The Right to Education for Children with Disabilities in South Africa: SECTION27’s action from national research and litigation strategies to international advocacy

The South African Department of Basic Education has indicated that as many as 489 036 children with disabilities of a school going age are not attending any school at all. The 2013 General Household Survey indicates that of the children with disabilities who do not attend school, 67% report severe disabilities and would therefore require placement in special schools. In terms of the Department’s Inclusive Education Policy, set out in Education White Paper 6, the provision of schooling for children with disabilities may occur in mainstream schools for moderately disabled learners, full-service schools which are specially adapted mainstream schools and special schools which are exclusively for learners with severe disabilities. In order to implement the policy, the government has adopted an incrementalist approach in the provisioning for special needs schools.

SECTION27 is a public interest law centre that has a national and international reputation for defending and advancing human rights in South Africa. On the occasion of the sitting of the United Nations Committee on the Rights of Persons with Disabilities, SECTION27 welcomed the opportunity to make a submission to the Committee highlighting the systematic failures of the South African government to give effect to the right to education for persons with disabilities.

Two of Section27’s projects reveal the systematic failure of the South African government to provide for the right to basic education as envisaged in the Constitution for many children with disabilities. This is reflected in the struggle to access basic education for many children with a range of physical and intellectual disabilities living in Manguzi, a deeply rural, poor community in far north of the province of Kwazulu-Natal sandwiched between South Africa’s borders with Swaziland and Mozambique. Furthermore, in all of the schools for visually impaired learners across South Africa, there are chronic challenges to the detriment of learners to access meaningful education.

The right to education of learners with disabilities in South Africa

The Convention on the Right of Persons with Disabilities (CRPD) affords all persons with disabilities the right to education. South Africa has ratified the CRPD without reservations and it is therefore bound by its provisions. Article 24 of the CRPD, in affording the right to education for persons with disabilities, emphasises the principles of non-discrimination and requires state parties to realise the right on the basis of equal opportunity.

In addition, the South African Constitution affords the right to basic education to “everyone”. The Constitutional Court has found the right to basic education to be an “unqualified” right and it is therefore “immediately realisable”; unlike other socio-economic rights which are qualified by a duty to make reasonable efforts within available resources towards progressive realisation. The reference to everyone includes children with disabilities. In accordance with the Constitutional Court’s approach to rights as interdependent, this provision must be interpreted consistently with the rights to inherent human dignity and equality. In pursuing the constitutional value of “the achievement of equality”, the Constitution explicitly prohibits discrimination on the grounds of disability and the state is required to proactively take “legislative and other measures” to prevent such discrimination.

In keeping with its constitutional obligations, South Africa has enacted the Schools Act. The Act makes compulsory education for children between the ages of 7 and 15 and requires that relevant government officials make special needs education available for all children with disabilities. Furthermore, the government has drafted a policy document – Education White Paper 6 – to give effect to the right to education for persons with disabilities.

Access to special schools for severely disabled children in Manguzi

In 2013 SECTION27 began working with a community based organisation for people with disabilities Siphilisa Isizwa, a Disabled People’s Organisation (DPO) in Manguzi. The partnership culminated in the mobilisation of persons with disabilities out of school, particularly children across 48 villages. Early in 2014, SECTION27 and the DPO called a meeting with the purpose of gathering evidence of the extent of the problem of access to education for persons with disabilities in the area. Approximately 150 parents and representatives of persons or children with disabilities were present in the meeting. It was revealed at the meeting that many children with disabilities in the area have not received any form of education and many have passed the school going age without a taste of the right to education.

Through discussions with community members and the DPO, SECTION27 learned of Sisizakele Special School, a school for learners with physical and intellectual disabilities which many of the parents had attempted to have their children enrolled in. Parents reported that they were constantly informed by the school that there is insufficient space to accommodate their children at the school and that their children would have to be placed on a waiting list. The school itself was initially founded after the intervention of a group of concerned parents and community members pooled their limited resources and formed the school. Later, the government took over the operation of the school. However, this intervention from the government was alone insufficient to ensure that learners receive access to the quality of education to which the Constitution entitles them.  

At the beginning of 2014, SECTION27 representing the DPO and parents of 17 children, wrote to the KwaZulu-Natal Department of Education (KZNDoE) regarding the placement of the 17 children.

After a year of unsuccessful correspondence with the KZNDoE, SECTION27 threatened litigation in the KwaZulu-Natal High Court seeking an ordering requiring the placement of 17 specific children in Sisizakele Special School in 2015 and the provision of plan from the KZNDoE about how it would ensure other similarly situated learners were similarly provided with access to education.

