eThekwini’s discriminatory by-laws: criminalising homelessness

The eThekwini Municipality’s Nuisances and Behaviour in Public Places By-Laws of 2015, and the Beaches By-Laws of 2015, seek to regulate and prohibit some of the life-sustaining activities of homeless persons in the city through petty offences. The article considers whether these measures indirectly discriminate against homeless persons, disproportionately impact on them, are contrary to the rule of law, and are an irrational extension of local government powers to develop and maintain law and order within municipal boundaries. Marius Pieterse’s concept of the “right to the city” is relied on to explain why immediate implementation of an adequate and sustainable policy and plan that will give teeth to the local government’s developmental mandate for the homeless, is needed. Lessons learned from advocacy and litigation by other marginalised groups, such as, sex workers and informal traders, are outlined. A short review of recent developments, including litigation, advocacy and local government approaches to homelessness in South Africa, including during the COVID-19 era, is provided. The repeal of the by-laws that effectively criminalise poverty and homelessness is called for

Hate crime based on disability in South Africa : Lessons for law reform

When contemplating whether to introduce disability hate crime as a new substantive offence or as a penalty enhancement of existing crimes, legislators should consider the peculiarities of reporting, investigating and prosecuting hate crimes perpetrated against disabled people. This article argues that existing laws on sexual offences, domestic violence, harassment, and unfair discrimination should be strengthened, and research should be conducted to identify the appropriate initiatives to prevent and attend to disability hate crime by and with persons with disabilities. Creating a substantive hate crime based on disability has symbolic value, but should only be considered if the existing challenges to full and meaningful participation by persons with disabilities in investigative and court proceedings are addressed through appropriate procedural accommodations

Hate crime based on disability in South Africa: Lessons for law reform

  When contemplating whether to introduce disability hate crime as a new substantive offence or as a penalty enhancement of existing crimes, legislators should consider the peculiarities of reporting, investigating and prosecuting hate crimes perpetrated against disabled people. This article argues that existing laws on sexual offences, domestic violence, harassment, and unfair discrimination should be strengthened, and research should be conducted to identify the appropriate initiatives to prevent and attend to disability hate crime by and with persons with disabilities. Creating a substantive hate crime based on disability has symbolic value, but should only be considered if the existing challenges to full and meaningful participation by persons with disabilities in investigative and court proceedings are addressed through appropriate procedural accommodations.&nbsp

Hate crime based on disability in South Africa : lessons for law reform

When contemplating whether to introduce disability hate crime as a new substantive offence or as a penalty enhancement of existing crimes, legislators should consider the peculiarities of reporting, investigating and prosecuting hate crimes perpetrated against disabled people. This article argues that existing laws on sexual offences, domestic violence, harassment, and unfair discrimination should be strengthened, and research should be conducted to identify the appropriate initiatives to prevent and attend to disability hate crime by and with persons with disabilities. Creating a substantive hate crime based on disability has symbolic value, but should only be considered if the existing challenges to full and meaningful participation by persons with disabilities in investigative and court proceedings are addressed through appropriate procedural accommodations.https://journals.assaf.org.za/index.php/sacqam2022Centre for Human Right

Access to justice for mothers with intellectual disabilities in cases of child neglect at two KwaZulu-Natal Children's Courts

