BY Philip Duguay
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Disability Law
Human Rights
Public International Law
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disability, South Africa
Re-defining Disability in South Africa: The Social Assistance Amendment Bill
The Social Assistance Amendment Bill introduced in the South African Parliament last month has revealed fissures in government policy and has opened up debate on how this country handles disability issues. A key concern for some is that South Africa does not have centralized disability legislation. There are however, several different pieces of legislation and government policy that treat disability issues, such as the Social Assistance Act of 2004, the Employment Equity Act of 1998, and the Integrated National Disability Strategy of 1997, among others. This is not unusual, as countries such as Canada do not have dedicated national disability legislation. However, because the various pieces of South African legislation use different definitions of the term disability, this can create confusion, particularly when disabled persons are applying for government-provided financial assistance. Major criticisms of the bill are that it is still not clear enough, and that it does almost nothing to help move South Africa away from a medical model of disability, towards a social model that would promote societal inclusion for persons with disabilities.
South Africa signed and ratified the Convention on the Rights of Persons with Disabilities and its optional protocol in 2007. Furthermore, the South African Constitution specifically enshrines equality for persons with disabilities under Article 9(3). Yet, it is not clear how the current bill will take this nation closer to full implementation of the Constitution and the Convention. While the Deputy Minister of Foreign Affairs commented upon the coming into force of the Convention in 2008, that South Africa “has committed itself to removing all barriers faced by persons with disabilities,” this bill is easily assailable for not living up to this statement.
On its face, it is not evident that the new bill will meet its own objectives. Its stated aims are to more sharply define what a disability is, and speed up the appeals process. A parliamentary watch-dog group also noted that ministers were concerned with reducing the amount of persons who could receive government social assistance grants and wanted to combat fraud. The new bill defines a disabled applicant as a person with “a moderate to severe limitation to his or her ability to function as a result of a physical, sensory, communication, intellectual or mental disability rendering him or her unable to — (a) obtain the means needed to enable him or her to provide for his or her own maintenance; or (b) be gainfully employed.” Besides the fact that this bill uses the word disability to define disability, the definition still conveys a medical model approach as it only looks as to what the person lacks (means of self-maintenance or ability to be employed), and not how the person can be connected to society. The government has established that the largest problems in South African society for disabled persons are the threats posed by social exclusion, yet the bill does not address this fact. Also, the bill is adding another layer of appeal, and as it does not sharply define disability it does not seemed poised to dramatically lessen the amount of appeals. So how can South Africa take pragmatic steps towards achieving the goals laid out in this bill?
Professor Meryl du Plessis of the University of Cape Town, Faculty of Law, says that the government could start by beginning to look at disability as a “status” rather than viewing the definition through a needs-based lens.[1] While most South Africans are used to the acronym BEE (black economic empowerment), no similar widespread dedicated program or philosophy seems in place to empower disabled South Africans. As the UN Convention calls for “measures which are necessary to accelerate or achieve de facto equality of persons with disabilities,” the government could start from there.[2] For instance, it has been noted that the government has a very poor record of hiring persons with disabilities in the public sector. It could also move towards implementing the 2001 White Paper on Special Needs Education, which until now seems to be collecting dust. The government can curb the amount of disability social assistance grant-seekers in the future if it begins to educate and integrate them now. It is telling that the training of persons with disabilities called for in the Skills Development Act of 1998 fell significantly short of its target.
It is also telling that the whole of the debate around this bill focuses on diminishing the amount of persons on social grants (i.e. saving money), and not on progressing towards a social model of disability rights. It is indeed very hard in a country like South Africa to roll out the types of services such a model requires, as the country is overrun with refugees, faces poverty and unemployment, and its energy grid is plagued by a host of problems. However, the legislative framework is in place here to tackle the disability problem. Strong court challenges could prompt the government to get more serious about meeting its own targets and objectives. What is needed here is strong leadership. After all, South Africa is a country with functioning social institutions, nationwide schooling systems, a strong and independent media and reliable communications systems. It could tackle this issue by spending a fraction of the money it has invested in hosting the FIFA World Cup.
