A Victory A Little Too Late for Learners With Disabilities – International Day of Person with Disabilities

By Sipho Mzakwe, Equal Education Law Centre

On 29 May 2020, in response to the declaration of a national lockdown, the Department of Basic Education (DBE)  published directions regulating the re-Opening of Schools aimed at addressing, preventing and combating the Spread of COVID19 in Schools (“the Directions”). Sadly, despite the DBE’s mantra – “No child left behind!” the Directions entirely overlooked learners with disabilities.

This glaring exclusion led to intense advocacy from civil society organisations that challenged the failure of the Directions to include clear plans for safe re-opening of special schools and special school hostels. In particular, they highlighted the fact that the published Directions made no clear plans to ensure:

–  specific health and safety measures suited to learners with disabilities in public schools; and that learners with disabilities who need to remain at home once schools re-open will be adequately supported with learning materials, assistive devices, and therapeutic support.

Almost two months after the publication of the Directions and in an attempt to protect the right to Basic Education of learners with disabilities, the Centre for Child Law, represented by the Equal Education Law Centre filed an application to compel the Department of Basic Education to live up to their promise of “No child left behind!”.  On 4 August 2020 the plight of learners with disabilities was affirmed through a settlement agreement which was made an order of court. The settlement order ultimately led to the publication of final amendments to the Directions on 21 October 2020 aimed at ensuring the health and safety of learners with disabilities during this period of COVID19.

Whilst encouraged by the publication of these Amended Directions, we remain concerned about the delay by the DBE in developing health and safety protocols for special schools, which highlighted once again that learners with disabilities remain marginalized by our education system.  Conditions in special schools and hostels have been a source of concern before the emergence of the COVID-19 pandemic and have required urgent and detailed measures to be put in place to safeguard returning children.

The publication of these Amended Directions came a little too late for many special schools that have had to self-help and take drastic decisions in order to safeguard the safety of their pupils.

For instance, a special school in Kwa Zulu Natal which hosts learners with disabilities from Grades R to 12 has been confronted by overcrowding in its classrooms and hostels long before the emergence of COVID19. When learners had to return to school following the easing of the lockdown regulations, the school did not have sufficient space to accommodate all the learners owing to the need to observe social distancing. As a result, the school reached out to Kwa Zulu Natal Education Department and the DBE for assistance. Regrettably, there was no assistance or response provided to the school.

The school had to devise its own plan to deal with the overcrowding and lack of infrastructure. The learners were divided into two groups namely, primary and high school learners. And each school term was divided into two. This meant that the primary school learners would attend school for a certain number of weeks in a particular school term, while the high school learners remained at home. When the primary school learners were done attending school on their allocated weeks, they would stay at home while high school learners were attending school for the remainder of that particular school term. This plan made it difficult for educators to cover the curriculum and ensure that their Grade 12 learners are prepared for their matric examination. As a result, many parents have requested that their children be exempted from writing matric examinations this year for fear that they were not adequately prepared to write. These leaners were accordingly exempted and are currently not writing their matric examination that commenced on 5 November 2020. Thus, these children will repeat Grade 12 next year.

This could have been avoided had the initial Directions also catered for the health and safety of learners with disabilities. Whilst the Amended Directions create an obligation on the HOD to provide special schools with additional infrastructure to ensure compliance with social distancing they sadly came too little too late and over five months after the initial Directions.

Be that as it may, the publication of the Amended Directions is a milestone for learners with disabilities and special schools with poor conditions that have been a source of concern before the emergence of the COVID-19 pandemic.

The Amended Directions highlight the requirement of adapted and specific PPE for learners, teachers, therapists, and support staff. Where learners are unable to return to school the Directions create an obligation on HOD’s to provide not only support with learning materials but also for assistive devices and therapeutic support at home. In addition, and where necessary, the Amended Directions create an obligation on HOD’s to provide special schools with additional infrastructure to ensure compliance with social distancing. These are all important and necessary for learners with disabilities with a greater need for support and protection during these times which are unique and specific in nature.

The Amended Directions can be found on the DBE’s website. We will continue to closely monitor the implementation of these Amended Directions and ensure that the rights of learners with disabilities are adequately protected during the COVID19 pandemic.

Sipho Mzakwe is an Attorney at the Equal Education Law Centre.