Successes and Challenges

The KZNDoE responded to the pressure applied by SECTION27 and the DPO. It promised the placement by 2015 of the 17 children. In 2015, SECTION27 received news that 13 of these 17 learners have now been placed at Sisizakele Special School. The remaining learners have not been accommodated yet for varying reasons. Though litigation was averted and 13 of the learners now enjoy access to education, the following concerns remain:

• The DPO informs SECTION27 that there is a group of 50 learners which they are aware of that require placement at special schools. There is reason to suspect that Sisizakele Special School alone has a waiting list of hundreds of learners.

• The admission of the learners at Sisizakele in 2015 has exacerbated an already severe shortage of staff at the school. In 2014, 17 teacher posts ought to have been allocated to the school, but there were only 8 teachers at the school. Despite the increased admission level this year, the school continues to operate with 8 teachers though it has been allocated an additional 4 posts in 2015.

• A report commissioned by SECTION27 in 2014 on resource allocation in special needs education notes decreased budgetary allocation for special needs education in the province amidst projected increases in learner enrolment and teachers for the 2015/2016 and 2016/2017 financial periods.

The state and quality of education received by visually impaired learners in “special schools”

According to the South African National Department of Basic Education, in 2013 it appears that there were 2 495 partially sighted and 1307 blind children receiving education in special schools in South Africa.

In late 2014 and early 2015, SECTION27 conducted site visits and telephonic interviews with all 22 special schools for children with visual impairments in South Africa. These visits unveiled the failures of the government to meet its constitutional obligation to afford meaningful access to the right to education for visually impaired learners. SECTION27’s submission to the Committee highlights the following challenges faced by visually impaired learners in accessing quality basic education through special schools:

• Learner Teacher Support Materials: Limited availability to textbooks, workbooks and teachers’ guides in accessible formats, including Braille and large print. As a result of a failed tender process in 2012, there are presently no textbooks at all available to the significant majority of schools.

• Capacity of educators: Many of the teachers at the schools for visually impaired learners are not Braille literate in either elementary Braille or contracted Braille. Teachers are appointed to schools through a redeployment process which does not require any expert knowledge on the education of visually impaired learners, and most provincial departments of education provide no training for teachers, and they are therefore forced to learn specialist skills on the job.

• Staff provisioning: There is a severe problem with staff shortages in respect of both teaching and essential non-teaching staff such as class assistants and house parents for learners staying in hostels.

• Orientation and Mobility instruction: Learners with visual impairments at many schools do not have access to orientation and mobility training, which is paramount to their education and independence. Learners therefore learn to find their way around by “bumping and falling”.

• Assistive Devices: Some schools do not have access to basic equipment such as brailing machines and computers with appropriate software for use by visually impaired persons. There are significant challenges with the adaptation and brailing of some standardised examination and test papers. Many schools report that compulsory test and exam papers arrive late and/or in print. The result is that either visually impaired learners do not write certain standardised assessments, to their detriment, or they write exams in non-ideal circumstances, such as having teachers read questions to them.

Conclusion: systemic challenges to accessing education

Many of the problems experienced by schools for children with disabilities throughout the country are results of systemic failures within the provincial and national departments of education and are therefore symptoms of bigger, structural problems. For example, the shortage of educator and non-educator staff is a chronic problem across the schools for learners with disabilities and is evident in both case studies detailed in SECTION27’s submission.

These persisting problems in special needs schools can partially be attributed to the constitutionally inappropriate incrementalist approach by the government to provisioning for special needs schools, instead of understanding the right to basic education as immediately realisable. A further issue is the uncertainties within schools and departments of educations themselves about the role of special schools within the schooling system envisioned by the national department’s inclusive education policy. This uncertainty is, in part, as a result of the policy’s ambiguity but is, as SECTION27’s submission reveals, significantly exacerbated by the general lack of expertise within the departments of education about education for learners with disabilities.

Silomo Khumalo is a Students for Law and Social Justice Research Fellow at SECTION27. Silomo holds a Bachelor of Social Science degree with majors in Sociology and Legal Studies, a Bachelor of Laws and an Honours degree in Public Policy from the University of KwaZulu-Natal. During his time as a student he participated in human rights and disability activism organisations. Silomo is passionate about constitutional law and public policy and hopes use a career in human rights law to assist in the transformation of South Africa. Silomo is totally blind.

Tim Fish Hodgson is a Legal Researcher at SECTION27. He holds an LLM from the University of Michigan (2013) and an LLB from University of Cape Town (2010). In a previous life he also completed a Bachelor of Business Science at UCT (2008). After graduating with his LLB, Tim spent an inspiring year clerking for Justice Zakeria Yacoob at the Constitutional Court of South Africa. Inspired by the potential for the Constitution to be used as a tool for achievement of social justice, dignity and equality, Tim plans on committing his legal career to contributing to the project of transformation in South Africa. Tim is passionate about constitutional literacy and excited to be involved in the transformation of our young, vibrant constitutional democracy.