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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

The failure of the law
2004-06-04

 

Written by Lacea Loader

- Call for the protection of consumers’ and tax payers rights against corporate companies

An expert in commercial law has called for reforms to the Companies Act to protect the rights of consumers and investors.

“Consumers and tax payers are lulled into thinking the law protects them when it definitely does not,” said Prof Dines Gihwala this week during his inaugural lecture at the University of the Free State’s (UFS).

Prof Gihwala, vice-chairperson of the UFS Council, was inaugurated as extraordinary professor in commercial law at the UFS’s Faculty of Law.

He said that consumers, tax payers and shareholders think they can look to the law for an effective curb on the enormous power for ill that big business wields.

“Once the public is involved, the activities of big business must be controlled and regulated. It is the responsibility of the law to oversee and supervise such control and regulation,” said Prof Gihwala.

He said that, when undesirable consequences occur despite laws enacted specifically to prevent such results, it must be fair to suggest that the law has failed.

“The actual perpetrators of the undesirable behaviour seldom pay for it in any sense, not even when criminal conduct is involved. If directors of companies are criminally charged and convicted, the penalty is invariably a fine imposed on the company. So, ironically, it is the money of tax payers that is spent on investigating criminal conduct, formulating charges and ultimately prosecuting the culprits involved in corporate malpractice,” said Prof Gihwala.

According to Prof Gihwala the law continuously fails to hold companies meaningfully accountable to good and honest business values.

“Insider trading is a crime and, although legislation was introduced in 1998 to curb it, not a single successful criminal prosecution has taken place. While the law appears to be offering the public protection against unacceptable business behaviour, it does no such thing – the law cannot act as a deterrent if it is inadequate or not being enforced,” he said.

The government believed it was important to facilitate access to the country’s economic resources by those who had been denied it in the past. The Broad Based Economic Empowerment Act of 2003 (BBEE), is legislation to do just that. “We should be asking ourselves whether it is really possible for an individual, handicapped by the inequities of the past, to compete in the real business world even though the BBEE Act is now part of the law?,” said Prof Gihwala.

Prof Gihwala said that judges prefer to follow precedent instead of taking bold initiative. “Following precedent is safe at a personal level. To do so will elicit no outcry of disapproval and one’s professional reputation is protected. The law needs to evolve and it is the responsibility of the judiciary to see that it happens in an orderly fashion. Courts often take the easy way out, and when the opportunity to be bold and creative presents itself, it is ignored,” he said.

“Perhaps we are expecting too much from the courts. If changes are to be made to the level of protection to the investing public by the law, Parliament must play its proper role. It is desirable for Parliament to be proactive. Those tasked with the responsibility of rewriting our Companies Act should be bold and imaginative. They should remove once and for all those parts of our common law which frustrate the ideals of our Constitution, and in particular those which conflict with the principles of the BBEE Act,” said Prof Gihwala.

According to Prof Gihwala, the following reforms are necessary:

• establishing a unit that is part of the office of the Registrar of Companies to bolster a whole inspectorate in regard to companies’ affairs;
• companies who are liable to pay a fine or fines, should have the right to take action to recover that fine from those responsible for the conduct;
• and serious transgression of the law should allow for imprisonment only – there should be no room for the payment of fines.
 

Prof Gihwala ended the lecture by saying: “If the opportunity to re-work the Companies Act is not grabbed with both hands, we will witness yet another failure in the law. Even more people will come to believe that the law is stupid and that it has made fools of them. And that would be the worst possible news in our developing democracy, where we are struggling to ensure that the Rule of Law prevails and that every one of us has respect for the law”.

 

 

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