South Africa
Travis, Danielle, Rebecca, Cindy, and Jennifer
South Africa
South Africa
Government: Democracy since 1994
President: Thabo Mbeki
Population: 47, 432, 000
Population Growth Rate: -0.4%
Average Life Span: 42.73 years
Individuals with Disabilities: 6-12% of the population
Number of People with HIV/AIDS: 5.3 million people in South Africa
HIV/AIDS Adult Prevalence Rate: 21.5%
HIV/AIDS Related Deaths: 2.2 million South Africans
Apartheid – “apartness”
• Prohibition of Mixed Marriages Act 1949
• Immorality Act of 1950
• Population Registration Act 1950
• Group Area Act 1950
South Africa has the 2nd largest income gap in the world
Significant Events in South African Disability Rights
• 1981 United Nation’s International Year of Disabled Persons
• 1984 Disabled People of South Africa
• 1996 Constitution
The Big Question…
How effective has this legislative and policy been in making
real changes to the lives of people with disabilities?
Disability Definitions
The definition of disability varies in South Africa.
No international consensus has been reached on the definition.
Social Assistance Act
“Disabled person" means any person who has attained the prescribed age and
is, owing to his or her physical or mental disability, unfit to obtain by virtue of any
service, employment or profession the means needed to enable him or her to
provide for his or her maintenance
Employment Equity Act
“People with disabilities" means people who have a long-term or
recurring physical or mental impairment which substantially limits
their prospects of entry into, or advancement in, employment.
South African Law
• South African Constitution
• The Promotion of Equality and Prevention of Unfair
Discrimination Act 2000
• Employment Equity Act
• Social Assistance Act 59 (SAA)
• SAA Grants
South African Constitution
Bill of Rights
Article 9
(3) 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
Article 10
Everyone has inherent dignity and the right to have their dignity
respected and protected
Article 11
Everyone has the right to life
South African Constitution
Article 12
(1) Everyone has the right to freedom and security of the
person, which includes the right
a. not to be deprived of freedom arbitrarily or without just
cause;
b. not to be detained without trial;
c. to be free from all forms of violence from either public
or private sources;
d. not to be tortured in any way; and
e. not to be treated or punished in a cruel, inhuman or
degrading way.
(2) Everyone has the right to bodily and psychological integrity,
which includes the right
a. to make decisions concerning reproduction;
b. to security in and control over their body; and
c. not to be subjected to medical or scientific experiments
without their informed consent.
South African Constitution
Article 27
(1) Everyone has the right to have access to
a. health care services, including reproductive health
care;
b. sufficient food and water; and
c. social security, including, if they are unable to
support themselves and their dependants,
appropriate social assistance.
(2) The state must take reasonable legislative and other
measures, within its available resources, to achieve
the progressive realisation of each of these rights.
(3) No one may be refused emergency medical treatment.
The Promotion of Equality and Prevention of Unfair Discrimination Act
2000
2. Objects of Act
The objects of this Act are—
(c) to provide for measures to facilitate the eradication of unfair
discrimination, hate speech and harassment, particularly on the
grounds of race, gender and Disability
9. Prohibition of unfair discrimination on ground of disability
Subject to section 6, 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.
Employment Equity Act
6. Prohibition of unfair discrimination
(1) No person may unfairly discriminate, directly or indirectly, against
an employee, in any employment policy or practice, on one or more
grounds, including race, gender, sex, pregnancy, marital status,
family responsibility, ethnic or social origin, colour, sexual orientation,
age, disability, religion, HIV status, conscience, belief, political
opinion, culture, language and birth.
(2) It is not unfair discrimination to-- a. take affirmative action
measures consistent with the purpose of this Act; or b. distinguish,
exclude or prefer any person on the basis of an inherent requirement
of a job.
