South Africa
Danielle Barash, Ester Garcia,
Alex Price, Sarah Smith
Summary
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Demographics
Disability Law in South Africa
The Act
Comparisons with the UNC and
ADA
Demographics of
South Africa
By Gender, Race &
Language of the Population
Gender and Race
Language
IsiZulu 23.8%, IsiXhosa 17.6%, Afrikaans 13.3%,
Sepedi 9.4%, English 8.2%, Setswana 8.2%, Sesotho
7.9%, Xitsonga 4.4%, other 7.2% (2001 census)
By Age, Socioeconomics
& Social/Medical Issues
Age
33% of the population younger than the age of 15.
7.5% older than the age of 60
Socioeconomics
Unemployment Rate – 24%
Population Below the Poverty Line – 50%
Social/Medical Issues
HIV Prevalence and Number of People Living with HIV 2001-2009
By Disability in
South Africa
Prevalence of Disabled Persons in South Africa by
Gender and Race
From the 2001 Census
What types of disabilities do persons in the population have and what is the
prevalence of each type?
How does prevalence of disability vary by age, gender and geographic area?
How many persons with disabilities are without access to the special appliances or
aids that they need?
What percentage of school-going-age children with disabilities are in school?
What percentage of adults with disabilities is economically active? How does this
compare with the percentage for non-disabled adults or the general population?
How many people with disabilities receive social services and how many require fulltime care from a family member or some other person?
Can persons with disabilities use public transport available to the general public? If
not, what are the reasons that they cannot?
What are the major barriers in the social and physical environment that create
exclusion for persons with disabilities?
By Prevalence of
Disability Type
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By Education
Percentage of Disabled Persons Who Had No
Schooling by Sex and Population Group
Percentage of People in Each Education
Category Who Were Disabled
By Socioeconomic
Indicators
Of the Houses headed by a person with disabilities,
53% “houses or brick structures”
37% “traditional dwellings or huts and informal
dwellings/shacks”
10% lived in “other” housing structures
78% had access to piped water
62% had electricity
South Africa History
• 1948 - Policy of apartheid (separateness) adopted
when National Party (NP) takes power.
• 1950s - Population classified by race. Group Areas
Act passed to segregate blacks and whites.
Communist Party banned. ANC responds with
campaign of civil disobedience, led by Nelson
Mandela.
• 1960s - International pressure against government
begins, South Africa excluded from Olympic Games.
• 1984-89 - Township revolt, state of emergency.
• 1991 - Start of multi-party talks. De Klerk repeals
remaining apartheid laws, international sanctions
lifted.
• 1993 - Agreement on interim constitution.
South Africa History
• 1994 - ANC wins first non-racial elections. Mandela
become president, Government of National Unity
formed, Commonwealth membership restored,
remaining sanctions lifted. South Africa takes seat in
UN General Assembly after 20-year absence.
• 1996 - Truth and Reconciliation Commission chaired
by Archbishop Desmond Tutu begins hearings on
human rights crimes committed by former
government
• 1996 - Parliament adopts new constitution.
• 1998 - Truth and Reconciliation Commission report
brands apartheid a crime against humanity
South African
Disability Law
• AgriBEE (Broad-Based Black Economic
Empowerment Framework for Agriculture) (1994)
• South African Schools Act (1996)
• Equal Employment Act (1998)
• Preferential Procurement Policy Framework Act
(2000)
• The Promotion of Equality and Prevention of Unfair
Discrimination Act (2000)
• None are specific to Disability
What is the Act?
• The Promotion of Equality and Prevention of Unfair
Discrimination Act of 2000
• This Act deals with the prevention, prohibition and
elimination of unfair discrimination, hate speech and
harassment.
Why the Act?
• Object of the Act is to enact legislation required by section 9 of
the Constitution (equality).
– The state may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including race,
gender, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth.
– No person may unfairly discriminate directly or indirectly
against anyone on one or more grounds in terms of the
above groups
– National legislation must be enacted to prevent or prohibit
unfair discrimination
Important Chapters
from the Act
Chapter 1 - Definitions
Chapter 2 - Prevention
Chapter 3 - Equality/Burden of Proof
Chapter 5 - Promotion of Equality
Chapter 6 - Provisions and Implementation
Definitions:
Discrimination
• “Discrimination” means any act or
ommission, including a policy, law, rule,
practice, condition, or situation which
directly or indirectly
– A) Imposes burdens, obligations or
disadvantages on; or
– B) withholds benefits, opportunities or
advantages from, any person on one or
more of the prohibited grounds.
Definitions:
Prohibited Grounds
• Prohibited Grounds are:
– A) Race, gender, sex, pregnancy, martial status,
ethnic or social origin, colour, sexual orientation,
age, disability, religion, conscience, belief, culture,
language, and birth; or
– B) Any other ground where discrimination based
on that other ground • I) causes or perpetuates systemic disadvantage:
• II) Undermines Human dignity; or
• III) adversely affects the equal enjoyment of a person’s
rights and freedoms in the serious manner that is
comparable to discrimination on a ground in paragraph
A.
