Ratification of AU Charter on Rights of Persons with Disabilities; Development of a Disability Bill

Meeting report

Opening Remarks by Chairperson

The Chairperson welcomed Members to the virtual meeting. She said there had been initial communication that there would be an ANC caucus at 2 pm, and she had asked the Committee Secretary to communicate with Members that the meeting would start immediately after the caucus. However, there was further communication that the caucus would meet at 4pm. As such, this meeting would run up to 4pm. If the agenda was not be completed, the meeting would adjourn and continue after the ANC caucus. She apologised for the inconvenience.

She welcomed officials from the Department of Women, Youth and Persons with Disabilities (DWYPD), the Presidential Working Group on Disability (PWGD), and the South African Law Reform Commission (SALRC), who would give an update on the progress in drafting the Disability Bill. This was a follow-up meeting to the one held on 22 March 2022, wherein the Committee considered the African Union (AU) Protocol to the African Charter on Human and People’s Rights of Persons with Disabilities in Africa, for ratification.

The Committee agreed to ratification but sought more information on issues of concern raised by Members, relating to outcomes of the consultation process on the AU Protocol that was conducted by the Department, how the Department would ensure compliance of treaty obligations in the absence of the Disability Act, and how the Department would raise awareness about the AU Protocols. As such, the follow-up meeting was scheduled. The departments would brief the Committee on consultations, on the AU Protocol, the plan to raise awareness about the Protocol, and how the Department intended to domesticate it. This would be followed by a presentation by PWGD for their commentary on the AU Protocol, developments related to the Disability Bill, and any other key matters for the Committee’s consideration. PWGD was a key stakeholder. Given that the Committee had not yet engaged structure, it was imperative that an opportunity be created. The Committee thanked PWGD for the work undertaken so far, as reflected in the documents submitted for the meeting.

It was concerning to note that the documents highlight actionable points from the DG’s presentation on 25 February 2021, which stated: “no response from the DG regarding the workstream, advancing communication methodologies, and no clear feedback from the DG regarding empowerment of persons with disabilities, as well as for the self-representation in decision-making processes.” The Department would need to clarify this, as the Committee reiterated the importance of these matters to the Department. Given concerns raised by the Committee about enforcing compliance through legal means, it was deemed fit to have a briefing by the South African Law Reform Commission on the progress outcomes and updates on the issue paper related to developments of the Disability Bill, since they indicated that there would be phases.

Apologies

Apologies were received from Ms A Hlongo (ANC), who was travelling, as well as Ms N Ntlangwini (EFF) and Ms P Sonti (EFF), who were attending their party caucus meetings.

The Chairperson acknowledged that other Members were travelling, hence the meeting started later than planned.

Briefing by the Department of Women, Youth and Persons with Disabilities

Adv. Mikateko Joyce Maluleke, Director-General (DG), DWYPD, apologised for joining the meeting from her car and hoped Members would be able to hear her despite the network challenge she was facing. She was in Kokstad, where the Department was looking at mainstreaming issues of women, youth, and persons with disabilities, and economic development of persons with disabilities. The focus of the day's meeting was on women, youth, and persons with disabilities, who were in businesses. There would also be other sessions. This was to show that the Department was working. The Minister sent an apology, as she was on her way to the airport, three and a half hours away, since she had to be in Parliament the next day.

The Department always listened and implemented all recommendations, but was probably not communicating properly. She requested the Chief Director: Advocacy and Mainstreaming Rights of Persons with Disabilities, DWYPD, to respond to the issues raised by the Chairperson, and the Department would later talk about the ratification of the Protocol.

Responses by the Department to Questions from the Previous Week

Ms Phuti Mabelebele, Chief Director: Advocacy and Mainstreaming Rights of Persons with Disabilities, DWYPD, thanked the Committee for the opportunity present responses to questions raised during the previous week.

