THE RIGHT TO EDUCATION FOR ALL: A LOOK AT THE RGHTS OF CHILDREN WITH DISABILITIES IN SOUTH AFRICA’S SCHOOL SYSTEM
The right to education for everyone, including people with disabilities, is protected by Section 29 of the South African Constitution. The Constitution also states that no-one may be unfairly discriminated against on the grounds of their disability. The Schools Act 1996 states that schools must admit children without ‘discriminating in any way. ‘The government must implement ‘all reasonable measures to ensure that the physical facilities at public schools are accessible to persons with disabilities. South Africa was one of the first countries to ratify the United Nations Convention on the Rights of Persons with Disabilities in 2007, as well as being party to five international treaties and two African treaties protecting and guaranteeing children’s rights. In 2006, the Education White Paper 6: Special Needs Education was introduced, which set out the government’s strategy for inclusive education, with a goal of 500 mainstream schools being transformed to accommodate learners with disabilities within 20 years. However, the obligations set out in White Paper 6 are far from being fulfilled.
The Right to Education of Learners with Disabilities in South Africa
The Convention on the Right of Persons with Disabilities (CRPD) affords all persons with disabilities the right to education. South Africa has ratified the CRPD without reservations and it is therefore bound by its provisions. Article 24 of the CRPD, in affording the right to education for persons with disabilities, emphasises the principles of non-discrimination and requires state parties to realise the right on the basis of equal opportunity.
In addition, the South African Constitution affords the right to basic education to “everyone”. The Constitutional Court has found the right to basic education to be an “unqualified” right and it is therefore “immediately realisable”; unlike other socio-economic rights which are qualified by a duty to make reasonable efforts within available resources towards progressive realisation. The reference to everyone includes children with disabilities. In accordance with the Constitutional Court’s approach to rights as interdependent, this provision must be interpreted consistently with the rights to inherent human dignity and equality. In pursuing the constitutional value of “the achievement of equality”, the Constitution explicitly prohibits discrimination on the grounds of disability and the state is required to proactively take “legislative and other measures” to prevent such discrimination.
In keeping with its constitutional obligations, South Africa has enacted the Schools Act. The Act makes compulsory education for children between the ages of 7 and 15 and requires that relevant government officials make special needs education available for all children with disabilities. Furthermore, the government has drafted a policy document – Education White Paper 6 – to give effect to the right to education for persons with disabilities.
Downfalls in the Protection of the Rights of Learners with Disabilities
Despite the rights of learners with disabilities being protected in the Constitution, legislation and international law, there are still an estimated 50,000 children with disabilities excluded from education in South Africa today. The Legal Resources Centre (LRC) has undertaken litigation that has exposed downfalls in the provision of education of learners with disabilities. These cases, and their significance for disabled learners, are set out in detail below:
(a) Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa, Government of the Province of the Western Cape
This case was perhaps the most significant ruling in respect of learners with disabilities. In 2010, the LRC represented the Western Cape Forum for Intellectual Disability (WCFID), a support network representing 150 schools, centres and non-governmental organisations (NGOs) that cared for 1,200 severely and profoundly intellectually disabled children. The state had established schools for children who were classified as having ‘moderate to mild intellectual disabilities’. It had established some provisions in mainstream schools for disabled learners without an intellectual disability, but had failed to provide for those with ‘severe and profound intellectual disabilities’. An application was made to the Western Cape High Court to challenge the constitutionality of the decision not to make provisions at schools, and to secure government funding for these vulnerable children. The government argued that education for severely intellectually disabled learners was not beneficial and that it suffered budgetary constraints that prevented it from providing education for these children.
In a landmark judgment on 11 November 2010, the Judge dismissed both these arguments, firstly on the grounds that funding for education was a legitimate expense, and secondly that it was internationally accepted that disabled learners benefited from education and training. The High Court ordered that the government take reasonable steps to ensure the constitutional right to a basic education for these children. Importantly, in reaching its decision, the High Court took into account that the State had an obligation to these children not only in domestic, but also international law. Considering these obligations, the High Court could not agree with the State’s policy to provide lesser funding to these vulnerable children on the basis that they were ‘uneducable’.
(b) Amasango Career School, Grahamstown
Despite being a fully recognised special needs public school, Amasango Career School in Grahamstown, Eastern Cape, had never been provided with permanent buildings. The school operated out of shipping containers and later abandoned railway buildings, and was in desperate need of permanent structures. The LRC assisted the school in compelling the Department of Education to build a permanent structure with proper facilities that would foster a positive learning environment for the children. In 2012, following the initiation of contempt proceedings and negotiations with the Department of Education, five new classrooms, toilets and a library were built. Although this was a vast improvement, the school still requires permanent structures, and the LRC continues to work to compel the Department to construct permanent facilities. However, the improved conditions at the school have enabled it to reach out to a greater number of vulnerable learners in the community.
