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06 December 2021 | Story Maduvha Malivhoho | Photo Supplied
Maduvha Malivhoho is an Editor at the Accessible Study Material Production team for the University of the Free State (UFS) Centre for Universal Access and Disability Support (CUADS).

"Disability describes the social exclusion and barriers imposed on people with disabilities and impairments evoke an unpleasant feeling in us, and it is the feeling which motivates how we react when we face disability and people with disabilities." – Brian Watermeyer 

South Africa commemorates National Disability Rights Month, known as DRAM, annually between 3 November and 3 December. International Day of Persons with Disabilities, also known as National Disability Rights Awareness Day, is celebrated on 3 December. The theme for 2021 is ‘The Year of Charlotte Manye Maxeke – Create and Realise an Inclusive Society Upholding Rights of Persons with Disabilities’. 

Disability is a quintessential post-modern concept, because it is complex, variable, contingent, and situated. One is always disabled concerning the context in which you are put, subject to many definitions from different perspectives, and is used for various disciplines ranging from medicine, sociology, and political science. To fully comprehend disability, one needs to consider multiple perception models in the quest for a better understanding of disability; so-called ‘models of disability’ emerge in disability research. In line with most notions of disability, it could be associated with the medical model, social model, human rights model, and biopsychosocial model. Disability models aim to demonstrate how society perceives, understands, and addresses the needs of people with disabilities. 

The Disability Models 

Medical model: views disability as a personal tragedy in need of cure and rehabilitation.  

Social model: views disability as predominantly a socially driven issue; allows us to reconstruct social inequality for people with disabilities as a collective experience of discrimination and injustice, rather than a personal tragedy affecting only individuals. However, the model does not address the emotional aspects of disability and the realities of impairment.

Biopsychosocial model: views disability as a combination of an individual's state of health and their surrounding environment, that is, society. By recognising disability as a social construct of intricate variables and interaction of biological factors (genetic, biochemical, etc.) and psychological factors (mood, personality, behaviour, etc.), the social aspects (cultural, familial, socio-economic, and medical, etc.) is to recognise the complexity; specifically, the intersectionality that informs disability is recognised.

The human rights model: assumes that societal barriers can only be removed by guaranteeing rights to people with disabilities. Human rights principles recognise that fundamental rights are inherent in all human beings, regardless of race, gender, ability, and nationality. Therefore, disability rights are viewed as a human right under this paradigm, advocating for equal participation and opportunities for individuals with impairments. 

Promoting the human rights of people with disabilities, the White Paper on the Rights of Persons with Disabilities in South Africa mandates a universal design approach, which is defined as "the design of products, environments, programs, and services to be usable by all persons to the greatest extent possible without the need for adaptation or specialized design."

As per the Global Education Monitoring report on inclusion and education, the Universal Design for Learning (UDL) framework is particularly relevant for a comprehensive understanding of inclusive education as tackling barriers to learning, noting that "the Universal Design for Learning concept encompasses approaches to enhance accessibility and eliminate barriers to learning." Such an approach can help to integrate UDL into the educational system by addressing the various social, emotional, and learning requirements of different groups while working for the universal system-related goal.

South Africa is among the few countries in the world to have signed and ratified the most acclaimed global convention on disability in 2007. The international trend endorsed by the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) seeks to promote, protect, and ensure the full and equal enjoyment of all human rights by persons with disabilities. Although disability is varyingly defined, and definitions change across time and space, the UNCRPD defines persons with disabilities to include long-term physical, mental, intellectual, or sensory impairments, which in interaction with various barriers may hinder their full and effective participation in society on an equal basis. For this reason, creating and realising an inclusive upholding of the rights of persons with disabilities is critical in building an enabling environment for all. However, despite progressive legislative structures in South Africa, persons with disabilities continue to face barriers that prevent equal access to opportunities and participating fully in all aspects of life. It is primarily due to inaccessible infrastructure, prejudice, stigmatisation, discrimination, and attitudinal behaviour towards persons with disabilities, which often result from a lack of understanding.  