On the outcomes of the consultation, she said that the Department attached several documents, beginning with the consultation with the disability sector in 2016, and all follow-up consultations. Minutes for the National Disability Rights Machinery were also attached. At this forum, the Department continued to consult on the legislative and policy environment, which included the frameworks brought to the Committee and AU Protocol. The last consultation held with PWGD was in March 2022, where issues of the AU Protocol were tied down to ensure smooth progress after receiving a date to present to the Committee. All documents providing proof of consultation with the disability sector and PWGD were attached. The communication plan for awareness-raising was also attached. Previously, when the Department presented the AU Protocol, it indicated that one of the key indicators for the annual performance plan for the year was to create more awareness of all legislative instruments among persons with disabilities. As agreed with PWGD regarding the 2022/23 financial year, a planning session would be held to ensure that the awareness plan was approved by all, and to then create awareness.

On ensuring compliance, the Department attached the annual compliance matrix and reports for monitoring compliance of the White Paper, showing that what was contained in the AU Protocol was also reflected in the current instruments. Once the ratification was done, other matters that would need aligning would be considered for departments to report on implementation.

On issues raised by the Chairperson, about advancing communication methodology, economic empowerment, and self-representation in the minutes of 25 February 2021, she confirmed that it was true. Those were meetings of a planning session with PWGD, in taking stock of progress of different workstreams. It was found that advancing communication methodology, economic empowerment, and self-representation were lagging. It was not limited to those three. Several areas were lagging behind. There was, however, work in progress in the 2022/23 financial year. Part of the plan was to hold an Economic Empowerment Summit specifically for persons with disabilities. In the previous financial year, there was work in progress on creating awareness about the different packages and grants developed by the economic cluster departments, specifically for persons with disabilities. But there were still challenges for persons with disabilities to participate in the mainstream economy, which would be taken into the summit. This would be similar to the Inclusive Education Summit that was held in November 2021, where the Department took stock of what the White Paper was saying, as well as advancing the agenda of inclusive education within the Department of Basic Education. The self-representation framework was approved, and the Department had also presented this to the Committee. The self-representation workshop was now awaiting Cabinet’s approval. It was widely consulted, and the authors, including PWGD, were present in the meeting. The Department was only awaiting approval to then begin ensuring compliance for implementation. Once approved by Cabinet it would be gazetted. Awareness-raising would begin with the duty bearers, for government departments and the private sector to know the implications of them not implementing the framework. The year 2022/23 was dedicated to awareness and capacity-building for those that are supposed to implement.

The Chairperson said that she was aware that, on 10 March 2016, a list of issues was raised during the presidential meeting. How far was the Department in addressing these?  

Ms Mabelebele indicated that there had been some progress with addressing them, but there also was no progress, at times. She did not want to say the Department was doing well with this, overall.

On the Protocol: there were bones of contention around polyandry. PWGD would also comment on this. These were negotiated and consulted until agreement was reached, including issues of the LGBTQIA community.

The Chairperson said that the other Protocol that had been delayed is the SADC Protocol on child marriages. How far was the Department on this?

The DG said that the Department was following up on most of the issues raised in the meeting with PWGD. As Ms Mabelebele indicated, matters of access to education were an outcome of the PWGD. The Department was working on that.

