1.

RECOGNITION OF CHILDREN WITH DISABILITIES AND THE RIGHT TO

ACCESS BASIC EDUDTION

By

[BONA THOBEJANE]

(64448169)

Submitted in partial fulfilment of the requirements for the degree

BACHELOR OF LAWS

In the

DEPARTMENT OF CRIMINAL AND PROCEDURAL LAW

SCHOOL OF LAW

UNIVERSITY OF SOUTH AFRICA

SUPERVISOR: MR LC COETZEE

RRLLB81 ASSIGNMENT 2

08 SEPTEMBER 2022

1|Page
ACADEMIC HONESTY DECLARATION

1. I understand what academic dishonesty entails and am aware of Unisa’s policies in

this regard.
2. I declare that this assignment is my own, original work. Where I have used someone
else’s work, I have indicated this by using the prescribed style of referencing. Every
contribution to, and quotation in, this assignment from the work or works of other
people has been referenced according to this style.
3. I have not allowed, and will not allow, anyone to copy my work with the intention of
passing it off as his or her own work.
4. I did not make use of another student’s work and submitted it as my own.

NAME: BONA THOBEJANE

SIGNATURE: B THOBEJANE

STUDENT NUMBER: 64448169

MODULE CODE: RRLLB81

DATE: 08 SEPTEMBER 2022

TOPIC SELECTED: THE RIGHT OF ACCESS TO BASIC EDUCATION FOR

CHILDREN WITH DISABILITIES.

MARK RECEIVED FOR ASSIGNMENT 1:

MARK RECEIVED FOR ASSIGNMENT 2:

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 ABSTRACT
3.1
Access to education for children with disabilities requires increased enrolment of
children with disabilities in ordinary schools, the provision of disability support, more
accessible school environments and re-training of teachers. There is however little
available data on these aspects of disability support or accessibility in South Africa. In
this research a number of things are discussed namely, inclusive education and
exclusive education for children with disabilities, and what the right to access
education mean for children with disabilities. The issues of inequality education for
disabled learners and a number of resolutions for this matter.

KEYWORDS
1. Disability

2. Basic Education

3. Children with disabilities

4. Schools

5. South Africa

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ABBREVIATIONS AND ACRONYMS

Abbreviations/ Meaning
Acronyms

SA South Africa

DBE Department of Basic Education

WP White paper

DBST District Based Support Team

CRPD Convention on the Rights of Person with

Disabilities

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TABLE OF CONTENTS

1 Introduction……………………………………………………………………………….6

2 Background to research problem…………………………………………………..6-7

3 Research question…………………………………………………………………….7-8

4 Hypothesis…………………………………………………………………………….8-10

5 Research methodology…………………………………………………………....10-11

6 Points of departure…………………………………………………………………11-12

7 Conclusion……………………………………………………………………………12

8 Bibliography…………………………………………………………………………13-14

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 6.1

1. INTRODUCTION

Access to basic education for children with disabilities is a major problem in South
Africa and the purpose of this research is to give an overview of how these children
are treated in school. We are indulge on the education system of this country. As we
all know that education is a fundamental human rights and it “contributes to the
personal development of every learner, and to the moral social, cultural, political and
economic development of the national at large, including the advancement of
democracy, human rights and the peaceful resolution of disputes”.1 Education is a
human right and it is acknowledged and emphasized worldwide, it is also regarded as
one of the most valuable requirements pertaining to global progress and
advancement. Education and the right to basic education are not only of cardinal
importance of national level, but also on international level. The South African school
system is crippled by a myriad of unfavourable challenges, situations and
circumstances. The system is suffering a great ordeal and the Minister of basic
education confirmed it. 2

2. Background to research problem 6.2

Historically, inequity in the provision of quality education and support was most evident
in the “Special Needs sector”. The Report of the Human Rights Commission of 2004
showed that learners with special needs in rural areas experience the worst forms of
education exclusion. Not only are there very few special schools in rural areas, they
do not exist in many deep rural areas, and where they do exist, they are in the most
deplorable conditions and do not always have qualified personnel and specialists
support personnel.

