The Supreme Court of Appeal upholds the best interest of the child in corporal punishment case

 

JOINT MEDIA STATEMENT

10 April 2024, Johannesburg – SECTION27 and the Centre for Child Law (CCL) welcome the Supreme Court of Appeal (SCA) judgment in a corporal punishment case against the South African Council of Educators (SACE), in the matter CCL and others v the South African Council for Educators (SACE) and others. In a judgment released on 8 April 2024, the SCA affirmed that SACE has a duty to protect the best interest of the child.

SECTION27 are the attorneys in this case and CCL, together with the parents of two learners who were victims of corporal punishment at their respective schools, are the applicants in the case. The case was launched in 2020 to ensure the effective enforcement of the corporal punishment ban. The ban has been in place since the passing of the South African Schools Act in 1996. Despite the 28-year ban, and important Constitutional Court rulings upholding the ban, the prevalence of corporal punishment remains exceptionally high in South African schools. SECTION27 and CCL are therefore determined to ensure that the systems in place to protect learners from violence in schools, and the institutions established to protect them, are working effectively.

The SCA judgment establishes and confirms:

the need to effectively enforce the corporal punishment ban as a central tenet of South African society;

the importance of section 28(2) of the Constitution, which mandates that the best interest of the child be of paramount importance in proceedings affecting children; and

well-established principles of administrative law that all government departments must adhere to.

Facts of the case

This case concerns the disciplinary proceedings held, and sanctions imposed, by SACE in terms of two educators.

The first educator assaulted two learners with a piece of PVC pipe during August 2015. Both learners were only in grade two at the time. One of the learners in this incident allegedly started having headaches that became progressively worse and was eventually hospitalised for two weeks and had to undergo emergency surgery for a brain haemorrhage. During his hospital stay, the educator visited him and allegedly threatened him not to tell anyone of the assault.

In the second incident, the educator assaulted a learner by hitting her on the head and through the cheek. The mother of the learner alleged that she bled from her ear, was taken for several medical examinations, and was admitted to hospital twice.

SACE disputed that these injuries were caused by the assaults as well as the severity and consequences of the assaults.

At the request of both parents, SECTION27 reported the two educators to SACE and requested that the cases be investigated. In both instances, both educators pleaded guilty to the charges against them during SACE’s disciplinary hearings. In both instances the parents and the children were also invited to attend SACE’s disciplinary hearings, but they were made to wait in a separate room at SACE’s office. They were not allowed to sit in on the hearings and were not afforded an opportunity to present evidence, or to make representations, nor were they consulted about the sanctions imposed.

In both instances, the teachers received identical sanctions, despite the circumstances and the severity of the assaults not being comparable. Both were removed from the roll of educators, but this removal was wholly suspended for ten years. They also each received a fine of R15 000 payable over a period of twelve months, of which R5 000 was suspended. During the High Court proceedings, it became clear that the sanctions were imposed in terms of SACE’s internal policy called the “Mandatory Sanctions Policy”, which rigidly indicated the sanctions educators should receive when found guilty of misconduct.

In the High Court, SECTION27 requested that SACE revise its Mandatory Sanctions Policy, and include important elements in it such as rehabilitative and corrective sanctions (like anger management), to uphold the principle of the best interests of the child, and to include a more child-centred approach which will allow learners and their parents to make representations and participate in SACE’s disciplinary hearings. SECTION27 also requested that the decisions against the two educators be reviewed, set aside, and sent back to SACE for reconsideration.

However, the High Court only agreed that SACE’s Mandatory Sanctions Policy be changed. The High Court did not allow the review because it said CCL and the families had unreasonably delayed the launching of the application. This latter part of the court order for the review and sentencing of the two educators was therefore appealed at the SCA.

The SCA has now granted the appeal, requiring that SACE’s decisions and sanctions in respect of the two educators be remitted back to SACE for reconsideration, in order to comply with its constitutional obligations to act in the best interests of learners and to consider appropriate rehabilitative sanctions to ensure that the two educators referred to above are assisted and enabled to apply appropriate and non-violent disciplinary measures in future.