On the protocol, the DG said that she had previously reported to the Committee, together with the Department of International Relations and Cooperation (DIRCO) and Department of Cooperative Governance (DCoG). She thought there was an understanding because, as she was presenting, the Acting DG of DIRCO was agreeing. However, they wrote back to the Department that they stood by their conviction and were not in support. As the DG previously indicated, the challenge was that DIRCO, which was supposed to understand what ratification was all about, did not actually understand it. Ratification was done nationally, and then it would be domesticated through amending legislation. The Department of Home Affairs (DHA) presented to the Committee that the policy had been approved by government, which was now amending legislation. This did not mean there had to be a wait of four years or so. The Special Advisor who attended the meeting the last time said that there was no legislation. When the DG indicated that domestication did not happen before ratification, the Special Advisor said she was only raising a point that there was no legislation. Unfortunately, DIRCO lacked understanding of ratification and domestication. They said that, because the Marriage Act would conflict with the Protocol, they would not ratify it. However, the DG indicated that the Marriage Act was already in conflict with laws in South Africa. If South Africans were to litigate, they would begin with the laws; they did not need an instrument. An instrument did not apply until ratified. This was the challenge because DIRCO said they would not change their stance. It was now up to the Committee to decide whether South Africa would ratify and therefore amend laws, as the Department of Home Affairs was already ratifying. No instrument was ratified when there was the best law. Domestication would take a year or two, or perhaps 16 years. Many instruments were ratified but had not yet been domesticated for various reasons, several years later. This happened in many countries, not only in South Africa. For litigation, the Sexual Offences Act, which takes precedence if there was any law contradicting it, says that sex with a child below 16 years is a statutory offence – regardless of whether the child consented, or if the parents or the Minister of Home Affairs consented. It was a criminal offence. As such, there was already a conflict with other laws. If anyone wants to litigate, they can do so. The Department was waiting for the Committee to advise. DIRCO indicated that they stand by their opinion and cannot ratify. When attending international fora, especially the AU, South Africa was being called to remove reservations made in the Women's Protocol. The Department did not want to ratify with reservation; it was then better not to ratify because there was no need to reserve anything. How can a country that promotes the rights of children, say ratification has been done but with the reservation that men can marry children of 12 or 14 years old? She apologised to the Chairperson. [ the DG is referencing the contradiction between the Marriages Act and the SADC Protocol on Gender and Development]

Follow-up discussion

The Chairperson said that the DG needed to communicate such challenges to the Chairperson’s office as soon as possible. It was not right for protocols to delay, as it would appear as though the Committee was the one delaying things. It is the Committee that would get pushed at the 11th hour. These protocols needed to be signed off by the President. It would look clumsy on the Committee’s part. This Protocol was presented to the Committee the previous year and issues were raised in the Committee. The Chairperson had spoken to the DG on the approach to use to fast-track the Protocol. “It is now 29 March 2022, and the Protocol has been outstanding for a long time”, she added. This was a problem. She was now not sure how the Committee would deal with it, because the Department already presented it formally, and responded to questions from the Committee. Perhaps it would be put aside, for now, awaiting a formal presentation in a joint Portfolio Committee meeting with the Portfolio Committee on Cooperative Governance and Traditional Affairs (CoGTA) to see progress on that Protocol. It becomes a problem for the Committee if departments are not agreeing with each other.

The DG indicated that the matter had been escalated to the Presidency, because the President would be embarrassed, when attending the heads of state meeting, to find that only South Africa had not ratified. The Department agreed that it needed to write formally to the Chairperson to indicate that they had reached a deadlock with DIRCO.

Ms Tania Prinsloo, Researcher, SALRC, said that one of the Commissioners present in the meeting had another engagement at 3pm, and asked if SALRC could be accommodated with its presentation.

The Chairperson said that SALRC had been given enough time. It was a problem for people to come to meetings and have other engagements. It was inappropriate to present and leave the meeting because Members needed to engage with the presentation.

Ms Prinsloo said that she would still be in the meeting, but the Commissioner needed to make remarks.

The Chairperson said she would allow her after giving Members an opportunity to speak.  

Ms F Masiko (ANC) said that she was concerned about the Committee, as Parliament, becoming a mediator between government departments that were disagreeing. The Committee cannot become a ‘referee’. Part of the reasons why the Committee did not adopt the Protocol in December 2021 was the very same deadlock. The duty of the Committee was not to resolve the deadlock. There is only one government, and it was not necessary to clash over issues. She was happy that the DG had raised the fact that the matter had been escalated to the Presidency. The Committee would not mediate and pick sides between government departments that are in disagreement. She requested government administration deal with the matter so that departments sing from one hymn book. The Committee would be placed in a very difficult corner if it were to take sides. The departments needed to present a document to the Committee, which the entire government of South Africa was agreeing on and had absolute ownership of.