This inequality in the provision of education support to learners with special needs was
further confirmed by the Department of Education report of 2007. According to this
report, in 2007, 408 special schools across the country provided education to 91,280
learners identified with special needs. Typically the best resourced special schools are
in the urban areas and they attract the best qualified specialists. The quality of
education offered in many of these special schools is very limited and many learners
enrolled in some of the schools never progress beyond Grade 1.3
Some of the challenges that contribute to the poor provision of education and support
in special schools include:
 Limited skills among teachers and support personnel
 Unavailability of professional expert support personnel
6.3

1 Equal education law centre: inclusive education 1.1

2 C Churr, ‘Realisation of child’s right to basic education in the South African school system: some
lessons from Germany’ (2015) 18 PELJ 2406.
3
Department of basic education, Guideline to ensure quality education and support in special school
resource centre (2014) 1

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7.1

 inadequate personneling, especially non-teaching personnel and care

professionals in hostels
 Lack of learning and teaching support material and other material resources;
 Lack of assistive devices

In an attempt to address these past and current challenges, in 2001 South Africa
adopted the inclusive education policy: Education White Paper 6: Special Education
Needs Building an Inclusive Education and Training System. This policy outlines
strategies for the provisions of education support for learners whole experience
barriers to learning and development. According to this policy one of the key strategies
for improving education support to learners experiencing barriers to learning and
development is through the establishment of an inclusive education and training
system. At the centre of this system should be strengthened specials schools that will
provide adequate and appropriate and quality educational provision for those learners
who require intense level of support and are enrolled in these schools. Specials
schools will also be strengthened so that they function as a resource centre. As a
resource centre they will be expected to provide “particular expertise and support,
especially professional support in curriculum, assessment and instruction to
neighbouring schools, especially full service schools. They will do this as part a district
based support team.4

7.2
3. RESEARCH QUESTION

What does the right to basic education mean for children with disabilities?
7.3
It is estimated that there are 500-650 million people living with disabilities in the world
and of these people, 150 million are children. In Africa, less than 10% of children with
disabilities are attending school. The rights of children with disabilities are a human
rights and social justice issue. This paper critically evaluates the rights of children with
disabilities from a South African constitutional perspective. The aim is to establish
whether, after eighteen years of democracy, South Africa has succeeded in building a
genuinely inclusive and enabling environment in the educational context that values
differences while respecting inherent dignity and equality. The focus will be on children
with severe and profound intellectual disabilities.

The right to education is said to be both the most important right of children with
disabilities and the right most frequently denied. It has been said that education has
more than a qualification function; that it also fulfils the needs of all human beings and
this is absolutely true with reference to the education of severely and profoundly
disabled children. It is an important fundamental human right because it unlocks the
exercise and enjoyment of other fundamental rights. It is an unqualified and composite
right demanding priority.5 This constitutional right creates a positive right, that basic
education must be provided for every person, and not merely a negative right, that

4www.education.gov.za/Programmes/InclusiveEducation
5
T Boezaart, ‘A constitutional perspective on the rights of children with disabilities in an educational
context’(2015) 27 SAPL 456

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8.1
such a person should not be obstructed in pursuing his or her basic education. The
right to basic education is immediately realisable and justiciable.

Furthermore education is a functional area of concurrent national and provincial

competence. When the rights of children with disabilities are at stake, section 29 of
the South African Constitution has to be examined in this specific context. The section
states the following:

(1) Everyone has the right

(a) to a basic education, including adult basic education; and
(b) To further education, which the state, through reasonable measures, must make

In the context of disability, section 29(1) obliges the government to provide basic
education (including adult basic education) to everyone. The unqualified and absolute
nature of the right requires that the state implement measures and make budgetary
allocations to give effect to the right as a matter of priority. This subsection should be
read with section 12 of the Schools Act 84 of 1996 which provides that education for
learners with special needs should, where reasonably practicable, be provided at
ordinary public schools provided that the relevant support services for such learners
are made available. The Schools Act also obliges the Member of the Executive Council
responsible for education in a province to take all reasonable measures to ensure that
physical facilities at public schools are accessible to persons with disabilities. Section
29(2) requires education to be provided in a language that ensures effective and
equitable access to that education, which may include sign language and braille. In
terms of section 29(3), individuals or organisations may establish independent
educational institutions. Organisations providing services, such as education to
children with disabilities are a common occurrence. Section 29(4) stipulates that the
state may provide subsidies in these instances.6

