Disability Protection. Does it Work?

We are governed by laws, statutes and regulations; our behaviour is regulated, our conduct shaped by norms and standards. All our laws are now subject to the Constitution and precepts of Human Rights. Promotion of Equality and Prevention of Discrimination (PEPUDA) is a law that sought to prevent and prohibit unfair discrimination and harassment; to promote equality and eliminate unfair discrimination; to prevent and prohibit hate speech. The question is whether this Act and its protection of the rights of Disabled Persons is working.

Disabled persons, as a vulnerable and most discriminated group in society, support this Act for we believe that Government must pass laws that create and maintain social order, but also protect vulnerable sectors of society. It is equally expected that the weak are protected against the strong; this is a prime function of human rights which has to be respected.

I was privileged to be the first disabled Human Rights Commissioner and convenor of a committee dealing with Disability matters within the South African Human Rights Commission (SARHC) to assist the Department of Justice to produce a framework for this Act. The project was headed by Professor of Law, who later became a Constitutional Judge. Our committee was responsible for the Section that deals with Disability. The SAHRC framework becomes the Act under discussion in this article.

There was much negativity from the Media labelling the Act as draconian and a ‘thought police law’ amongst others. There was speculation that people were going to be arrested for racism and other discriminatory practices. To the Disability Rights movement, this was victory.

The principle adopted was that it is not the definition of Disability that matters. Rather the conduct that may be termed Disability Discrimination. Definition of disability is more involved, complex and not uniform. Conduct that amounts to disability discrimination is much clearer as can be seen below. We included both the positive conduct (commission) and the negative one i.e. the failure to do (omission) which are much clearer concepts than the discourse of definition of disability. This is seen in Section 9 of the Act which provides:

“…no person may unfairly discriminate against any person on the
Ground of disability, including–

  1. Denying or removing from any person who has a disability, any supporting or Enabling facility necessary for their functioning in society;
  2. Contravening the code of practice or regulations of the South African Bureau Of Standards that govern environmental accessibility;
  3. Failing to eliminate obstacles that unfairly limit or restrict persons with Disabilities from enjoying equal opportunities or failing to the steps to Reasonably accommodate the needs of such persons.”

The SAHRC in its Disability Toolkit 2007 has documented several cases taken to the Equality Courts:

Esthe Muller vs. Department of Justice & Department of Public Works, Germiston Equality Court

  • The complainant is a quadriplegic lawyer who could not get to courtrooms because the courthouses were not accessible.
  • She won.
  • The Department of Public Works and the Justice Department are working to ensure that court buildings are accessible to everyone.

Willie Bosch vs Minister of Safety and Security & Minister of Public Works, 2006, Port Elizabeth Equality Court

  • The complainant was in a wheelchair. He went to the police station to pay his firearm license fee, but he couldn’t get to the office to pay the fee because the building was not accessible.
  • The complainant won.

The court ordered:

  • Offices that assist the elderly and the disabled should be moved to the ground floor;
  • Within two financial years a lift should be installed in the building;
  • The Department must issue an unconditional apology to the complainant and persons with disabilities generally.

Sekati Case, Gauteng

  • The complainant was in a wheelchair. Her block of flats did not have facilities for wheelchairs.
  • The complainant won.
  • The Court ordered that the respondent install wheelchair ramps.

Viera Case, Johannesburg Magistrates Court

  • The complainant’s son is studying at a tertiary institution where there are no ramps for wheelchairs and his son is a quadriplegic.
  • The complainant brought the case to the Equality Court.
  • The respondent built the necessary ramps without waiting for the Equality Court to decide the case.
  • The matter was eventually dismissed as the ramps had been built.

The Law alone does not change a society, nor its stereotyping and prejudice against Disabled Persons. However, it does protect the weak against the strong and is not mere sentimentality. In order to be real, fundamental Human Rights have to steer towards outcomes that challenge inequality and discrimination.

There are different approaches in influencing society to not discriminate against others. The awareness campaigns which include distribution of t-shirts and posters with lofty and idealistic messages are not my cup of tea. My primary mission as a Lawyer is the development, enforcement and monitoring of laws that protect the rights of Disabled Persons. I am a vocal advocate for rules and laws that are strong in purpose, and clear in their rejection of intolerable practices and the consequences for non-compliance.

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