Disabilities Rights Framework & Disability Bill: SALRC & Department briefing

Meeting report

The Chairperson welcomed the Department of Women, Youth and Persons with Disabilities (DWYPD), the South African Law Reform Commission (SALRC), and all the Members of the Committee. The Chairperson reminded the Department to work on tabling all Bills it must present to Parliament, and spoke of the sanitary dignity pack drive.  

Six provinces took part in the drive; three provinces are left, namely, KwaZulu-Natal, Free State, and North West. Those are the only provinces which did not attend the drive and did not present before the Committee in the prior meeting. Letters were written to these provinces and a meeting will be scheduled. 

The Chairperson asked the Minister and Deputy Minister of Women, Youth and Persons with Disabilities to be present at the previous Committee meeting. Some of the provinces had issues with the sanitary dignity packs, so the Committee identified a lack of uniformity and consistency regarding who gets awarded tenders, which differs from province to province. The Chairperson raised the matter of implementing 40% women procurement beneficiaries from this year, going forward. Women should be economically empowered, including persons with disability.

Deputy Minister Opening Remarks 

Deputy Minister of Women, Youth and Persons with Disabilities, Prof Hlengiwe Mkhize, said in January 2021 there was a big public outcry from disabled persons who had to renew disability grants. It meant long lines and people sleeping in facilities because people were not attended to. The Department became aware of this through social media. The Department advocated for the rights of persons with disability. The Minister said this outcry showed the Department the importance of strengthening the law regarding people with disabilities, and the importance of restoring the dignity of persons with disability. The White Paper of rights of disabled persons is the cornerstone and baseline for the rights of people with disability.  All spheres of government and stakeholders are bound to it. The Minister gave a brief background on the framework to be presented in the forthcoming meeting, and referred to the National Strategic Framework on Reasonable Accommodation; the Universal Access and Design Framework; Self-representation and Awareness Raising Campaign, and the Disability Rights Bill.  All of these frameworks will help to advance the White Paper for persons with disability. The Minister closed her opening remarks by saying the rights of disabled persons must be at the centre of all spheres of governance.

South African Law Reform Commission Presentation: Project 148 Domestication of the UN Convention on the Rights of Persons with Disabilities  

The South African Law Reform Commission (SALRC) gave a presentation to the Committee on project 148: domestication of the United Nations Convention on the rights of people with disabilities. The SALRC received a request to investigate the domestication of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) in May 2018 from the Department of Justice and Constitutional Development (DOJCD). A pre-investigation was done and the Commission approved the investigation for placement on its research programme in 2019. The Advisory Committee for Project 148 was approved by the Minister of Justice and Correctional Services in September 2020.The Committee met shortly thereafter to develop an issue paper which served before the Commission on 9 December 2020.  

Department Of Women, Youth and Persons with Disabilities Briefing on the Progress of Awareness Raising and Self Representation Frameworks

The Department of Women, Youth and Persons with Disabilities (DWYPD) gave a presentation on the progress of awareness raising, self-representation frameworks and reasonable accommodation, and universal access plan. After wide consultation with the disability rights sector, participants decided the two frameworks, National Disability Rights Machinery, and the Presidential Working Group on Disability, must be developed and implemented by government, as directed by the White Paper on the Rights of Persons with Disabilities. 

The Frameworks are based on the implementation matrix of the White Paper and provide guidelines for planning procedural issues, budgeting, and governance matters. The two frameworks are in the DWYPD Annual Performance Plan for 2020/2021, and are in the final stage of consultation. It is a work in progress. The definition of awareness-raising was discussed, together with the Awareness Raising Campaign Framework, and the concise definition of self-representation. 

The Department discussed legislative articles expanding into the scope and nature of self-representation. The Frameworks on Disability Rights Awareness Campaigns, and Self-Representation were revised. The Department received input which was incorporated, consulted, and validated by the Presidential Working Group on Disability. 

The Frameworks will be tabled at the National Economic Development and Labour Council (NEDLAC), not later than 26 February 2021. The Frameworks will also go through the director general clusters and the cabinet system, not later than May 2021. Reasonable Accommodation and Universal Access Plan was discussed in the second part of the meeting. 

Department Of Women, Youth and Persons with Disabilities Briefing on the Reasonable Accommodation and Universal Access Plan (Advocacy and Mainstreaming) 

The purpose of the Universal Design Framework is to integrate universal design and access into all planning, designing, budgeting, implementation, monitoring, evaluation and reporting systems. The Reasonable Accommodation Framework is a mechanism, for an integrated and multidisciplinary coordination of reasonable accommodation and coordination, for dissemination of information, regarding reasonable accommodation measures. 

