NOTES

 

A critical appraisal of Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa 2011 5 SA 87 (WCC)

 

 

P Kruger

LLM (University of Pretoria). Researcher, Institute for International and Comparative Law in Africa, University of Pretoria, South Africa. Email: Petronell.kruger@up.ac.za

 

 

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ABSTRACT

The 2011 the Western Cape Forum for Intellectual Disability v Government of The Republic of South Africa case flagged a lot of issues faced by persons with disabilities relating to access to education in South Africa. The case tackled certain perceptions about the ineducability of persons with profound and severe disability and the remaining charity-oriented perception by the South African Department of Basic Education. While the court made several important points in advancing universal access to education, the author argues that certain holes in the judgment hinders the existence of judicial finding truly infused with concerns of substantive equality. An example of this short-coming is the court's consideration of reasonableness when the right to basic education is an immediately realisable right. The author also argues that the South African developments in education policy for persons with disability, while positive, is insufficient to truly give effect to substantive equality - the claim to equality being made in the new constitutional dispensation. There is still an attitude that is too permissive of separating students based on abilism. The social model of thinking about requires a complete transformation of the education system that would not require a classification of learners by abilities but have a different constitution so as to accommodate all students and not unduly enable one group over another. The author considers the approaches from Canada and India to explore its responses to education for students with varying levels of ability. Canada's similar conception of equality and India's influence on South African constitutionalism and shared experience with massive equality gaps make these jurisdictions instructive.

Keywords: disability; Western Cape Forum for Intellectual Disability v Government of The Republic of South Africa; substantive equality; Education White Paper 6: Special Needs Education; White Paper 6; Right to Education; Integrated National Disability Strategy; special schools; special needs; separate schools; profoundly and severe disability; Convention on the Rights of Persons with Disabilities; transformative equality; comparative; India; Canada -Newfoundland; Eldridge v British Columbia (Attorney General); reasonable accommodation.

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1 Introduction

As this is a nation riddled with a history of inequality, the Constitution of the Republic of South Africa is a sign-post to what one hopes is an end destination of inclusivity. Post-1994 the new democratic government faced the challenge of reversing the entrenched marginalisation not only of non-white citizens but also of persons with disabilities. The Apartheid government had tailored society, especially the education system, to abled-bodied persons. Accommodative and inclusionary policies were weak and reserved only for children belonging to the privileged minority. The new Bill of Rights clearly decries the continuance of this ablism ' -bias - Section 9 prohibits discrimination based on disability (an expressly listed ground) and section 26 offers an unqualified guarantee of the right to basic education.

In response to the abled-disabled dichotomy, the South African Cabinet adopted the Integrated National Disability Strategy in 1997 (INDS).¹ The INDS set out to change attitudes and destroy the social barriers hampering the enjoyment of a full life by persons with disabilities, and to take a person-centred approach in addressing issues peculiar to persons with disabilities and the inclusion of such person in all spheres of life.² The INDS marks a paradigm shift by framing disability as a social and not a mere medical issue.³ It views disability as a socio-political construct where the physical environment and social attitude of people are hostile and cause exclusion.⁴ It does not support the bio-medical perception of normalcy that centres on the person as a patient, discarding social factors and focusing on cure and rehabilitation.

Education White Paper 6: Special Needs Education (White Paper 6) is the policy mechanism within the education system to advance the social model. White Paper 6 attempts to create a learning environment that is universally inclusive and removes the barriers certain students may face during schooling. This thinking proved to be in line with international standards and was supported by the Convention on the Rights of Persons with Disabilities, which became effective in 2008. Article 24 of the Convention obliges states to "ensure an inclusive education system at all levels" and calls for the reasonable accommodation of an individual's needs to support full inclusion in the mainstream system of education.

White Paper 6 - which represents South Africa's domestic response to inclusive education - was central to the decision in Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa.⁵The Western Cape High Court considered the question of the exclusion of profound and severely disabled students from the formal education system and found a violation of the right to basic education, human dignity and equality.

The purpose of this essay is to critically appraise the submissions by the parties in the Western Cape Forum case, as well as the judgment by the High Court. To achieve this purpose, the author will consider the issues emanating from the facts in the case, and will draw from foreign law and practice on the issue of inclusive education.

