South Africa's compliance with UN Conventions on Rights of Persons with Disabilities and Rights of the Child: input by Civil Society

Women, Youth and Persons with Disabilities

01 March 2011
Chairperson: Ms D Ramodibe (ANC)
Share this page:

Meeting Summary

The University of the Western Cape Centre for Disability Law and Policy briefed the Committee on South Africa’s compliance on the United Nation’s Convention on the Rights of Persons with Disabilities. It emerged that, since ratification in 2007, South Africa had not adequately incorporated the Convention into its own legal framework which weakened the effect of the Convention in South Africa. Additionally, it emerged that South Africa had not submitted a report to the United Nations Committee on the Rights of Persons with Disabilities. The Portfolio Committee was provided with key questions to consider when looking at the implementation of the Convention in South Africa.

The Nelson Mandela Children’s Fund briefed the Committee on the United Nations Convention on the Rights of Children. It emerged that South Africa’s first Country Report had been submitted; however the second Report was late and was still being compiled. It emerged that there was a significant disharmony between the different pieces of South African legislation that dealt with children, particularly the definition of the child.

The Nelson Mandela Children’s Fund was concerned about the role of parents in South Africa. It was stated that children’s rights were being seen to supersede the rights of parents, resulting in the disempowerment of parents in their children’s lives. The unintended consequences of this included burgeoning teenage pregnancy in schools as well as children being prematurely exposed to adult roles. It was suggested that the role of the parent as well as the responsibilities of the child must be examined and emphasised.

The Committee expressed its concern at the issues raised by both briefings, the disharmony of South African legislation, and the effect that the relative lack of implementation of these Conventions was having on people with disabilities and children in practice.

The Committee agreed to follow up on both briefings and set up workshops to look into the rights of people with disabilities and the rights of children.

Meeting report

University of the Western Cape presentation on South Africa’s compliance on the United Nation’s Convention on the Rights of Persons with Disabilities
Dr Helene Combrinck, Senior Researcher: Centre for Disability Law and Policy, University of the Western Cape (UWC), gave a brief description of the background to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) which was adopted by the United Nations (UN) in 2006. The Convention and the Optional Protocol were ratified by South Africa on 30 November 2007. She stated that the Convention principles were still relatively undeveloped internationally and in South Africa. However, Dr Combrinck emphasised that for a treaty to become legally binding and applicable, states must both ratify the UNCRPD as well as incorporate it into their own legal systems. The consequences under international law of the Convention were that the State must submit Reports to the UN Committee on the Rights of Persons with Disabilities. The Committee’s task was to meet twice a year and gives states guidance on the implementation of the Convention at a national level. The consequences under national law of the Convention were governed by the State’s implementation of that Convention in national law, and specifically the Constitution of South Africa. Sections 214 (2) and 213 (4) of the Constitution specifically dealt with the implementation of International Law and Treaties in national law. These sections stated that international law must be both approved by resolution in both the National Assembly and the National Council of Provinces, as well as enacted into law by national legislation; but a self-executing provision of an agreement that had been approved by Parliament was law in the Republic unless it was inconsistent with the Constitution or an Act of Parliament.

According to Article 33 of the Convention, states must establish national focal points for the implementation of the Convention, co-ordination mechanisms, implementation mechanisms, and legal and administrative frameworks to promote and monitor implementation, and finally states must ensure the participation of civil society.

It was noted that South Africa had no specific national legal framework for this Convention which weakened the effect of the Convention in South Africa. Dr Combrinck stated that, without a legal framework, the Convention could at most be used by the courts for interpretive guidance.

Dr Combrinck gave the Committee the example of children with disabilities and their education and transport. She stated that budgets and implementation of the law were governed by the Department of Basic Education, not the Department of Women, Children, and Persons with Disabilities. This posed questions about the ultimate implementation of the Convention.

State Reports to the UN Committee were due within two years of ratification and then subsequently every four years. South Africa missed the deadline for its first report as well as the second extended deadline. Reports should also take into account the wishes of civil society. Other reports and groups that were mentioned included the Umgungundlovu Disability Forum, the South African (SA) Disability Alliance, and the White Paper on an Integrated National Disability Strategy.

Dr Combrinck presented the Portfolio Committee with key questions that needed to be considered and addressed. Firstly, who was implementing the Convention? Secondly, what tools were being used to implement this Convention in terms of budget allocation, mandates and laws and policies of different departments? Thirdly, with respect to monitoring and evaluation, were the groups who were implementing the Convention doing it well? Finally, the Committee should choose specific indicators and reports to be able to assess the implementation of the Convention.

The Chairperson asked whether or not the Centre for Disability Law and Policy was implying that, without a national framework, the problems encountered with disabled persons would continue.

Dr Combrinck replied that the challenges were twofold. Firstly, that the Convention was not a specific law and did not have a budget allocation. Secondly, she noted that a legal framework did not necessarily mean that a country’s implantation of that law in practice would be good.

Mr D Kekana (ANC) requested that Dr Combrinck and the Centre for Disability Law and Policy help the Committee by creating a draft bill to help the Committee with a legal framework.