The Frameworks are based on the implementation matrix of the White Paper, regarding the Rights of Persons with Disabilities, which was approved in December 2015 and published officially in March 2016. The Department looked into the definitions of Disability, Reasonable Accommodation, and Universal Design. It further presented on the principles of Universal Design, which includes but is not limited to equitable use and flexibility of use. Principles of Reasonable Accommodation are founded on respect for inherent dignity, individual autonomy, including the freedom to make one’s own choices, and independence of persons. Nine strategic pillars of the Framework were expanded on in government departments. Other spheres of government, at provincial and local level, will be expected to implement these tools to realise the policy directives of the White Paper on the Rights of Persons with Disabilities. The Portfolio Committee must take note of the Frameworks, and assist to perform an oversight function for successful implementation.

Discussion

The Chairperson asked if the Department did any comparative analysis with other countries, to see how other countries deal with similar kinds of issues as in South Africa. The Committee asked other sectors to conduct research to see how other countries deal with these issues, so it can implement the same strategies which were used.

Ms Phuti Mabelebele, Chief Director: Rights of People with Disabilities, DWYPD, replied that in Universal Design and Access, there are several government departments within its facilities which accommodate and use the Universal Design and Access, to ensure its buildings accommodate persons with disabilities. It is also an area which needs to be strengthened and it must ensure government departments have a standardised manner in which it applies the Universal Design and Access Framework. Once it is approved, it will be able to monitor implementation. But it can safely be said there are government departments which started to implement the Universal Design and Access Programme. Although there are still aspects of the design which have a shortfall, there are private and government departments implementing the programme. The Department visited these with the Deputy Minister in December, and saw how in its employment of disabilities, it is also trying to enable the environment and facilities to be able to meet the Universal Design.

Mr S Ngcobo (DA) thanked the SALRC for its presentation. The SALRC said it will embark on extensive public consultation. Mr Ngcobo wanted to know what the nature of the consultations will be and how the SALRC will reach out to all the relevant key stakeholders. He asked if the Commission will also use social media platforms to communicate with stakeholders. Mr Ngcobo wanted to know about the Issue Paper the SALRC will be developing and issuing to the public for commentary. He wanted to know how the public will make comments on the Issue Paper produced, and if it will be accessible to people with disabilities, especially people who are blind. 

Mr Ngcobo asked if it will it be possible for the Issue Paper to be translated into Braille. He asked if the SALRC and DWYPD did any work on the inclusion of sign language as one of the official languages in South Africa. He said last year in November 2020, there was an issue in DWYPD, which angered many persons with disabilities in South Africa. This was where a director’s wife got a high profile job which was meant for persons with disabilities. The Committee asked for the investigations on this matter, but did not receive an outcome or report in the matter, and persons with disability in South Africa are still waiting for the report. He wanted the DWYPD to give an update on the matter.

Mr L Mphithi (DA) agreed with Mr Ngcobo. He was very surprised the meeting started in the manner it did, because as a Committee, it contested issues relating to nepotism in the DWYPD.  The Committee requested an investigation and it received no feedback on the investigation. As Members of the Committee, Members have a responsibility enshrined in the Constitution to provide oversight over DWYPD, and also to respond and communicate issues relating to their constituencies and the disabled community in South Africa. He found it very wrong for the Department to continue with presentations where different departments, and non- government organisations (NGOs) looked to the Committee for clarity as to what took place last year within the DWYPD.  The matter regarding the appointment of the Chief Director, and other positions within the Department which failed to recognise the importance, value, and meaningfulness, of people with disability in South Africa, to an extent persons with disabilities are not given an opportunity to hold senior positions in the Department, had to be answered. 

He finds it ironic the Department is discussing a Framework which is supposed to provide space for persons with disabilities, not only in education facilities, but also in work, yet the same Department fails to implement its own frameworks. The DWYPD Minister’s explanation last year was not enough. The Committee needs to be addressed properly by the Minister on this problem and given an update on this investigation.

Ms M Hlengwa (IFP) said the National Framework on Self-Representation, refers to national and provincial disability coordinating mechanisms which must be established. As the Committee understands, it will be constituted by the various rights’ coordinators of various departments, and according to the Framework it will be chaired by the Department in which the disability rights coordinating mechanism is placed. Ms Hlengwa wanted to know how one ensures coordinating mechanisms fulfil its function if the Department sharing the coordinating mechanism does not meet its own targets, and has a history of instability and failing to monitor its own internal control. She asked which measures will be in place to address this risk. 