The principles confirmed and established included: 

On the issue of the corporal punishment ban, the SCA poignantly noted:

In a society besieged by violence, this must be of grave concern, and it cannot be gainsaid that violence as a form of ensuring corrective behaviour should be addressed at its roots. In the process of creating an environment that is conducive to the protection and development of children as citizens who will not resort to violence as a solution to conflict. It is imperative that educators not only be prohibited from resorting to physical violence as a form of discipline but also be assisted to develop the necessary skills to discipline appropriately and with the required measure of personal control. It is by example that children are taught to navigate a complex conflict-ridden world, without resorting to violence as a solution.

The SCA emphasised that SACE cannot just hand down cookie-cutter sentences but must allow for flexibility in its sentencing policy and has a duty to ‘assess the impact of the actions of educators on the children, including whether it is advisable that the educators return to the classroom; whether it is necessary to protect the children from harm; and, whether the underlying causes of the educator’s violent behaviour require addressing’.

The best interests of the child principle

The review was granted on the basis that the children or their representatives were not afforded the opportunity to make representations. The SCA held: “How the child will participate in the proceedings will depend on the circumstances of the specific case and must be approached in a manner that will best serve the interests of the child.’

The principle of what constitutes an unreasonable delay for launching an application for review in terms of the promotion of the Promotion of Administrative Justice Act No 3 of 2000 (PAJA).

Section 7(1) of PAJA requires judicial proceedings to be instituted without unreasonable delay and not later than 180 days from the day on which the proceedings have been concluded, or on which the person concerned was informed, or could reasonably be expected to have been aware of the administrative action and the reasons for it.

The SCA noted that CCL and the family had made repeated requests for the reasons for SACE’s decisions and sanctions with respect to the two educators to no avail. It therefore held that: “The appellants cannot be faulted for attempting to obtain reasons before proceeding with litigation. In the absence of reasons, the 180-day period did not even commence before the application was launched. The court of first instance misdirected itself when finding that there was an unreasonable delay in the launching of the application.”  This finding is important to ensure the efficiency of public services in providing reasons for decision-making.

The SCA’s judgment marks a great victory for CCL and the two families and highlights the need for institutions, like SACE, to make greater and more deliberate efforts to effectively prevent the scourge of corporal punishment in our schools. The appropriate sanctioning of educators is key to enforcing the ban on corporal punishment and it is expected that SACE will implement a revised sanctioning policy without delay.

The European Union funding supports SECTION27 and the Centre for Child Law’s work in enhancing accountability in health and education in South Africa.

For media enquiries contact:

SECTION27 |Pearl Nicodemus | nicodemus@section27.org.za | 082 298 263

CCL | Stanley Malematja | stanley.malematja@up.ac.za | 084 906 5773

 

 

 

 

