We have the rights, let's use them

The Disability Rights Movement (DRM) is a mosaic movement which took its roots in the early 1980’s. This movement came into existence as a result of activists’ rejection of the Welfare Model of disability also known as the Charity Model, which relies on pity and “helping the helpless”. The focus became a Rights-centred approach, with similar principles to the Civil Rights Movement and Gender Equality struggles.

In South African it became natural for the DRM to have an association with another liberation movement, the African National Congress (ANC). This association between the two organisations had many benefits, thus shaping the DRM as we know it in South Africa. Maria Rantho became the first PWD to become a Member of Parliament in the first Democratic Parliament in 1994. What a stalwart she was, a dedicated activist of note.

Today South Africa leads the way, having more than five Parliamentarians as Persons with Disabilities and five belonging to the ANC Party. Much has been achieved in International Law and Domestic Law regarding the recognition of the rights of PWD. The DRM brought about a new group consciousness and political activism. This led to more PWD seeking jobs and greater participation in the daily activities of South African life. However, great prejudice and disregard of the rights of PWD still prevails. The recently passed Road Accident Fund (RAF) Amendments is a case in point on how fiscal interest overrides the rights of PWD.

Failure

Sadly the RAF Amendment process pointed to a glaring failure on the part of DRM, firstly to debate and participate in the legislation and policy formulation process, and secondly to influence the negative impact of the amendments.

Given the admiration internationally of our Democracy as the best because of amongst others, it’s transparent legislation formulation process, which includes public participation. The DRM should naturally be contributing as the amendments dealt with victims of motor vehicle and most of them become PWD.

Critical and robust questions have to be asked about whether the DRM has been able to protect the rights and interest of PWD or potential PWD in respect of the RAF Amendments and the extent to which it has participated in these democratic legislation processes.

Other than the Quadriplegic and Paraplegic Association of SA (QASA) and the National Council for Persons with Physical Disability (NCPPD) the DRM was noticeable by its absence and silence. More glaring omissions by their absence were the Honourable Members of Parliament with Disabilities at the Transport Portfolio Hearings to discuss RAF Amendments. The result is that we have a piece of legislation that impacts negatively or otherwise on the rights of PWD without comments from the DRM.

The Road Accident Fund (RAF) Amendment Process has negative and dire consequences for PWD and potential PWD in the following respect:

Serious Injury

The RAF will only compensate General Damages to only seriously injured persons. General Damages include compensation for pain and suffering, psychological trauma, disfigurement, loss of amenities of life, loss of general health and shortened life expectancy. These aspects are generic and carry a judicial arbitrariness by the courts. The principle is to place the victim in as fair as possible or closer to where he or she may have been before the accident. Justice Watermeyer in Sandler v Wholesale Coal Supplies Ltd remarked “the law attempts to repair the wrong done to a sufferer who has received a personal injuries in an accident by money, yet there are no scale by which pain and suffering can be measured”.

Section 17 has been amended to prescribe that only seriously injured persons shall be compensated. Serious injury is only defined in the Regulations as:

“Moderate to severe limitation in a persons ability to function or perform daily life activities as a result of a physical, sensory, communication, intellectual or mental impairment”.

The amendment further provides that assessment of serious injury shall be based on a prescribed method adopted after consultation with a medical service provider. Assessment of what is serious injury is left to Medical Practitioners.

The Assessment procedures are set out in the Regulations (No 28886, Vol 491) which have been released recently (29 May 2006).

The Regulation begins to introduce another layer of bureaucrats, the accredited healthcare professional. These professionals will be accredited to carry out general or specialised assessments. Then there are onerous duties bestowed upon the RAF. The whole debunked notion of classification is surfacing, sadly with no input from the DRM. Besides this assessment there is an evaluation process as well and all this becomes complicated. More worrying is the creation of another bureaucratic process and delays and PWD will be short changed.

The DRM has had debate and input on classifications issues in the past, but with respect to RAF there has been an obvious deafening silence.

Undertakings

The ineffective, ill conceived and unfair Section 17 undertaking has been retained. An undertaking is where a victim is given a document wherein the RAF agrees to pay the costs of medical equipment and other medical services. The victim must first incur the expenses and then claim from the RAF. The rationale for this was always the liquidity of the RAF and not the rights of victims and this has still not changed.

There is an abundance of anecdotal evidence that this practice is unfair and untenable and creates hardships on the victims. Unsophisticated PWD cannot access what is rightfully due to them (the assistive device) as it is onerous to seek compensation for incurred expenses from the RAF. A PWD ends up in possession of worthless paper. How can the DRM allow this situation to prevail?

Loss of Income

This is a claim where a person has lost income due to bodily injury and it is impossible to for the person to continue earning an income. It does not matter whether the income was derived formally or informally, as long as there is proof of income. The victim must prove that he would have earned an income had it not been for his or her bodily injury. There is a cap of R160 000 per annum. If you earn just above R13 000 per month you will only be allowed to claim for R160 000. The rationale is that people in this income bracket should be able to top up for any anticipated shortfall by backing up insurance. Insurance companies will make more money and therefore they are supportive of these amendments. What is the impact on PWD? While this may not be as negative as other issues raised in this article, I believe that with all the extra expenses for PWD to be independent, I am not convinced that this is fair. The major point is that there was no input by the DRM.

Hospital Services

The tariffs for medical care are at the low threshold of Public Hospital rates in the Uniform Patient Fees Schedule (UPFS). Private hospitals have raised concerns over this, as the prescribed tariff is essentially a “cost recovery” tariff. Private hospitals would naturally be reluctant to treat victims of a motor vehicle accident. While the shift to public health care institutions is a good step as there should not be different standards in health care, the reality is somewhat different. There is anecdotal evidence that spinal injury patients do not receive good treatment in public health. This shift should be preceded by radical improvement in the public health institutions. Again, where is the input of DRM in this respect?

Challenges of DRM

The DRM by its nature should protect and safeguard the interest of PWD irrespective of whether activists occupy the positions in Government. Activist should still pursue the Disability agenda even within the constraints of operating within the Government. Government does need wisdom and advice from the DRM. We have been accorded our rights and the right to shape our destiny. Failure to articulation the rights of PWD stringently threaten the hard fought gains made in the last ten years. This failure will be attributable to the DRM for lack of robust articulation of PWD issues which may have a negative impact. No one can articulate our rights more than us. From a legal perspective the “nothing about us without us” approach has three dimensions: (a) recognition that PWD have specific rights; (b) respect for these rights; and (c) the obligation to do what is necessary to enable the full enjoyment of the human rights on equal footing.

The inclusion of PWD in Parliament; the recognition of Disability as a ground of non-discrimination in the Constitution; inclusion of Disability in a compendium of laws like promotion of Equality and Prohibition of Discrimination Act, Employment Equity Act and Preferential Procurement Policy Act and other policies favorable to PWD; the process towards the formulation of the International Convention on the Rights of PWD was driven by PWD themselves and should continue to be so. The challenge is on the DRM to jealously safeguard this gain not by silence but robust, principled articulation and input. No piece of legislation with negative impact on the lives of PWD should pass scrutiny.

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