Ms N Sonti (EFF) said persons with disabilities have many challenges. Disabled persons are not recognised, especially in rural areas. She referred to people who are wheelchair-bound as an example, and said these persons struggle in taxis which are not comfortable, and are expected to pay for the wheel chairs. Her concern is government should ensure persons with disability are well accommodated in transportation. 

Many persons with disabilities are not counted or identified as persons who need help, if these persons live in deep rural areas. This is where the role of social workers plays a great role.  Services for disabled persons are very few in the rural communities, as compared to those in the township. The government should make sure services are the same and accessible to all persons in South Africa, including people with disabilities. 

Ms F Masiko (ANC) said the Commission clearly outlined the process it is going to follow for the implementation of frameworks.  As a Portfolio Committee, it is upon the Members to ensure the Committee closely monitors the process. The Committee holds the responsibility to look at other countries and see how other countries implemented such policies, and Bills, and also to check on implementation, to see how it varies. Such things are good on paper, but regarding enforcement it is lacking. It must be checked if other countries are successful in implementing what the Department has on paper, and what the rewards are. She reiterated the importance of access to information for the disability sector specifically, for example the translation into Braille, as well as it being accessible to the community.  She also noted the issue of thorough consultation, specifically in the sector of disability to keep persons with disability abreast with new developments. Most disability activists would say there is a need for more disability awareness, especially to address those who are employers of persons with disabilities. Issues are not only addressed by policy, but also by those who create the environment for the disabled. The Department must therefore also educate communities on how to deal with matters. 

The Department and private sector needs to bring capable persons with disabilities on board, in government and in the private sector. It must happen at all levels, especially in top management where persons can prove capacity to achieve what can be done, already demonstrated by persons with disability in communities and societies. The DWYDP missed an opportunity to bring on board a person with a disability.  The Department needs to practice what it preaches. 

Ms N Sharif (DA) said she does not believe it is an opportunity as Ms Masiko said, rather a mistake. An abled person was taken before a very capable person with a disability is problematic, and unacceptable. It is ironic the Committee gets presentations on the importance of implementation, but the Department fails to ensure such presentations are implemented. She said she looks forward to seeing how the Executive will rectify the problem.

In the first presentation Ms Mabelebele spoke of those who participated in the National Disability Rights Missionary and Work Group. Ms Sharif wanted to know how many people participated in the production and ideas of the framework, and what the Department means when it says it is in the final stages of consultation. 

Regarding the Universal Plan, she asked how these frameworks and policies work together with departments, especially the Department of Public Works and Infrastructure (DPWI). The same question was asked regarding the Labour Department.  

She asked how the Framework works with existing policies, and how these frameworks will be enforced and implemented. Government has a bad habit of producing frameworks and nothing ever happens or changes. Ms Sharif asked how these frameworks will be different in 2021; what some of the interventions are which the Department plans to implement to monitor and evaluate the outcome of the frameworks; how these frameworks will be incorporated into the Bill, to ensure change actually happens. 

She wanted to know more on the public participation the Department did. She asked for clarity regarding how the Department will get approval if clusters are meeting in May, and the approval will be taken in April. 

Ms T Mgweba (ANC) asked if the Department was under the supervision of the Minister and Deputy Minister in its extensive public consultation. She asked, as member of the Portfolio Committee, if it is its responsibility to make sure the Department embarks on the extensive consultation irrespective of its political affiliations.

She wanted to understand more from the Department regarding the Issue Paper which will be advertised for commentary. Her concern was which languages will be used in the Issue Paper. She asked if the Department considered disabled persons from rural areas who cannot read or write, and persons who have hearing and visual impairments. She asked how public education will look in this instance. 

The Chairperson noted concern about the frameworks presented, and asked if the Department consulted with the Disability Unit, and civil society organisations, or education sectors which deal with disability matters. It is important the Department consult with persons who deal with disability every day, as such entities feel left out from the plans of government. This is evident because the Committee received letters of complaints.

The Chairperson noted the meeting agenda, and said the Committee did not intend to discuss the matters the Members raised regarding investigations. She said what the Committee did when drafting the programme was to allocate a day where the correspondence it sent will be discussed, and the Department will be expected to come and respond orally to the Committee. All the matters where disabled persons were treated unfairly will be addressed on the allocated day. Whenever the Committee receives letters of complaints it sends it to the relevant department. The Committee is proactive and dedicated to addressing issues of prejudice and inequality in the disability sector. The agenda for the meeting today was specific and required the Department to present on the issues it presented on only, and not to answer to questions of investigations as of yet.  