THE ARREST AND DETENTION OF A CHILD BASED ON THE FAILURE TO PRODUCE AN IDENTIFYING DOCUMENT IS PRIMA FACIE UNLAWFUL

FOR IMMEDIATE RELEASE

28 February 2024
________________________________________

The Centre for Child Law (CCL) vehemently condemns the arrest and detention of a child suspected of being an undocumented irregular migrant. It is prima facie unlawful to arrest and detain a child merely on the basis that the child failed to identify himself or herself as a citizen, resident or foreigner at the request of the law enforcement officer. It is not a criminally punishable offence for a child to fail to produce any form of identity document when requested to do so by an immigration officer or police officer.
The CCL learnt of the unlawful arrest and detention of a 15-year-old girl child by members of the South African Police Services (SAPS) on an unfounded and baseless belief that the child is an undocumented irregular migrant. In an article published by Sowetan Live on 26 February 2024 titled “Teen tells of the horror of arrest for looking like a foreigner”, the child detailed how she was circled by a group of policewomen who touched her inappropriately and requested her to produce an identity document.
According to the newspaper article, the child’s failure to produce an identity document resulted in her being loaded into the back of a police van which already had other detainees in transit. The child was then transported to Hillbrow Police Station. Upon arrival at the police station, the police separated the detainees according to gender and the child was detained in a police cell with other female detainees. It is reported that the child was denied access to a telephone call at the police station.
The police further told the group of detainees which the child formed part of, that “this is not your home, SA is only for South African citizens, not you”. The child informed Sowetan Live that she was assisted by a fellow detainee who happened to have a cell phone with her in the police cells to call her parents to explain her ordeal. Her father rushed to the police station with her South African birth certificate and the child was released from custody.
It appears that the police women relied on section 41 of the Immigration Act 13 of 2002 which requires any person, at the request of an immigration officer or police officer to identify herself or himself as a citizen, resident or foreigner. If the immigration officer or police officer, on reasonable grounds, is not satisfied that the person is entitled to be in the Republic, the officer may detain such a person in a prescribed manner.
It is important to note that in terms of section 150(6)(d) of Children’s Amendment Act 17 of 2022, a child is in need of care and protection if that child “is an unaccompanied migrant child from another country”. Section 28(2) of the Constitution provides that “a child’s best interests are of paramount importance in every matter concerning the child”. Furthermore, section 28(1)(g) of the Constitution provides that a child may not be detained unless as a measure of last resort and if so detained, the child must be kept separately from persons over the age of 18 years and to be treated in the manner and kept in conditions that consider his or her age.
The policewomen, if they at all, were acting bona fide ought to treat the child as a child in need of care protection as “an unaccompanied migrant child”, and not in terms of the Immigration Act. In light of the latter, the arrest and detention of the child were unlawful and a gross violation of the child’s constitutional rights.
It is important to reiterate that what the child in question was arrested and detained for is not a criminal offence. The arrest is utterly unlawful and those involved must be held accountable.

Ends.

For more information, please contact:
Stanley Malematja
stanley.malematja@up.ac.za
084 906 5773
The Centre for Child Law
Tel: 012 420 4502 │ Email: centreforchildlaw@up.ac.za

Centre for Child Law appeal hearing at the Supreme Court of Appeal to secure justice for child victims of corporal punishment in schools

          (more…)

Joint press statement: High Court orders Department of Home Affairs to stop “blocking” the birth registration or ID of any child whose parent’s ID has been unlawfully “blocked” or is under investigation

LHR "Blocked IDs" litigation campaign image

17 January 2024

The Children’s Institute (CI) at the University of Cape Town, and the Centre for Child Law (CCL), have
secured vital victories for children’s rights in the Pretoria High Court case against the Department of
Home Affairs (DHA).

The case was brought to court by Ms Phindile Mazibuko, who was then joined by Lawyers for Human
Rights and Legal Wise, representing the many other people affected by “ID blocking”.

The CI, represented by CCL, joined the case as a friend of the court, to highlight how the blocking of a
parent’s ID negatively affects their child’s rights to birth registration, identity and nationality, and to
ensure that all affected children would also obtain relief from the court.

The court judgment, handed down on Tuesday 16 January, orders the DHA to:
● Stop blocking people’s IDs (adults and children) without following a fair procedure as
required by the Promotion of Administrative Justice Act (PAJA). This means the DHA must
first give people notice in writing that a problem has been found with their ID, allow people
reasonable time and opportunity to present their side of the story to the DHA, conduct a
proper investigation and then provide the affected person with written reasons as to why
their ID is going to be blocked. DHA must then obtain a court order before they may block
the person’s ID.
● Immediately remove blocks from all minor children’s IDs, where their parents’ statuses are
being investigated but have not been finalised and revoked. In future, a child’s ID may only
be blocked where a court order has been obtained.
● Stop refusing to allow parents to register their child’s birth because a parent’s ID has been
marked and is under investigation.

“The court has affirmed our position that it is unjust to penalise children for matters over which they
have no power or influence,” explains Mbonisi Nyathi, a Legal Researcher at the CI. “It is important to
emphasise that the court held that the DHA is obliged to recognise the status (citizenship, permanent
residence or refugee status) of the children until their parent’s status has finally been determined
following an investigation.”