The Chairperson said that she totally agreed with Ms Masiko.

Ms N Sharif (DA) also agreed with the Chairperson and Ms Masiko. She appreciated the DG's passion. Away from the politics, she said she wanted to comment on the reports submitted by the Department. There was a problem with the awareness-raising plan, because it only spoke of phases and operational planning, but did not give any timeline so that the Committee could do oversight and hold the Department accountable. The draft consultation plan made the Member feel insulted because it stated that consultation would happen throughout March 2022, yet there was no real information on organisations invited and consulted. The Committee had asked for this information the previous week, but the information was still very broad. The Compliance Matrix was super broad, making the Committee’s oversight difficult. The Committee has been asking for specific information but it had not been fulfilled.

The Chairperson agreed with Ms Sharif and said she did not want to comment on some of the issues raised by Ms Mabelebele. She thanked Ms Sharif for the comment.

Mr S Ngcobo (DA) said that the Committee also needed more information on the National Disability Rights Coordinating Mechanism. What did this mechanism entail, and how would it ensure that there was domestication of the protocols?

The Chairperson said that she hoped the Department had noted concerns raised by Members. She asked to allow SALRC to make their presentation, and later allow the Department to respond to issues raised by Members.

Briefing by South African Law Reform Commission

Adv. Johan de Waal SC, Commissioner, South African Law Reform Commission, said that he had been a commissioner since 2018. He clarified that, apart from one member, the members of the Commission were not employed by the state, with most in the private sector. As such, they had to fit in these meetings, among their other duties. They were not remunerated for attending. There was a further misunderstanding where the Commission previously thought they would present in the morning but was later shifted to the afternoon. He apologised to the Chairperson.

He said he was the co-project leader of Project 148 relating to domestication of the UN Convention on the Rights of Persons with Disabilities. Ms Prinsloo, who was responsible for drafting the report, would make the presentation, together with Ms Dellene Clark from the Commission, who was Ms Prinsloo’s mentor. He said he would stay in the meeting for as long as possible but would eventually have to leave. He apologised for that.

Ms Prinsloo gave a briefing from the Commission, informing the Committee on the working processes of the Commission to indicate processes followed to arrive at a solution, and why public consultation was of utmost importance for the Disability Rights Bill.

[See presentation document for more details]

Process: Pre-investigation and the Issue Paper

A pre-investigation (as a first step in the process) is undertaken to decide on the merits of the investigation. If approved, it gets placed on the research programme of the SALRC.

Discussion Paper and Report

The discussion paper sets out the existing problems and suggests possible solutions in the way of preliminary recommendations. It could contain draft legislation. Consultations take place, once again, to ensure public buy-in for further development.

Next Step: Development of a Report

Submissions on the discussion paper received are consolidated and evaluated, and where appropriate, incorporated into the final recommendations. It can be accompanied by a draft Bill.

The report is then forwarded to the Minister for Justice and Correctional Services for transmission to the, in this case, DWYPD.

Progress of investigation

Consultative workshops were held on:

1.     29-30 March 2021,

2.     16 April,

3.     12,13,19, 20, 26, and 28 May 2021 and

4.     08 June 2021

 

Number of comments received

- 38 persons/organisations responded

- Received about 400 pages of input

State obligations

The UNCRPD sets out the following obligations of state parties:

·        “Adopt legislation and administrative measures to promote the human rights of person with disabilities;

·        Adopt legislative and other measures to abolish discrimination;

·        Protect and promote the rights of persons with disabilities in all policies and programmes;

·        Stop any practice that breaches the rights of persons with disabilities

 

White Paper on the Rights of Persons with Disabilities (White Paper)

The White Paper, approved by Cabinet in December 2015, will be used to develop legislation to finalise the domestication of the UNCRPD.

·        It does not replace any existing policy in any existing sector.  

·        It moves toward the social model and moves away from the medical model:

o    “…disability is a social construct and assesses the socio-economic environment and the impact that barriers have on the full participation, inclusion and acceptance of persons with disabilities as part of mainstream society.”