 

2 Issues arising from the Western Cape Forum case

2.1 Educability of profoundly and severely intellectually disabled learners

The government submitted that students with profound and severe mental disability would find no value in learning.⁶ This submission is reminiscent of past notions of the inherent incompetence of such students where the student was placed in custodial care only for supervision purposes.⁷ In an environment where the student received no exposure to learning, it is of little surprise that the student subsequently showed poor development, reinforcing the initial fallacy of inherent incompetence.⁸ This fallacy has not been universally dispelled - some contemporary commentators still question the entitlements of severely disabled persons to certain rights.⁹ The Convention on the Rights of Persons with Disabilities (CRPD) rejects this approach.¹⁰ The preamble of the Convention highlights everybody's entitlement to all the rights and freedoms in the Universal Declaration of Human Rights and the International Covenants, without distinction of any kind. The CRPD is a response to the systematic exclusion and dehumanisation of persons with disabilities by creating a framework where inclusion is a necessary result of the right to human dignity that vests in all persons.¹¹

The Constitution of the Republic of South Africa frames human dignity as both a standalone right (section 10) as well as a foundational value underscoring the interpretation of other rights.¹² The right to human dignity entails an enjoyment of all rights as an individual and encompasses the right to equality, as this enjoyment should be equally available to all, despite any personal differentiating factors.¹³ These rights include the right to education, a denial of which amounts to a violation of the right of an individual with profound or severe disability to human dignity. Therefore, even if the State could prove the ineducability of certain students with disabilities - an argument that the Court rejected with reference to the O'Donoghue case, which refused to limit education to scholastic learning only¹⁴ - the right to education is not dependent on its corresponding value to the person.

2.2 Provision of educative services by non-government actors

The court correctly did not entertain the provision of services by non-governmental organisations as a proper fulfilment of the right to education.¹⁵ The idea of persons with disabilities being catered for by NGO's and faith-based institutions traces back to the charitable mode of thinking where any benefit given to persons with disabilities was an altruistic, additional element.¹⁶ The CRPD calls for a human rights approach where the state is the duty-bearer. This duty entails that the state assume the responsibility to take positive measures to ensure not only the availability but also the accessibility of education to all persons, including children who suffer from disabilities.¹⁷ Inclusion International, an organisation which addresses the right to education of persons with disabilities, sets out success indicators for the realisation of article 24 of the CRPD.¹⁸ The success indicators highlight the "explicit commitment [by the State] to the necessary policies, resources, training and facilities" and detail practical steps as to how States can achieve this.¹⁹

The granting of subsidies by the state to the Western Cape Forum for Intellectual Disability fails to fulfil the state's constitutional mandate to provide the relevant socioeconomic rights, for two main reasons: the funding emanated from the Department of Health and accrued only to NGOs willing to care for the children. This illustrates that the funding is not conceptualised by the state as a fulfilment of its duty to provide education.²⁰ Secondly, the subsidies were disproportionate to the subsidies allocated to mainstream school pupils, despite the fact that students with profound and severe intellectual disabilities require a much higher resource allocation to sufficiently meet their needs.²¹ Ngwena and Pretorius²² comment that:

[n]eglecting the educational interests of the neediest would not have been allowed to enter the policy-formulation process if a notion of substantive equality-informed reasonableness [... ] had dictated the state's understanding of its obligations [to provide basic education].

2.3 Progressive realisation to education

The government alleged that its duty to provide education should not be seen in isolation from its duty to provide other socio-economic services and that the duty should therefore be considered less onerous.²³ The court rejected this submission by considering the reasonableness of the shortfall in resource allocation. It was found that the state failed in this submission because the right to basic education was not qualified and was immediately realisable.²⁴ The right to education becomes progressively realisable only if the education demanded is of a tertiary nature.²⁵ The case dealt with the issue of basic education and therefore any assertion by the government agency as to the competing nature of the right to education with other socio-economic rights should have been discarded from the onset. This position is clear both in the South African Constitution and, in the commentary of the United Nations Committee on Economic, Social and Cultural Rights (ESCR Committee). Section 29 of the South African Constitution states that "[e]veryone has the right [... ] to a basic education" and "the state, through reasonable measures, must make progressively available and accessible" the right to further education only.²⁶ The Constitution expressly indicates instances where progressive realisation is applicable.²⁷The ESCR Committee also states that basic education should enjoy a preference in resource allocation over other socio-economic services.²⁸