[Read the full judgment here in the matter of Phindile Philile Mazibuko and Others v Minister of
Home Affairs and Others, and the background to the case here.]

Within 12 weeks from now, the DHA must file a report with the court confirming that all the blocks
on children’s IDs have indeed been lifted. This part of the order will provide relief for children aged
16 to 18 who already have their IDs but have been unable to use them because they are blocked. It
will also help children aged 16 to 18 who have birth certificates but have been unable to get their IDs
because they have a parent whose ID has been blocked.

Regarding the second key element of the court order related to children: If a parent’s ID is under
investigation, the DHA must register the child’s birth as a citizen, permanent resident or refugee
based on the parent’s current status on the National Population Register, and may no longer refuse
to register the birth.

“We are very pleased by this relief as this is the main reason we entered the case,” says Paula
Proudlock, Senior Researcher at the CI. “One of our clients, Ms Zulu (a pseudonym) who is a South
African citizen, was prevented from registering the birth of her triplets because her ID was under
investigation. She and the three babies suffered great hardship as a result, at a time when they were
most vulnerable. Her ID was eventually cleared and unblocked after a year due to the advocacy of a
dedicated dietician at the public hospital treating her and the triplets. Her story illustrates that South
African citizens, permanent residents and refugees get caught up in the blocking system because it is
done on mere suspicion and before a fair process and proper investigation has been completed,”
explains Proudlock. “In Ms Zulu’s case, she was considered ‘suspicious’ by the DHA because her birth
was registered by someone other than her biological mother due to her mother having died when
she was very young, and then her granny also dying.”

When children cannot obtain a birth certificate or identity document, it infringes on their rights to a
name, nationality, and identity. The CI’s evidence to the court showed that children without birth
certificates face a significant risk of being excluded from receiving social grants and attending school,
even when legally entitled to this. Adolescents without IDs face exclusion from writing matric, from
applying for higher education and National Student Financial Aid Scheme (NSFAS) funding, or
applying for social grants.

Children are individuals with their own rights and should never be treated as mere extensions of
their parents,” affirms Liesl Muller, Senior Attorney at the CCL.
Muller emphasised the importance of the court order being swiftly and clearly communicated to all
DHA officials across the country.

“Based on the order, we will now be advising mothers with blocked IDs to approach their local DHA
offices to register their children’s births and assist their children to apply for IDs. We hope that the
DHA officials will be aware of the court order and ready to register the children,” added Nyathi.

[END]
To arrange an interview, contact:
Leanne Jansen-Thomas, Children’s Institute Communications Specialist
leanne.jansen-thomas@uct.ac.za 079 4949 411

VACANCY: CANDIDATE LEGAL PRACTITIONER (2024)

 

17 October 2023

Join our team in 2024!

The Centre for Child Law (CCL) is seeking a driven candidate legal practitioner with the credentials and a proven passion for public interest law and social justice work.

The Centre for Child Law, based at the University of Pretoria’s Faculty of Law, is a child rights strategic litigation organisation, registered with the Legal Practice Council as a law clinic. CCL has built an enduring reputation for upholding and fulfilling children’s rights over the last 25 years through litigation, research, legal education, law reform, community engagement and advocacy.

 

QUALIFICATIONS, SKILLS, AND EXPERIENCE REQUIRED

 

  • An LLB or equivalent degree.
  • A demonstrated interest in human rights and social justice work.
  • A strong interest in research as a component of legal work.
  • Good oral and written communication skills in English.
  • Proficiency in other South African official languages will be an advantage.
  • Proficiency in MS Office.