Progressive and immediate realisation

·        Civil rights have to be immediately implemented

·        Social and cultural rights can be progressively implemented within stated timeframes

What South Africa has that responds to the provisions

·        The legislation, common law, case law and policies in operation in South Africa in relation to the protection of persons with disabilities had been identified.

·        It needs to be evaluated against input received, compared with the UNCRPD provisions, existing General Comments and Statements delivered by the Committee to get to a right that is put into an Act of Parliament.

Benchmarking in other divisions

·        Other countries have gone through the domestication process of the UNCRPD. Their experience, legislation and policies enacted to domesticate the UNCRPD are an example for South Africa. Keeping in mind that the legal systems of countries differ, the applicable measures can be transplanted into South African law.

·        The selection of the countries in the document was done based on the common legal heritage of South Africa.

·        The situation in Malawi, Uganda, Kenya, the USA, United Kingdom, Germany, Canada and Australia were studied.

Possible solutions

·        Create a broad policy framework for addressing disability issues,

·        Establish a number of bodies at the national and state level to do this,

·        Address prevention and early detection of disability, equality in employment and education, including affirmative action, social security.

·        Specific separate legislation might be needed to address areas that need regulating in detail,

·        No abusive language

Core requirements of the legislation

  It should:

1.     refer to the Convention and its views on the evolving nature of the disability, "discrimination on the grounds of disability”, “reasonable accommodation” and other important terms;

2.     prohibit all discrimination in all areas mentioned in the Convention;

3.     identify all duty bearers at all government levels including third parties;

4.     confer rights on individuals and groups to:

a.     be able to lodge complaints on the basis of discrimination;

b.     investigate these claims; and

c.     have access to remedies.

 

Core requirements of the legislation

 It should:

1. provide for “independent agencies” to:
   1. hear allegations in terms of “systemic discrimination” and individual allegations
   2. investigate and report on the allegation; and
   3. seek systemic remedies and change.
2. reflect the social model of disability to identify barriers and create remedies;
3. include the minimum disabilities as set out in the CRPD.

 

The process of domestication

·        Section 231 of the Constitution is relevant.

·        The first step in the process of domestication is signature and signing of treaties by the executive whereafter the treaty becomes binding on the international level if it has been approved by both houses of Parliament. 

·        The next step is further action by the legislature to make the treaty applicable to domestic law. Section 231(4) states that a treaty has to be incorporated by an Act of Parliament for it to have legal status in national law. 

·        The UNCRPD will be domesticated through an Act, which provisions would have to be fleshed out in terms of its provisions in relation to South African equality law.

Discussion

The Chairperson thanked the Commission for the presentation, saying they appeared to have done most of the work in the consultation regarding questions raised in their document. It would then be easy for the Department to take the process forward. She had read the reference documents, but her only worry was that the Commission did not give the responses received from the consultations.

Ms Prinsloo said the response from the consultations was about 400 pages of input, and would only be available once the draft discussion paper was done and approved. It would not be suitable to discuss every response at this forum. It could only be done once the discussion papers were published, after which different opinions would be considered.

The Chairperson asked if there were issues that the Commission wanted the Committee to consider at the moment.

Ms Prinsloo said that everything would be included in the discussion paper. Any problems would be put to the public, to the different departments, and to persons with disabilities, and the combination of all that would then be considered. There were no burning issues that needed assistance from the Committee.

The Chairperson asked what phase the process was now in.

Ms Prinsloo said that it was the phase of drafting the discussion paper, and it was intended to be published in May 2022, after scheduling several advisory committee meetings to properly discuss the paper and get it print-ready. After the Commission, it would then be submitted to the Committee for comments. If approved, it would be published by August 2022.  

The Chairperson asked if Mr Benny Palime from the Department was sitting on the committee of the Presidential Working Group or the Commission.

Ms Prinsloo confirmed that Mr Palime was a member of that committee.