Even if one were to consider the right to education to be realisable in a measure similar to other socio-economic rights, the realisation of socio-economic rights generally should be viewed in the light of the right to equality and the interdependent relationship between it and the right to education.²⁹ This calls for a substantive rather than a formal approach to equality. Measures to bring about formal equality have failed so far to make any impact on the social disadvantages entrenched in our society.³⁰ Formal equality holds the characteristics of the dominant or empowered group as the baseline and measures equal treatment in terms of conformity to this norm.³¹To illustrate this principle within a disability context, one can look to a simple example such as a wheelchair user trying to board a public bus with no accommodative device. The wheelchair user technically has an equal opportunity to approach and enter the bus, but due to a physical impediment in his environment (the steps, the narrow width of the door, the unavailability of floor space inside the bus, etc), the wheelchair user is unable to use the public transport and is thus, disadvantaged.

The new constitutional dispensation post-1994 called for substantive equality rather than formal equality. Where substantive equality is to be considered, redistribution is vitally important.³² A key role the court can play in trying to support the overlap in the right to equality and socio-economic rights is to call upon government to set out a thorough justification of why disadvantaged groups are burdened or excluded in distributive decisions.³³ This would serve both to increase the accountability of government and to ensure more involvement of vulnerable groups in the deliberative process.³⁴ The court in Western Cape Forum pertinently addressed the lack of justification given by government for the exclusion of profoundly and severely disabled persons. The fact that the children in question were from a particularly vulnerable group should be considered in the light of transformative constitutionalism, and any realisation of socio-economic rights should focus on such children so as to give true meaning to the right of equality.

 

3 Rethinking special schools radically

As Ngwena³⁵ aptly observes, White Paper 6, upon full implementation, still creates an air of "separate but equal" eduation. While some students may be included in mainstream schools, students determined to require more support will still be educated in separate facilities. He draws parallels between "disabilism" and apartheid in so far as certain physical traits of a person determine their place within the societal hierarchy.³⁶ Apartheid segregated people along racial lines. Disablism performs the same function on the basis of physical abilities. The education system is partial to students with certain physical and intellectual abilities and so prescribes the curriculum, certain physical infrastructure and modes of assessment.³⁷ The social model of thinking about disabilities critiques this structural bias and calls for a complete transformation of the education system that would not require a classification of learners according to their abilities but would have a different constitution so as to accommodate all students and not unduly privilege one group over another.³⁸

The likeliness between disablism and racial segregation can be noted once more through the lens of transformation theory, which presents itself as a potential method for redress. Transformation theory was developed by critical race and feminist theorists in response to institutional racism and sexism.³⁹ It requires the adoption of a proactive approach in order to fundamentally alter the structure of society so as to be able to eradicate injustice.⁴⁰ The vehicle for this transformation is substantive equality.⁴¹ In such a model the education system would be sufficient only if it were characterised by universal and equal accessibility. In such an egalitarian society there would be no need for segregated special schools, as mainstream schools would have been appropriately adapted.

 

4 Comparative approach to inclusive education

In 2012, the European Commission commissioned a comparative study of the anti-discrimination and equality laws in South Africa, Canada, the United States and India.⁴²These four jurisdictions share English as a common language, have a common law heritage, have an equality clause in their constitutions, and specific equality legislation.⁴³ They also share the recognition of the need for affirmative action and the shift from formal to substantive equality.⁴⁴ These states have many other commonalities: each requires the domestication of international law before such law is binding (to varying extents), each is a party to many of the same human rights treaties (eg. the ICCPR) and recognises many of the same grounds for discrimination in their constitutions - with South Africa having the most exhaustive list.⁴⁵

While these states are by no means identical in their equality jurisprudence, the approaches of Canada and India with regards to inclusive education will be explored below. This will help shed light on the parameters and possibilities of inclusive education through the lens of a well-resourced and developed country, as well as a developing and deeply unequal state. Both these states have a history of entrenched marginalisation of the first nation people in Canada, and of members of the lower castes in India. For brevity's sake, the United States will be omitted from this comparative study.