 

KEY RESPONSIBILITIES

 

  • Assisting in strategic litigation cases;
  • Research in support of advocacy and litigation activities;
  • Conducting field research in communities;
  • Drafting pleadings and legal opinions;
  • Assisting in the drafting of research reports;
  • Providing input into draft policies and legislation;
  • Preparing documents for, and appearing in court;
  • Liaison with clients, counsel, and partners; and
  • Representing the Centre for Child Law in civil society forums.
TO APPLY

 

To apply, please merge and submit the following documents in PDF format:

  1. A cover letter motivating why you are a suitable candidate for the position;
  2. A detailed CV demonstrating that you have the necessary qualifications, skills and experience for this position as well as the names and contact details of at least 2 references;
  3. Certified copies of qualifications(degrees/diplomas); and
  4. A written sample of no longer than 5 pages which need not be a stand-alone piece but may form part of a larger writing project such as an LLB final year dissertation. (Please do not send the full dissertation).

 

Submit your application and upload your documents here  or send an email to centreforchildlaw@up.ac.za

Individuals from previously disadvantaged populations are particularly encouraged to apply.  The Centre reserves the right not to appoint if suitable candidates are not found.

CLOSING DATE: 10 November 2023 (Late and incomplete applications will not be accepted.)

 

 

 

END.

Joint press statement: Children’s Institute in court tomorrow as amicus curiae in case against Department of Home Affairs, to highlight the severe harms to children when parents’ IDs are wrongly “blocked”

19 September 2023


Joint press statement:
Children’s Institute in court tomorrow as amicus curiae in the case against the Department of Home Affairs, to highlight the severe harm to children when parents’ IDs are wrongly “blocked”.

The Children’s Institute (CI) at the University of Cape Town, represented by the Centre for Child Law (CCL), will on Wednesday 20 September and Thursday 21 September provide evidence as an amicus curiae (friend of the court) to the Pretoria High Court, that highlights the harsh consequences for children whose parents’ IDs have been “blocked” by the Department of Home Affairs (DHA).

Parents with blocked IDs are unable to register their children’s births or to help them get their own IDs. This leaves children undocumented for years, infringing on their rights to a name, nationality, and identity. The CI’s evidence shows that undocumented children face a significant risk of being excluded from receiving social grants and attending school, even when they are legally entitled to this. Consequently, DHA’s practice of blocking IDs also limits children’s basic socio-economic rights.
The CI is asking the court to protect the best interests of children by making an order that will provide systemic relief not only for the adults affected, but also the interests of the children who are impacted.
Lawyers for Human Rights (LHR) is representing over 100 people in this court challenge. LHR’s court application asks the court to declare DHA’s conduct as unlawful and unconstitutional, and seeks an order to unblock the IDs. An ID is blocked when an ID number is flagged because it is tainted by an administrative error, or because of suspected fraud or misrepresentation. Affected people must then submit extensive documents to show citizenship or that they are entitled to the ID in question. They must also provide biometric data and participate in interviews held by an immigration officer, sometimes involving witnesses. As LHR explains, many cases remain unresolved because:

  • Some people cannot produce all the required evidence, especially those with unregistered births or parents who were unregistered (mainly due to inadequate civil registration records for black South Africans pre-1994); and
  • Despite DHA’s claim of a six to eight week investigation period, the majority of affected people experience excessive delays, often waiting for years for a resolution.

The CI’s case studies “The CI’s affidavits include case studies of four mothers who are South African citizens whose IDs have been blocked, resulting in their children’s births going unregistered for years,” explains Mbonisi Nyathi, a Legal Researcher at the CI. “The children have suffered being excluded from social grants in early childhood – the period when they need it most; along with delays in being admitted to school, being refused place at school, and being excluded from school programmes like access to free uniforms and participating in sport.”

