Public Comment on First Draft Country Report

COMPENDIUM OF SUBMISSIONS RECEIVED ON THE

DRAFT FIRST COUNTRY REPORT

TO THE UNITED NATIONS ON THE IMPLEMENTATION OF THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES

FINAL

The draft first Country Report on the implementation of the Convention on the Rights of Persons with Disabilities was released for public comment on 25 November 2012, following approval by Cabinet. The closing date for public comments was 25 January 2013 –

• It was posted on the Government Website under Documents for Public Comment
• It was also emailed to a total of 2,190 stakeholders on the DWCPD DisabilityRights Mailing List, consisting of:
• 349 organisations of and for persons with disabilities at national, provincial and local level
• 288 individuals with disabilities
• 151 stakeholders attached to institutions of higher education
• 579 stakeholders working across all national government departments and public entities
• 229 stakeholders working in provincial government departments across all nine provinces
• 102 stakeholders at local government level
• 316 stakeholders in the private sector
• 70 stakeholders attached to the organised labour sector
• 106 stakeholders in general Non-Governmental Organisations
• The draft report was furthermore forward to all Government Ministries who failed to submit comments for consideration in the draft Report.
• The draft was also formally submitted to the Portfolio and Select Committees for Women, Children and People with Disabilities in the National Assembly and National Council of Provinces respectively.

A total of 54 submissions were received:

• 19 submissions were received from Civil Society
• 27 submissions were received from national and provincial government departments and public entities
• 2 submissions were received from institutions promoting democracy, i.e. the SA Human Rights Commission and the Public Service Commission
• 1 submission were received from private sector institutions
• 5 submissions were received from individuals

The content of all submissions received was analysed for:

• integration into the draft Report for consideration for the final Report;
• consideration for future development of transversal and sector related policy and legislation

The DisabilityRights Team in the Department of Women, Children and People with Disabilities would like to express our sincerest appreciation for the considerable work that has gone into these submissions. Your contributions will not only enrich the first Country Report but also add tremendous value in the review and development of policy and legislation aimed at protecting and promoting the rights of people with disabilities in South Africa.