4.1 Canada

Canada is a useful state with which we may compare ourselves usefully in the contexts of rights, as both South Africa and Canada use a dignity-centred equality test.⁴⁶ The drafters of the 1996 South African Constitution drew on the Canadian Charter of Rights and Freedoms (1982)⁴⁷ and the Constitutional Court frequently visits Canadian law in matters concerning equality.⁴⁸

Section 15(1) of the Canadian Charter protects persons with mental or physical disabilities against discrimination. In Eldridge v British Columbia (Attorney General) the Canadian Supreme Court interpreted article 15(1) and held that the promotion of equality can sometimes call for the adoption of positive measures to give effect to equality of opportunity.⁴⁹ Failure to adopt reasonable accommodative steps can lead to unfair discrimination. On the issue of inclusive education, the Supreme Court determined that schools should exhaust all alternatives to segregation before removing children from mainstream schools.⁵⁰ This creates a wide reading of the state's duties in terms of non-discrimination against students with disabilities.

The most significant example of this progressive approach to inclusive education is that of Newfoundland. It is the Canadian province with the highest expenditure on inclusive education.⁵¹ The province shares its curriculum with other Atlantic Provinces and has a focus on inclusion where assistive devices, additional personnel and individualised educational plans are mandated.⁵² The system - often referred to as the cascade model - blends inclusive practices with additional services to persons with disabilities.⁵³ As extensive and well-resourced as the system might be, segregated special schools are still commonly used in instances where this practice is deemed to be in the best interest of the child.⁵⁴

4.2 India

India has also richly influenced post-1994 South African law. The draft proposal of the African National Congress in 1990 for the new constitution of South Africa drew heavily from Indian social justice jurisprudence.⁵⁵ The constitutional drafters also looked to India when making socio-economic rights justiciable, rather than settling for socio-economic directive principles.⁵⁶ Thus, the Constitutional Court of South Africa frequently considers the Indian approach in socio-economic cases.⁵⁷

What makes India particularly apt for study in an exercise in comparative constitutionalism is that India also shares with South Africa a massive income gap between its different classes, and an insufficiency of government resources to provide adequately provide socio-economic services. In addition, just as in South Africa, the response to the disability movement was slow - cultural ideas that linked disability to destiny and societal unresponsiveness to the needs of persons with disability led to a high rate of denial of access to education to children with disabilities.⁵⁸

India's policy seems very progressive in terms on providing for inclusive education. A joint reading of the Persons with Disabilities Act, 1995 and the Right of Children for Free and Compulsory Education Act 2009 creates a duty on the state to provide free education to children with disabilities until the age of 18.⁵⁹ Government policy⁶⁰provides that this duty should be fulfilled in the spirit of integration into mainstream schools.⁶¹ However, like the approach taken by the South African government in the Western Cape case, the Indian government's practice has been to advance segregation through the funding of volunteer organisations.⁶²

In an effort to meet its obligations, despite severe resource shortcomings, the Indian government created the National Institute for Open Schooling (NIOS). The NIOS is an initiative that helps children with differing intellectual and physical capacities to follow a tailored and modified curriculum which allows them to progress at their own pace.⁶³It was originally created to bring education to children in remote and rural areas, but its application has been noted in a disability context.⁶⁴ It uses a model of distance learning.⁶⁵ This is naturally not ideal, as the learner with a disability is still not included in a mainstream school. However, it is important to note that the schooling is not segregated but decentralised.

A second initiative is the Care Giver Training under the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act (NT Act).⁶⁶ This system provides for either the provision of a care-giver or at-home training to families of persons covered under the NT Act.⁶⁷ The NIOS and Care Giver Training are frequently co-employed to aid students with disabilities.⁶⁸

4.3 Relevance of the Canadian and Indian experience

The approaches of both countries illustrate the need to take positive steps to include persons with disabilities in mainstream schools to give effect to substantive equality. However, the extent of the steps taken differs. In a more resource-rich and egalitarian context, extensive additional services and devices are available in-house to students as inclusionary tools. In India, the need to accommodate learners with disabilities is primarily met by a parallel schooling system that decentralises, but individualises, the educational experience. Two important similarities are present: both approaches allege an added advantage not only to the learner with a disability, but to all students. Decentralised schooling in India benefits abled-bodied persons who cannot travel to schools or find it too costly. In Canada, the presence of additional personnel and assistive devices makes learning easier overall. Secondly, both states retain special schooling for instances where accommodation of the student in a mainstream school would be unfeasible due to financial constraints or considerations of the student's best interest.

