South Africa

Title:
Western Cape Forum for Intellectual Disability v. Government of the Republic of South Africa & Government of the Province of Western Cape

Court:
High Court of South Africa (Western Cape High Court, Cape Town)

Date:
11 November 2010

CRC Provisions:
Article 23: Children with disabilities
Article 28: Education
Article 29(1)(a): Aims of education

Other International Provisions:
African Charter on the Rights and Welfare of the Child
Revised European Social Charter
Convention on the Rights of Persons with Disabilities
Optional Protocol to the Convention on the Rights of Persons with Disabilities

Domestic Provisions:
Constitution of South Africa
Children’s Act No. 28/2005
The South African Schools Act 84 of 1996
National Education Policy Act 27 of 1996
The Mental Health Care Act No 17 of 2002
Schools Act

Case Summary:
Background:
This case was brought by a consortium of organisations that provide care for children living in the Western Cape who have severe and profound intellectual disabilities, challenging the Western Cape Government’s failure to provide these children with appropriate education. In the Western Cape, the only available education for these children occurs at "special care centres" operated by non-governmental organisations. There are an insufficient number of such centres, and the children who are not able to obtain care at these centres receive no care at all. The applicant claimed that the state educational provisions for children with such disabilities are less than those granted to other children, inadequate to cater for their educational needs, and only made available through non-governmental organisations.

Issue and resolution:
Right to education; right to equality and non-discrimination; disability rights; right to human dignity; right to protection from neglect and degradation. The High Court concluded that the State failed to take reasonable measures to make provision for the educational needs of severely and profoundly intellectually disabled children in the Western Cape, in breach of the rights of these children to a basic education, equality, human dignity, and protection from neglect or degradation. The Court ordered the State to take reasonable measures to give effect to the said rights of these children, including: (1) ensure that every such child has affordable access to a basic education of an adequate quality; (2) provide adequate funds to organisations that provide education for such children; (3) provide transportation for such children to the special care centres; (4) enable the staff of such centres to receive proper accreditation, training and remuneration; and (5) make provision for the training of persons to provide education for such children.

Court reasoning:
The Court found that the State violated the rights of the affected children to a basic education and to equality, both by failing to provide them with a basic education and by not admitting them to special or other schools. There is no rational basis for a government purpose which singles out the affected children for manifestly less favourable treatment than others, and imposes the shortage in funds on the affected children only and not on all children. Accordingly, there is no valid justification for the infringement of these rights.

Furthermore, the Court found that the affected children have been marginalised, ignored and stigmatised, therefore their right to dignity has been violated. The failure to provide the children with education places them at risk of neglect for it means that they often have to be educated by parents who do not have the skills to do so and are already under strain. The inability of the children to develop to their own potential is a form of degradation. Therefore, the children’s rights to dignity and to be protected from neglect and degradation have also been infringed, and there is no valid justification for such infringement.

Excerpts citing CRC and other relevant human rights instruments:
[20] The need to provide fully for mentally or physically disabled children is recognised world-wide. The United Nations Convention on the Rights of the Child states in article 23 “a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community.”

Article 28 confirms the right to education. Article 29(1)(a) states that “the education of the child shall be directed to... [t]he development of the child's personality, talents and mental and physical abilities to their fullest potential”.
…
[23] Closer to home is the Convention on the Rights of Persons with Disabilities and its optional protocol which were ratified by South Africa on 30 November 2007.

The preamble of the Convention provides:
“(m) Recognizing the valued existing and potential contributions made by persons with disabilities to the overall well-being and diversity of their communities, and that the promotion of the full enjoyment by persons with disabilities of their human rights and fundamental freedoms and of full participation by persons with disabilities will result in their enhanced sense of belonging and in significant advances in the human, social and economic development of society and the eradication of poverty,..
(r) Recognizing that children with disabilities should have full enjoyment of all human rights and fundamental freedoms on an equal basis with other children, and recalling obligations to that end undertaken by States Parties to the Convention on the Rights of the Child...

Article 24 of the Convention provides
“1. States Parties recognize the right of persons with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity, States Parties shall ensure an inclusive education system at all levels and lifelong learning directed to:
(a) The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity;
(b) The development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential;
(c) Enabling persons with disabilities to participate effectively in a free society.

2. In realizing this right, States Parties shall ensure that:
(a) Persons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability;
(b) Persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live;
(c) Reasonable accommodation of the individual’s requirements is provided;
(d) Persons with disabilities receive the support required, within the general education system, to facilitate their effective education;
(e) Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion.

3. States Parties shall enable persons with disabilities to learn life and social development skills to facilitate their full and equal participation in education and as members of the community. To this end, States Parties shall take appropriate measures...

4. In order to help ensure the realization of this right, States Parties shall take appropriate measures to employ teachers, including teachers with disabilities, who are qualified in sign language and/or Braille, and to train professionals and staff who work at all levels of education. Such training shall incorporate disability awareness and the use of appropriate augmentative and alternative modes, means and formats of communication, educational techniques and materials to support persons with disabilities.”

CRIN Comments:
CRIN believes this decision is consistent with the CRC. In addition to Articles 23(1), 28 and 29(1) cited by the Court, Article 2(1) requires States to respect and ensure the rights of the Convention to each child within their jurisdiction without discrimination of any kind. This includes a requirement that States take appropriate measures to prevent all forms of discrimination, including on the ground of disability. According to Article 23(2), States recognise the right of the child with disability to special care and shall encourage and ensure the extension of appropriate assistance to the eligible child. Such care and assistance should ensure that disabled children have effective access to and benefit from education.

Citation:
Case no: 18678/2007

Link to Full Judgment:
http://www.escr-net.org/sites/default/files/WC_Intellectual_Disability_final.doc

This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.

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