Disability law: The South African position and historical course on the incorporation of the Convention on the Rights of Persons with Disabilities

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Abstract

Disability law: The South African position and historical course on the incorporation of the Convention on the Rights of Persons with Disabilities

Establishing a disability program within the Reconstruction and Development Program (RDP) in 1995, represented a turning point for South Africa's approach to disability rights. This initiative acknowledges the importance of integrating disability considerations into broader societal development and lays the foundation for future reforms. In 1997, the creation of the Office on the Status of Disabled Persons (OSDP) further institutionalised these efforts.

The guiding framework for the OSDP's activities was the White Paper on the Integrated National Disability Strategy (INDS), which represented a significant shift in how disability was conceptualised. Moving away from the traditional medical model of disability, which viewed disability primarily as an individual health issue, the INDS embraced a social and human rights-based model of disability. This new approach recognised that it was not the impairment itself that marginalised persons with disabilities, but societal barriers and attitudes. The INDS was aligned with global trends and frameworks such as the United Nations Standard Rules on the Equalization of Opportunities for Persons with Disabilities (1993) and the World Program of Action concerning Disabled Persons. Through the INDS, South Africa positioned itself in step with international human rights norms.

Despite the initial promise of progressive policies, the formal approval of the National Disability Policy Framework did not occur until 2008, more than a decade after the adoption of the INDS. This delay highlighted the persistent gap between policy development, legislative reform and practical implementation, a challenge that would continue to affect the disability rights landscape in South Africa. Following the general election of 2009, the responsibilities of the OSDP were absorbed into the newly established Department for Women, Youth and People with Disabilities.

Nonetheless, South Africa continued to demonstrate its commitment to the rights of persons with disabilities, as reflected in the ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and its Optional Protocol in 2007. However, the organisational restructuring of the newly established Department of Women, Youth and People with Disabilities, also created delays and challenges in meeting international reporting deadlines in terms of the CRPD. Under the CRPD, South Africa was required to submit its first report to the Committee on the Rights of Persons with Disabilities on progress toward implementation by 2010. However, capacity constraints and internal government restructuring delayed this submission until 2014. When it was finally submitted, the report detailed South Africa's advancements in disability rights, while also highlighting persistent gaps in legislative and policy frameworks.

The South African government sought to reinvigorate these efforts with its White Paper on the Rights of Persons with Disabilities in 2015. Its primary goal was to accelerate the transformation toward full inclusion and equal treatment of persons with disabilities. The White Paper emphasised the importance of aligning South Africa's national development plans with the United Nations' Sustainable Development Goals (SDGs), particularly aiming to integrate disability-inclusive development strategies into all aspects of policymaking and national planning.

By 2018, South Africa’s initial report on the implementation of the CRPD was reviewed by the Committee on the Rights of Persons with Disabilities. The Committee acknowledged South Africa's progress, but expressed concerns about the slow pace of reform and the need for further harmonisation between national disability laws and the human rights model of disability set forth by the CRPD. The Committee also urged South Africa to strengthen its monitoring mechanisms, improve coordination within the disability sector and enhance legal protection against discrimination.

Despite the constitutional changes since 1994 and the significant developments in disability rights, neither the White Paper nor the treaty obligations of the CRPD had been fully reflected in South Africa's legislation by 2018. In response, the South African Law Reform Commission (SALRC) was formally requested by the Department of Justice and Constitutional Development to investigate the incorporation of the CRPD into South African law. Following this request, the SALRC launched a comprehensive investigation, culminating in the publication of its first report, an Issue Paper on Project 148 and the Domestication of the CRPD, in December 2021.

The SALRC’s investigation into the incorporation of the CRPD presented two primary approaches: amending existing legislation or creating new, comprehensive legislation. While the SALRC considered amendments to existing laws such as the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and the Employment Equity Act 55 of 1998, it concluded that a holistic approach would be more effective. Piecemeal amendments to existing legislation to incorporate the CRPD, risked creating contradictions and incomplete protection for persons with disabilities. It proposed a framework act that would provide a more comprehensive solution, ensuring that the rights of persons with disabilities are fully protected and promoted.

To advance the legal reform process, the SALRC formulated a final position on the necessary reforms in its Discussion Paper which was made available to the public for comments on 1 October 2024, and attached a concept Draft Bill inviting public deliberation and comment on the proposed legislation.

The Draft Bill, titled ‘The Protection and Promotion of Persons with Disabilities’, provides a legal framework for the implementation of and establishment of legal protection for persons with disabilities, ensuring that their rights are upheld and that discrimination is prevented across all sectors of society.

The Draft Bill is structured around four chapters, each addressing different aspects of disability rights. It provides for the establishment of government focal points and independent monitoring bodies, as required by the CRPD. It also mandates that all sectors of society, including healthcare, education and employment provide reasonable accommodations for persons with disabilities. The Bill emphasises the importance of equality, dignity, accessibility and inclusion, aligning with both South Africa’s constitutional principles and its international obligations under the CRPD.

In conclusion, South Africa has made significant strides in promoting the rights of persons with disabilities. From the establishment of the OSDP and the adoption of the INDS in the 1990s, to the ratification of the CRPD and the development of the 2015 White Paper, the country has demonstrated a commitment to disability-inclusive development. However, challenges remain in fully implementing and monitoring these rights. The proposed Draft Bill by the SALRC represents a major step toward ensuring that South Africa’s legal framework aligns with international standards and that the rights of persons with disabilities are fully protected.

This further represents an important step in the process of giving legal force to the CRPD in the Republic and incorporating it into national legislation when it becomes law in the Republic in terms of Section 231 of the Constitution. However, continued efforts are required to strengthen national monitoring mechanisms, and improve coordination with implementation to ensure the full inclusion of persons with disabilities in all aspects of society.

Keywords: Convention on the Rights of Persons with Disabilities; disability law; Discussion Paper No. 163 on Project 148; human rights model of disability; medical model of disability; persons with disabilities; social model of disability.

 

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Gestremdheidsreg: Die Suid-Afrikaanse posisie en die historiese verloop van die inkorporering van die Konvensie oor die Regte van Persone met Gestremdhede

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