Dr Combrinck answered that she would attempt to make suggestions in consultation with other civil society groups.

Mr Kekana also asked what proportion of the South African population was affected by the Convention.

Dr Combrinck replied that Statistics South Africa had been working on changing the questions for the census to judge accurately the proportion of the population that was disabled.

Mr Kekana stated that South Africa did not want to create a state in which people with disabilities were dependent on welfare. He asked whether there was suitable education and training for people with disabilities.

Dr Combrinck agreed with Mr Kekana; however she warned that people should not assume that people with disabilities were not capable of academic progress. She added that special schools in South Africa only provided schooling up to grade nine and did not offer schooling up to matric level.

Mrs D Robinson (DA) commented that there was frustration in the Committee about its function and asked for further guidance.

Mr D Worth (Free State, DA) [from the National Council of Provinces (NCOP)’s Select Committee on Women, Children and Disabled Persons] asked whether Dr Combrinck felt that there should not be a budgetary allocation in each Department for the implementation of the Convention.

Dr Combrinck agreed with this suggestion because it would allow for proper implementation and monitoring. She added that this was already happening in some Departments. Dr Combrinck stated further that she felt that it was good practice to spread the issue of the disabled over various Departments because that indicated a mainstreaming of the issue.

Ms I Ditshetelo (UCDP) commented that the Committee was unsure from whom to request further information. She suggesting that asking for further guidance from the Department and the Presidency and other departments would make the Committee irrelevant.

Dr Combrinck stated that as many concerned parties as possible should be consulted, including all ministries and she felt that this was the function of the Committee.

Ms S Rwexana (COPE) requested clarity on whether or not each organisation should have to provide its own reports.

Dr Combrinck replied there could be many shadow reports from many groups or reports that could be theme based. She also stated that the South African Disability Alliance (SADA) was the umbrella organisation for the disabled.

Ms Rwexana also asked for clarity on what other laws covered people with disabilities.

Dr Combrinck answered that many acts dealt with the disabled, but there was no specific piece of legislation that dealt with the disabled per se.

Ms Rwexana commented that the mandate and the budget for the Committee should be reviewed, and stated that the Centre for Disability Law should have given the Portfolio Committee proposals on how to address these issues.

Mr G Mokgoro (Northern Cape, ANC) [from the NCOP’s Select Committee on Women, Children and Disabled Persons] commented on institutions in Limpopo province which were often not suitable for people with disabilities.

Mrs P Duncan (DA) commented on the mandate and the accountability of the Executive to the Committee.

Mrs Duncan pointed out that acts related to disabled persons had not been properly funded. She added that she felt that there was a lack of political will to deal with the Committee. She stated that five departments had been asked to report to the Committee on the breakdown of their budgets for women, children, the youth and people with disabilities but that the Committee had had received no feedback for over a year and a half.

Dr Combrinck agreed with the problem raised and stated that she believed that the Committee had the power to summon Ministers and the Executive. She mentioned that this option should possibly be exercised to hold the Executive to account.

Ms Rwexana asked how a solution could be found to rectify the problem that the Convention was not being represented in national law.

Dr Combrinck answered that laws would have to be passed in South Africa.

Mr Kekana requested information from the Centre and from Dr Combrinck about what was happening in other countries regarding the implementation of the Convention.

Dr Combrinck responded that over 70 countries had law in place that dealt specifically with the disabled. However, not all examples were good examples of this legislation. Dr Combrinck cited legislation from the United States of America (USA) and Tanzania.

The Chairperson noted that there was a great deal of work to be done on issues of the disabled, as well as implementing the Convention.

The Chairperson emphasised that the Committee had the mandate to hold the Executive to account on these issues.

The Chairperson stated that the Centre for Disability Law and Policy would be contacted in future to workshop the issues raised by Dr Combrinck’s presentation.

Nelson Mandela Children’s Fund (NMCF) on South Africa’s compliance with regards the United Nation’s Convention on the Rights of the Child with specific focus on the 2nd and 3rd Country Reports
Ms Moipone Buda-Ramotlo, Acting Chief Executive Officer (CEO) of the Nelson Mandela Children’s Fund (NMCF) and her delegation made a presentation to the Committee on South Africa’s compliance with the United Nations (UN) Convention on the Rights of the Child. Ms Buda-Ramotlo noted that the NMCF had not had a chance to consult with other interested stakeholders because of time constraints.

NMCF gave a brief background to the Convention, which was a human rights treaty which set out the civil, political, economic, social, health and cultural rights of children. The Convention defined a child as a human being under the age of 18, unless an earlier age was recognised by a country’s law. Nations that ratifed this Convention were bound to it by international law. Compliance was monitored by the UN Committee on the Rights of the Child which was composed of experts on the issue from around the world. Once a year the Committee submitted a report to the UN General Assembly, who also took into account a statement from the Chair of the Committee on the Rights of the Child and adopted a resolution on the Rights of the Child.

Governments of countries that had ratified the Convention were required to report to, and appear before, the UN Committee on the Rights of the Chile periodically to be examined on their progress with regards to the advancement of the implementation of the Convention and the status of child rights in their countries.