Responses 

Adv Mikateko Maluleke, Director-General (DG), DWYPD, replied to the concerns Members of the Committee raised, regarding the investigations. Ms Maluleke said she sent a complaint to the Department of Public Service and Administration. The Department wrote back to her saying it referred the matter to the Public Service Commission. The Public Service Commission, last year in December, wrote to the Department and asked the Department to submit the advert, interview records, and curriculum vitas (CVs). 

The Department submitted all the documentation. The Public Service Commission is currently investigating the matter, and will write back to the Department of Public Service and Administration, and to Parliament, regarding its findings. 

Mr Benny Palime, Director: Rights of Persons with Disabilities (RPD), DWYPD, replied regarding the question of consultation with the disability sector. DWYPD consulted 1500 people, and 19 disability organisations.  It received comments and will add it in the notes of frameworks. In matters related to Reasonable Accommodation and Universal Design, it expects various departments to send back responses within a specific time limit. It realised the various departments do not respond within the timeframes it wants. Ms Maluleke wrote letters to the various departments to reply to the reports. 

On the issue of benchmarking, it did comparative analysis with USA, Australia, Canada, Sweden, Switzerland, Kenya, and Uganda. Those were the countries it looked at regarding processes, which is why it drafted the framework.  The four frameworks are each based on the United Nations (UN) Conventions disability, regarding how monitoring work is envisaged. DWYPD wants to establish a specific tool, already in process. The report shows the tool used by departments monitoring compliance, which is an indefinite process. It will be ongoing work. 

Regarding awareness raising campaigns, the Department made a decision to run a 365 day awareness campaign, which it started regarding how it will implement the campaign. The consultations will take place from March to May, and the Department is going to co-fund the consultations.  The group of people it is consulting represents 2 900 million people with disability.

Ms Tania Prinsloo, SALRC, replied to the question on the process of consultation. The process will be published on its website.  Documents will be sent to distribution, it will send invites to various people across the country, and a meeting will be held where it discusses various issues regarding this matter. After the above process, it will receive feedback from meetings and consolidate it. Since it has to do all of this through the coronavirus pandemic, it discussed it with its advisory committee within the Department. It is considering rural places and persons with disabilities there. It is envisioning a media strategy which will be funded by the Department. The media strategy will entail two virtual meetings with the audience, including other professional organisations. It will later conclude with another meeting, and will also conduct media interviews. This is how it will reach out to people. It will use social media platforms, and will publish on its website in the Department of Justice. It also has an email dedicated to the Commission, which will receive all the input from the public. It will be disability friendly and an easy to read version. The Department Of Justice will translate the information into Braille.  Issues of sign languages will be considered from the responses of the public. The consultations and process will be published in English. 

Replying to Ms Sharif’s question on the link of the Framework and the Bill, Ms Prinsloo said the Department will consult with departments such as DWYPD, and other organisations. It will treat such consultations as input to the Issue Paper, and will take the input and work it into the discussion paper to see how the Bill or amendment acts react to the Framework. 

Mr Palime replied to the question on sign languages. Last year it advised the Constitutional Review Committee in Parliament on investigating the amendment and on the inclusion of sign language. The 11 official languages are provided in the Constitution. For an amendment to take place there must be a technical amendment to the Constitution. It will have to go through the process of the Use of Official Languages Act, which it started to do. Through the help and leadership of the Deputy Minister, it has a webinar on sign language from some time last year. It is also looking into Section 6 of the Constitution to ensure it becomes practical.  It will not go through the normal process, when it comes to the inclusion of a language. Instead it will go directly to the Act, because it already has a base around the constitution.

The issue however, is how it will implement it in schools and other organisations. Once it amends the Act, sign language must be requested on demand. For example, if a person gets to a clinic, the person has the right to demand he be addressed in sign language. 

Ms Mabelebele replied to the question of self-representation.  The disability forums at national level are present and strong. The provincial level requires strengthening of its coordination mechanism, which is emphasised in the Framework.  At provincial level, it has Offices of Persons of Disability, Offices of the Premier, which requires it to assist the coordination mechanism in the Province, and the organisations in provinces, for the effective participation in various elements of self-representation. It is an area which requires strengthening. The Provincial Disability Forums are not coordinated as it should be. This specific element was established to strengthen this specific area. 