Definitions:
Equality
• “Equality” includes the full and equal
employment of rights and freedoms as
contemplated in the Constitution and
includes de jure and de facto equality
and also equality in terms of outcomes.
Definitions:
Harassment
• “Harassment” means unwanted conduct
which is persistent or serious and demeans,
humiliates or creates a hostile or intimidating
environment or is calculated to induce
submission by actual or threatened adverse
consequences and which is related to-– A) Sex, gender or sexual orientation; or
– B) A person’s membership or presumed
membership of a group identified by one or more
of the prohibited grounds or a characteristic
associated with such group
Definitions:
The State
• “the State” includes
– A) any department of State or administration in the
national, provincial or local sphere of government;
– B) any other functionary or institution
• I) exercising a power or performing a function in terms of
the Constitution or a provincial constitution; or
• II) exercising a public power or performing a public
function in terms of any legislation or under customary
law or tradition
Chapter 2:
Prevention
• Neither the State nor any person may
unfairly discriminate against any person.
• No person may subject any person to
harassment.
Chapter 2: Discrimination
against Disability
• No person may unfairly discriminate against any
person on the ground of disability, including
– A) denying or removing from any person who has
a disability, any supporting or enabling facility
necessary for their functioning in society;
– B) contravening the code of practice or regulations
of the South African Bureau of Standards that
govern environmental accessibility;
– C) failing to eliminate obstacles that unfairly limit
or restrict persons with disabilities from enjoying
equal opportunities or failing to take steps to
reasonably accommodate the needs of such
persons.
Chapter 2:
Hate Speech
• No person may publish, propagate, advocate
or communicate words based on one or more
of the prohibited grounds, against any
person, that could reasonably be construed to
demonstrate a clear intention to-– A) be hurtful;
– B) be harmful or to incite harm;
– C) promote or propagate hatred.
Chapter 3:
Burden of Proof
• If the complainant makes out a prima
facie case of discrimination—
– A) the respondent must prove, on the facts
before the court, that the discrimination did
not take place as alleged: or
– b) the respondent must prove that the
conduct is not based on one or more of the
prohibited grounds.
Chapter 3:
Burden of Proof (cont.)
• If the discrimination did take place—
– A) on a ground in paragraph (a) of the definition of
“prohibited grounds,” then it is unfair, unless the
respondent proves that the discrimination is fair;
– B) on a ground in paragraph (b) of the definition of
“prohibited grounds”, then it is unfair—
• i) if one or more of the conditions set out in paragraph (b)
of the definition of “prohibited grounds” is established;
and
• ii) unless the respondent proves that the discrimination is
fair.
Chapter 3: Determination of
Fairness or Unfairness
• It is not unfair discrimination to take
measures designed to protect or
advance persons or categories of
persons disadvantaged by unfair
discrimination or the members of such
groups or categories of persons
Chapter 3: Determination of
Fairness or Unfairness (cont.)
• In determining whether the respondent has
proved that the discrimination is fair the
following must be taken into account:
– A) the context;
– B) the factors referred to in subsection (3);
– C) whether the discrimination reasonably and
justifiably differentiates between persons
according to objectively determinable criteria,
intrinsic to the activity concerned.
• Hate speech and harassment are not subject
to determination of fairness
Chapter 5: Promotion of
Equality
• If it is proved in tie prosecution of any offence that
unfair discrimination on the grounds of race, gender
or disability played a part in the commission of the
offence this must be regarded as an aggravating
circumstance for purposes of sentence.
• The South African Human Rights Commission
must… include an assessment on the extent to which
unfair discrimination on the grounds of race, gender
and disability persists in the Republic, the effects
thereof and recommendations on how best to
address the problems.
Chapter 5: Promotion of
Equality (cont.)
• The State, institutions performing public
functions and all persons have a duty
and responsibility, in particular to-– i) eliminate discrimination on the grounds
of race, gender and disability;
– ii) promote equality in respect of race,
gender and disability.
Chapter 5: Promotion of
Equality (cont.)
•
In carrying out the duties and responsibilities referred to in paragraph
(a), the State, institutions performing public functions and, where
appropriate and relevant, juristic and non-juristic entities, must—
– i) audit laws, policies and practices with a view to eliminating all
discriminatory aspects thereof
– ii) enact appropriate laws, develop progressive policies and initiate
codes of practice in order to eliminate discrimination on the grounds
of race, gender and disability;
– iii) adopt viable action plans for the promotion and achievement of
equality in respect of race, gender and disability; and
– iv) give priority to the elimination of unfair discrimination and the
promotion of equality in respect of race, gender and disability
Chapter 6: Provisions
and Implementation
• The Minister may, and where required in the circumstances,
must, make regulations relating to-– the granting of legal aid at State expense in appropriate
cases in consultation with the Legal Aid Board;
– the appearance of persons on behalf of the parties to the
proceedings in court;
– a code of conduct for such assessors, and mechanisms for
the enforcement of the code of conduct, including the liability
of an assessor if any provision of the code of conduct is
contravened by him or her;
– the establishment of a mechanism to deal with any
grievance or complaint by or against an assessor:
– the translation of this Act into the official languages and the
distribution thereof
– any other matter which is necessary to prescribe in order to
achieve the objects of this Act.
