South Africa

Danielle Barash, Ester Garcia, Alex Price, Sarah Smith

Summary

• 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%

HIV Prevalence and Number of People Living with HIV 2001-2009

Social/Medical Issues

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 full-time 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

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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.

• 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 Africa History

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

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.

South African Constitution- Chapter 2: Bill of Rights

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???