The CI, through its legal services project, has over the past five years been helping parents/caregivers of children without birth certificates to get these documents, and have identified certain categories of children and parents/caregivers who are more likely to struggle to get birth certificates and/or ID cards. These include children whose mothers do not yet have her own ID, children in the care of unmarried fathers, abandoned or orphaned children in the care of relatives, and children whose

mothers’ IDs have been “marked” or “blocked” by DHA. Due to the block on theìr mothers’ IDs, the children cannot get birth certificates and/or ID cards until the block has been removed by DHA.
Over 80% of at least 500,000 children without birth certificates are South African citizens
Using the General Household Survey and National Income Dynamics Survey (NIDS) data, the CI estimated that in 2017 there were about at least half a million (500,000) children in South Africa without birth certificates. In 2023, we believe that this number is likely to have increased significantly due to DHA offering fewer services in 2020 and 2021 during the COVID-19 period. The CI’s analysis of the profile of the children without birth certificates revealed that over 80% were likely South African citizens. The Department of Basic Education’s data, tabled by the DHA in its answering affidavit, shows that in 2022 there were 1,1 million learners attending public schools in South Africa without documents and at least 73% are SA citizens.
“The Constitution establishes the best interest of the child as a self-standing right, as well as the principle crucial to the interpretation of all other rights. The case against the DHA shows that there has been no consideration for the best interest of the children in the process of blocking the parents’ ID documents. The practice of ID blocking stands to be found unconstitutional on that basis alone,” explains Liesl Muller, Senior Attorney at the Centre for Child Law.
DHA’s processes must be just and fair
Our evidence shows that children’s births can remain unregistered for many years due to DHA blocking the IDs of their mothers without following a just administrative procedure, and ensuring that investigations into administrative errors by DHA, suspected misrepresentation or suspected fraud are completed timeously.
The evidence from the CI also shows that mothers only become aware of their IDs being blocked when they try to give notice of their children’s birth at DHA. There is no communication from DHA notifying them that their IDs have been blocked before this. In addition to this injustice, DHA does not provide written reasons before or after the blocking the ID, and there is also no prescribed form to lodge an inquiry or to start an investigation.

We do not know how many children are affected by DHA’s ID blocking practice. DHA revealed in 2020, in response to a Parliamentary question, that there were over 800,000 adults with blocked IDs. In May 2023, likely in response to the LHR’s application, DHA agreed to unblock 1,4 million IDs, due to not being a high security risk, leaving 700,000 still blocked. Each of these adults with their blocked IDs will likely have one or more children adversely affected by the block. We have asked DHA to provide statistics on how many children are linked in the National Population Register to these blocked adults so that we can get a better idea of the size of the challenge.

The relief that the CI is seeking from the court is child specific:

  • A declaration that the practice of blocking IDs violates the child’s right to have their best interests considered paramount, the right to a name and a nationality from birth, and the right to equality and dignity:
  • The DHA should not be allowed to refuse the registration of a child’s birth, based on their parent’s ID being blocked; and
  • DHA should also not be allowed to deny an ID number and South African citizenship to a child whose parent has a blocked ID. Instead, the child’s case should be assessed independently and following a fair administrative process – including providing the child personally or through a representative with written reasons and the opportunity to be heard, and their views to be considered.

[END]

To arrange an interview, contact:
Leanne Jansen-Thomas, Children’s Institute Communications Specialist
leanne.jansen-thomas@uct.ac.za 

079 4949 411

 

 

Media Statement: CENTRE FOR CHILD LAW CONDEMNS THE VIOLATION OF THE RIGHTS OF CHILDREN WITH DISABILITIES BY THE DEPARTMENT OF BASIC EDUCATION 6 September 2023

 

FOR IMMEDIATE RELEASE                                                                    6 SEPTEMBER 2023

Journalism has again shined a spotlight on the gross children’s rights violations perpetuated by the Department of Basic Education (“the Department”). In a Carte Blanche episode which aired on 3 September 2023, entitled ‘Stealing from the disabled’ about a school for children with disabilties in the Eastern Cape, the anchor opens with the words “…it is certainly not meant for children…” This shocking story reveals the lived realities of children with disabilities housed at  in Mthatha, Eastern Cape. Appalling conditions in the hostels, along with accounts of physical, emotional, and sexual abuse are recorded alongside detached responses from the provincial department. The school and the Department are not only failing these vulnerable children, but they are also central to the violation of these children’s rights.

