Complaint alleged the educational needs of children with severe and profound intellectual disabilities were not being adequately met by the South African and Western Cape governments; Right to education; Right to equality and non-discrimination; Disability rights; Right to human dignity; Children’s right to protection from neglect and degradation; Implementation of national laws and policies; Reasonableness of state policy.
The applicant is a body that represents over 150 member organizations that provide care for children living in the Western Cape who have severe and profound intellectual disabilities. In the Western Cape, the only available education for children who are severely and profoundly intellectually disabled occurs at “Special Care Centers” operated by non-governmental organizations. There are an insufficient number of such Special Care Centers and the children who are not able to obtain care at these centers receive no care at all. The applicant asserts that the state educational provisions for children with such disabilities is less than those granted to other children, that these provisions are inadequate and unequal, and that the provisions are only made available through non-governmental agencies.
The court found that the State’s policy infringed on the rights of the severely disabled children in respect to their right to education, right to equality, right to dignity, and the right to protection from neglect and degradation. The Court concluded that there was no justification for failing to provide the children with a basic education or for not allowing disabled children to go to special or other schools. The children’s right to dignity has been violated by stigmatizing or ignoring them. The State’s inability to provide education to these children also violates their right of protection from degradation because the children are educated by their parents, who do not have the necessary skills and this does not allow the children to develop fully.
The Court ordered the State to take reasonable measures, including interim steps, to ensure all children with severe and profound disabilities in the province have access to affordable and quality basic education. This will require the State to: (1) provide adequate funds to organizations that provide education for severely and profoundly disabled children and to allow for proper training, accreditation, and remuneration for the staff of special care centers; (2) provide transportation to the children to the special care centers; and (3) to develop a plan of action to remedy this violation and report to the Court within 12 months regarding implementation of the order.
Keywords: Western Cape Forum for Intellectual Disability v. Government of the Republic of South Africa & Government of the Province of Western Cape, Case no: 18678/2007, Children, Right
The State has not yet completed the report mandated by the court order. The national Government has taken steps to appeal the decision, but faces a challenge in the form of current political pressure related to the issue. UPDATE: The national government has chosen not appeal this decision and the verdict has been finalized by the court.
This case represents judicial interpretation of findings presented by the Department of Education within a constitutional framework. The court considers both the positive and negative dimensions of the right to education and ultimately concludes that the State policy violated children’s rights in both respects. The case is also significant in that the court provided for a structural interdict[1] as a form of relief by asking the State to report back to the court the progress it has made toward implementing the order.
[1] A court-monitored plan of action developed and implemented by the State to rectify a violation to a fundamental or Constitutional right.
