disabilities,
followed with effective intervention across state departments, require
urgent attention. Stronger measures still need to be put in place to
expand support for children aged 0 – 4 years who are attending Early
Childhood Education facilities.
The significant
role played by organisations for children with disabilities, and in
particular by parents organisations such as the Disabled Children Action
Group (DICAG), to step into service delivery gaps for children with
disabilities in general, and children in the 0-4 year age group living
in impoverished and rural communities in particular, is acknowledged.
The National
Strategy towards the Integration of Services to Children with Disabilities was
developed in consultation with approximately 2500 stakeholders from
national and provincial Departments of Social Development, other key
government departments and institutions, as well as stakeholders in
the parents, children and disability sectors. The Strategy aims
to guide service providers in the implementation of the Children��s
Act, 2005 to ensure effective mainstreaming of Impairment considerations
across programmes focusing on early childhood development, basic education,
health, sport, recreation and justice. The development of the
Strategy was under-pinned by research conducted in 2010 on the provisioning
of services to children with disabilities by national departments.
The Strategy is currently under review.
The disability
sector and parents organisations participated in the development of
a range of guidelines and strategies focusing on, among others, a costing
model and implementation plan for child abuse, neglect and exploitation,
a strategy on child-headed households, early childhood development and
partial care services such as children and youth care facilities, the
National Policy Framework for Children, the draft National Plan
of Action for Children: 2012-2017 (currently being consulted) as
well as inclusive education.
The National
Guidelines for the Care and Prevention of the most common Genetic Disorders,
Birth Defects and Disabilities
provides guidance for follow up when Impairment or birth defects have
been identified, including referral services and information on rehabilitation
services.
Self-representation
by children with disabilities
Child participation
principles require that children with disabilities be included in any
consultation with children in general. It is acknowledged that current
activities across departments aimed at providing children with disabilities
with an opportunity to represent themselves and participate in governance
processes, are inadequate.
Some of the platforms
which have been created include the annual Children��s Parliament which
coincides with International Mandela Day, the celebration of International
as well as National Children��s Day, Child Protection Week, as well
as periodic thematic child participation workshops where children with
disabilities are able to express their views on matters that affect
them, for example the 5th World Summit on Media for Children
(2007), youth and ICT Expos.
Although reasonable
accommodation measures are in place at such events, it is acknowledged
that insufficient attention has been given to enabling the voices of
children with severe communication as well as intellectual disabilities
to be heard on issues affecting them.
Children with
disabilities have, in terms of the South African Schools Act, 1996
the right to represent themselves on School Governing Bodies and Learner
Representative Councils. This right is also protected in several
other education policies which centrally acknowledge the right of children
to have a say in decisions affecting them.
The National
Development Plan (2012) requires of the Department of Social Development
to standardise the guidelines, norms and standards to ensure that it
��takes into account the needs of children with disabilities in
all communities��.
It
is acknowledged that very young African children with disabilities,
living in impoverished homes and communities, especially the former
homelands and informal settlements, experience multiple deprivations.
This requires a combination of innovative and inter-sectoral approaches
to close the equity gaps that they face, as well as an effective monitoring
and evaluation system to track progress but also failure in the system
E PROGRESS ON THE IMPLEMENTATION
OF SPECIFIC OBLIGATIONS
ARTICLE
31: Statistics and data collection
The Government
of South Africa acknowledges the importance disaggregated appropriate
information, including statistical and research data, in the formulation
of policies to give effect to the Convention, and the particular challenge
the lack of finalisation of the definition of disability in all national
legislation, poses.
Statistics South
Africa, as the state agency responsible for the collection, production
and dissemination of official and other statistics, including the conducting
of a census of the population, and for co-ordination among producers
of statistics, is fully compliant with internationally accepted norms
to protect human rights and fundamental freedoms and ethical principles
in the collection and use of statistics.
Statistics South
Africa has significantly re-modelled its approach towards mainstreaming
disability considerations into its operations following ratification
of the Convention on the Rights of Persons with Disabilities, and has
aligned its annual household survey as well as census questionnaires
to the Washington Group on Disability Statistics framework. As alluded
to in the pre-amble, the agency has undertaken to conduct focused surveys
on the situation of children with disabilities aged 0-5 years in 2013
due to the challenges being experienced with the reliability of information
gathered for this age group through the general census questionnaire.
