South Africans with disabilities need a special law to safeguard their rights

marginalised: People with disabilities are seen as little more than charity cases, as if disability constitutes little more than a medical challenge that can be solved by the provision of grants.Picture: Cindy Waxa/African News Agency (ANA)

People with disabilities in South Africa continue to struggle for recognition of their rights more than two years after the government drafted a White Paper to introduce such a law, according to campaigners who met in Pretoria last week.

In the absence of this legislation, people with disabilities are largely left to rely on a “welfarist” approach – the kindness of government, non-governmental and private stakeholders, such as employers – for the protection of their interests.

As part of efforts to consult on the shape of a future Act, a National Disability Rights Machinery meeting was held last week, bringing together groups representing people with disabilities from across the country, according to the principle of “nothing about us without us”.

The meeting, which was hosted by the South African Disability Alliance and attended by key government officials, came as pressure is being ramped up to implement as a matter of urgency the People with Disabilities Rights Act that was promised by the 2015 White Paper of Persons with Disabilities.

In the absence of such protection that may foster an accompanying sea-change in attitudes within society, government policies can be deeply patronising and continue to foster dependence. People with disabilities are treated as little more than the object of welfarist interventions as if disability constitutes no more than a treatable, medical challenge that can be addressed by the provision of, for example, grants.

Although it is clearly important to provide appropriate support to enable people with disabilities to enjoy the same socio-economic and cultural opportunities as everyone else, such an approach is no substitute for enshrining their rights to enjoy such support.

In February, then finance minister, Malusi Gigaba, indicated in his budget speech that disability grants would increase by R100 over the course of the year. Although the rise is to be welcomed, it remained far short of the basic extra expenses incurred by people with disabilities and, unfortunately, represented the sum total of the minister’s actions to support this community, reflecting a wider official failure to understand and respond properly to the circumstances of people with disabilities.

In this regard, a social, human rights-based approach, in line with the Constitution and international best practices, represents the way forward. This approach emphasises first that it is not the physical or mental affliction that forms the basis of what is deemed “disability” which excludes people. Rather it is society’s responses – widespread ignorance and stereotyping – that constitute the key disabling factor. In this sense, disability is socially determined.

In South Africa, the impacts of inadequate official approaches to “disability” have included great underrepresentation of people with disabilities in South Africa. In 2016, the national Community Survey conducted by Statistics South Africa (StatsSA) reported that 7.7% of the population lived with at least one disability, a 0.2% increase on the figure in the 2011 Census. However, in the interim, StatsSA noted that the real figure for 2011 should have been around 12% of the population. The difference was attributed to underreporting due to fears of stereotyping; unwillingness to acknowledge the seriousness of a disability; and even ignorance about what actually constitutes a disability.

In addition, the impact of including the human rights of people with disabilities in various generic pieces of legislation has generally been minimal, despite the importance of recognising them in these laws. In order to increase impact, many other countries such as Australia, Britain and Kenya have enacted specific pieces of legislation to uphold the rights of people with disabilities.

However, in South Africa no such framework to monitor, intervene and provide justice when necessary exists. Rather, people with disability are included in other broad pieces of legislation such as the 1998 Employment Equity Act (EEA) and the 2000 Promotion of Equality and Prevention of Unfair Discrimination Act.

The South African approach has had a limited impact. For example, under the EEA, employment targets for people with disability were initially set at 2% of the national workforce. In 2002, four years later, a figure of 1% was achieved. Despite achieving a figure of 1.4% in 2012, by 2016 the figure had fallen to less than 1%.

The failure to meet the 2% target, which is set to be pegged significantly higher over the next decade or so, may be attributed to a lack of understanding among employers about how disability is expressed and accepted (or discriminated against) within the workplace, as well as a failure to identify and recruit people with disabilities. In addition to acknowledging the contributions and achievements of people with disabilities, managers and human resources staff must recognise why current and potential employees may not be willing to disclose their disability status.

This entails fostering a broader understanding of the challenges encountered by people with disability and the diversity of disabilities and their effects. For example, greater recognition of the “invisible” nature of many disabilities, such as profound visual and hearing, and psychosocial and neurological impairments, is required. A culture of acceptance of diversity should be entrenched in the workplace with budgets made available to accommodate the diverse needs of people with different disabilities and legislation to ensure this. The full humanity of people with disabilities must be acknowledged.

In the absence of such action, organisations undermine their own operations and efforts to promote and monitor the employment and personal career development of people with disabilities, contravening their employment rights.

Fairer treatment of people with disabilities in the workplace may be achieved by a range of policy actions. A People with Disabilities Rights Act needs to be passed. Resources should be set aside to mainstream awareness about disability, its diversity and its role in the workplace.

In addition, the government should monitor and evaluate the position of people with disabilities within the workplace more rigorously, refusing to accept excuses about the scarcity of suitable candidates in some sectors. The Department of Labour and the Commission for Employment Equity should wield greater authority to ensure organisations account for poor performance in this area.

Finally, more research must be commissioned to identify what can make the South African workplace more conducive to employing and retaining employees with disabilities. Some companies fare well at achieving high rates of satisfied staff with disabilities while others fail dismally.

Tim Hart is a senior research manager at the Economic Performance and Development unit of the Human Sciences Research Council (HSRC). Narnia Bohler-Muller is an executive director at the Democracy, Governance and Service Delivery unit of HSRC and a Professor at the University of Fort Hare.