15. Affirmative action measures
(2) Affirmative action measures implemented by a
designated employer must include--
c. making reasonable accommodation for people from
designated groups in order to ensure that they enjoy
equal opportunities and are equitably represented in
the workforce of a designated employer;
Social Assistance Act 59 (SAA)
The Social Assistance Act defines a disabled person in the following
way:
[He or she is], owing to a physical or mental disability,
unfit to obtain by virtue of any service, employment or
profession the means needed to enable him or her to
provide for his or her maintenance
This act sets forth the procedures for the distribution for welfare. Included in
these benefits are provisions for disabled people and being able to receive
necessary support through the distribution of social grants
SAA Social Grants
Disability Grant
2(3)(1) of the 1998 Regulation
• The person must be 18 years of age or older
•
•
The person must have her disability confirmed by a medical report by
a Medical Officer or by a report of an assessment panel. The report
has to show whether the disability is:
Permanent - the disability will continue for more than 12 months
Temporary - the disability will continue not less than 6 months and
not more than 12 months
The degree of their disability must render her incapable of entering the
labour market and he/she must not have refused employment that is
within his/her capabilities
•
He/She must not without good reason refuse to undergo the necessary
medical treatment
•
He/She does not already receive a social grant
SAA Social Grants
Care-dependency grant
Parents or foster parents are eligible for a care-dependency grant in respect
of a care-dependent child provided that the medical report from a medical
officer confirms that the child in question is a care-dependent child and the
combined annual income of the family does not exceed R48,000
(US$7,176)
Grant-in-aid
Severely disabled adults also require full- or part-time assistance,
which places constraints on their families. If a person to whom a
social grant is awarded requires full-time attendance by another
person owing to his or her physical or mental condition, that person
is eligible for a grant-in-aid.
Mashavha v. President of South Africa, et. al. (2004)
Title: Mashavha v. President of South Africa, et. al.
Citation: CCT 67/03
Level: Constitutional Court of South Africa
Relevant Facts: In 1996, the President of South Africa issued a proclamation (which
has legal force) that would move the services provided by the Social Assistance Act
(SAA) to the individual provincial governments instead of the national government.
However, issues are complicated because at the time, the government was working
under an interim Constitution that resulted after the first free elections in South Africa.
Mashavha was injured in a car accident in 1992 and now has issues with mobility and
partial use of his right hand. In 2000 he was declared unable to work by a physician,
and he applied for a disability grant however after a year of trying to communicate with
the agency, he heard no word back. As a result, he filed suit, and won his case in the
Pretoria High Court thereby making the President’s executive order unconstitutional. It
was appealed to the Constitutional Court (our equivalent of the Supreme Court).
Mashavha v. President of South Africa, et. al. (2004)
Issues: Was it “competent” for the President to assign these duties to provincial
governments? Should the proclamation be revoked? Can governments renege on
their legal responsibilities of social welfare during periods of transition?
Holding: The court ruled that it was not competent for the President to assign the SAA
to the provincial governments because he was not entitled to refer the act in its entirety
under the constitution. Because of this, the court declares the proclamation invalid.
Reasoning: The court established a test, and if Mashavha were able to demonstrate
on of the following, his petition would succeed:
(1) The SAA was not “in force” and “administered” at the time of the executive order by
the President and therefore not permissible under the Constitution.
(2) The SAA is not a type of law covered in the interim Constitution.
(3) The SAA is a law that the President does not have the power to assign to the
provinces.
Mashavha v. President of South Africa, et. al. (2004)
Reasoning Continued:
(4) The proclamation is unduly vague and therefore invalid.
The court ended up overruling the first two points, however ruled in
favor of the third point because the President did not take into
consideration that part of the SAA deals with issues that he was
entitled to refer to provincial governments, however the other part
does not deal with such statutes, therefore to refer the act as a whole
Is beyond the President’s powers. Because the court found in favor
of this point, it did not examine the fourth point.
Significance: This case establishes that citizens of South Africa are
constitutionally entitled to an effective remedy under their
Constitution. Further, it confirms that despite whether the provincial
or national government is capable of delivering these benefits in a
timely manner, the failure to deliver those benefits under the
President’s proclamation is unconstitutional.
Treatment Action Campaign, et. al. v Westville Correctional Centre, et. al.
Title: Treatment Action Campaign, et. al. v Westville Correctional
Centre, et. al.