Parents, especially mothers with intellectual disabilities, are at a disproportionately high risk of their children being removed from their care by child protection authorities for alleged child neglect – on the assumption that they are incapable of being adequate parents. This archival study examined the court records of two Children’s Courts in Durban and Pietermaritzburg, South Africa, for the period 2010 to 2014. The study explored how the South African social services and two Children’s Courts meet their international and constitutional obligations in promoting access to justice and supporting the parental rights and responsibilities of mothers with intellectual disabilities who are at risk of having their children removed from their care due to allegations of neglect. Of 244 cases of neglect surveyed, nine case studies were analysed. In four cases children were removed from mothers with intellectual disabilities based primarily on the mother’s disability. The poverty of the families was found to be a contributing factor for removal. It was found that diagnostic-prognostic thinking pervades the social workers’ reports and the outcome of the alternative care placement by the court did not depart from such a grounding. Generally, parenting capacity assessments or psychological or psychiatric evaluations were not obtained, and thus diagnoses were not corroborated nor their ‘potential’ effect on parenting. The lack of legal representation, diagnostic-prognostic evidence tendered in court, inadequate and adapted prevention and early intervention measures offered to families, and the absence of procedural and reasonable accommodations in court processes, translated into inaccessible justice for these mothers. It was found that poverty correlates with disability in all of the cases. Conflation of intellectual and psycho-social disability occurred in five of the cases studied. The literature reviewed illustrate the stigma and deprivations that women with intellectual disabilities experience in South Africa, despite the existence of some laws and policies aimed at protecting, respecting, promoting and fulfilling their rights. The mothers’ rights under international, African regional and constitutional laws, inter alia to equality, dignity and access to justice and children’s rights, including best interests, were analysed. The formulation of substantive equality as understood by treaty monitoring bodies requires pertinent measures to support and accommodate persons with disabilities in the justice system. Exacting requirements for determining the best interests of the child under international law have not been replicated in the practice of the Children’s Courts. The Children’s Act and its regulations are found wanting in relation to pertinent measures of reasonable and procedural accommodation of persons with disabilities in the Children’s Courts. The inquisitorial practice of these courts do not promote the rights to legal capacity, equality before the law and access to justice of these parents. Attorneys do not represent parents in these proceedings and the absence of cross-examination of social work reports may prejudice these parents. The policy framework of the main state departments including the Department of Justice and Constitutional Development and the Department of Social Development is fragmented and do not provide for a coherent plan to promote the participation of persons with disabilities in social services and the justice system. Best practices from other jurisdictions such as Australia, the United Kingdom, and the United States of America on development of disability specific legislation, provision of procedural accommodations in laws and regulations, adapted social work practice and ethical principles for assessments, provision of intermediaries and formulation of appropriate questioning techniques (AQTs) were considered. Lessons from jurisdictions such as India, selected examples from the African continent were highlighted. The South African state’s formal provision for procedural accommodations is minimal and requires major reform to meet state obligations and constitutional duties towards persons with intellectual disabilities. Recommendations are made in relation to law reform primarily of the Children’s Act 38 of 2005 and court rules. Specific recommendations include: providing legal representation at state expense, together with adequate training for lawyers and magistrates on informal measures of accommodations whilst law reform on formal measures is underway, and requiring magistrates’ to provide reasons for their decisions to promote deliberative decision-making. It is recommended that social work practice is adapted to enhance full participation of these mothers and to address stereotypical and harmful ableist norms embedded in statutory services and court proceedings. Obtaining an independent parenting capacity assessment adapted for parents with intellectual disabilities from an expert such as a psychologist for forensic purposes, should be considered where relevant and should meet ethical principles. Magistrates should monitor the implementation of proposed prevention and early intervention and therapeutic measures identified by social workers in their reports. An audit of the accessibility and procedural accommodations in the courts – after consultation with parties with disabilities before the courts is proposed. A court model is proposed on how to provide procedural accommodations in courts. It is recommended that the Children’s Court rules should be amended to include dedicated provisions on reasonable accommodations (individual specific measures); support in decision-making; AQTs; and intermediaries adapted to the civil process and to the inquisitorial role of magistrates and should be extended to adults with communication difficulties. The drafting of disability-specific legislation to guide lawmakers and courts is recommended on broad measures for provision of procedural accommodations and support to these families. In the meantime, the existing legislative potential of the Promotion of Equality and Prohibition of Unfair Discrimination Act 3 of 2000 to enforce duties on certain sectors such as social services to provide reasonable accommodations to persons with disabilities, should be considered. Substituted decision-making laws, legal capacity inhibiting laws (such as those procedural rules in relation to persons with intellectual disabilities derogatorily described as ‘idiots’ for example) should be abolished.Thesis (LLD)--University of Pretoria, 2021.Centre for Human RightsLLDUnrestricte

Barriers to Advocacy and Litigation in the Equality Courts for Persons with Disabilities

The effective implementation of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) and the fulfilment of the South African state's obligations in terms of the Convention on the Rights of Persons with Disabilities (CRPD) are dependent on two fundamental tools, advocacy and litigation. This article discusses the outcome of three cases in the Equality Courts and how these cases promote accessibility and access to justice for persons with disabilities. The authors then consider the impact of CREATE, a KwaZulu-Natal NGO's advocacy initiatives to promote the rights of persons with disabilities and the utilisation of the Equality Court to realise those rights. Participants of ten workshops in KwaZulu-Natal identified three barriers to access to justice in accessing the Equality Courts. Firstly, some Equality Courts are geographically (and financially) inaccessible. Secondly, the negative and insensitive attitudes of front-line workers impact on the ability of persons with disabilities to bring equality claims to and access the services of the Equality Court. These barriers constitute discrimination and flout articles 9 and 13 of the CRPD, which require the provision of support for persons with disabilities to access the justice system and the promotion of accessibility to the physical environment, and the provision to them of transportation, information and other services. Thirdly, cultural norms and fears impede access to courts and the agency of persons with disabilities to bring these claims, for example the requirement that traditional leaders provide "permission" to persons with disabilities to sue and a similar requirement of permission from the in-laws of women with disabilities. The article analyses the three barriers identified as inhibiting advocacy and litigation, and explains the implication of these barriers for the state's obligations in terms of articles 5, 8, 9, 12 and 13 of the CRPD. Recommendations are made on overcoming these barriers.   &nbsp