CIVIL SOCIETY / GOVERNMENT / INDEPENDENT GOVERNANCE INSTITUTIONS / PRIVATE SECTOR / INDIVIDUAL
Afrika Tikkun Empowerment Programme for Families of Children with Disability
Centre for Applied Legal Studies
Werksmans Attorneys
R2ECcwd (ECD group)
Dementia South Africa
Department of Basic Education (DBE)
Department of Public Service and Administration (DPSA)
Department of Human Settlements (DHS)
Epilepsy SA
Gauteng Consumer Advocacy Movement (GCAM)
KZNHEALTH Provincial Employees with DisabilitiesForum
Muscular Dystrophy Foundation SA
Department of Correctional Services (DCS)
Department of Justice and Constitutional Development (Legislative Development)
National Council for Persons with Physical Disabilities in South Africa (NCPPDSA)
North West Inter Department Committee on Disability (IDCD)
North West Provincial Disability Forum (NWPDF)
Office on the Status of Disabled Persons – Free State
Parents for Children with Special Educational Needs (PACSEN)
SA Federation for Mental Health (SAFMH)
South African National Council for the Blind (SANCB)
Shonaquip and Uhambo the Shonaquip foundation
Department of Sport and Recreation (SRSA)
Ubuntu Centre South Africa
Umgungundlovu Disability Forum
Western Cape Rehabilitation Centre
Democratic Alliance (DA)
Western Cape Provincial Government (WCPG)
Limpopo Provincial Administration
Limpopo Province Dept of Public Works
Limpopo Province Dept of Education
Limpopo Province Dept of Health
Limpopo Province Dept of Safety, Security & Liaison
Limpopo Province Dept of Roads and Transport
Limpopo Province Dept of Economic Development, Environment & Tourism
Limpopo Province Dept of Agriculture
Limpopo Department of Sport, Arts and Culture
Eastern Cape Provincial Government
Government Communication and Information System (GCIS)
Limpopo Office of the Premier
Limpopo Dept of Social Development
Limpopo Dept of Cooperative Governance, Human Settlements and Traditional Affairs
The Presidency
Campaign on the Right to Education for Children with Disabilities (R2ECWD) Policy Review Sub-Group
UWC Centre for Disability Law and Policy (CLDP)
Department of Transport
The Department of Trade and Industry
Department of Health and Rehabilitation Sciences, University of Cape Town
Disabled People SA
A. / South African Human Rights Commission (SAHRC)
B. / Public Service Commission
(i) / Anna-Marie Havenga –par F.
Pierre van Wyk – in respect of par Q 114 and 116
(Researchers at the South African Law Reform Commission (SALRC)
(ii) / Louise Botha (ASD: transformation/ gender focal person (DWA Gauteng region)
(iii) / Prof CJ (Trynie) Boezaart (University of Pretoria, Department of Private Law)
(iv) / Gina Pieterse (Health: Specialized Services, Psychiatry)
(v) / Shellique Carby
Section / Consensus on Content of Draft Report
Agreed / Disagreed / Partially
Summary of the Core Document / 25 / 3 / 7
Measures taken by the state to implement the outcomes of the UN conferences, summits and reviews / 29 / 6 / 6
Article 2: Definition of Disability / 31 / 1 / 5
Article 3 & 4: General principles and Obligations / 29 / 0 / 6
Prioritisation of Implementation of CRPD Articles / 28 / 1 / 6
Article 5: Equality and non-discrimination / 26 / 1 / 7
Article 8: Awareness raising / 25 / 1 / 8
Article 9: Accessibility / 21 / 1 / 11
Article 10: Right to life / 29 / 0 / 5
Article 11: Situations of risk and emergencies / 28 / 0 / 2
Article 12: Equal recognition before the law / 29 / 0 / 6
Article 13: Access to justice / 27 / 1 / 3
Article 14: Liberty and security of the person / 24 / 0 / 5
Article 15: Freedom from torture or cruel, inhuman or degrading treatment or punishment / 30 / 0 / 4
Article 16: Freedom from violence and abuse / 25 / 0 / 5
Article 17: Protecting the person / 28 / 0 / 2
Article 18: Liberty of movement and nationality / 31 / 0 / 1
Article 19: Living independently and being included in the community / 24 / 0 / 7
Article 20: Personal mobility / 27 / 0 / 5
Article 21: Freedom of expression and opinion, and access to information / 25 / 0 / 7
Article 22: Respect for privacy / 28 / 0 / 2
Article 23: Respect for home and the family / 28 / 0 / 3
Article 24: Education / 26 / 4 / 3
Article 25: Health / 25 / 1 / 6
Article 26: Rehabilitation / 26 / 1 / 5
Article 27: Work and employment / 27 / 0 / 9
Article 28: Adequate standard of living and social protection / 27 / 0 / 5
Article 29: Participation in political and public life / 27 / 0 / 4
Article 30: Participation in cultural life, recreation, leisure and sport / 28 / 1 / 2
Article 6: Women with disabilities / 32 / 0 / 1
Article 7: Children with disabilities / 28 / 0 / 4
Article 31: Statistics and data collection / 28 / 1 / 5
Article 32: International cooperation / 31 / 0 / 2
Articles 33: National implementation and monitoring / 29 / 1 / 4
General/Additional Comments / 4
1 / PUBLIC COMMENT ON FIRST DRAFT COUNTRY REPORT ON IMPLEMENTATION OF THE CRPD (SOUTH AFRICA)

