When undertaking pro bono work, attorneys have to establish whether or not applicants for legal aid have disabilities. The question appears on Law Societies' Pro Bono Scheme application forms (for statistical purposes) and requires practitioners to ask, often in a language which is not the applicant's first language, if he or she experiences challenges with vision, hearing or mobility, accompanied with the appropriate supportive communication (e.g. gestures, facial expression or written language).
While the South African legal context provides constitutional protection from discrimination for persons with disabilities in the form of the Bill of Rights and the Promotion of Equality and Prohibition of Unfair Discrimination Act No. 4 of 2000, the term "disability" is not specifically defined in either.
In some legislation, disability is defined in terms of the ability of the person to be gainfully employed. For purposes of the Employment Equity Act No. 55 of 1998, "people with disabilities" means, "people who have a long-term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in, employment".
The Social Assistance Act No. 13 of 2004, understands a person with a disability to mean a person who is, "owing to a physical or mental disability, unfit to obtain by virtue of any service, employment or profession the means needed to enable him or her to provide for his or her maintenance". This Act and the Regulations in terms thereof do not define disability.
SARS sheds more light on the legal definition in section 18(3) of the Income Tax Act No. 58 of 1962, which comprehensively defines disability to mean, "a moderate to severe limitation of a person's ability to function or perform daily activities as a result of physical, sensory, communication, intellectual or mental impairment, if the limitation –
(a) has lasted or has a prognosis of lasting more than a year; and
(b) is diagnosed by a duly registered medical practitioner in accordance with criteria prescribed by the Commissioner".
The criteria prescribed by the Commissioner, as set out in the Form ITR-DD Confirmation of Diagnosis of Disability for the purposes of the Income Tax Act, investigate disability in the areas of Vision, Hearing, Communication/Speech, Physical, Intellectual and Mental and sets out an indication of what is considered to be disabled in each area.
Insofar as mental disability is concerned, the Mental Health Care Act No. 17 of 2002, defines, "severe or profound intellectual disability" to mean, "a range of intellectual functioning extending from partial self-maintenance under close supervision, together with limited self-protection skills in a controlled environment through limited self care and requiring constant aid and supervision, to severely restricted sensory and motor functioning and requiring nursing care".
The United Nations Convention on the Rights of Persons with Disabilities, which was ratified by South Africa in November 2007, sets out in article 1 thereof that, "persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others".
This "definition" is preferred by the South African disability sector.
As 9 October rapidly approaches, it is interesting to consider how the 2011 census determines whether a person has a disability. For census purposes, the understanding of disability is inferred by the questions that will be posed to those interviewed to determine their status.
In the 1996 census, people were asked the following in relation to their disability status:
" Does the person have a serious sight, hearing, physical or mental disability? If yes, circle all applicable disabilities for the person: Sight 1; Hearing/Speech 2; Physical disability 3; Mental disability 4".
By the 2001 census, the question was remodelled as follows:
" Do you have any serious disability that prevents your full participation in life activities (such as education, work, social life)? MARK ANY THAT APPLY. None, Sight, Hearing, Communication, Physical, Intellectual, Emotional (Yes/No response options)".
On the basis of this question, the data collected in the 2001 census indicated that there were about two and a quarter million (2 255 982) people with various forms of disability in South Africa, constituting 5% of the total population enumerated in that census.1 On a global scale, more than a billion people or about 15% of the world's population are estimated to live with some form of disability, based on 2010 global population estimates.2
There has been extensive analysis into the manner in which these questions have been formulated.3 In her presentation Disability Measurement and Statistics - The State of the Notion4, Marguerite Schneider points out that there are many individual factors that are subjectively considered when responding to the question "are you disabled?" (which range from access to healthcare and having an actual diagnosis to report, to the cultural beliefs of the person and his or her notions on health and functioning). It is therefore very difficult to achieve statistics on disability that are measurable and meaningful.
Questions that arise include:
What is the frame of reference used when responding to questions about disability?
How do South Africans understand the terms "disability" and "difficulty"?
On the basis of these recommendations, Statistics SA has confirmed that the format of the question relating to disability in the 2011 census questionnaire will be phrased as outlined in the table below.5
According to Ms. Petra Burger, social development officer of the National Council for People with Physical Disabilities, proper statistics on persons with specific disabilities would go a long way in facilitating more opportunities for service delivery for people with disabilities. On a personal level, she would have welcomed an open question in the census that asks people to "declare" their disability, for this reason.
As an interesting comparison, the Australian Bureau of Statistics conducted its 2011 census on 9 August 2011 and did not include the direct question "are you disabled?"6 The three disability-related questions asked if the person ever needed, "someone to help them with or be with them for": self care activities; body movement activities; and communication activities. A list of possible reasons for requiring help with these activities, including "short term health condition" and "disability(lasting 6 months or more)", were provided. However, this method received some criticism from the disability community7 and does not differentiate between types of disability.
In India, the recognition of the social stigma associated with disability in that country caused the government to launch a social campaign urging people to answer the disability question on their 2011 census8: "is this person mentally / physically disabled?"9. If yes, the person could then indicate how so from a list of: "in seeing, in hearing, in speech, in movement, mental retardation, mental illness, any other, multiple disability". The option to indicate a multiple disability was a new inclusion in their 2011 census.
With only a few weeks to go until the 2011 census is carried out in South Africa, it will be interesting to review the statistics generated by the new formation of the question relating to disability. It is suggested that legal practitioners use a disability related question of similar wording in future. This will ensure that any statistics on access to justice by means of pro bono services for persons with disabilities are meaningful and aligned to those of the 2011 census.
1 Statistics South Africa: Prevalence of Disability in South Africa Census 2001, Report No. 03-02-44, 2005, page 72
2 World Health Organisation: World Report on Disability 2011
3 www.statssa.gov.za : Draft Report on Disability Survey
4 www.hsrc.ac.za : Schneider Disability Measurement and Statistics
5 www.statssa.gov.za : A Census 2011 Dress Rehearsal Extract from Questionnaire
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