8.2

4. HYPOTHESIS
8.3
Our Constitution recognises the right of "everyone" to "a basic education”. But, the
meaning of the term “basic education” is not agreed upon amongst key role players
or stakeholders. In recent years, particularly in the period after the adoption of the
UN Convention on the Rights of Persons with Disabilities (CRPD), there has been a
sustained campaign for education to be inclusive. Essentially, there has been a push
to adopt "inclusive education" as the best approach to ensure that education is
accessible to all. Relying on a general notion of "inclusion", it is arguable that the
term “inclusive education” should refer to education that is accessible to all persons
in society.7 However, the term has been applied mainly in the context of persons with
disabilities, with the result that efforts towards achieving inclusive education have
concentrated on ensuring that persons with disabilities can access education on an
equal basis with others in the communities in which they live. However, this view is

6
T Boezaart, ‘A constitutional perspective on the rights of children with disabilities in an educational
context’(2015) 27 SAPL 457
7
LN Murungi, Inclusive basic education in South Africa: issues in its conceptualisation and
implementation (2015) 18 PER

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9.1

limiting to the overall goal of universal access to primary education, both under the
Constitution and internationally.

This article considers how “inclusive education” may be construed in accordance with
the Constitution. It particularly assesses the existing approaches to inclusive education
as compared to the right to "a basic education" provided under section 29 of the
Constitution. Thereafter, the conceptualisation of inclusive basic education in South
Africa is compared to the conceptualisation of inclusive education in international legal
instruments. The provisions of the CRPD, which South Africa ratified on 30 November
2007, are particularly instructive in this regard.

In Governing Body of the Juma Musjid Primary School v Essay, the Constitutional
Court considered the content of the right to education in the light of the principle of the
best interests of the child. In its decision the Court adopted the aims of education in
Article 29 of the CRC in the interpretation of section 29 of the Constitution. This is
important as an entry point for the international jurisprudence on the aims of education.
Article 29 of the CRC recognises the aims of education as the defining components of
the content and hence of the quality and acceptability of education. Accordingly, in
view of the Court's acceptance of the CRC's approach, the aim of fully developing the
personality and talents of children under Article 29(1) of the CRC should be the primary
agenda of section 29 of the Constitution. The Court in the Musjid case also highlighted
"access to a school" as a necessity for achieving the right to basic education. This is
significant for the education of children with disabilities in the light of the inadequacy
of appropriately equipped schools to facilitate access by these children.8

In the case of Western Cape Forum for Intellectual Disability v Government of the
Republic of South Africa, the Western Cape High Court addressed the rights of
children with severe and profound intellectual disabilities to basic education. The Court
stated that the State has a duty to provide equally for the education of all children,
including those with severe and profound disabilities.9

In order to establish an inclusive education and training system, it will review all
existing policies and legislation for general, further and higher education and training
so that these will be consistent with the policy proposals put forward in this White
Paper. The South African Schools Act (1996), the Higher Education Act (1997), the
Further Education and Training Act (1998), the Adult Basic Education and
Training Act (2000) and the accompanying White Papers already provide the basis for
the establishment of an inclusive education and training system. Accordingly, the
Ministry will require all advisory bodies to provide it with advice on how to implement
the policy proposals contained in this White Paper. The Ministry will also review the
memberships of all advisory bodies to ensure that appropriate expertise and

8 LN Murungi, Inclusive basic education in South Africa: issues in its conceptualisation and
implementation (2015) 18 PER 6.
9 Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa 2011 5

SA 87 (WCC) 52.

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 representation enable these bodies to advise the Minister and Members of the
Provincial Executive Councils responsible for Education on goals, priorities and targets
for the successful establishment of the inclusive education and training system.10
10.1
Globally we need more well-trained and motivated teachers. Good teachers can help
ensure that every child learns to their full potential from an early age and enters adult
life well-equipped to be active citizens and support the development of their community
and country. Many countries do not have enough teachers, let alone enough teachers
who have received sufficiently high quality pre- and in-service training and access to
continuing professional development. The lack of well-prepared and motivated
teachers impacts on the enrolment, participation and achievement of all children – but
can be particularly detrimental to the education of children from marginalised groups,
who may need some extra encouragement or assistance to reach their educational
potential. Teachers are often simply not trained or supported to teach children with
disabilities, which makes these children among the most marginalised in terms of
educational opportunity and attainment.
A fundamental reason for poor quality education is the severe lack of well-trained
teachers who are adequately supported and managed throughout their careers, it is
vital that every teacher, working at any level of the education system, should learn
how to make education more inclusive: this means learning how to improve the
presence, participation and achievement of all learners, and learning how to support
the inclusion of students with disabilities in particular. The development of a human
rights culture and the nurturing of critical thinking skills are vital if inclusion is to become
a reality.
Teaching is considered more effective if it is differentiated – that is, if the teacher
adapts lessons and activities to suit different students in their class. A good inclusive
teacher therefore learns how to: identify students’ specific learning needs and any
wider (cross-sectoral) issues that may be impacting on presence, participation and
achievement; develop innovative ways to help students participate and learn; and seek
appropriate extra help from colleagues or other professionals when their own
knowledge or skills are not sufficient to fully address a particular problem (for instance
if they need support with planning and delivering education for children with particular
learning difficulties). Such a flexible and responsive approach to teaching may appear
to be particularly challenging in under-resourced or other difficult circumstances, but
nevertheless needs to be the standard that all education systems strive for. 11