PART ONE: SUMMARY OF CORE DOCUMENT

SUBMISSION FROM / I AGREE WITH THE CONTENT / COMMENT
YES / NO / PARTIALLY
3 / X
5 / Additional Information:
Data submitted by DPSA comes from PERSAL which might not align with StatsSA data
7 / Additional Information:
In recognition of the achievements made toward the implementation of the UNCRPD it is worth recognising that South Africa is one of a small group of countries that specifically identifies people with disabilities as a protected group against discrimination. The inclusion of people with disabilities as “categorically disadvantaged” within the framework of the Employment Equity Act (1998) and other substantive strategies to achieve equality is rightfully lauded within the current report. Furthermore, various court decisions upholding the rights and dignity of people with disabilities, albeit for those few who have access to the justice system, and further clarifying the application of law indicates a robust judiciary largely aligned with the intentions of the UNCRPD.
Government has often erroneously referred to Disabled People South Africa (DPSA) as being representative of the disability sector in South Africa. In fact, the South African Disability Alliance is the representative structure of the disability sector in South Africa as evidenced by membership by all major national disability organisations (including DPSA).
While self-representation is certainly evident in terms of specific disability groupings (especially physical and sensory disabilities) this is certainly not the case for the so-called “invisible disabilities” such as neurological disabilities like epilepsy.
2011 Census data – Epilepsy South Africa supports comments contained in the draft report regarding the “lack of adequate, reliable, relevant and recent information on the nature and prevalence of disability in South Africa”. This is particularly evident in the table showing the prevalence of different types of disabilities which completely excludes neurological disabilities like epilepsy. This condition cannot be classified as an emotional, intellectual or communication disability. We thus urge the inclusion of neurological disability as a category for data collection (e.g. in the National census).
It is also a matter of concern that data emanating from the 2011 National census remains unavailable nearly two years after the census. Surely mechanisms can be found to make such information available sooner to prevent it being outdated on publication.
2011 General Household Survey – The exclusion of children under the age of 5 years from this Survey presents a problem in that reliable statistics for this age group are unavailable. It is a well-known fact that early diagnosis of disability is the basis of successful treatment and ultimately integration and inclusion. However, indications in the draft country report regarding additional surveys to include this group is strongly supported.
It is interesting to compare the statistics provided on disability prevalence in comparison with the findings of the 2011 World Disability Report of the World Health Organisation which states: “across all 59 countries the average prevalence rate in the adult population aged 18 years and over derived from the World Health Survey was 15.6% (some 650 million people of the estimated 5.2 billion adults aged 18 and older in 2004 ranging from 11.8% in higher income countries to 18.0% in lower income countries. This figure refers to adults who experience significant functioning difficulties in their everyday lives. The average prevalence rate for adults with very significant difficulties was estimated at 2.2% or about 92 million people in 2004. If the prevalence figures are extrapolated to cover adults 15 years and older, around 720 million people have difficulties in functioning with around 100 million experiencing very significant difficulties.” (World Disability Report, 2011: 27)
It is of concern that (as is the case with the National Census) this Survey also excludes neurological disability (such as epilepsy). Epilepsy South Africa urges the inclusion of this category of disability in future surveys.
8 / Additional Information:
Terminology used in the Census Data (not specific to this report) to describe psychosocial disability/ mental illness is “Emotional Disability” – which we find confusing and not the correct term.
Just a note: we believe that the prevalence of “Emotional Disability” is much higher than recorded which may be a result of persons with a diagnosis not disclosing since they fear stigma and discrimination. As we develop as a country and ensure a secure environment, free from stigma and unfair discrimination against persons with mental health disorders, many will be willing to disclose.
10 / X / Well compiled and thoroughly done
11 / X
13 / X / There are a number of cross-cutting issues that need to be addressed:

• The lack of clear referencing throughout the document: it is a principle of good reporting that it is possible for readers to verify information – the Country Report does not allow the reader to do so with regard to any of the information provided in the document. In this sense, the document may be regarded as being entirely questionable up and until it can be demonstrated that there is clear evidence for any of the claim or statements made in the document.
• It is indicated throughout the document that there are a number of audits or assessments that have taken place. It is unclear what these are, as the three authorities on Universal Accessibility and Design in the country have been consulted and none of these three have conducted any of the audits that are discussed in the report. It is noted that beyond these three authorities, there are no other legitimate skilled or qualified persons capable of undertaking such audits. Further information is requested as clearly these are not audits for the purposes of universal accessibility or have anything to do with disability and by extension, it is unclear what they then have to do with the Country Report.
• There is no interrogation of information provided by the Country Report. As such the document is merely passive, and seems to read as a document that simply regurgitates information provided without any critical analysis of the information provided. This is a consistent and systemic problem throughout the Country Report.