According to Stats SA, 80% of persons with disabilities aged 20-24 are not attending tertiary education, yet the population of students with disabilities at tertiary institutions is just 1%. It is also revealed that there is a strong demographic gap between races. Access to education is necessary for advancing sustainable development, but it is evident that inclusivity within tertiary education remains out of reach for many.  The University of the Free State aims to foster disability inclusion within the Integrated Transformation Plan, which is in line with the universal access approach guided by the Centre for Universal Access and Disability Support (CUADS). 

CUADS, a well-known disability unit, was established in line with non-discrimination legislative changes and inclusive policy frameworks for access and equal participation for students with disabilities. It serves as a bridge between students with disabilities and the institution, ensuring mutual understanding. The majority of such departments are led and managed by women, as women have a dynamic role in enhancing and nurturing the aspirations of children and youth with disabilities to get access to education. Despite the positive role of these departments in the full inclusion of students with disabilities, attitudinal barriers remain a challenge to their non-disabled counterparts. 

Furthermore, female students with disabilities face particularly higher levels of marginalisation and disadvantage because of the double discrimination based on their disability and gender. Their status as women renders them vulnerable to gender-based violence (GBV), including sexual abuse, maltreatment, exploitation, and intimate partner violence (IPV) compared to men with disabilities. 

South Africa has a high prevalence of GBV, especially IPV. Women with disabilities are more at risk and experience an additional layer of violence compared to women without disabilities and men with and without disabilities. It is also revealed that blind women and women with severe intellectual and mental disabilities are equally perceived as highly exposed to GBV compared to women with other disabilities (e.g., if an intellectually challenged individual could not give informed consent and/or when they report it, it will be difficult for them to identify the perpetrator). 

Furthermore, men with disabilities are at greater risk of GBV, but not comparable to women and girls with disabilities. The gap perpetuates unequal gender relations in all contexts of South Africans’ lives. While various organisations seek to promote women's rights in GBV advocacy, there is relatively little emphasis on GBV against persons with disabilities, including violence against women and children. 

To build an inclusive society, one needs to understand intersectionality concepts that provide a prism to comprehend marginalisation and exclusion better. Understanding intersectionality is related to how various identities such as race, gender, class, disability, sexuality, and others intersect – how lived identities are seen as entwined with oppressive systems that are mutually constitutive and reinforcing. Intersectionality as an approach recognises how complex reality is and how this complexity informs social conditions and behaviour; it acknowledges that people's lives are defined by multiple layered identities that derive from social relations, histories, cultures, and other operations of power structures. 
It is an analytical tool for exploring, comprehending, and responding to how gender intersects with different identities and how these intersections lead to distinctive oppression and privilege experiences. Also, intersectionality addresses how social structural norms such as racism, patriarchy, classism, and other social systems of discrimination function and interact to create social inequalities that shape attitudes and behaviour towards those who are different, such as those with disabilities. The approach invites us to shift away from binary thinking and towards a more global human rights stance.

Therefore, higher education institutions have a critical role in shaping the future of society as places where students are educated and prepared for their future vocations. In line with inclusive curricula, the university should introduce disability discourse into models such as UFSS, which is mandatory for all first-years. Also, the institution should increase awareness and visibility by incorporating critical disability messages into all discussions, addressing all aspects; utilising disability posters on campus, and departments such as Residence Life, KovsieSport, UFS Centre for Teaching and Learning (CTL), and CUADS should collaborate to host disability events and heighten communication around it; leveraging other mega events such as national days, themed days, conferences, etc., to spread messages on disability and to build an inclusive society; hosting lectures, debates, and discussions on disability topics and promoting rights of persons with disabilities; and hosting student competitions on equality, justice, and human dignity. Through such interventions, the university will have a community that can facilitate the creation of inclusive spaces in their homes, communities, work, and social areas. Disability should be a collective responsibility to achieve an inclusive society that upholds the rights of persons with disabilities. 

Inclusive legislative policies (i.e., the White Paper on the Rights of Persons with Disabilities, 2018 and the Strategic Policy Framework on Disability for the Post-School Education and Training sector) should guide institutions to ensure that students with disabilities are protected. These documents further promote the right to (inclusive) education, as a universal access approach in education does not benefit only students with disabilities, but everyone.