Disaggregation
of disability-related statistics and data across all government institutions
remains a challenge, including the reliability of such data where it
exists, remains a challenge.
Measures have
as such been taken to mainstream disability considerations into government��s
various research and evaluation projects, the most recent being the
national evaluation on early childhood development carried out in 2011/2012.
ARTICLE
32: International cooperation
The Constitution
of the Republic of South Africa, 1996 expressly requires that in
interpreting and applying the provisions in the Bill of Rights, particular
attention should be given to relevant international laws, and that comparable
international experiences should be considered.
South Africa has
acceded to, or ratified, most of the African regional and international
human rights instruments in the area of economic, social, cultural,
civil and political rights. The African Union��s adoption of
the Declaration of the African Decade in 2000 places responsibilities
on African States to implement Decade Programme Activities. South
Africa supports and participates in the African Decade for Persons with
Disabilities (2010-2019).
South Africa acknowledges
the importance of international cooperation in support of national efforts
towards the implementation of the CRPD. This cooperation, furthermore,
should be inclusive of and accessible to persons with disabilities.
The country regularly participates in actions toward facilitating and
supporting capacity-building, through the exchange and sharing of information,
experiences, training programmes and best practices.
The first stage
of implementing an inclusive education and training system in South
Africa was funded by Finland and Sweden. Mutual exchanges took place
between the countries which benefited not only South Africa, but also
Finland, Sweden and other countries in Africa that have been part of
the development aid networks of the Nordic countries.
South Africa is
also an active participant in the Japan International Cooperation Agency
(JICA) programmes focusing on the empowerment of persons with disabilities
and strengthening the mainstreaming of persons with disabilities.
The country acknowledges
that insufficient attention has been given to mainstreaming disability
considerations in country-to-country bilateral agreements signed since
2008, in particular in south-south cooperation, and this is being addressed.
South Africa is
a member of the World Health Organisation, International Labour Organisation
and Rehabilitation International, among others, and has through these
channels contributed technical expertise in developing guidelines, for
example in the development of guidelines for wheelchairs in less resources
settings, the revision of the Community-Based Rehabilitation manual
and the drafting of the rehabilitation section of the World Disability
Report.
South Africa currently
chairs the Network of African National Human Rights Institutions (NANHRI)
and hosted the 8th Biennial Conference of NANHRI in 2011,
with the theme ��Advancing the human rights of older persons and
persons with disabilities: the role of National Human Rights Institutions��.
The South African
Public Service Commission has been at the forefront of establishing
an Association of African Public Service Commissions and currently holds
the chair of the Association. The Association promotes sound public
administration on the African Continent and should, stemming from its
priorities, also be focusing on disability equity as a human resource
management consideration.
National organisations
of and for persons with disabilities participate in the main actively
in the leadership and programmes of their international and regional
counterparts.
ARTICLE
33: National implementation and monitoring
The former Office
on the Status of Disabled Persons (OSDP), located in the Presidency
since 1997, was replaced with a fully-fledged national focal point with
the establishment of the Ministry of Women, Children and People with
Disabilities in May 2009 to ensure that government translates its constitutional,
political and global commitments into measurable and meaningful programmes
through improved coordination between government institutions across
all three spheres of government, as well as between government, the
private sector and civil society, as well as strengthened monitoring
of the advancement of the rights of persons with disabilities.
The establishment
of the Department of Women, Children and People with Disabilities in
2009 had the unintentional consequence of slowing down the transformation
agenda in the short term due to the time taken in establishing an administration
in the Department as well as resourcing constraints within the Department.
All national government
departments, provincial administrations as well as district and local
municipalities are required to appoint/designate a disability focal
person/unit to coordinate the mainstreaming of Impairment considerations
within each of these institutions. These focal points converge
in the National Disability Rights Machinery, which is constituted by,
among others, the Inter-Departmental Coordinating Committee, the Provincial
Coordinating Forum, and the National Disability Rights Forum which brings
civil society on board. A recent review of the National Disability
Rights Machinery revealed significant challenges with regards mandate,
capacity, functionality and impact of Impairment focal points and coordinating
structures across all three spheres of government, and a significant
overhaul of the machinery is currently underway.