5. RESEARCH METHODOLOGY

As a researcher, in this regard, I chose comparative methodology to weight the

inequality to access basic education for children with disabilities. I used the resources
of the UNISA library as well as the e-reserves in order to find the correct sources for
this research. The sources includes journals, articles legislations, books and research
papers made by different scholars. I used the Governing body of the Juma Musjid

10 White Paper 6, ‘Special Needs Education: Building an inclusive education and training system
(2001) 30
11
Teachers for all: inclusive teaching for children with disabilities 5-13

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 Primary School v Essay and Western Cape Forum for Intellectual Disability v
Government of the Republic of South Africa. I also made use of qualitative research,
as there are instances where I make comparison of the educational system of South
Africa (SA) and other countries. Majority of the sources used are from the internet as
this research required of me to dig deep into the method or ways that were used
previously and the ones that are currently used in schools.

6. POINTS OF DEPARTURE
11.1
It has been widely acknowledged that children with disabilities have been left behind
in the rapid expansion of school enrolment in developing countries in recent decades.
For those who begin school, the rate of Grade 6 school completion is much lower for
children with disabilities than for their non-disabled peers (World Bank, 2018). In South
Africa, analysis of Census (2011) and General Household Survey (2011, 2013-2015
and 2014) have shown that school enrolment is lower for children with disabilities than
for their peers without disability. In 2015, disability was the main reported reason why
7-15 year olds were not attending school (Statistics South Africa, 2017). Further, in
South Africa, average household earnings are lower in households that include a
children with a disability, compared to other households that do not, even when social
grant income is included in household earnings (Department of Social Development
Republic of South Africa, 2015).12

Increased access to education among children with disabilities is key to reducing

economic inequalities between them and their non-disabled peers later in life (Banks,
Polack, & International Centre for Evidence in Disability, 2014), inclusive education
has been adopted as the vehicle to providing this increased access, rather than the
expansion of a parallel, special school system. Improved enrolment of learners with
disabilities in ordinary schools, alone, is unlikely to result in effective learning for
children with disabilities (and improved future earnings potential), unless it is coupled
with provision of the necessary support and improvements in the accessibility of
learning environments in ordinary schools. Similarly, monitoring enrolment of learners
with disabilities in ordinary schools without also monitoring the support these learners
are receiving and the accessibility of their learning environments can lead to a
misleading account of the progress made in disability inclusion in schools.

Although reporting requirements to the United Nations on implementation of the

Convention on the Rights of Persons with Disabilities (CRPD) and on the Sustainable
Development Goals (in particular, Goal 4.5)2 has increased pressure on government
to demonstrate progress in disability inclusion in education, there has been little
systematic collection of appropriate data on availability of support structures and
provision of services to learners with disabilities who are enrolled in ordinary schools.

12 N Deghaye, ’Disability support and accessibility in ordinary schools in South Africa’ (2021) 3-5

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A number of smaller-scale, qualitative studies, covering one or two districts, have
documented cases where there is a lack of support for learners in ordinary schools or
a lack of knowledge and practical skills among teachers in ordinary schools. While
these results are very concerning, it is difficult to generalise these findings to other
districts. There are only two sources of nationally representative data which address
aspects of disability.