If the bill passes as is, it will not provide the clarity that campaigners are seeking. It is not evident how it will reduce the number of persons seeking or receiving grants because the definition is not clear. It also does not move South Africa towards a more progressive form of social inclusion in its approach to disability law. Disabled South Africans have equality on paper, but programs to educate and integrate them have fallen short of the mark. It is perhaps time that the government think of creating dedicated legislation to protect the rights of an estimated 6% of their population. By doing so they will create legislative cohesion and can more efficiently strive to reach the goals set by the Constitution and the Convention.
[Legal Frontiers Comment: Legal Frontiers thanks the Rathlyn Foundation for its support of blogs relating to Disability & the Law]
[1] Interview of Meryl du Plessis by Philip Duguay (14 April 2010) at the University of Cape Town, Faculty of Law.
[2] Convention on the Rights of Persons with Disabilities, 30 March 2007, UNGA A/RES/61/106, Article 5(4).
Philip Duguay will receive his LL.B.-B.C.L. in June 2011. He has worked on CIDA funded projects in Senegal, Ethiopia and Indonesia, and spent most of 2010 in South Africa, studying human security at the University of Cape Town and working as an adviser to the African Wind Energy Association. He is interested in environmental and energy law, as well as state security topics and corporate social responsibility matters.
3 Responses to “Re-defining Disability in South Africa: The Social Assistance Amendment Bill”
Time for a long overdue clarification: Ms. du Plessis has corrected me. She does not advocate the government grant any special type of ‘status’ to persons with disabilities, but rather that an attempt should be made to address the needs of individuals. This no doubt is a much more tricky legislative task. Thank you to her for this clarification!
The Social Assistance Amendment Bill has received a second reading in parliament but has not yet been voted on. Several amendments were made, and the details can be found at the South African Parliamentary Monitoring Group website:
http://www.pmg.org.za/node/14590
A date has not yet been selected for a final vote.
It’s time to consult with medical professionals and people with different disabilities (visible and invisible disabilities) in SA to assure effective disability legislation. Disabilities occur as a result of physical, mental and sensory impairments. The severity of the disability associated with any given impairment for any given person is a complex function of the impact of the impairment on the person’s functional capabilities, and the combined impacts of many other social and environmental factors on the person’s ability to gain access to his or her family, community and society. In SA, comparable disability statistics
were virtually non-existent due to variations in the definitions of disability. Government continue to use different definitions of disability in different legislation and policies. It is for this reason the formulation of disability law and policy is still significantly hampered by inadequate data and statistics. Moreover it should be called, the medical-law model, then social and economic integration will take place. People without the medical knowledge and expertise are contributing to more chaos in our lives, because disability is a complex phenomenon. Disability Rights Activism has its place, but means nothing without the medical knowledge. Evidence from different scenarios, however, from the classroom to the taxi rank, illustrate a wide range of unhelpful or aggressive attitudes towards us, which often vary according to type of impairment or health condition, and according to ethnic origin, age and gender. E.g a vison impaired person can’t speak on behalf of a person with hearing impairment. A sign language user can’t speak on behalf of all hearing impaired people. We need proper disability legislation in SA, developed without perceptions, activism and opinions, but on concrete information to be able to meet the needs of people with DIFFERENT disabilities in SA. Thank you for shedding light and challenge on this neglected field, Im looking forward to the implimentation of disability law in SA.
I am in agreement with your analysis and constructive criticism of South African approach to Disdability issues. this is concerning especially because, as you have correctly stated, we have ratified the convention on the rights of persons with disability. one should have hoped for a more directed and inclusive approach to disability, instead we still preferred to be fixated to the Medical model.
Of biggest concern to me is the fact that Disability seem to be more about lack of ability to acquire work and less to do with getting education by ensuring access and user friendly environments. I have travelled the length and breadth of the country to observe the level of accessibility of institutions to person living with diability and to my shock this is dismal in all respect and this is even worse at FET colleges. Universities do not have specific aganedas to address access or support person with disability. I have tried to search for policy direction in the Higher education to understand how persons with disability can claim their rights and there virtually nothing except for adhoch and unsported initiavtes by students. we need a more robust and uncopmromising programmes to empower persons with disability by creating a condusive admosphere. Universities are rather disabled. i have not hear the minister pronounce a policy in favour of persona living with disbality. I need information to do with disability mainstreaming in universities. I have trained disability mainstreaming in public service and wish to make a similar contribution in the training sector. i wish to collaborate with those institution or persons who have knowldge and resources to this effect. please contact me so that we can collaborate
Patrick Masuelele