Chapter 6: Provisions and
Implementation (cont.)
• Any regulation made under this section which may
result in expenditure for the State, must be made
in consultation with the Minister of Finance.
• The regulations made in terms of this section, and
particularly relating to the procedure at an inquiry,
must, as far as possible, ensure that the
application of the Act is simple, fair and affordable.
Comparisons between
the Act, the ADA and
the UN Convention
Disability in ADA
• The term "disability" means, with
respect to an individual
– A) a physical or mental impairment that
substantially limits one or more of the
major life activities of such individual;
– B) a record of such an impairment; or
– C) being regarded as having such
impairment.
Disability in the UN
Convention
• Preamble:
– “Disability is an evolving concept, and that
disability results from the interaction between
persons with impairments and attitudinal and
environmental barriers that hinders full and
effective participation in society on an equal basis
with others.”
• Article 1:
– “Persons with disabilities include those who have
long-term physical, mental, intellectual or sensory
impairments which in interaction with various
barriers may hinder their full and effective
participation in society on an equal basis with
others.”
Discrimination in the UN
Convention
• Any distinction, exclusion or restriction on the
basis of disability which has the purpose or
effect of impairing or nullifying the
recognition, enjoyment or exercise, on an
equal basis with others, of all human rights
and fundamental freedoms in the political,
economic, social, cultural, civil or any other
field.
• It includes all forms of discrimination,
including denial of reasonable
accommodation.
The State
in the ADA
• The term "State" means each of the
several States, the District of Columbia,
the Commonwealth of Puerto Rico,
Guam, American Samoa, the Virgin
Islands, the Trust Territory of the Pacific
Islands, and the Commonwealth of the
Northern Mariana Islands
Comparison of
“Prevention”
• The Act includes hate speech as a form of
unfair discrimination (which is excluded from
the determination of fairness), neither the
Convention nor the ADA include hate speech
• The Act includes prohibition of dissemination
and publication of information that unfairly
discriminates, neither the Convention nor the
ADA explicitly cover media discrimination
South African ConstitutionChapter 2: Bill of Rights
16. Freedom of expression Everyone has the right to
freedom of expression, which includes
freedom of the press and other media;
freedom to receive or impart information or ideas;
freedom of artistic creativity; and
academic freedom and freedom of scientific research.
The right in subsection (1) does not extend to
propaganda for war;
incitement of imminent violence; or
advocacy of hatred that is based on race, ethnicity,
gender or religion, and that constitutes incitement to
cause harm.
Comparison of Burden
of Proof and Fairness
• The respondent must prove that discrimination did
not take place as alleged and/or that the conduct is
not based on one or more of the prohibited grounds.
If discrimination did take place, then it is unfair unless
respondent can prove it is fair.
– The Burden of Proof is on the respondent in the Act; they are
guilty unless proven innocent.
– In the United States, the burden seems to be on the disabled
individual to prove that they are in fact disabled and that they
were unfairly discriminated against.
Comparison of Burden
of Proof and Fairness (cont.)
• It is considered fair to take measures
designed to protect or advance persons
or categories of persons disadvantaged
by unfair discrimination or the members
of such groups or categories
– Affirmative action is acceptable and
encouraged, which is not the case in the
ADA
Comparison of ‘Factors’ in
Determining Fairness
• “Whether the discrimination has a legitimate
purpose”
– Qualified individual?
– For their own good?
• “Whether there are less restrictive and less
disadvantageous means to achieve the
purpose”
– Similar language to Title II of the ADA and
special education law
Comparison of what
Constitutes Discrimination
• Unfairly refusing or failing to provide the
goods, services or to make the facilities
available to any person or group of
persons on one or more of the
prohibited grounds is considered
discrimination
– Similar to Title III of the ADA
Comparison of Provisions
and Implementations
• Both Convention and the Act include
promoting awareness of the capabilities and
contributions of persons with disabilities,
public education, combating stereotypes and
prejudices, etc. (in convention, Article 8 is
titled Awareness raising)
• Both Convention and the Act specifically
mention equal pay for equal work
Comparison of Provisions
and Implementations
• Both the Act and the ADA make
provisions to ensure that people with
disabilities can easily enter, exit, and
navigate their way through structures.
Any Questions???