The South African
Human Rights Commission (SAHRC), established by sections 181 and 184
of the Constitution of the Republic of South Africa, 1996 constitutional
mandate is to protect and monitor human rights as well as to promote
the culture of human rights in South Africa. This in particular includes
the promotion and protection of the rights of groups which are vulnerable
to discrimination, exclusion and inequality. The SAHRC, as an ��A��
status National Human Rights Institution and in line with its Constitutional
mandate, has the potential to be part of the framework as an independent
mechanism to promote, protect and monitor implementation of the Convention.
Government will embark on a formal consultative process, which will
include civil society, in the establishment of this monitoring framework
as required by Article 33(2).
The Committee
is enabled by Section 5 of the Human Rights Commission Act, 1994 to appoint
expert panels to play an advisory role on key issues. A Section 5 Committee
on CRPD has been established. The Committee has representatives from
the disability sector and academia (both domestic and international).
Some of the current members include representatives from: the South
African Disability Alliance, the Western Cape Cerebral Palsy Association,
Down Syndrome South Africa, the QuadPara Association of South Africa,
the University of the Western Cape Centre for Disability Law and Policy,
the Cape Mental Health Society as well as the Harvard Law School Project
on Disability.
The Commission
notes in its August 2011 Submission to the UN High Commissioner for
Human Rights on Human Rights of Persons with Disabilities
– Human Rights Council Resolution 16/15, that it discussed the
implications of Article 33(2) on the work of the Committee briefly at
one of the Commission��s Section 5 committee meetings but there is
a need for further engagement and dialogue internally within the Commission
in respect to the implementation of Article 33(2). The Section 5 committee
is convened once to twice per annum to provide civil society and academic
role players an opportunity to share their experiences and challenges
regarding the implementation of the CRPD with the Commission. Issues
raised are included in the Commission��s work plan as well as engagements
with government.
The central role
organisations of and for persons with disabilities should play in monitoring
implementation of the CRPD is acknowledged.
The South African
Disability Alliance, in acknowledging the capacity constraints of the
sector to systematically monitor implementation of the CRPD, in 2012
launched a South African chapter of Disability Rights Promotion International
(DRPI) in partnership with York University. Twenty five (25) candidates
from four provinces participated in the first training session.
CONCLUSION
It is acknowledged
that weaknesses in the governance machinery of the State, as well as
capacity constraints in weaknesses in coordination within the disability
sector, detracted from a systematic approach to the implementation of
the CRPD.
The continued
vulnerability of persons with disabilities, and in particular children
with disabilities as well as persons with psycho-social disabilities,
residing in rural villages, requires more vigorous, coordinated and
targeted intervention.
South Africa remains
committed to accelerate its national agenda for the progressive realisation
of rights of persons with disabilities by, among others
Strengthening baseline
information for every Article of the CRPD,
strengthening its
mainstreamed legislative and policy framework,
targeting interventions
in a coordinated and integrated manner through transversal policy and
legislation as well as monitoring mechanisms.
strengthening its
national disability rights machinery, including creating more enabling
environments for organisations of persons with disabilities,
strengthening accountability
and monitoring through the introduction of disability rights-based indicators
into the government-wide monitoring and evaluation system, and above
all,
accelerating implementation
of policies and programmes that aim to provide equal access to persons
with disabilities, including disability-specific programmes aimed at
addressing barriers to participation.