The Chairperson said that it would then be taken that the Department had an idea where to start since most of the work was done. She thanked the Commission for the presentation and said they had done a lot of work. With that work, the Committee would soon be hearing from the Department on when they would present the Bill to Parliament. This was a priority of the Committee.

Ms Prinsloo said that this was the discussion paper phase. Once published, the Commission would hold public consultations to collect information, after which it would be consolidated into a final project. A final draft Bill would then be presented to the Department, through the Minister. That would be the next step after the discussion paper phase.

The Chairperson thanked Ms Prinsloo for the time frame given to the Committee. Members were looking forward to the information.

The DG clarified that the month of May 2022 was for the release of the discussion paper, which was going to be consulted. After the consultation, inputs would be incorporated, followed by drafting of the Bill. The Bill was not being submitted in May 2022.  

The Chairperson said that she had heard that very well.

Mr Ngcobo thanked the Commission for the presentation, and work done. Were the organisations that the Commission consulted with from the disability sector? Would further consultations be done with organisations from the disability sector? This was another challenge that persons with disability faced. There were concerns that they were not consulted, or if consultations were done, there were barriers.

Ms B Marekwa (ANC) welcomed the report by the Commission. As Mr Ngcobo asked about consultations, could the Commission provide specific details of the organisations consulted and in which provinces? Slide 24 mentioned dementia, abuse of the elderly, and those suffering from dementia. Awareness needed to be raised on dementia since it was an illness that many did not understand, and many elderly people suffered from it. There was a lack of care for people suffering from dementia. It was very good that this was highlighted in the presentation. Communities and people looking after the elderly needed awareness and empowerment on how to deal with this disease because it was real.

Slide 37 on possible solutions mentioned establishing several bodies to deal with issues of persons with disabilities. As much as the matter needed to be given the necessary attention, it was important to avoid silos because the number of agencies that would be established might become problematic, with each agency wanting to do its own thing. There was a need to work towards mainstreaming issues of disability, gender and others. There was already the Human Rights Commission, which would assist in putting specific legislation in place. It was important to guard against duplicating since there was already the Constitution, Labour Relations Act and the Human Rights Commission, which were utilised for legislation on discrimination. There are research studies that were already benchmarked; those needed to be incorporated to avoid duplicating.  

The Chairperson asked how long consultation usually took.

Ms Masiko asked about consultation. Members were interested to know the diversity of persons with disabilities engaged. Those with mental disabilities were not usually represented in civil-society engagement sessions and consultations. How long would the consultation take? Were diverse groups of persons with disabilities accommodated so that the consulting process leaves no person behind? Consultations at the constituencies were usually represented by disabilities organisations for those with physical disabilities, but they are still able to move around. However, there are those limited to their places of residence were not included. Would the consultation be able to go to that extent? Consulting should not only be limited to the physical presence of organisations that can integrate easily while leaving out those that are quite complicated.

Mr Mbusi Nzimande, a member of the Disabled People’s Organisation, asked about the status of the organisation in the meeting. Were they allowed to engage or could they only observe?

The Chairperson said that the public, guests, and civil society organisations were not allowed to participate in the discussion. It was only Members of the Committee, the SALRC, the Department and other invited officials who were allowed to comment. There would be a time for public participation. However, if there was an issue, the organisation would write directly to the Chairperson, who would then send it to the Commission or the Department, on behalf of the Committee.

Ms Prinsloo responded to the question on the diversity of organisations during consultations. She said that the Commission intended to consult as widely as possible.

The Chairperson asked Ms Prinsloo not to stress with responding since other members of the Commission were present and they would also respond.  

Ms Prinsloo said that nobody was left behind in consultation. The Commission previously lost time because it could only do the virtual meetings. It still had to confirm if physical meetings would be possible. No type of disability was left out. However, data would be one of the barriers to meeting virtually.