Criteria for law reform on comprehensive sexuality education for children with disabilities in South Africa

The recent expanded understanding of Sexual Reproductive Health and Rights (SRHR), which includes Comprehensive Sexuality Education (CSE), seeks to highlight inter alia the needs of adolescents, (especially those with disabilities) a group previously excluded from the narrow scope of SRHR. This paper identifies relevant and context-specific criteria for law reform of CSE provision in legislation for South Africa. The paper considers the international law and interpretive guidelines for CSE but relevant indicators such as inclusivity, accessibility and reasonable accommodation specifically for children with disabilities is absent from UNESCO’s Technical guidance on sexuality education: An evidence-informed approach for schools, teachers and health educators (2018). An analysis of the policy and South African legislation identifies that explicit provision for CSE and the accessibility of CSE and reasonable accommodation of children/adolescents with disabilities are largely absent. The implementation delay in the legislative framework currently contributes to the high number of out-of-school children with disabilities and also does not have a concrete provision for CSE. A review of the policy framework shows fragmentation, misalignment, and incoherence, which is unlikely to be remedied absent an enabling legislative provision that identifies the criteria for CSE, including for children/youth with disabilities, and a requirement for multi-sectoral alignment, budgeting and data disaggregation. The paper recommends an amendment to the Children’s Act 38 of 2005 for explicit inclusion of CSE as this legislation is applicable to all children and extends beyond the context of education-sector specific legislation. Such an amendment would obligate the state to provide CSE not only in schools, but also in juvenile correction centres, hospitals, clinics and in other relevant public service facilities that cater for children - as well as in community-based fora. It further recommends an explicit provision on CSE in relevant sectors and general principles of accessibility and reasonable accommodation in proposed disability-specific legislation.https://upjournals.up.ac.za/index.php/adryam2023Centre for Human Right

A "Parenting Licence" Granted by One’s Existing Children? Critical Analysis of the Judgment in Ex Parte JCR 2022 5 SA 202 (GP)

In Ex parte JCR 2022 5 SA 202 (GP) the Pretoria High Court per Neukircher J seeks to introduce new requirements for all surrogacy agreements in South African law. The court considered the psychological impact of surrogacy on the children of both the surrogate parents and the commissioning parents and the need to put in place procedures ‘for preparing them for this process [of not bringing the surrogate baby home]’ or ‘for a new addition to their family’, respectively. The court ordered the mandatory psychological assessment of the existing children of the surrogate parents and commissioning parents. A report emanating from such an assessment would ostensibly assist the court in determining the best interests of the existing children of the parties to the agreement. We argue that the psychological evaluation of the existing children of the parties to a surrogate motherhood agreement fundamentally upsets the balance between the interests of the parties involved in the surrogacy process. In fact, it shifts the balance of power almost entirely into the hands of the existing children, such that they may be said to decide whether their parents allowed to have any more children. We argue that the court’s interpretation that such assessments would be in the best interests of existing children, is based on a fundamental misunderstanding of the court’s duty in this regard. The new assessment requirement is more likely to undermine these children’s interests, to violate the commissioning parents’ constitutional rights to dignity and equality, and their rights to reproductive autonomy, privacy, and access to reproductive healthcare

Barriers to Advocacy and Litigation in the Equality Courts for Persons with Disabilities

The effective implementation of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) and the fulfilment of the South African state's obligations in terms of the Convention on the Rights of Persons with Disabilities (CRPD) are dependent on two fundamental tools, advocacy and litigation. This article discusses the outcome of three cases in the Equality Courts and how these cases promote accessibility and access to justice for persons with disabilities. The authors then consider the impact of CREATE, a KwaZulu-Natal NGO's advocacy initiatives to promote the rights of persons with disabilities and the utilisation of the Equality Court to realise those rights. Participants of ten workshops in KwaZulu-Natal identified three barriers to access to justice in accessing the Equality Courts. Firstly, some Equality Courts are geographically (and financially) inaccessible. Secondly, the negative and insensitive attitudes of front-line workers impact on the ability of persons with disabilities to bring equality claims to and access the services of the Equality Court. These barriers constitute discrimination and flout articles 9 and 13 of the CRPD, which require the provision of support for persons with disabilities to access the justice system and the promotion of accessibility to the physical environment, and the provision to them of transportation, information and other services. Thirdly, cultural norms and fears impede access to courts and the agency of persons with disabilities to bring these claims, for example the requirement that traditional leaders provide "permission" to persons with disabilities to sue and a similar requirement of permission from the in-laws of women with disabilities. The article analyses the three barriers identified as inhibiting advocacy and litigation, and explains the implication of these barriers for the state's obligations in terms of articles 5, 8, 9, 12 and 13 of the CRPD. Recommendations are made on overcoming these barriers