Both of these states have incorporated radical changes or alternatives to the traditional schooling system to implement inclusive education and accommodate a large segment of students with disabilities into mainstream schools. South Africa can borrow from the Canadian Newfoundland model by reallocating financial resources it would have invested in additional special schools into support services and teacher training at mainstream schools. When it come to accommodating students with disabilities so severe that it becomes unfeasible to accommodate them in mainstream schools, Indian law (not necessarily practice) shows the usefulness of non-traditional forms of schooling. For such students, however, the government cannot escape the duty of investing more resources in their education. The Constitution mandates the inclusion of such students in the education system, regardless of the costs.

 

5 Conclusion

As this is an aspirational egalitarian society, the South African government is obliged to pay more than lip-service to the needs of persons who do not meet the mainstream criteria for physical ability. Ideally, South African society should be restructured and resocialised so that its benefits are more universally accessible to all its members. This would truly promote human dignity. However, financial constraints and a lack of political will have made true universality a pie in the sky dream. States world-wide continue to segregate and marginalise persons with disabilities in all spheres, including education.

This reality is being challenged (albeit within limits) by a growing understanding of substantive equality. It is no longer acceptable for governments to remain passive and cite myths and shallow justifications to avoid its duty to promote the human rights of all its citizens. The Western Cape Forum case signals the start of a process of holding the state to account. The judgment leaves room for improvement on advancing the rights of students with disabilities, but it does unequivocally challenge the South African government on its apathy towards the need to protect the right to education of children with profound and severe intellectual disabilities.

 

BIBLIOGRAPHY

Literature

Andrade C "The National Institute of Open Schooling" 2008 Indian J Psychiatry 227-228        [ Links ]

Bhaiba F "Disability Equality Rights in South Africa: Concepts, Interpretation and the Transformative Imperative" 2009 SAJHR 218-245        [ Links ]

Boezaart T "A Constitutional Perspective on the Rights of Children with Disabilities in an Educational Context" 2012 SAPL 454-472        [ Links ]

European Commission Comparative Study of Anti-discrimination and Equality Laws of the US, Canada, South Africa and India (Office for Official Publications of the European Communities Luxembourg 2012)        [ Links ]

Foster A "The Role of Dignity in Canadian and South African Gender Equality Jurisprudence" 2008 Dal J Leg Studies 73-94        [ Links ]

Fredman S "Providing Equality: Substantive Equality and the Positive Duty to Provide" 2005 SAJHR 163-190        [ Links ]

Hymers J "Not a Modest Proposal: Peter Singer and the Definition of Person" 1992 Ethical Perspectives 126-138        [ Links ]

Murungi GN "The Duty to Provide Basic Education for Children with Severe and Profound Intellectual Disabilities" 2011 ESR Review 10-12        [ Links ]

Nguyen XT "Rethinking the Politics of Inclusion/Exclusion within the Rights-Based Agenda of Disability and Education: The Implications of the United Nations' Disability Convention for Inclusive Education" in the American Education Research Association Conference (27 April-1 May 2013 San Francisco) 1-14        [ Links ]

Ngwena C and Pretorius L "Substantive Equality for Disabled Learners in State Provision of Basic Education: A Commentary on Western Cape Forum for Intelectual Disability v Government of the Republic of South Africa'" 2012 SAJHR 81-115        [ Links ]

Sarkin J "The Effect of Constitutional Borrowings on the Drafting of South Africa's Bill of Rights and Interpretation of Human Rights Provisions Borrowing" 1998 U Pa J Const L 177-204        [ Links ]

Sripathi V "Constitutionalism in India and South Africa: A Comparative Study from a Human Rights Perspective" 2007 Tul J Int'l & Comp L 49-116        [ Links ]

Case law

City Council of Pretoria v Wakker 1998 2 SA 363 (CC)

Eaton v Brant Country Board of Education 1997 1 SCR 241 (SCC)

Eldridge vBritish Columbia (Attorney General) 1997 151 DLR 577 (SCC)

Ex parte Chairperson of the Constitutional Assembly: In re Certification of the

Constitution of the Republic of South Africa 1996 4 SA 744 (CC)

O'Donoghue v The Minister for Health, The Minister for Education, Ireland and the Attorney General 1993 2 IR 20 (IEHC)

S v Zuma 1995 2 SA 642 (CC)

Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa 2011 5 SA 87 (WCC)

Legislation

Canadian Charter of Rights and Freedoms, 1982

Constitution of the Republic of South Africa, 1996

National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act 44 of 1999

Persons with Disabilities Act, 1995

Right of Children for Free and Compulsory Education Act, 2009

International instruments

Convention on the Rights of Persons with Disabilities (2006)