The school does not have running water, the toilets are broken, and the children sleep on brick-slab beds. The school hostel accommodates children with physical and intellectual disabilities, who are between the ages of 6 and 12 years. By virtue of their intersectional needs stemming from childhood and disability, the children at Ikhwezi Lokusa require special care. It appeared that approximately three care workers take care of forty children per shift and there is a time interval during the change of shifts where the children are left completely unattended and must fend for themselves. That includes bathing in cold water, older children bathing the younger children, moving from wheelchairs to the broken toilet seats, crawling on the floor in search for a secluded place to change their own diapers. The expose does not even cover if and what quality of education these children are receiving. Regardless of the answer, the conditions in the hostel will invariably affect the ability of the child to receive quality education.

These children’s rights to human dignity, equality, education, appropriate alternative care, and their right to have their best interests considered paramount, are grossly violated on a daily basis. The situation and condition that the children are in poses several risks to the children, including their right to be protection from degradation. The Constitution is crystal clear that the best interests are of paramount importance in every matter concerning the child. The situation at Ikhwezi Lokusa is far from being in the best interests of those children, the living conditions are not conducive for children’s health, well-being, and development.

The Guidelines for the Provision of Boarding Facilities in Public Ordinary Schools do not make provision for special schools and resource centres or cater to high level of care that children with multiple disabilities, similar to those at Ikhwezi Lokusa who have intellectual and physical disabilities. The DBE published its Guidelines to Ensure Quality Education and Support in Special School Resource Centres which are meant to serve as a benchmark for the functioning of special schools and resource centres, and also includes a section on the functioning of hostels. The Guidelines are wholly insufficient, vague and do not create instructive, binding and enforceable obligations on the DBE. Nonetheless, it is irrefutable that all children, including children with intellectual disabilities have an immediately realizable right to basic education that the state is obliged to provide, per the Cape Town High Court in Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa 2011 (5) SA 87 (WCC). The state further has obligations in terms of the UN Convention on the Rights of Persons with Disabilities.

Ikhwezi Lokusa is not the only instance where the Department of Basic Education has failed children with disabilities:

  • In 2018 three learners died in a fire at a Northwest school for deaf learners. The South African Human Rights Commission (SAHRC) released a report and made recommendations to the Department. None of the recommendations have been implemented 5 years later.
  • In the Northern Cape, the SAHRC has been reaching out to the Department for the last 4 years regarding the fact that children with disabilities is Upington have no access to schools. There has been no answer. CCL sent a follow up to the Northern Cape provincial department and the Minister in August 2023, asking them to respond by 11 September 2023. So far there has been no response.

Children in the Eastern Cape face similar issues to those in the Northern Cape and other provinces: The Department of Basic Education has wholly failed to make education available to learners with disabilities. They are supposed to be able to attend full-service schools (designated by the Department to accommodate children with disabilities) but such schools are not equipped to accommodate even those with very low accommodation needs, increasing the demand for special needs schools of which there are very few. This means that often children must be placed in hostels far away from the protection of their parents, leaving them vulnerable to abuse in situations such as at Ikhwezi Lokusa, where the Department exercises no oversight.

We call on the SAHRC to exercise its powers in terms of section 13 of the SAHRC Act to investigate and assist the children and their families to seek redress for the egregious violations of human rights.

We call on the Department of Education to investigate and intervene immediately at Ikhwezi Lokusa School, to lay criminal charges against the responsible persons, and to take disciplinary actions against the responsible staff at the school.

We call on the Minister of Basic Education to issue an apology to all children with disabilities for the Department’s failure to provide safe and equitable access to education We also call on the Minister to immediately provide norms and standards for full service and special schools, and to update existing guidelines to make full provision for the needs of children with disabilities.

The Centre for Child Law is engaged in advocacy and is planning litigation to protect and enforce the rights of children with disabilities which have been severely neglected over the many years since their rights have been enshrined in our constitution.

Ends.

 

 

For enquiries contact:

Stanley Malematja, Attorney

Tel: 012 420 4502

Email: stanley.malematja@up.ac.za

 

 

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