The learner is a small person and has physical disabilities. She is however able to walk on her hands and on her knees. She even climbs steps and when she gets tired and therefore has to use a wheelchair. Furthermore, she does not have mental disabilities and has the ability to study at any school although it appeared that she is a slow learner. Due to the fact that Witbank area and surrounding does not have a school for children living with disabilities, the St Thomas Aquinas Private School accepted her with full knowledge of her physical challenges.
Initially, in an effort to create an enabling environment for the learner, the school arranged that all her classrooms should be on ground level, provided her with access to a toilet, bursary, breathing apparatus, wheelchair, and a special table for use in class. She was also provided with transport during school and sport functions, and the school also regulated her access to the tuck shop by allowing her to go first.

However, despite all these laudable efforts, the learner still experienced challenges at the school and these were – all the classrooms as well as the toilet allocated to her had a high step which prevented her to enter the rooms with the wheelchair; the toilet was also always locked and is not a special one designed for persons with disabilities; the washbasins are also too high for her to reach to be able to wash her hands; the library is on the first floor and the learner had to climb many steps to access it; and some of the teachers were allegedly not always helpful with the wheelchair. Some of them were also impatient with her and were also not trained to work with learners with disabilities.   

When the school failed to make additional alterations to the school environment to enable her to learn, her mother took her out of the school and provided her with home schooling. However, her mother later decided that she wanted her to be taken back to school but the school principal refused to re-admit her claiming that she has been failing her grades. She then approached the Commission’s provincial office located at Nelspruit (Mbombela) for assistance with the lodging and litigation of the matter at the equality Court Witbank sitting at Emalahleni. The provincial Office welcomed this decision as one of the eye opening case law decisions to help sensitize the building owners and those responsible for them to see to it that their buildings are in compliance with the building regulations.

The court held that in terms of Section 9 (1) of the constitution, everyone is equal before the law and has the right to equal protection and benefit of the law. No person may unfairly discriminate directly or indirectly against another person on the ground of physical disability. Furthermore, “disability” is one of the prohibited grounds of Section 1 of the Equality Act.

Besides ordering the school to re-admit the learner, the court also ordered the school to take reasonable steps to remove all obstacles to enable the learner to have access to all the classrooms and the toilet allocated to her by using her wheelchair. These reasonable steps that can be taken include building ramps at the classes and toilets where she has to attend and to build in the toilet, a washbasin for persons living with disabilities. The door to the toilet should not be locked and all of this is not only to the benefit of the learner but for other persons living with disabilities.

In addition, the school principal has been ordered to investigate the alleged strained relationship between the learner and her teachers and to take the necessary steps to solve the problems that led to the alleged breakdown. In addition, teachers should get the necessary training and gain experience in working with learners with disabilities.

The Commission hopes that this decision came at an appropriate moment when the country commemorates 16 Days of Activism for No Violence Against Women and Children, and hopes that it will send a strong message that discrimination particularly against girl children, has no place in our society.

ENDS
For further enquiries: Vincent Moaga
Mobile: 073 562 9866