Danielle Barash Ester Garcia Alex Price Sarah Smith

South Africa

Danielle BarashEster GarciaAlex PriceSarah Smith

History: Because of South Africa’s history of apartheid and colonialism, there has been an emphasis to transition from a history of segregation towards the promotion of equality and provision of human rights for previously disenfranchised groups. This history includes a newly found emphasis on disability rights.

Demographics: To fully grasp the impact of disability rights law in South Africa, we will be analyzing data from the 2001 South African Census, the Prevalence of Disability Report, and the 2009 Mid-Year Population Estimates to understand the relationship between race, gender, education, socio-economic status, age and disability.

South African Disability Law: South Africa does not have laws which are specific to people withdisabilities (like the ADA). Instead, the rights of people with disabilities areguaranteedby inclusive human rights laws such as the Equal Employment Act of 1998, Preferential procurement Policy Framework Act 2000, Broad-Based Black Economic Empowerment Framework for Agriculture, South African Schools Act 1996, and the Promotion of Equality and Prevention of Unfair Discrimination Act 2000.

Promotion of Equality and Prevention of Unfair Discrimination Act 2000 (“the Act”): The focus of our presentation will be the Act and its impact on disability law. For this reason, we will be omitting chapters from the Act whose focus is not disability rights. The objective of this Act is to enact legislation required by Section 9 (equality) of the South African Constitution, to educate the public, raise awareness, provide remedies for victims of unfair discrimination, hate speech and harassment, and to set out measures to advance those who have been disadvantaged.

Chapter 1-Definitions: We will be providing and discussing the definitions for the following terms of central importance:discrimination, prohibited grounds, harassment, equality, and State.

Chapter 2-Prevention: Neither the State nor any person may unfairly discriminate against any person on the ground of disability. No person may subject any person to harassment. Hate speech is strictly prohibited, and no person may disseminate or broadcast any information, publish or display any advertisement or notice that could reasonably be construed or understood to demonstrate the intention to unfairly discriminate against any person.

Chapter 3-Burden of Proof: The respondent must prove that discrimination did not take place as alleged and/or that the conduct was not based upon one or more of the prohibited grounds. If discrimination did take place, then it is unfair unless respondent can prove it is fair. This chapter delineates fair and unfair discrimination.

Chapter 5-Promotion of Equality: 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 persist in the Republic, the effects thereof and recommendations on how to best address the problems. The Act also creates a duty and responsibility for state institutions performing public functions to eliminate discrimination and promote equality.

Chapter 6-Provisions and Implementation: There is a basic requirement that the Minister of South Africa must ensure that people with disabilities have access to legal channels by which theycan enforce their rights as disabled individuals.

Chapter 7- Review of Act, Short title, and Commencement: Illustrative list of unfair practices in certain sectors including labour and employment, education, health care services and benefits, housing, accommodation, land and property, and provisions of goods, services and facilities.

Comparison to the ADA and UN Convention on the Rights of Persons with Disabilities (“Convention”): We will be comparing definitions across the three documents. The following are some key differences and similarities to note:

• South African law specifically addresses both the prohibition of hate speech and dissemination and publication of discriminatory information or advertisements, despite their inclusion of freedom of expression in their Bill of Rights. In America, the freedom of speech and expression takes precedence.
• In South Africa, the Burden of Proof is on the respondent; they are guilty until proven innocent. In the United States, the burden seems to be on the individual with the disability to prove that they are in fact disabled and that they were unfairly discriminated against.
• Unlike the ADA and the Convention, affirmative action is acceptable and encouraged in the Act.
• One factor in determining if discrimination is unfair is “whether the discrimination has a legitimate purpose.” Is this similar to “qualified individual” or “for their own good?”
• Another factor is “whether there are less restrictive and less disadvantageous means to achieve the purpose.” This is similar language to Title II of the ADA (Olmstead case) and to special education law.
• Both the Convention and the Act mention equal pay for equal work; this is not specifically included in the ADA.
• The Act does not define reasonable modifications or use this terminology, but both the Convention and the ADA do. Instead, the Act calls the failure to “reasonably and practicably” accommodate diversity in education is considered unfair discrimination. Is this the equivalent to reasonable accommodations/modifications? Or is this along the lines of affirmative action?
• 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 (Dudley case).
• Both the Act and the Convention (Article 8: Awareness Raising) include promoting awareness of the capabilities and contributions of persons with disabilities, educating the public, combating stereotypes and prejudices.

References

“2009 Mid-Year Population Estimates ‘Publication 0302’”Statistics South Africa. 2009 <

Americans with Disabilities Act of 1990, 42 U.S.C § 12101 (2008)

“Convention on the Rights of Persons with Disabilities and Optional Protocol.”United Nations Committee on the Rights of Persons with Disabilities. 13 December 2006.

Executive summary, The role and effectiveness of disability legislation in South Africa, Andrew K Dube Samaita Consultancy and Programme Design, ed. Eleanor Stanley. March 2005.

“Promotion of Equality and Prevention of Unfair Discrimination Act 2000, No.4 of 2000” Republic of South Africa 2000.

“Timeline:South Africa.” BBC 2010.

“World Book- South Africa.” CIA 2010.