14 / X
15 / X / Consistency in reporting period. While it is understandable to cover 2010/2011 financial year, including 2011/13 progress should be avoided (ref- article 30)
17 / Disagree with:
Static of Disabled children in Education can be obtained yearly
Additional Information:
National Department of Education and Provincial Education
ESMIS section can supply information on statistics of disabled children in Education system after the 10 day of school every year.
18 / X
20 / X
21 / X
22 / X / Disagrees with:
Regarding the issue of self-representation. The section under background brings across a limited perspective on self-representation restricted only to how government has included people with disabilities at all levels of government. Unfortunately this does not conform fully to the CRPD on “self-representation”. The CRPD introduces new standards where it comes to the respect and dignity of persons with disabilities. It in fact has commonly been regarded as introducing a paradigm shift in human rights.
I would argue that as per article 33.3 which states that:
“Civil society, in particular persons with disabilities and their
representative organizations, shall be involved and participate fully in the monitoring process”.
That self-representation of people with disabilities is only reached when people with disabilities and their organisations in which they have the majority control in governing are capacitated and included in the monitoring of the CRPD at national level.
So the issue is not so much how many disabled persons are present at different levels of government but true representation means that government gives recognition to DPOs and supports their capacitating and their key roles in monitoring the implementation of the CRPD at national level.
Additional Information:
So for this reason I also want to caution the SA government not to take sole credit for this groundbreaking treaty. No matter how proud we are of our constitution, the CRPD represents the efforts of the global community of DPOs, CSOs and NGOs who played a huge role in the International Disability Caucus during the negotiation of this treaty which was unlike previous treaties and not just a product of the states parties to the negotiations.
23 / X / The prevalence figures that change markedly from 1 year to the next are confusing and do not explain that different questions were used, thereby picking up different people.
24 / X
25 / Partially agree, info is not accurate, latest statistics have not been used. According to the most recent statistics 5% of SA population are disabled
Additional Information:
There is a serious lack of reliable information on the nature and prevalence of disability in SA. This raises serious concerns that the minister did not use the latest statistics from census 2011, which leads to a failure to integrate disability into mainstream government statistical processes.
26 / X / The Report should explain in more detail why, as a result of changes in the approach to asking disability questions, the Census 2011 data is not comparable with previous Censuses. In Census 2011, disability was defined as difficulties encountered in functioning due to body impairments or activity limitation, with or without the use of assistive devices.
While it is true that detailed data on disability from Census 2011 is not yet available, data on the type and degree of difficulty persons had at the time of the census is available, and should be included in the interest of bringing the report up to date.
27 / X
28 / X
29 / X
30 / X / Suggestion: Inclusion of children less than 5 years is vital for full coverage and reflection of plight of people with disabilities.
31 / X
32 / X
35 / X
36 / X
37 / X
38 / X
39 / X
40 / X / Full involvement of Disability Forums in public service departments should be legislated
41 / X
44 / X / An Annexure to define abbreviations should be attached
The knowledge of the operation of the South African Government should not be assumed. An explanation of the roles of the three (3) spheres of government should be made with emphasis on the different roles of National Government (guidance) and those of Provinces and Municipalities (implementation).
45 / X
46 / Disagree with The recurrent problem of disability versus impairment
Specific details further steps to reduce the current problems with prevalence- what is prevalence data used for- how is it used in planning
47 / X
A / X
B / On page ii reference is made to the ‘Office of the Public Service Commission’. It would be appreciated if the reference could be deleted as the mandate resides with the PSC and not its Office which was created to support the institution
(ii) / X
(iii) / X / The effect of the Sterilisation Act 44 of 1998 on the dignity, physical integrity and participation rights of children has not been accounted for.
The decision of the High Court in Western Cape Forum for Intellectually Disabled v Government of the Republic of South Africa 2011 (5) SA 87 (WCC) regarding the rights of severely and profoundly disabled children has not been addressed at all.
Implementation of the Children’s Act with regards to disabled children seem to pose serious challenges; see Trynie Boezaart “The Children’s Act: A valuable tool in realising the rights of children with disabilities” 2011 Journal for Contemporary Roman Dutch Law 264 et seq.

PART TWO: THE CRPD SPECIFIC REPORT

Segment A: Measures taken by the state to implement the outcomes of the UN conferences, summits and reviews

SUBMISSION FROM / I AGREE WITH THE CONTENT / COMMENT
YES / NO / PARTIALLY
3 / X
5 / X
7 / X / The report refers to extensive consultation (page 2). However, there is a need to distinguish between “extensive” consultation and “effective” consultation. This sentiment is borne out by the comments contained in the final paragraph on the same page regarding the role and constraints of disability organisations.