On which organisations were consulted and when: the Commission used a list with names and contact details of all the disability organisations. The list was obtained on the internet, from the University of South Africa (UNISA). The Commission tried to use different departments for contact lists. The Commission also worked through the DWYPD, various national disability rights structures, and engagements with PWGD and with students. The Commission tried to spread the engagements as widely as possible. The engagements were on 29-30 March and on 16-21 April 2021. Virtual consultations were from 12-28 May 2021 and on 08 June 2021.

On dementia, she said the Commission noted what the Member said. The Commission held a brief meeting with the Human Rights Commission on possible solutions for the issue. The Commission was mindful not to duplicate what already existed. There was no need to reinvent the wheel.

On how long consultations would take, she said that, once the discussion paper was published, the Commission would then develop a plan that could contain physical meetings, depending on Covid-19 restrictions and the budget, or if virtual meetings would still be necessary. She could not give a timeframe or specifically who would be consulted. However, it would be as wide as possible. Reasonable accommodation would be made for sign language and Braille.

Ms Dellene Clark, SALRC, said that the publication of the discussion paper was envisaged at the very latest in June 2021, when it could go to the Commission meeting. The consultation period usually takes three months. That was the framework within which planning would take place.

Mr Andrew Dube, Member of PWGD, said that, although he was on the Advisory Committee of the Law Reform Commission, he was speaking on behalf of PWGD. He confirmed that PWGD participated in and was fully involved in all the consultations that the Commission referred to. One of the things that came up from the PWGD was the consideration of whether the African Disability Protocol would be used, as well as the Marrakesh Treaty, which relates to copyright issues for persons with visual impairment.

On the Disability Bill, PWGD was already contemplating content to be included in the Bill and the Act. There was a need to capacitate all organisations for persons with disabilities at all levels because, although they want to participate, they have no capacity in terms of human resources, funding, and communication. PWGD itself did not have capacity to perform its functions. Budgets would have to be considered, and the key role of ensuring that each department was assisted to set objectives, targets, and fiscal allocations to be able to implement the Act when it is eventually passed.

On how PWGD could be assisted, he said there was an urgent need for resources for the work and operations of the PWGD and the Portfolio Committee. Strategic plans that are being developed should be adequately resourced. Gender rights needed to be particularly included because there were still problems even within PWGD. The Department Secretariat had no resources. PWGD needed to give regular feedback to the Committee on the progress, and how best matters would be resolved. There was a need for a programme where PWGD could contribute skills and expertise to ensure that the Committee has support and resources, similar to the Legislative Support Programme, which was there in the past. It did not help to work with structures that were not properly resourced. The Committee needed to be resourced to do its work and influence other portfolio committees to ensure that the disability agenda is put on the table.

Some of the practices that government implemented were in themselves a barrier. He said he was sitting with an advert from the City of Tshwane that was publicising the Expanded Public Works Programme (EPWP). The City used a recruitment practice called the “lottery system”, where dice would be thrown in the sky or some mechanism would be used to recruit people randomly. That excludes persons with disabilities because it was hard to win a lottery. Such practices, although well-intentioned, led to failure to meet disability targets. PWGD did extensive research on the EPWP and found that the recruitment practice was one of the reasons they were failing. The Committee needed to be aware of what research had been done, what government departments were doing about disability, and how Members would be assisted to better represent the needs of persons with disabilities.

The Chairperson thanked Mr Dube and said the Committee had taken note of the important issues raised from PWGD.

Adv de Waal responded to the question of whether there was not a danger of duplication and institutions working in silos if there were to be a self-standing Disability Bill in addition to other legislation dealing with discrimination. This was one of the key issues being addressed by the Advisory Committee and the Researcher at the Commission. Although the next paper coming out was called a discussion paper, it was in fact a position paper, as it would give prima facie guidance on those aspects. The issue paper previously issued was just to stimulate discussion. The Commission did not take a stance or promote any particular approach in that paper. Although a final position would only be taken after the discussion document was presented and debated, the issue needed to be addressed in the discussion paper that would come up.

