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10 May 2016

By Adv. Bokankatla Malatji, SA Human Rights Commissioner

A few months before the South African Human Rights Commission (SAHRC) will celebrate its twenty years of existence, and during the month where the nation celebrates National Disability Month, it is an opportune moment to reflect on the right to equality for persons with disabilities. Our reflection begins with a reiteration of the SAHRC mandate which informed some of the work the SAHRC has done in promoting right to equality for persons with disabilities. In particular the recent work we have done in the province of Limpopo.
The SAHRC, as stated in Section 184 of the Constitution (Act 108 of 1996), has the obligation to promote the respect for, promote the protection of, and monitor the observance of human rights.
Recognizing that the attitudinal and environmental barriers in society significantly impact the enjoyment of human rights by persons with disability, the Convention of Rights of Persons with Disability (CRPD) was drafted to ensure that persons with disabilities enjoy the same human rights as everyone else. The Convention is not the first human rights instruments to deal with disability concerns, but unlike the previous instruments, the Convention specifies the rights of persons with disability and the obligations of State parties to ensure these rights are protected.

The Convention, which has been signed and ratified by South Africa, imposes obligations on State parties to, among others, respect that people with disability though different are persons and entitled to enjoy rights just like everyone else; and to take appropriate legislative, administrative, budgetary, judicial and other actions towards the full realization of these rights.
Noting the importance of not just establishing a right but also ensuring the implementation of that right, the Convention in Section 33 obligates State parties to designate an institution that will implement the provisions of the Convention.

As an institution established under the Chapter 9 of the Constitution to support democracy, promote and protect human rights, the mandate to implement the Convention falls on the SAHRC. The Convention states the importance of the civil society and persons with disabilities being involved in the monitoring process, as they are the beneficiaries of these rights and their inputs are invaluable. Indeed nothing should be about people with disabilities, without them.

The SAHRC has been involved in the monitoring of our government’s obligation to ensure the rights of people with disabilities are respected.

Flowing from this, in 2013 and 14 the Commission held a Provincial Indaba in Limpopo and met with government departments, NGOs and DPOs. It is because we believe that government should take a lead in ensuring rights of persons with disabilities are elevated in terms of policy and planning.

At these meetings the SAHRC wanted to establish how all the government departments in Limpopo have implemented the rights enshrined in the Convention especially rights to employment, right to education, right to habitation and rehabilitation, right to accessibility and awareness.

It was however apparent that there is still a long way to go in ensuring that rights of persons with disabilities are promoted and protected. Among the shortfalls identified by the SAHRC was the failure to meet the national target of 2-percent of public servants being people with disabilities.
Also worrying was failure to ensure that people living with disabilities have access to education, health and justice in the province. Most of these concerns came from residents living with or affected by disability, who were part of these meetings.

And regardless of promises made by the departments in 2013, our follow-up visit in September and November this year found that not much has changed in ensuring the rights of persons with disability.
For example, during our site inspections of Ritavi and Thohoyandou Equality Courts, little if not nothing was done to promote the use of these courts by people with disabilities. Not only were the courts inaccessible for someone with physical disability, but the staff was either not trained to deal with matters brought by people with disabilities, or there were no Magistrates sufficiently trained and equipped to take up
such cases. There were no sign language interpreters and other resources to enable access to justice to people with disabilities.

And our visit to four schools catering for learners with special educational needs was the last straw. The schools, spread across different parts of the province are Tshilidzini Special School, Letaba Special School, Bosele Special School and Setotolwane Special School.
The schools had similarities: a tremendous lack of resources, ranging from lack of quality teachers, lack of appropriate learning materials, lack of accessibility to the school for people with disabilities, to the debilitating condition of the schools.

It was our conclusion as the SAHRC that the challenges faced by the schools require urgent intervention, as vulnerable children are possibly being denied their right to basic education, as a result of their disabilities. We further resolved to monitor government to ensure they fulfill their obligations, through a formal investigation which we are hoping will reveal the extent of the problem in terms of accessibility of state resources to people living with disabilities.
Over and above this, the SAHRC wants to ensure, like we did early in November when we brought government departments in front of people with disabilities, that persons with disability are involved in the planning and the accountability process because they are the ones receiving these services.

Organisations working with people with disabilities, most of whom are our stakeholders, play an important role in monitoring progress by government in terms of the realization of the rights of persons with disabilities. They are the people who will help government in developing policies and plans to ensure efficient delivery of services to people living with disabilities.

We can no longer wait for another “disability month” to talk about the needs of persons living with disabilities. Their plight cannot be highlighted only during events. The problems that the SAHRC found in Limpopo highlight the bigger challenges that still face people with disabilities across South Africa.

It is the responsibility of government to ensure that they fulfill their obligations in terms of the international Convention and national laws with regards to people with disabilities. Government should ensure that people with disabilities are catered for in its
policies and service delivery plans. It should ensure budgets are allocated to the realization of rights of persons with disabilities; that they protect persons with disability from abuse and discrimination; support structures in place for persons with disability; and ensure the over 2% employment of persons with disabilities is achieved as per government’s current policy.
Our Constitution affirms the rights of all persons without discrimination as to disability. It is important that these rights are just not enshrined in legislatures but they are transformed into practices that will have real impact on the lives of persons with disabilities.

The SAHRC is currently dealing with over thirty complaints related to discrimination against persons with disabilities during this financial year. These complaints relate to abuses against children with disabilities, the lack of services at special needs schools and limited access to resources for persons with disabilities at public facilities. The SAHRC is working to address these complaints and to further use these complaints of holding government departments accountable. As we observe national disability month, the SAHRC acknowledges some of the work done by various government departments such as meeting the employment equity quota of two percent employment of persons with disabilities, but much work still needs to be done.


Adv. Malatji is a SAHRC Commissioner responsible for Disability and Older Persons.

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