Year: 2010 (Date of Decision: 11 November, 2010)

Forum, Country: High Court; South Africa

Standards, Rights: Reasonableness; Non-discrimination and equal protection of the law; Human dignity; Negligence; Right to education; Persons with disabilities

SummaryBackground: This case concerned the rights of severely and profoundly intellectually disabled children in the Western Cape and allegations that their educational needs were not being adequately met by the South African national and Western Cape Governments. Children with such disabilities were unable to receive care except at limited places in centres run by NGOs, which were insufficient in number. Children who could not obtain access to these centres received no education at all. It was contended that State educational provisions made for these children were very much reduced as compared to other children and any provisions made were inadequate to cater to the educational needs of the affected children.

Holding: The Court held that the respondents (the South African and West Cape Governments) had failed to take reasonable measures to make provision for the educational needs of severely and profoundly intellectually disabled children in the Western Cape, in breach of the rights of children to a basic education, protection from neglect or degradation, equality, human dignity [para. 52 (1)].

On the right to education, the Court found that the State had violated this right, both in respect of the positive dimension of the right, by failing to provide the affected children with a basic education and also in respect of the negative dimension of the right, by not admitting the children concerned to special or other schools [para. 45]. The Court found no justification for this violation. The State failed to establish that their policies were reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom [para. 42].

The Court additionally held that the children’s rights to dignity had been violated as the discrimination they have faced had in effect caused them to be marginalized and ignored [para. 46]. The failure to provide the children with education placed them at the risk of neglect, as it meant that they often had to be educated by parents who did not have the skills to do so and are already under strain. The inability of the children to develop to their own potential, however limited that may be, is a form of degradation. This unjustifiably violated their right of protection from neglect and degradation [paras. 46 and 47].

In light of these findings, the judgement required the State to take reasonable measures (including interim steps) to ensure access to education for every child in the Western Cape who was severely and profoundly intellectually disabled, provide necessary funds for special care centres and transportation of the children to these centres and to develop a plan of action to remedy the aforementioned violations [para. 52].

Additional Comments: The national Government chose not to appeal this decision.

Link to Full Case: http://www.saflii.org/za/cases/ZAWCHC/2010/544.html