Organisations advocating for the rights of young children came together in 2008 at a conference hosted by ACESS. The purpose was to reflect on the progress we have made as a country and what still needs to be done fully to realise the rights of young children.

Barriers to the rights of young children with disabilities that were identified at the conference were a failure to identify children early and provide them with appropriate support and interventions. One form of support that is not freely available for children with disabilities is the lack of access to ECD facilities, Grades R, 1 and 2. Among the reasons identified for this blockage is the lack of adequate training and facilities to accommodate these children in schools.

The conference members called for the Ministries of Social Development and Education to prioritise the educational needs of children with disabilities and provide adequate services and facilities at schools.

There has been some progress by the Department of Education to improve facilities at mainstream schools with a view to including children with “moderate” disabilities in ordinary schools and by increasing the number of “special schools” for children with moderate to mild intellectual disabilities.

However, in the Western Cape no provision is made for the education of children who are considered to be severely (IQ 20-35) or profoundly (IQ less than 20) disabled. They are not admitted to special schools or to any other state schools. The only education available for these children is at “special care centres” run by NGOs. There are far too few of these centres to meet demand, and the children who cannot get into “special care centres” get no education at all.

The only contribution that the State makes is a subsidy that is paid by the Department of Health to the NGOs that provide the service in question. The sum of the subsidy is much less than the amount of money paid for the education of children who are not so disabled. The former subsidy is R 5,092 per annum per child; for “normal” children, R 6,632 is paid per annum per child for their education; and in the case of children with “moderate” disabilities, the sum of R 26,762 is paid each year for their educational needs.

The Western Cape Forum for Intellectual Disability, an NGO in the Western Cape which provides a “special care centre” for children who are severely or profoundly disabled, sued the Government of the Republic of South African and the Government of the Western Cape. They sued on the grounds that the rights of these children to education, to equality, to human dignity and to protection from

neglect are infringed because much less is paid towards their education, compared to other children; because the amount that is provided is inadequate to meet the educational needs of these children; and because education is only available if NGOs provide it.

The State defended the claim against it on the grounds that no amount of education will benefit these children; that due to limited resources it is not possible to make any further contribution to their education; that the right to education should not take precedence in terms limited resources and trump the rights to housing, food, water, health care and social security.

The court rejected all of the arguments and found in favour of the Western Cape Forum for Intellectual Disabilities. It made the following order:

1. The Government has failed to provide for the educational needs of severely and profoundly intellectually disabled children in the Western Cape. This is in breach of their rights to: a basic education; protection from neglect and degradation; equality; human dignity.

2. The Government of the RSA and the Western Cape must immediately take steps to give effect to these rights by taking the following steps:

• Ensuring that every child in the W Cape who is severely and profoundly intellectually disabled has affordable access to basic education of an adequate quality;
• Providing adequate funds to organisations which provide education for severely and profoundly intellectually disabled children in the W Cape at special care centres so that they are able to provide adequate facilities to provide education to these children and hire adequate staff to teach them;
• Provide appropriate transport for the children to and from such special care schools;
• Enabling the staff of such special care centres to receive proper accreditation, training and remuneration;
• Make provision for the training of persons to provide education to children who are severely and profoundly intellectually disabled.

3. The Government must prepare a report on how they will implement this order and deliver it to the court within 12 months. The reports must state what steps have been taken, what further steps are planned and by when they will take place.

4. The applicants are also allowed to comment on the report and put the matter back before the court for arguments about lack of compliance with the order.

What does this mean for you and your organisation if it you are not in the Western Cape?

This judgment is now part of our legal landscape and will be of significant persuasive value in courts in other provinces if similar cases were to be brought. As such, the judgment is a strong advocacy tool which you can use in support of your engagements with your provincial Departments of Social Development, Education and Health. The judgment opens up a space to put forward a grounded and legally justified call for similar developments in other provinces as required of the Western Cape; should these not be forthcoming, there is a strong foundation for similar law suits to be brought to force similar action in other provinces.

Click here to view a copy of the judgment.