Abstract
LL.D.
This study aims to investigate the different ways in which the
position of people with disabilities can be addressed. Antidiscrimination
legislation can play a very important role. Efforts
to create equal opportunities must, however, not be limited to
legislative initiatives and policy declarations. There is an urgent
need for education and training of this minority group. 7
Systematic efforts to heighten public awareness of civil rights
and in particular the recognition of the rights of the disabled
community are imperative. This study aims to bring home the
truth that
"disability rights are an idea and ideal whose time has
come. ,,
When addressing the issue of disability discrimination (or for that
matter any kind of discrimination) several principles need to be
addressed, the most important being the following: The meaning of the concept of "equality" needs to be
established. The fact that all people are equal, does not
necessarily mean that all people must be treated the same.
When speaking about disability discrimination one must know
who forms part of the protected class. For that reason the first
issue that must be addressed is the definition of "disability":
This leads to the next question, namely which individuals
should be protected by anti-discrimination laws and should
they benefit from affirmative action measures?
What is meant by the term "discrimination"? Is it at all
permissible to distinguish between groups of people and, if so,
when and which standards are to be applied?
What role can anti-discrimination legislation fulfil in the
struggle for equality?
When dealing with anti-discrimination legislation, what is
required in order to prove discrimination and what remedies
must be available to an aggrieved party? Normally, in case of
criminal action proof is required beyond reasonable doubt and
in case of civil action on the balance of probabilities. 10
Civil action offers more effective remedies, but should it be
punitive in nature (by awarding damages to the aggrieved party) or non-punitive (by putting the aggrieved party in
his/her "rightful place")?
What sort of enforcement mechanism is needed? Is it a task for
the ordinary tribunals or rather a special body created for that
purpose?
What defences should be available to an employer accused of
discriminatory practices?
Who should benefit from enforcement? Only the individual
victim or all members of that group?
Is anti-discrimination legislation sufficient or is something in
addition called for?
If positive measures are required, what form must these
measures take?
This study will address these questions specifically with relation
to people with disabilities.The "equality principle" will first be studied. Thereafter the
concept of "disability" will be defined. There is a movement
away from a medical model of disability towards a social model
that takes account of the disabling effects of attitudes and
structural barriers on the position of disabled people. Then the
concept of "discrimination" will be addressed. Discrimination has
many different forms and can take place in different contexts In the following chapter possible solutions to the problem of
disability discrimination will be raised.
Thereafter follows an important comparative analysis of different
jurisdictions on international, supra-national and national level.
Different jurisdictions have reached different stages in addressing
this problem. The factual analysis of each jurisdiction will
include the existence of any anti-discrimination legislative
measures, the scope of the protected class, applicable employment
provisions, defences available to employers, and the success
achieved in addressing the problem. The contentious issue of
affirmative action measures will also be addressed.
By drawing inferences from the comparative study, suggestions
will be made for future developments in South Africa.
The conclusion is reached that it is imperative for South Africa to
draft disability anti-discrimination legislation that takes account
of the needs of this minority group. Legislative initiatives,
however, are not enough and must be supported by various
programmes aimed at the disabled themselves and the community
that they live in. Only then can human rights become a reality
also for people with disabilities.