South Africa

1. South Africa Travis, Danielle, Rebecca, Cindy, and Jennifer

2. South Africa

3. 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

4. Apartheid – “apartness” • Prohibition of Mixed Marriages Act 1949 • Immorality Act of 1950 • Population Registration Act 1950 • Group Area Act 1950

5. South Africa has the 2nd largest income gap in the world

6. Significant Events in South African Disability Rights • 1981 United Nation’s International Year of Disabled Persons • 1984 Disabled People of South Africa • 1996 Constitution

7. The Big Question… How effective has this legislative and policy been in making real changes to the lives of people with disabilities?

8. 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 Disability Definitions The definition of disability varies in South Africa. No international consensus has been reached on the definition. 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.

9. 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

10. 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

11. 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.

12. 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.

13. 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.

14. 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;

15. 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

16. 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

17. 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.

18. 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).

19. 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.

20. 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.

21. 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.

22. 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:

23. 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.

24. 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

25. 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.

26. 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

27. ICESCR Article 11 • 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

28. 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

29. 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

30. 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 or food and fluids on the basis of disability * South Africa participated in the development of 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.

31. 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

32. 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 1973Prohibits 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 ActProhibits 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

33. Comparable American Law 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. • 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. 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

34. 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