News Archive

UFS law experts publish unique translation
2006-06-21

Attending the launch of the publication were from the left:  Prof Boelie Wessels (senior lecturer at the UFS Faculty of Law), Prof Frederick Fourie (Rector and Vice-Chancellor of the UFS), Prof Johan Henning (Dean: UFS Faculty of Law) and Adv Jaco de Bruin (senior lecturer at the UFS Faculty of Law). Prof Wessels translated the treatise from corrupted medieval lawyer Latin into English, Prof Henning is the leading author and initiator of the publication and Adv de Bruin assisted with the proofreading and editing. Photo: Stephen Collett

UFS law experts publish unique translation of neglected source of partnership law

The Centre for Business Law at the University of the Free State (UFS) has translated a unique long neglected Roman-Dutch source of the law of partnership law from Latin into English.  This source dates back to 1666. 

The book, called Tractatus de Societate (A Treatise on the Law of Partnership), by Felicius and Boxelius is published as Volume 40 in the research series Mededelings van die Sentrum vir Ondernemingsreg/Transactions of the Centre for Business Law.  It is the first translation of this Roman-Dutch source into English and comprises of a comprehensive discussion of the South African common law of partnerships.  

“Apart from various brief provisions dealing on a peace meal and an ad hoc basis with diverse matters such as insolvency, there is no comprehensive Partnership Act in South Africa.  The law of partnership in South Africa consists of South African common-law, which is mainly derived from Roman-Dutch law,” said Prof Johan Henning, Dean of the Faculty of Law at the UFS.  Prof Henning is also the leading author and initiator of this comprehensive publication.

“Countries such as America, England, Ireland and The Netherlands have drafted or are in the process of establishing new modern partnership laws in line with new international guidelines, practices and commercial usages,” said Prof Henning.

“However, in South Africa the most recent policy document released by the Department of Trade and Industry explicitly excludes partnership law from its present company law reform programme and clearly regards this as an issue for another day,” said Prof Henning.

“Unless there is a political will to allocate the necessary resources to a comprehensive partnership law revision program, it is a practical reality that South Africa will not have a modern Partnership Act in the foreseeable future,” said Prof Henning. 

According to Prof Henning South African courts have been using the Roman-Dutch partnership law sources as authority.  “The English Partnership Act of 1890 is not binding and the English text books should therefore be approached with caution,” said Prof Henning.

“A treatise on the law of partnership that has been regarded by South African courts as an important common law authority is that of  a Frenchman by the name of Pothier.  This treatise was translated into English and was regarded as an au­thority of significance in The Netherlands towards the end of the eighteenth century,” said Prof Henning. 

“Pothier’s opinions are however not valid throughout in the Roman-Dutch partnership law as it did not apply to the Dutch province of The Netherlands and it sometimes also rely on local French customs for authority,” said Prof Henning.

For this reason the Centre for Business Law at the UFS decided to focus its attention again on the significance of the comprehensive treatise of Felicius and Boxelius on the Roman-Dutch partnership law.  Felicius was an Italian lawyer and Boxelius a Dutch lawyer.

This long neglected source of partnership law was published in 1666 in Gorkum in The Netherlands.  "A significant amount of Roman-Dutch sources of authoritive writers trusted this treatise and referred to it,” said Prof Henning.

The translation of the treatise from corrupted medieval lawyer Latin into English  was done by Prof Boelie Wessels, a very well-known expert on Roman Law and senior lecturer at the UFS Faculty of Law.  Prof Wessels, who  has 15 degrees, spent almost ten years translating the treatise.  The proofreading and editing of the translation was done by Prof Henning and Adv Jaco de Bruin, a senior lecturer at the UFS Faculty of Law.

“We want the South African courts to use Volume 40 in the research series Mededelings van die Sentrum vir Ondernemingsreg/Transactions of the Centre for Business Law as the primary source of reference when cases where Roman-Dutch Law partnership law principles are involved, are ruled on,” said Prof Henning.

The first part of the publication comprises of selected perspectives on the historical significance of the work as well as a translation of selected passages. “The intention is to follow this up expeditiously with the publication of a very limited edition of a complete translation of the work,” said Prof Henning.

A total of 400 copies of the publication will be distributed to all courts, the Appeal Court and the Supreme Court.

Media release
Issued by: Lacea Loader
Media Representative
Tel:   (051) 401-2584
Cell:  083 645 2454
E-mail:  loaderl.stg@mail.uovs.ac.za
21 June 2006

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