General Comment 13: The Right to Education UN Doc E/C.12/1999/10 (1999)

Internet sources

Asia Research Centre 2010 Children with Disabilities in Private Inclusive Schools in Mumbai: Experiences and Challenges http://www.lse.ac.uk/asiaResearchCentre/_files/ARCWP3-4Das-Kattumuri.pdf accessed 4 April 2014        [ Links ]

Downing JE and MacFarland S 2010 "Severe Disabilities (Education and Individuals with Severe Disabilities: Promising Practices)" in Stone JH and Blouin M (eds) International Encyclopedia of Rehabilitation http://cirrie.buffalo.edu/encyclopedia/en/article/114/ accessed on 28 March 2014        [ Links ]

Inclusion International 2010 The Implications of the Convention on the Rights of Persons with Disabilities (CRPD) for Education for All http://inclusion-international.org/wp-content/uploads/2013/08/ImplicationsCRPD-dr2-X.pdf accessed 12 February 2015        [ Links ]

Leonard Cheshire Disability and Inclusive Development Centre 2007 The Development and Critique of a Social Model of Disability http://www.ucl.ac.uk/lc-ccr/centrepublications/workingpapers/WP03_Development_Critique.pdf accessed 23 March 2014        [ Links ]

Ministry of Social Justice and Empowerment 2006 http://www.svayam.com/pdf/English-national_disability_policy.pdf accessed        [ Links ]

Government of India: Ministry of Social Justice and Empowerment 2006 National Policy for Persons with Disability http://www.svayam.com/pdf/English-national_disability_policy.pdf accessed 28 March 2014        [ Links ]

Office of the Deputy State President: Disability Desk 1997 Integrated National Disability Strategy Document http://www.gov.za/documents/download.php?f=187660 accessed 18 March 2014        [ Links ]

Philpott D 2002 A Critical Analysis of Newfoundland and Labrador's Model of Special Education Management (IJDCR) http://www.ijdcr.ca/VOL01_03_CAN/-articles/philpott.shtml accessed 22 March 2014        [ Links ]

LIST OF ABBREVIATIONS

ESCR Committee United Nations Committee on Economic, Social and Cultural Rights

CRPD Convention on the Rights of Persons with Disabilities

Dal J Leg Studies Dalhousie Journal of Legal Studies

ESR Review Economic and Social Rights Review

IJDCR International Journal of Disability, Community and Rehabilitation

Indian J Psychiatry Indian Journal of Psychiatry

INDS Integrated National Disability Strategy

NIOS National Institute for Open Schooling

NT Act National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act 44 of 1999

SAJHR South African Journal on Human Rights

SAPL South African Journal of Public Law

Tul J Int'l & Comp L Tulane Journal of International and Comparative Law

U Pa J Const L University of Pennsylvania Journal of Constitutional Law

 

 