Ms Mabelebele said that she wanted to comment on consultations because they were linked to the question by Ms Sharif – about the draft consultation plan that the Department submitted. She agreed that it was a draft plan, hence earlier indicating that the documents that the Department had submitted for the awareness and consultation were work-in-progress documents. The discussion paper would only be available in May 2022. The Department was working together with the Commission in the consultations. Together with PWGD, it was the Department that ensured that there was a wide reach of the disability sector. The document was a draft because there was still a need to address whether the consultations would be physical or virtual. Consultations were normally given three to four months, but the Commission also advised according to their deadlines to receiving inputs. This was the same process followed for the Issue Paper. A project plan was developed, in collaboration with the Commission and PWGD. This would be followed for the discussion paper. If the consultations were to be physical, the plan was to reach provinces physically and work with the municipalities and the office of the premier in the provinces. For the Issues Paper, there was a limitation of the virtual meetings, but the consultations tried to reach as many as possible to diverse organisations and disabilities. Regarding the timelines on the operation plan, as indicated it was work in progress. When the Department presented the AU Protocol in the previous meeting, it was indicated that an awareness-raising programme would be designed. The document was indicating which areas would be focused on. During the quarterly reports to the Committee, the Department would be giving more information.

The SALRC said that the Department needed to consider the monitoring and evaluation so that consultations go across the board. Where there was a need to get interpreters, there were compliance problems with budgets and supply chain management. Rural areas were important in the consultations, which meant the need for transport and other logistics. It was of uttermost importance to reach local governments on the ground. 

[the Chairperson lost connection and Ms Masiko took over as Chairperson]

The Acting Chairperson asked the DG to respond to the question. She said there were only eight minutes until the end of the meeting time, and if other issues remained, the meeting would adjourn and continue after the ANC caucus meeting.  

The DG said that, as Ms Mabelebele indicated, when the Commission advertised the Issue Paper, it was the Department that worked with all in the disability sector, through consultations. The Department provided interpretations and translations. As such, the budgets had already been done.

Ms Mabelebele said that, according to her understanding, she understood the call for consultations to reach all players if the consultations were to be physical and consider all measures for all to be accommodated. She explained that there were some challenges with consultations for the Issue Paper. However, where the Department funded the consultations, all needs were reasonably accommodated. The only challenges were with virtual platforms, but all was sorted.

The DG said the main reason for the meeting was for the Committee to finalise ratification of the protocol. This was not dependent on this legislation on disability, because legislation was domesticating, yet this was the stage of ratification. After the meeting with the Portfolio Committee the previous week, the Department was called by the Select Committee where they presented. It was then approved to now be presented at the NCOP for approval for ratification.

Mr Dube said that PWGD recommended that the Committee push for the adoption of the African Disability Protocol. So far, three countries, Rwanda, Kenya, and Mali had already adopted. Eleven countries, including South Africa, had signed. But South Africa needed to also ratify to quickly move toward the 15 countries required to make the Protocol binding. It was important to not lose sight of the support that could be requested from the Pan-African Parliament, which was in Midrand. The Disability Model that they adopted on 19 October 2019 may also be used to amplify the articles of the Protocol. There was a need to emphasise inclusion of all disability organisations at national, provincial, local and district levels in the consultation and drafting process of the Disability Bill.

The Chairperson thanked Ms Masiko for proceeding with the meeting. She hoped Members were satisfied with responses on issues raised in the previous meeting, and with the presentation from the Commission. The Committee would now table the Report to ratify the Protocol.

Ms Masiko said that she supported the Report and proposed that the Committee adopt it.

Ms T Masondo (ANC) seconded the adoption of the Report.

The Chairperson said the report was duly adopted by the Committee and would be taken to the House to ratify the Protocol.

Closing Remarks by the Chairperson

The Chairperson said that the minutes would be adopted in the next meeting. She thanked the Commission, PWGD, and the Department for appearing before the Committee. The Committee looked forward to the next consultations in May 2022 for Members to inform their constituencies to participate in the discussion.

The meeting was adjourned.