In White Paper 6, the Department set forth a plan to convert 500 primary schools to
full-service schools over a 20-year period. Full-service schools are essential to the
Department’s inclusive education plan as they create the second-tier of a three tiered
system that matches educational support with a learner’s level of barriers to learning.
Full-service schools are designed to “provide for the full range of learning needs
among all learners” through “multi-level classroom instruction, co-operative learning,
problem solving and the development of learners’ strengths and competencies rather
than focusing on their shortcomings only.” These schools also serve as testing centres
for the development of teaching practices for later system-wide application. According
to White Paper 6, special schools are to be converted into resource centres that
provide professional support to neighbourhood schools in curriculum, assessment and
instruction. In order to achieve this goal, the Department is to “upgrade them to
resource centres and train their staff to assume these new roles.” However, the South
African Alternate Report found that “by April 2013, the Department of Basic Education
had only made limited progress in supporting special schools to become resource
centres.

7. CONCLUSION

Inclusive education has been accepted as the appropriate approach to the education
of children with disabilities both at the international level and in South Africa. Better
steps has been taken toward the development of schools policy framework for an
inclusive education system, however, despite the South Africa’s enabling policy
framework and constitutional right to an inclusive education, the government has thus
far failed to effectively implement an inclusive education system in South Africa. It is
particularly important that the implementation of WP 6 takes into account the rights
approach to inclusive education, especially the need to give effect to the wishes of the
child in respect of a choice between education in the mainstream and in the special
education systems.

12.1

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BIBLIOGRAPHY
ARTICLES
The right to education for children disability reliance (Article 24)
Guidelines to ensure quality education and support in special schools and special
school resource centre s to support inclusive education (2014)
Department of basic education, Guideline to ensure quality education and support in
special school resource centre (2014)

Equal education law centre: inclusive education

Nicola Deghaye, Disability support and accessibility in ordinary schools in South

Africa (2021)

White Paper 6, ‘Special Needs Education: Building an inclusive education and

training system (2001)

Teachers for all: Inclusive Teaching for Children with Disabilities

LEGISLATION
South Africa Schools Act 84 of 1996
Constitution of the Republic of South Africa, 1996.

CASE LAW
Governing Body of the Juma Musjid Primary School v Essay 2011 8 BCLR 761 (CC)
Western Cape Forum for Intellectual Disability v Government of the Republic of
South Africa 2011 5 SA 87 (WCC)

JOURNAL ARTICLES
Murungi, ‘Inclusive basic education in South Africa: issues in its conceptualisation
and implementation’
LN Murungi, ‘Inclusive basic education in South Africa: issues in its
conceptualisation and implementation’ (2015) 18 PER 6.

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 Trynie, ‘A constitutional perspective on the rights of children with disabilities in South
Africa’
T Boezaart, ‘A constitutional perspective on the rights of children with disabilities in
an educational context’ (2015) 27 SAPL 457

Chrizell, ‘Realisation of child’s right to basic education in the South African school
system: some lessons from Germany’
C Churr, ‘Realisation of child’s right to basic education in the South African school
system: some lessons from Germany’ (2015) 18 PELJ 2406.

INTERNET
www.education.gov.za/Programmes/InclusiveEducation

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 Index of comments

1.1 Remove the border.

3.1 Plagiarised from "Disability support and accessibility in ordinary

schools in South Africa"
NICOLA DEGHAYE p 1.

6.1 Paper needs to be divided into chapters.

6.2 Plagiarised from https://www.education.gov.za/Portals/0/Documents/Policies/Inclusive%20Education/GUIDELI

NES%20FOR%20SPECIAL%20SCHOOLS%20REVISED%202014%20(1).pdf?ver=2014-05-12-053911-000

6.3 Footnotes are indented.

7.1 Plagiarised from https://www.education.gov.za/Portals/0/Documents/Policies/Inclusive%20Education/GUIDELI

NES%20FOR%20SPECIAL%20SCHOOLS%20REVISED%202014%20(1).pdf?ver=2014-05-12-053911-000

7.2 You only need to state the problem question here. Do not answer it. Answer it in the body of the text.

7.3 Plagiarised from the article by Boezaart. Verbatim.

8.1 Plagiarised from Boezaart.

8.2 Copied - 57874069

8.3 Plagiarised from article by Murungi.

9.1 Murungi.

10.1 Copied verbatim from https://teachertaskforce.org/sites/default/files/migrate_default_content_files/iddc_1.pdf

11.1 Copied, verbatim from Deghaye.

12.1 The formatting of your paper is not correct. The first chapter needs an introduction (gives background to the
subject matter), identifies a problem statement, proposes a hypothesis, and submits certain assumptions to
work from. You also need to identify what research method you will be using. The first chapter sets the tone.

Then you start your critical analyze of the research from chapter 2....

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