Thank you to Professor Charles Ngwena, who presented an excellent course on the rights of persons with disabilities and commented on this article.
1 Bhaiba 2009 SAJHR 222.
2 Bhaiba 2009 SAJHR 222.
3 Office of the Deputy State President 1997 http://www.gov.za/documents/download.php?f=187660.
4 Leonard Cheshire Disability and Inclusive Development Centre 2007 http://www.ucl.ac.uk/lc-ccr/centrepublications/workingpapers/WP03_Development_Critique.pdf.
5 Western Cape Forum for Intelectual Disability v Government of the Republic of South Africa 2011 5 SA 87 (WCC) (Western Cape Forum).
6 Western Cape Forum para 17.
7 Downing and Macfarland 2010 http://cirrie.buffalo.edu/encyclopedia/en/article/114.
8 Downing and Macfarland 2010 http://cirrie.buffalo.edu/encyclopedia/en/article/114.
9 Most notable is Princeton Professor, Peter Singer, who uses utilitarian philosophy to advocate for the infanticide of disabled children; Hymers 1992 Ethical Perspectives 131.
10 Preamble of the Convention on the Rights of Persons with Dssabiltties (2006).
11 Nguyen "Rethinking the Politics of Inclusion/Exclusion" 2.
12 Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa 1996 4 SA 744 (CC) para 100.
13 Boezaart 2012 SAJPL 459.
14 14 O'Donoghue v The Minsster for Health, The Minister for Education, Ireland and the Attorney General 1993 2 IR 20 (IEHC).
15 Western Cape Forum para 24.
16 Murungi 2011 ESR Review 10.
17 Murungi 2011 ESR Review 10.
18 Inclusion International 2010 http://inclusion-international.org/wp-content/uploads/2013/08/ImplicationsCRPD-dr2-X.pdf.
19 These indicators include the repeal of any legislation which defines persons with disabilities as "ineducable"; making school buildings and learning materials accessible to all persons; the provision of accessible transport for persons with disabilities; and the provision of education that adheres to a "universal design", which includes adapting the curriculum and instructional/teaching models.
20 Ngwena and Pretorius 2012 SAJHR 102.
21 Ngwena and Pretorius 2012 SAJHR 103.
22 Ngwena and Pretorius 2012 SAJHR 103.
23 Western Cape Forum para 17.
24 Boezaart 2012 SAPL 456.
25 Murungi 2011 ESR Review 11.
26 S 29(b) of the Constitution; own emphasis added.
27 See also the right to housing, water and social security.
28 General Comment 13: The Right to Education CESCR, UN Doc E/C.12/1999/10 (1999) para 51.
29 Ngwena and Pretorius 2012 SAJHR 106.
30 Fredman 2005 SAJHR 166.
31 Fredman 2005 SAJHR 166.
32 Fredman 2005 SAJHR 163
33 Fredman 2005 SAJHR 164.
34 Fredman 2005 SAJHR 164.
35 Ngwena and Pretorius 2012 SAJHR 106.
36 Ngwena and Pretorius 2012 SAJHR 109.
37 Ngwena and Pretorius 2012 SAJHR 108.
38 Ngwena and Pretorius 2012 SAJHR 108.
39 Bhaiba 2009 SAJHR 237.
40 Bhaiba 2009 SAJHR 237.
41 Bhaiba 2009 SAJHR 237.
42 European Commission Comparative Study.
43 European Commission Comparative Study 5.
44 European Commission Comparative Study 5-6.
45 European Commission Comparative Study 5-6.
46 Foster 2008 Dal J Leg Studies 73.
47 Sarkin 1998 U Pa J Const L 181.
48 Eg City Council of Pretoria v Walker 1998 2 SA 363 (CC); S v Zuma 1995 2 SA 642 (CC) etc.
49 Eldridge v British Columbia (Attorney Genera)) 1997 151 DLR 577 (SCC) para 78.
50 Philpott 2001 The Morning Watch 3 in interpreting the findings in Eaton v Brant Country Board of Education 1997 1 SCR 241 (SCC).
51 As above.
52 Philpott 2002 http://www.ijdcr.ca/VOL01_03_CAN/articles/philpott.shtml.
53 Philpott 2002 http://www.ijdcr.ca/VOL01_03_CAN/articles/philpott.shtml.
54 Philpott 2002 http://www.ijdcr.ca/VOL01_03_CAN/articles/philpott.shtml.
55 Sripathi 2007 Tul J Int'l & Comp L 112.
56 Sripathi 2007 Tul J Int'l & Comp L 113.
57 Sripathi 2007 Tul J Int'l & Comp L 113.
58 Asia Research Centre 2010 http://www.lse.ac.uk/asiaResearchCentre/_files/ARCWP34DasKattumuri.pdf.
59 Asia Research Centre 2010 http://www.lse.ac.uk/asiaResearchCentre/_files/ARCWP34DasKattumuri.pdf 11.
60 National Policy for Persons with Disability, 2006 (Ministry of Social Justice and Empowerment 2006 http://www.svayam.com/pdf/English-national_disability_policy.pdf).
61 Asia Research Centre 2010 http://www.lse.ac.uk/asiaResearchCentre/_files/ARCWP34DasKattumuri.pdf 11.
62 Asia Research Centre 2010 http://www.lse.ac.uk/asiaResearchCentre/_files/ARCWP34DasKattumuri.pdf 11.
63 Andrade 2008 Ind J Psychiatry 227.
64 Andrade 2008 Ind J Psychiatry 227.
65 Andrade 2008 Ind J Psychiatry 227.
66 National Trust for Welfare of Persons with Autism, Cerebral Passy, Mental Retardation and Multiple Disabilities Act 44 of 1999.
67 Chapter 4 of the NT Act.
68 Andrade 2008 Ind J Psychiatry 227.