Court application finally responds to the needs of learners with disabilities during COVID-19 pandemic 

5 August 2020

Yesterday, the North Gauteng High Court handed down an order (by consent) which could greatly improve the health, safety, and continued education of thousands of learners with disabilities during the COVID-19 pandemic. This order represents a major victory for the advancement of rights of learners with disabilities and has enhanced civil society’s ability to hold the Department of Education accountable during the pandemic.

This court order comes almost two weeks after the Centre for Child Law (“CCL”), represented by Equal Education Law Centre (“EELC”), took the Minister of Basic Education to court for the Department of Basic Education’s (“DBE”) failure to adequately provide for all learners with disabilities during the COVID-19 pandemic. In particular, the DBE’s Directions published on 23 June 2020, only provided Guidelines for schools with learners who are Deaf or hard of hearing, blind or partially-sighted, and learners with Autism, while failing to cater specifically to the needs of learners with intellectual disabilities, severe to profound intellectual disabilities, physical disabilities and learners with epilepsy.

This glaring omission means that schools and hostels accomodating learners with these excluded categories of disabilities have not received any guidance on how to prevent and manage the spread of COVID-19 in a way that caters for the specific needs of these learners, such as the provision of additional sanitisers, adapted masks, or additional personal protective equipment for officials who need to have direct contact with a learner. Learners with disabilities who have not yet returned to school are also not guaranteed any support through the provision of assistive and therapeutic devices while they remain at home.

The court order now compels the Minister of Basic Education to amend the DBE’s Directions and draft Guidelines within three weeks, to provide for learners from the excluded categories of disabilities. In addition, the Minister must amend the DBE direction which required special school hostels to refuse to accommodate a learner with disabilities once it exceeds its capacity in terms of social distancing requirements. The Minister must also amend the DBE’s Directions to ensure that special school hostels are provided with additional infrastructure capacity when alternatives do not allow for the reasonable accommodation of learners with disabilities in school hostels.

The court order also requires the Minister of Basic Education to amend the DBE’s Guidelines for Schools on Maintaining Hygiene during the COVID-19 Pandemic so that it provides health and safety measures designed specifically for learners with disabilities in schools, hostels, and offices. Lastly, the Directions must be amended so that they guide DBE Heads of Department in the provision of appropriate learning and teaching support materials, education-specific assistive devices, and therapeutic services to those learners with disabilities who cannot return to school during the pandemic, to ensure that they are still able to access basic education at home.

In terms of the court order, the Minister is required to publish the draft amended Directions and Guidelines for public comment (for a period of 10 days), to consider these comments, and publish the final Directions and Guidelines, within a total period of 6 weeks from today. This will, therefore, allow the public to contribute towards the development of the draft documents and scrutinise their contents.

CCL, and its legal representatives, Equal Education Law Centre, welcome this court order as a significant victory for all learners with disabilities, and are committed to monitoring the DBE’s compliance with the order over the next 6 weeks.

 

For any further queries, please contact:

 

Equal Education Law Centre:                    

Tad Khosa: tad@eelawcentre.org.za

Centre for Child Law:

anjuli.maistry@up.ac.za

zita.hansungule@up.ac.za

Visit the official COVID-19 government website to stay informed: sacoronavirus.co.za

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