Citation: 4576/2006
Level: The High Court of Durban (Regional High Court)
Relevant Facts: A group of inmates at the Westville Correctional
Centre (WCC) had HIV however were not receiving antiretroviral
(ARV) treatment because of operational guidelines that restrict
dispensing medication unless individuals have viral loads at
significantly high levels. However, the prison was taking no steps to
determine the viral loads of the inmates by means of a blood test.
After contacting the advocacy group, Treatment Action Campaign,
the inmates formally notified the administration of their obligation to
supply the medication. After attempts to reconcile the situation
through the appropriate government agencies, no progress was
made toward the prison supplying the medication. The inmates
ultimately filed suit as a means to have the court order that the
prison comply with their obligations to the inmates in regards to
maintaining their health.
Treatment Action Campaign, et. al. v Westville Correctional Centre, et. al.
Issues: Can correctional facilities impose restrictions that prevent
inmates from receiving ARV treatment? Are government entities
required to provide necessary medical treatment to prison inmates
under the constitution, and in the case of WCC, do correctional
facilities have to provide ARV medication for inmates with HIV/AIDS?
Holding: The prison was not upholding its constitutional obligations
to the inmates. The prison must remove its operational guidelines
regarding the distribution of ARV medication so that inmates in need
of the medication may receive it in a timely manner.
Reasoning: There was no disagreement as to whether HIV/AIDS
posed a serious health risk to the inmates, nor that the ARV
treatment could allow them to live longer and be productive human
beings. Because of this, the court held that two constitutional rights
were being denied to the inmates. First their right to health care as
well as an obligation to provide it in Section 27 of the Constitution,
and also specifically that the state must provide it in this case as is
articulated in Section 35(2)(e) of the Constitution which reads:
Treatment Action Campaign, et. al. v Westville Correctional Centre, et. al.
Reasoning Continued:
“Everyone who is detained, including every sentenced prisoner, has
the right to conditions of detention that are consistent with human
dignity, including at least exercise and the provision at State expense,
of adequate accommodation, nutrition, reading material and medical
treatment.” The court held that the prison was not upholding its
obligations and that the inmates are allowed to pursue a more
effective and timely manner of receiving treatment because of these
constitutional provisions and the fact that the prison was
implementing the treatment with unjustified and unexplained delay.
The court also removed the operational guidelines because they were
not in accordance with the national public health guidelines.
Significance: When individuals are wards of the state, government
entities can not take unnecessary delay in taking steps to provide
medical care.
Comparable International Law
•UN Universal Declaration of Human Rights
•International Covenant on Civil and Political Rights
•International Covenant on Economic, Social and Cultural Rights
•Convention on the Rights of the Child
•Convention on the Rights of Persons with Disabilities
UN Universal Declaration of Human Rights
Article 3
Everyone has the right to life, liberty and security of person.
Article 7
All are equal before the law and are entitled without any
discrimination to equal protection of the law. All are entitled to
equal protection against any discrimination in violation of this
Declaration and against any incitement to such
discrimination.
Article 25
Everyone has the right to a standard of living adequate for the
health and well-being of himself and of his family, including
food, clothing, housing, and medical care and necessary social
services, and the right to security in the event of
unemployment, sickness, disability, widowhood, old age or
other lack of livelihood in circumstances beyond his control.
ICCPR
Article 6
1. Every human being has the inherent right to life. This right
shall be protected by law. No one shall be arbitrarily deprived
of his life.
* South Africa ratified the ICCPR on December 10, 1998
ICESCR
Article 11
1. The States Parties to the present Covenant recognize the right of
everyone to an adequate standard of living for himself and his
family, including adequate food, clothing and housing, and to the
continuous improvement of living conditions. The States Parties
will take appropriate steps to ensure the realization of this right,
recognizing to this effect the essential importance of international
co-operation based on free consent.
* South Africa signed the ICESCR on October 3, 1994, but has not ratified it
CRC
Article 27
1. States Parties recognize the right of every child to a
standard of living adequate for the child's physical, mental,
spiritual, moral and social development.