As a Department it initiated partnerships with South African National Taxi Council (SANTACO), National Transport Association, and Long Distance Association, so whatever programme it implements, it integrates women and youth, and persons with disability. Last year it started training in Limpopo, Gauteng, and Eastern Cape, training taxi drivers on gender based violence (GBV) and disability. There has also been an agreement with National Transport Association to specialise in disability, so it came up with means and measures to adopt and share with other taxi associations. It is a matter which will run throughout. The Department sourced funds to ensure it works with all taxi associations, to ensure it addresses issues of disability and GBV. 

The Department of Transport worked with DWYPD on developing a specific policy which seeks to address issues of disability. It wrote this as a Department, and it is circulating around municipalities. It had a meeting with the taxi industry and addressed all pertinent issues regarding the matter. Once the transport policy is approved, it will be presented to the Committee. 

The Frameworks on persons with disability within the White Paper, derives its mandate from the White Paper. The Bill will be drafted and will derive its mandate from the White Paper. Regarding the persons with disability, the Frameworks are going to provide a regulatory framework, to ensure government is compliant with the Bill when it is passed. Currently, it has the White Paper, with the rights of persons with disability to assist it to develop the Framework.

The link between DPWI, regarding the Framework, is seen through the attached matrix in the Framework, which provides for the different role players in the Department Of Public Works. In these roles, it is required to participate in the issue of Universal Access and Design, for instance it talks to the policy directives, and shows the reflection of persons with rights of disability.  There is an annexure which talks to the implementation of the White Paper, which is guiding the different role players within the Frameworks.

DWYPD met with the Department of Housing, as it requires it to mainstream employment, benefits, and respond to reasonable accommodation for women and person with disability. It also already agreed on a Memorandum of Understanding (MOU). DWYPD already wrote to the Department of Employment and Labour to reply to issues of rights of persons with disabilities, regarding employment, ensuring it reaches targets.  It still has to enter into a MOU with it, together with DPWI, and Department Of Transport. 

The MOU makes it easier for it to account as agreed. This is an agreement to assist with compliance of Frameworks. It already made a framework to assist with strategy, to assist with GBV, and to comply with gender responsive monitoring evaluation and auditing. 

Replying to the question on clusters, Ms Mabelebele said clusters already started. The Director-General (DG) already attended two clusters. The Ministers’ cluster will be held from 4 February 2021, which the Minister will attend. The Cabinet clusters also started. Because of Covid, it had to be done online. Oversight of government on Parliament’s own process will be done once the Department conducts consultations and submits. The Department consulted with all necessary groups and members of the public. It does not draft policy or Frameworks without consulting persons with disability and its community.

Closing Remarks by Minister 

Minister of Women, Youth and Persons with Disabilities, Ms Maite Nkoana-Mashabane, said the structures of the disability centres at national level are stronger, but as the Department goes down to provincial level, the structures become weaker with commitment and cooperation, irrespective of letters she sent to provinces.  She assured Members of the Committee, there was emphasis on the District Development Model of issues, which affect the Department, and persons with disability. The model helps DWYPD, as it brings it closer to communities. This means issues of language and culture in the District Model are taken into consideration. The Department will make relevant input to the structures, over time. Because of the coronavirus and the shift to online consultations, it was not able to fully look into the challenges disabled persons face. However, through the District Models it will be able to address some of the challenges with people in rural areas. 

Regarding implementation, more still needs to be done. Looking at the benchmark matter of international countries is something DWYPD can learn from. As a Department, the instruments of monitoring and feedback must be sharpened. It needs to monitor independently. The Presidential Working Group was attended by the Minister and Deputy Minister. Here, issues were raised, and commitment to implement policy. The Minister highlighted the cooperation of the Committee and the Department in working together to find a suitable Deputy Director General. Progressive criticism must not be avoided so the Committee can respond to matters of community.

Chairperson’s Closing Remarks 

The Chairperson said the Department should look at Ghana and how it implemented its District Model, specifically on the issue of GBV. It can incorporate some of its approach, as it bears good results when it is applied holistically and all spheres of government are participating in it. 

The Chairperson thanked the Minister for her remarks, and noted concern for more advocacy in certain provinces which need more attention, such as the Eastern Cape. The Chairperson also asked for oversight for the sanitary dignity pack drive which faces problems. She said she looks forward to seeing the Minister and Deputy Minister in the drive. She thanked the Department, the Law Reform Commission, and Members of the Committee for all the input. 

The meeting was adjourned.