Skip to main content Accessibility help
×
Home
Hostname: page-component-568f69f84b-r4dm2 Total loading time: 0.202 Render date: 2021-09-18T17:21:50.665Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "metricsAbstractViews": false, "figures": true, "newCiteModal": false, "newCitedByModal": true, "newEcommerce": true, "newUsageEvents": true }

COVID-19 and the Violation of the Right to Basic Education of Learners with Disabilities in South Africa: An Examination of Centre for Child Law v Minister of Basic Education

Published online by Cambridge University Press:  10 September 2021

Serges Djoyou Kamga*
Affiliation:
University of South Africa, Pretoria, South Africa
*Corresponding

Abstract

This article explores the extent to which the right to basic education of learners with disabilities in South Africa was guaranteed during the COVID-19 pandemic. It uses the Centre for Child Law v Minister of Basic Education (Centre for Child Law) as the main canvas for discussion. It argues that, notwithstanding its normative compliance with the international regime of the right to an inclusive basic education, the government has failed learners with disabilities during COVID-19. An examination of Centre for Child Law reveals that, not only did the government's directions for the phased return to school exclude learners with disabilities, they also required the closure of special schools where compliance with social distancing rules was impossible. This violated the right to inclusive education and substantive equality of learners with disabilities and highlighted the need to advance these rights through reasonable accommodation initiatives.

Type
Research Article
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of SOAS University of London

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

Professor of human rights law, Thabo Mbeki African School of Public & International Affairs, University of South Africa.

References

1 Committee on Economic, Social and Cultural Rights, General Comment No 13: The Right to Education (Art 13 of the International Covenant on Economic, Social and Cultural Rights), 21st session, 1999, UN doc E/C 12/1999/10, reprinted in “Compilation of General Comments and General Recommendations adopted by human rights treaty bodies”, UN doc HRI/GEN/1/ Rev6 at 70 (2003), para 1; Akinbola, BRThe right to inclusive education in Nigeria: Meeting the needs and challenges of children with disabilities” (2010) 10 African Human Rights Law Journal 457Google Scholar.

2 C McClain-Nhlapo “An inclusive response to COVID-19: Education for children with disabilities” (11 May 2020, Global Partnership for Education), available at: <https://www.globalpartnership.org/blog/inclusive-response-covid-19-education-children-disabilities> (last accessed 6 July 2021); J McKenzie, R Vergunst, C Samuels and T Henkeman “The education of children with disabilities risks falling by the wayside during the pandemic” (27 May 2020) Daily Maverick, available at: <https://www.dailymaverick.co.za/article/2020-05-27-the-education-of-children-with-disabilities-risks-falling-by-the-wayside-during-the-pandemic/> (last accessed 6 July 2021).

3 High Court of Pretoria, case no 3123/2020.

4 General Comment No 13, above at note 1, para 1.

5 For more on the regime of primary education, see id at 6(b)(iii), paras 1 and 2(a), para 9; also see A Skelton and SD Kamga “Broken promises: Constitutional litigation for free primary education in Swaziland” (2017) 61/3 Journal of African Law 433.

6 See “Preliminary report of the special rapporteur on the right to education, K Tomasevski, submitted in accordance with Commission on Human Rights resolution 1998/33”, UN doc E/CN.4/1999/49, paras 51–56; also see K Tomasevski Human Rights Obligations in Education: The 4-A Scheme (2006, Wolf Legal Publishers). Also, see General Comment No 11 of the Committee of Economic, Social and Cultural Rights, UN doc E/C.12/1999/4 (10 May 1999).

7 General Comment No 11, id, para 9.

8 Id, para 10.

9 The Right to Education Free of Charge for All: Ensuring Compliance with International Obligations (2008, UNESCO) at 3.

10 CRPD, art 24(1).

11 ST Tesemma Educating Children with Disabilities in Africa: Towards a Policy of Inclusion (2011, African Child Policy Forum).

12 Ibid.

Ibid

13 Dalton, EM, McKenzie, J and Kahonde, CThe implementation of inclusive education in South Africa: Reflections arising from a workshop for teachers and therapists to introduce universal design for learning” (2012) 1 African Journal of Disability 1CrossRefGoogle ScholarPubMed at 3.

14 Ibid.

Ibid

15 CRPD, art 24(2)(c), (d) and (e).

16 Ibid.

Ibid

17 B Keith “Concluding thoughts” in B Keith (ed) Inclusive Education: International Voices on Disability and Justice (1999, Falmer Press) 169; see also Tesemma Educating Children with Disabilities, above at note 11.

18 Sofia v Bulgaria case no 13789/06, decision of 18 May 2007. For more on this case, see The Mental Disability Advocacy Centre (MDAC) v The Republic of Bulgaria complaint no 41/2007, 2 at 16.

19 Complaint no 41/2007, decision delivered 3 June 2008.

20 2011 5 SA 87 (WCC).