3. States Parties, in accordance with national conditions and
within their means, shall take appropriate measures to assist
parents and others responsible for the child to implement this
right and shall in case of need provide material assistance and
support programmes, particularly with regard to nutrition,
clothing and housing.
* South Africa ratified the CRC on June 16, 1995
CRPD
Article 10: Right to Life
States Parties reaffirm that every human being has the
inherent right to life and shall take all necessary measures
to ensure its effective enjoyment by persons with
disabilities on an equal basis with others.
Article 13: Access to Justice (Mashavha case)
1. States Parties shall ensure effective access to justice for
persons with disabilities on an equal basis with others . . .
* South Africa participated in the development of the CRPD. It will be
open for signature and ratification on March 30, 2007
CRPD
Article 25: Health
States Parties recognize that persons with disabilities have the right
to the enjoyment of the highest attainable standard of health
without discrimination on the basis of disability
B. Provide those health services needed by persons with
disabilities specifically because of their disabilities, including
early identification and intervention as appropriate, and
services designed to minimize and prevent further disabilities,
including among children and older persons
E. Prohibit discrimination against persons with disabilities in the
provision of health insurance, and life insurance where such
insurance is permitted by national law, which shall be provided
in a fair and reasonable manner
F. Prevent discriminatory denial of health care or health services
* South
participated
in the
development
or Africa
food and
fluids on the
basis
of disabilityof the CRPD. It will be
open for signature and ratification on March 30, 2007
* The CRPD will be open for signature as of March 30, 2007.
Comparable American Law
• Title VII of the Civil Rights Act 1964
• Equal Pay Act 1963
• Age Discrimination in Employment Act 1967
• Civil Rights Act of 1991
• Sections 501, 504 and 505 of the Rehabilitation Act 1973
• Americans with Disabilities Act 1990
Comparable American Law
•Title VII of the Civil Rights Act of 1964
Prohibits employment discrimination based on
race, color, religion, sex, or national origin
•Equal Pay Act of 1963
Protects men and women who perform
substantially equal work in the same
establishment from sex-based wage discrimination
•Age Discrimination in Employment Act of 1967
Protects individuals who are 40 years of age or older
•Title I and Title V of the ADA of 1990
Prohibits employment discrimination against
qualified individuals with disabilities in the private
sector, and in state and local governments
•Sections 501 and 505 of the Rehabilitation Act 1973
Prohibits discrimination against qualified individuals with
disabilities who work in the federal government
•Civil Rights Act of 1991
Provides monetary damages, among other things, in
cases of intentional employment discrimination.
Employment Equity Act
Prohibits discrimination based on
race, gender, sex, pregnancy,
marital status, family responsibility,
ethnic or social origin, colour,
sexual orientation, age, disability,
religion, HIV status, conscience,
belief, political opinion, culture,
language and birth
Comparable American Law
•Section 504
No qualified individual with a disability in the
United States shall be excluded from, denied
from the benefits of, or be subjected to
discrimination under any program or activity that
receives federal financial assistance or is
conducted by any executive agency or the United
States Postal Service
•Americans with Disabilities Act
Prohibits discrimination on the basis of disability
in employment, State and local government,
public accommodations, commercial facilities,
transportation, and telecommunications.
South African Constitution
Article 9 (3)
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.
The Promotion of Equality
and Prevention of Unfair
Discrimination Act 2000
Provides for measures to
facilitate the eradication of
unfair discrimination,
hate speech and harassment,
particularly on the grounds of
race, gender and disability
Conclusion
Back to the “big question”
Back to the “big question…”
How effective has this legislative and policy been in making real
changes to the lives of people with disabilities?
To sum things up, South Africa certainly has a framework of laws that demonstrate its
potential for fully realizing equal rights for individuals with disabilities. However, as the
Mashavha case has illustrated, the implementation of those rights is not necessarily as
simple. The government of South Africa has changed significantly and the resulting
legacy for South Africa has been that of striving for inclusion, however there are still
areas, including disability, where the country has yet to fully account for the past.
* South Africa participated in the development of the CRPD. It will be
open for signature and ratification on March 30, 2007