(c) Kyle Springate and South African Sign Language
In 2008, the LRC represented a learner with hearing disability in an application to compel the Department of Education to allow him to be examined in his National Senior Certificate examinations in South African Sign Language (SASL) as a recognised school subject. Additionally, a constitutional challenge was mounted to have SASL recognised under Section 6 of the South African Schools Act and under Sections 6(5)(a)(iii), 9(3), 28, 29, 30, 31 of the Constitution as an official language for the purposes of learning at a public school. The Department of Education originally opposed the matter, but eventually settled the case, and it was agreed that a syllabus document would be identified. The roll-out of teaching of SASL was planned in pilot phases for a few selected grades in 2015. NGO clients are pleased that SASL will be taught in schools. However, in 2014, Deaf SA approached the LRC expressing concerns about the envisaged process of teaching SASL. Their main concerns revolved around the training of the SASL teachers, and the implementation of that teaching. The LRC is therefore currently assisting clients to monitor the implementation and the effectiveness of the training provided to the SASL teachers and the ‘teaching aids’.
(d) Mason Lincoln Special School
The Mason Lincoln Special School situated in Umlazi near Durban, KwaZulu-Natal, accepts learners who have physical and mental disabilities from grade R to grade 12. The school is, however, faced with numerous challenges, which causes perpetual discrimination against the learners’ right of access to education.
Some of these challenges include the following:
1. The school is surrounded by informal settlements on all sides. The Department of Public Works has placed a perimeter fence around the school, but this has offered little protection from criminal activity.
2. The school is a frequent target of theft and the safety of teachers and learners are perpetually compromised.
3. The occupiers of the informal settlements have illegally connected water and electricity cables to the school supply, creating exorbitant fees for which the school is liable.
4. The unplanned developments have caused instability of the land and sink holes have appeared (this places visually impaired or wheelchair-bound learners in particular danger).
5. There are an inadequate number of classrooms for the number of learners and multiple grades are forced to learn in one classroom.
6. There is no feeding scheme provided by the Department of Education, despite several applications made by the school. The school has to rely on donors and its own funding to secure meals for learners.
7. The residential facilities are inadequate to address the special needs of the learners; there are an insufficient number of beds and inadequate ramps and rails to allow mobility for children in wheelchairs.
8. There is a major lack of support staff. There are three teacher-aids for the entire school and no official school nurse. During the day, a nurse volunteers her services, but at night there is no nurse at all.
The LRC is currently representing the School Governing Body (SGB) of the school, and is undertaking investigations to formulate the best possible relief to the school, which would ideally be twofold. Firstly, interim relief regarding the lack of support structures to the school and enhanced safety of the learners. Secondly, the relocation of the school to a safer environment with adequate facilities and support staff to meet the needs of the learners.
(e) The Doug Whitehead School
The Doug Whitehead School, a public special needs school in Johannesburg, Gauteng, provides a basic education to 171 learners with mild to severe cognitive and mental disabilities. It offers the opportunity to many vulnerable children to realise their right to an education, when they otherwise may not have had access. However, since its inception, although a public school, it is situated on private land. A legal battle ensued to determine the school’s occupation of the property. The private landowner brought an application to evict the school. The landowner agreed to withdraw the application following successful litigation by the Department of Education and the LRC. Although the litigation was a success, the private landowner has renewed threats to attempt to evict the school, and therefore the LRC continues to work closely with the school.
(f) Vukahambe Special School
The LRC has, since 2015, represented the School Governing Body (SGB) of Vukahambe Special School, a school for children with physical disabilities. Learners at the school alleged that employees of the Eastern Cape Department of Education subjected them to physical, verbal and emotional abuse. Parents from the SGB approached the court to ask for a curator ad litem to be appointed to investigate and make recommendations to the court for the appropriate protection of the learners’ rights. On 18 November 2015, a curator ad litem was appointed by the Grahamstown High Court to represent children at the school and to investigate the allegations that had been reported to the Department of Education, but who had not taken any action. The allegations of abuse were made against Department staff working at the school as ‘youth care workers’ or ‘non-educators’ and were documented by social workers from the Department of Social Development and from the NGO, Masithethe Counselling Services.
There are also reports that ongoing labour disputes at the school over the past few years have resulted in learners in the hostel repeatedly being abandoned without care for lengthy periods of time, leading to physical and emotional trauma for the learners. The school’s hostel is currently being administered and learners cared for by a skeleton staff, assisted by parents and volunteers. The curator was ordered to file a report with the court by 29 January 2016, setting out her findings, as well as recommendations for further action to protect the rights and interests of the learners. The LRC welcomes this order and will monitor the implementation of any recommendations made by the curator.
Although the South African government, in 2016, proclaimed that it had fulfilled the Millennium Development Goal of enrolling all children in primary school by 2015, a recent report completed by Human Rights Watch reveals that this is not the case for many children with disabilities in South Africa. The litigation undertaken by the LRC has highlighted the fact that there are special schools in a very poor condition, and that the government does not allocate sufficient funding to children with disabilities, particularly those it views as ‘uneducable’. The courts have dismissed the government’s arguments, emphasising that the right to education as set down in the Constitution and international law includes all children, including those with all levels of disability. The litigation is just one step in ensuring that disabled children receive the education they need. The government needs to comply with existing laws, allocate resources, implement safeguards, increase accountability and adopt stronger policies and laws to protect this right to education for children with disabilities.
1. The Right to Education for Children with Disabilities in South Africa
3. Children with Disabilities in South Africa. UNICEF
4. Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa and Another 2011 (5) SA 87 (WCC))  ZAWCHC 544; 18678/2007 (11 N