21 Tesemma Educating Children with Disabilities, above at note 11 at 54.

22 S Stubbs Inclusive Education: Where There Are Few Resources (2002, Atlas Alliance) at 21.

23 F Aefsky “Inclusion confusion: A guide to educating students with exceptional needs” (1995) at 6 (on file with the author). See also López, GFSocial skills training for autistic children: A comparison study between inclusion and mainstreaming education” (2016) 1/3 Academic Journal of Pediatrics & Neonatology 65Google Scholar.

24 [1997] 1 SCR 241.

25 Id, paras 66–67.

26 [1993] IEHC 2 (27 May 1993).

27 [2001] IESC 63; [2001] 2 IR 505 (12 July 2001).

28 874 F 2d 1 036; 53 Ed Law Rep 824 (5th Cir 1989). For more discussion of this case, see Kamga, SDInclusion of learners with severe intellectual disabilities in basic education under a transformative constitution: A critical analysis” (2016) 49/1 The Comparative and International Law Journal of Southern Africa 24Google Scholar at 43.

29 Ibid.

Ibid

30 995 F 2d 1204 (3rd Cir).

31 Id, para 1204.

32 The Constitution, sec 29.

33 The South African Schools Act, No 84 of 1996.

34 White Paper 6: Special Needs Education, Building an Inclusive Education and Training System (2001, Department of Education). See also: White Paper on Education and Training (1995, Department of Education); White Paper on an Integrated National Disability Strategy (1997, Office of the Deputy President); and White Paper on the Rights of Persons with Disabilities (2015, Department of Social Development).

35 White Paper 6, ibid.

36 Centre for Child Law, above at note 3, para 46.

37 Id, notice of motion, paras 2.1 and 2.2.1.

38 Centre for Child Law, above at note 3, paras 46, 47, 48 and 49.

39 Id, para 46.

40 Id, para 51.

42 Centre for Child Law, above at note 3, para 57.

43 Id, paras 57 and 58.

44 Id, para 59.

45 Id, para 63.

46 Id, para 69.

47 Id, para 73.

48 Id, para 75.

49 Id, paras 75 and 78.1, 78.2, 78.3 and 78.4.

50 Id, para 127.1.

51 Id, para 127.3.

52 Id, para 127.5.

53 Id, para 1.1; notice of motion, above at note 37, para 2.1.

54 Centre for Child Law, above at note 3, para 1.2.1; notice of motion, para 2.2.1.

55 Centre for Child Law, id, para 1.2.2; notice of motion, para 2.2.2.

56 Centre for Child Law, id, para 1.2.3.

57 Id, para 1.3.

58 Id, para 1.4.

59 Id, para 2.

60 Prinsloo v Van der Linde (CCT4/96) [1997] ZACC 5; Harksen v Lane NO and Others 1998 (1) SA 300.

61 Fredman, SSubstantive equality revisited” (2016) 14/3 International Journal of Constitutional Law 712Google Scholar at 713.

62 Above at note 60.

63 For more on the Harksen test, see: Ngwena, CWestern Cape Forum for Intellectual Disability v Government of the Republic of South Africa: A case study of contradictions in inclusive education” (2013) 1 African Disability Rights Yearbook 139Google Scholar at 139; and Fredman “Substantive equality revisited”, above at note 61.

64 Harksen, above at note 60, paras 51–53.

65 President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC); 1997 (6) BCLR 708 (CC), para 41.

66 Prinsloo v Van der Linde, above at note 60.

67 Freedman “Substantive equality revisited”, above at note 61.

68 CRPD, art 2.

69 Trans World Airlines Inc v Hardison 1977 (63) 432 (US), para 84.

70 Central Okanagan School District No 23 v Renaud 1992 (2) 970 (SCR), paras 983G–85A.

71 MEC for Education: KwaZulu-Natal and Others v Pillay 2008 (2) BCLR 99 (CC), para 76.

72 CRPD, art 24(2)(a).

73 Id, art 24(2)(d) and (e); see also Ngwena “Western Cape Forum”, above at note 63 at 142–43.

74 Currie and De Waal The Bill of Rights Handbook (1999, Juta) at 234–35.

75 Above at note 71, paras 72 and 74.

76 Above at note 24, para 67.

77 2000 (4), para 42.

78 2002 (2) SA 794 (CC), para 79.

79 Centre for Child Law notice of motion, above at note 37, paras 1.22. and 2.2.2; see also Centre for Child Law decision of 4 August 2020, above at note 3, para 1.2.3.

80 Act of 2000.

Send article to Kindle

To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

COVID-19 and the Violation of the Right to Basic Education of Learners with Disabilities in South Africa: An Examination of Centre for Child Law v Minister of Basic Education
Available formats
×

Send article to Dropbox

To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

COVID-19 and the Violation of the Right to Basic Education of Learners with Disabilities in South Africa: An Examination of Centre for Child Law v Minister of Basic Education
Available formats
×

Send article to Google Drive

To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

COVID-19 and the Violation of the Right to Basic Education of Learners with Disabilities in South Africa: An Examination of Centre for Child Law v Minister of Basic Education
Available formats
×
×

Reply to: Submit a response

Please enter your response.

Your details

Please enter a valid email address.

Conflicting interests

Do you have any conflicting interests? *