March 2013
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SUBMISSIONS
Department
of Arts and Culture
Department
of Basic Education
Department
of Communications
Department
of Cooperative Governance
Department
of Correctional Services
Department
of Defence
Department
of Energy
Department
of Health
Department
of Home Affairs
Department
of Human Settlements
Department
of International Relations and Cooperation
Department
of Justice and Constitutional Development
Department
of Labour
Department
of Mineral Resources
Department
of Performance Monitoring and Evaluation
Department
of Public Enterprises
Department
of Public Service and Administration
Department
of Public Works
Department
of Rural Development and Land Reform
Department
of Science and Technology
Department
of Social Development
Department
of Sport and Recreation
Department
of Tourism
Department
of Trade and Industry
Department
of Transport
Department
of Women, Children and People with Disabilities
Eastern Cape
Provincial Government
Gamagara District
Council
Government
Communication and Information System
Kareeberg District
Council
Karoo Hoogland
District Council
Limpopo Department
of Sport, Arts and Culture
Limpopo Department
of Cooperative Governance, Human Settlements and Traditional Affairs
Limpopo Department
of Social Development
Limpopo Office
of the Premier
Limpopo Province
Department of Agriculture
Limpopo Province
Department of Economic Development, Environment & Tourism
Limpopo Province
Dept of Education
Limpopo Province
Dept of Health
Limpopo Province
Dept of Public Works
Limpopo Province
Dept of Roads and Transport
Limpopo Province
Dept of Safety, Security & Liaison
Limpopo Provincial
Administration
North West
Inter-Departmental Committee on Disability
Free State
Office on the Status of Disabled Persons
Pixley ka Seme
District Council
Provincial
Government of Eastern Cape
Provincial
Government of Free State
Provincial
Government of Gauteng
Provincial
Government of KwaZulu-Natal
Provincial
Government of North West
Provincial
Government of Northern Cape
Provincial
Government of Western Cape
Sol Plaatje
District Council
South African
Broadcasting Corporation
South African
Police Services
South African
Revenue Services
Sports &
Recreation South Africa
Statistics
SA
The Department
of Trade and Industry
The Presidency
Western Cape
Provincial Government
Western Cape
Rehabilitation Centre
Pan South African
Language Board
National Lottery
Board
CIVIL SOCIETY
A group of
women with disabilities who live in the communities of New Crossroads,
Browns Farm, Khayelitsha, Phillipi, Harare and Lusaka
Afrika Tikkun
- Empowerment Programme- Children with Disabilities and Their Families
Self-help Group, Arekopaneng Centre, Orange Farm
Afrika Tikkun/ Centre for Applied
Legal Studies, the University of Witwatersrand/ Werksmans Attorneys
(Joint submission)
Anna-Marie
Havenga (Researcher at the South African Law Reform Commission)
Association
for Hearing Loss, Accessibility and Development
Blind SA
Campaign on
the Right to Education for Children with Disabilities (R2ECWD) Policy
Review Sub-Group
Campaign on
the Right to Education for Children with Disabilities (R2ECWD) ECD Sub-Group
CBR Education
and Training for Empowerment (CREATE)
Centre for
Applied Legal Studies
Dementia South
Africa
Democratic
Alliance
Department
of Health and Rehabilitation Sciences, University of Cape Town
KwaZulu-Natal
Association for the Physically Challenged
KwaZulu-Natal
Department of Health Employees with Disabilities Forum
Louise Botha
(ASD: transformation/ gender focal person (DWA Gauteng region)
Muscular Dystrophy
Foundation SA
National Council
for Persons with Physical Disabilities in South Africa
North West
Provincial Disability Forum
Orange Farm
Self Help Group
Parents for
Children with Special Educational Needs (PACSEN)
Pierre van
Wyk (Researcher at the South African Law Reform Commission)
Prof CJ (Trynie)
Boezaart (University of Pretoria, Department of Private Law)
SA Federation
for Mental Health
SADECO Quantum
Consulting
Shellique Carby
South African
Federation for Mental Health
South African
National Council for the Blind
Transport Users
Group of South Africa
Ubuntu Centre
South Africa
Umgungundlovu
Disability Forum
University
of Cape Town Impairment Studies, School of Health and Rehabilitation
Sciences
UWC Centre
for Disability Law and Policy
Institutions
Promoting Democracy
Commission
on Gender Equality
Independent
Electoral Commission
Public Service
Commission
South African
Human Rights Commission
1
It should be noted that Statistics South Africa however cautions that
the pattern between 2002 and 2010 is not consistent, and that this could
be due to the small sample of persons with disabilities in this age
group in the survey.
2 It should
be noted that this figure was challenged by a large number of submissions
received on the draft report.
3 Between
2002 and 2011 the number of public special schools in the country increased
from 375 to 423.
4 The
Higher Education Management System (HEMIS)
5 Equality Court
Case 1/2010 Lettie Hazel Oortman/St Thomas Aquinas Private School and
Bernard Langton
