November has been identified as ‘Disability month’, and the Commission would like to celebrate it by handing over the Equality report to the Department of Women, Children and People with Disabilities, the department which is in the frontline of defending and protecting the rights of people living with disabilities.

Government’s Substantive Compliance
The Government has over the years demonstrated a commitment to the realization of the rights of persons with disabilities. In the first instance, such a commitment is seen in the recognition of disability rights on the same pedestal as other rights requisite in South Africa’s constitutional democracy. At a broad level, such a commitment is evident through the country’s Constitution, which contains an equality clause with an anti-discrimination provision that lists disability among the prohibited grounds of discrimination. This provision within the Constitution is given legal effect through the anti-discrimination legislation such as the Promotion of Equality and Prevention of Unfair Discrimination Act (2000), with disability among the prohibited grounds of discrimination.

There exists progressive legislation, which attempts to include persons with disabilities in the workplace, in education and in health care provision. Such legislation includes:

•    The South African Schools Act of 1996 which advocates that physical facilities at public schools be accessible to learners with disabilities. The White Paper 6 of 2001 states that, ideally all public schools should be equipped to accommodate learners with disabilities.

•    The Employment Equity of 1996 designates persons with disability among ‘designated groups’ and obligates the setting up of employment equity targets and affirmative action to redress past exclusions and injustices and privilege the inclusion and participation of person with disabilities in mainstream economic activities.

•    The political commitment of the government to the realization of disability rights is also manifest in the setting up of the Ministry of Women, Children and Persons with Disability and a corresponding Parliamentary Portfolio Committee on Women, Children and Persons with Disability in 2009.

•    Socially, the Government has also supported sportspersons with disability and a number of these sportspersons participated in the London Para-Olympic Games this year and won medals, which, speaks to an enabling environment and the provision, to a certain extent, of appropriate facilities for persons with disabilities to fulfill their sporting potential.  


Shortfall in Implementation and Monitoring

Despite government’s commitment to the realization and attainment of rights for persons with disabilities through various legal instruments and the ratification of the CRPD, such commitment is still hampered by the lack of implementation of key provisions of these statutes and the lack of monitoring of some of the implemented mechanism. Some of these limitations include:

•    Children who are severely and profoundly disabled are denied access to education in both mainstream and special schools. It is estimated that 10% of children with disabilities do not attend school in South Africa. In a recent case, the court ordered government to take reasonable measures to give effect to the right to basic education of severely and profoundly intellectually disabled children in the Western Cape. Currently, special care centres run by NGOs provide education services to these vulnerable children.

•    While the Government enacted the Domestic Violence Act (1998) women and children with disabilities who are victims of violence and abuse have not been provided with adequate and appropriate services to report and prevent exploitation, violence and abuse. Women and Children with disabilities are particularly vulnerable to abuse in a context of societal stigma and discrimination. Article 16 of the CRPD obligates the State to take appropriate measures to protect and prevent persons with disabilities being subjected to exploitation, violence and abuse.

•    Further, government has failed to comply with the reporting obligations for CRPD.  The CRPD report is still outstanding.

Recommendations

In light of the issues alluded to above the Commission recommends that:

•    The SAHRC urges government to comply with its CRPD obligations and ensure that all children with disabilities enjoy access to education.

•    Further, the Commission recommends that the White Paper 6 be revisited and developed in line with the CRPD.

•    Legislation affirming the right to basic education for children with disabilities be enacted, setting out the measures to be adopted in order to ensure that education is accessible and that children with disabilities are accommodated in all South African schools.

•    The State develops training programmes for relevant government officials and service providers who interact with women and children with disabilities who are victims of exploitation, abuse and violence.

•    The Commission recommends that in order to give effect to the CRPD that Parliament exercises its oversight role and hold Government departments accountable to achieving the two percent goal in employment provision for persons with disabilities.

The Commission will continue to build working relations with the Department of Women, Children and People with Disabilities to monitor and evaluate progress made regarding implementation of its recommendations. Furthermore, the Commission will write to various departments to enquire the extent to which they are implementing the recommendations and inform parliament.

ENDS