In October 2024, the South African Law Reform Commission (SALRC) made a call for input on the discussion paper towards the creation of disability-specific legislation, the Promotion and Protection of Persons with Disabilities Bill, that seeks to serve the rights of persons with disabilities and their allies, which includes parents of persons with disabilities, civil society, and Disabled Persons Organisations. The South African Law Reform Commission is mandated to draft new law or amend existing legislation and has sought to put forward a framework law that will ensure that the provisions of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) are domesticated. South Africa ratified the UNCRPD in 2007, which means that it has taken 17 years to start the process of domesticating the state’s obligations towards persons with disabilities. This proposed bill includes provisions on tackling discrimination against persons with disabilities and creates new mechanisms for dispute resolution for persons with disabilities. The passing of this bill into law will furthermore require alignment of other existing legislation that currently negates the rights of persons with disabilities.
The SALRC discussion paper is the second document published by the SALRC regarding this investigation and contains preliminary recommendations for law reform. The UNCRPD is important in securing the human rights of persons with disabilities, including in relation to their legal capacity, equality, and dignity, and is aimed at addressing key aspects of their lives such as living independently and, in the community, health and education.
While South Africa has anti-discrimination legislation in the form of the Promotion of Equality and Prohibition of Unfair Discrimination Act, which is underutilised by the disability sector primarily due to the myriad barriers, including accessibility, faced by persons with disabilities, the policy document, the White Paper on the Rights of Persons with Disabilities of 2015, has moved the country a bit closer to accessibility. The White Paper included a key pillar of self-representation of persons with disabilities, articulating that they should be “included in all aspects of design, planning, implementation, and monitoring of policies and programs.” While the drafters of the policy did not make an easy-to-read version of that policy document available, it did offer a simplified language version, which underscores a move towards accessible information on policy and law reform for persons with disabilities.
However, the SALRC has not, in its consultation process on the new Bill, taken a leaf from the policy reform process. Instead, it embarked upon a law reform process that debilitates and excludes the very people it is meant to include. There has been no easy-to-read version for
persons with disabilities, including intellectual, psychosocial, and neurodevelopmental disabilities, despite repeated requests for such an accessible format of the Bill and the discussion paper to be made available. The discussion paper is written in legal jargon and is therefore inaccessible to most people. The South African National Blind Society had to request the SALRC to provide a Braille version of the Bill to persons with visual impairment who require this format. There is no audio version or sign language and captioned version of the discussion paper and bill available either.
In addition, there has been no widespread dissemination of the Discussion Paper to all in society, including and specifically targeted at persons with disabilities and Disabled Persons’ Organisations. It is the mandate of the SALRC to ensure as much engagement and dialogue
on the discussion paper happens so that the Disability Bill is informed by the experiences of persons with disabilities, considers the systemic barriers and opportunities, and so that their input may ensure that the Bill is fit for purpose.
Article 29(2) of the UNCRPD requires that states parties actively promote “an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their
participation in public affairs, including:
i. Participation in non-governmental organisations and associations concerned with the public and political life of the country and in the activities and administration of political parties;
ii. Forming and joining organisations of persons with disabilities to represent persons with disabilities at international, national, regional, and local levels.”
Self-representation in law reform for and about persons with disabilities is pivotal to meaningful and legitimate participation in what is at its core a political right for persons with disabilities.
At an engagement and dialogue session hosted on 16 November 2024 at the School of Law, University of KwaZulu-Natal, without the benefit of an accessible version of the Bill, an attempt was made to break down the Discussion Paper and Bill and the legal process into
digestible chunks, allowing autistic persons, their parents, and civil society members to seek understanding of the discussion paper and make input. At this dialogue it emerged that the law reform process was fraught with challenges, there being no accessible versions of the bill.
available and the tight turnaround, with the deadline for inputs being a two-month period, on the 4th of December 2024, making it near impossible for the autistic community and broader disabled sector to make meaningful submissions to the SALRC.
At a consultative meeting hosted via a digital platform by the SALRC, it was clearly articulated by civil society representatives and Disabled Persons Organisations that a reasonable extension of the deadline was required, especially since accessible formats were not provided. A request was made that the extension be offered for three months from the time the accessible formats of the bill were made available to the disability community. In other words, hypothetically, if the accessible formats are made available on 1 December, then the period is extended to 1 March 2025. On 3 December 2024, the period was extended to 31 January 2025, giving another two months’ time for consultations and input, sadly taking place over the festive season, which is a close-down period for most families and Disabled Persons’ Organisations. The extra two-month period is wholly inadequate to canvas the Bill and its impact on persons with disabilities, particularly as it may take more time to engage with persons with disabilities and for them to organise forums to put forward their views.
Furthermore, to date no accessible formats have been provided, there has been inadequate publicity of the draft bill on public radio or television, and most persons with disabilities are unaware of this process. The extension of the deadline sans accessible formats of the bill and
adequate publicity pays lip service to the rights of persons with disabilities to self-representation. In the meantime, they suffer daily indignities and transgressions of their rights, with their autonomy and dignity negated.
A call is made for the SALRC to, without delay, make accessible formats of the Bill available to persons with disabilities and their allies so that the new legislation will truly reflect a society in which equality before the law is embedded, not just in the law itself, but also within the law reform process—Nothing about us, without us! Furthermore, for the law reform process to be open for a reasonable period to allow sufficient and adequate consultation with persons with disabilities about this draft Bill.