The UN General Assembly adopted the Convention and opened it for signature on the 20 of November 1989. It came into force on 2 September 1990, after it was ratified by the required number of nations.

Ms Buda-Ramotlo stated that the role of the UN Committee was to ensure that sufficient data was collected and used to improve the plight of all children in each jurisdiction; to raise awareness and disseminate information on the Convention by providing training to all those involved in government policy-making and working with or for children; to involve civil society in the process of implementing and raising the awareness of the rights of the child; and finally to set up statutory offices to promote the rights of the child.

Ms Buda-Ramotlo stated that South Africa ratified the Convention on 16 of June 1995. After this the Constitution was developed, and thereafter the Children’s Act was passed in 2010 which aimed to implement the Convention in national law which was part of South Africa’s compliance with the Convention.

Other compliance issues were the countries expected to set up a committee of experts who are responsible for the development of the country report. This report should also be backed up by a shadow report compiled by civil society. The first South African Country Report was submitted to the UN Committee; however the next report was still being compiled. The shadow report was not included in the first Country Report.

South Africa’s Constitution was compliant with the Convention as set out in Chapter 2, Section 28.

NMCF noted that the dissemination of the report to civil society and Government was also a pre-requisite for compliance, but it was suggested that Government had not done this adequately.

After the main Country Report, all countries were expected to engage in ongoing analysis on the issues raised by the Convention, such as commissioning studies. The last analysis that the NMCF was aware of was submitted by the late Hon. M Tshabalala-Msimang, former Minister of Health.   

Finally, the compliance was measured by a country’s hosting of meetings for UN specialised agencies on the Convention such as UNESCO to review the implementation of processes and systems related to the Convention.

NMCF raised specific challenges that the Convention on the Rights of the Child has brought to the fore. There was currently disharmony in the legislation dealing with children, for example the Termination of Pregnancy Act, the Sexual Offences Act and the Children’s Act. For example, the definition of the child was inconsistent throughout various pieces of legislation. The NMCF suggested that this inconsistency should be addressed.

NMFC was also concerned about the rights of children superseding the rights of the parent on the ground. It was noted that the emphasis of children’s rights had often displaced parental rights and involvement in children’s lives. The examples of dispensing antiretroviral (ARV) drugs to children without parental consent or involvement, as well as children’s current right to terminate pregnancy at the age of 12 without parental consent or involvement were raised to show how current legislation negated the rights and responsibilities of the parent.

NMCF suggested that children’s rights should be matched with their responsibilities, and that parental rights and roles were an issue that the Committee must address. NMCF also stated that the Committee should look into and discuss the co-ordination of all Departments that dealt with children.

Unintended Consequences
NMCF raised the issue of burgeoning pregnancy in schools which was not a problem 20 years ago. NMCF stated that very few South African schools were not dealing with this issue now. Ms Buda-Ramotlo provided the Committee with an example of a school in Limpopo that currently had 57 pregnant learners, one of whom was as young as 13 years old. Educators, parents and the learners themselves were not able to cope with the problems that pregnancies created.

NMCF emphasised that encouraging children’s rights in this manner deprived educators, women, learners and other children of their own rights.

NMFC stated that the option of children to render parents absent in life-changing decisions made them vulnerable to abuse and prematurely thrust them into adult roles. Added to this, there was a feeling on the ground that the state was micro-managing families, and this led to a growing feeling of disempowerment of parents and their families in the lives and well being of their children.

The Chairperson noted that there was a great deal of work to be done, specifically on harmonising legislation.

Mr Kekana (ANC) requested information on the UN’s assessment of the conditions of the children of South Africa.

Ms Buda-Ramotlo responded that children were in the worst possible position, especially children with disabilities. This was because facilities and schools for these children were few and far between and concentrated in Gauteng and the Western Cape. Beyond these areas this issue had been dealt with by grassroots organisations. The NMCF dealt with these organisations and helped them as far as possible. She also stated that schools were most often not able to cope with children with disabilities.

Mr Kekana asked what had replaced corporal punishment in today’s society to control and mentor children. He noted the radical changes that had taken place in society - television showing negative images, and role models and behaviour to which children were often exposed, including sex, violence, and greed.

Ms Buda-Ramotlo responded that South Africa must aim to guide children by empowering parents and the family to give all children the correct values at a young age. She felt that religious values, especially Christian values, had been removed from South African schools and had not been adequately replaced. She emphasised that parents must be enabled and held responsible for correctly raising their children, despite the busier lives that parents often lead in society today.

Mrs Ditshetelo requested more information on how the information of the Convention was disseminated to rural areas.

Ms Buda-Ramotlo responded that the NMCF had held community meetings, used churches and often used the medium or the radio to disseminate this information to rural areas. The NMFC felt that community meetings and face-to-face discussion was the most effective in achieving this.

Ms Robinson commented that the role of parents has diminished and had been replaced by the media. She also noted that the Committee must attempt to grapple with the issues raised by the NMCF regarding harmonising legislation. Mr Robinson emphasized that there was a great deal of work to be done in educating children on family planning and parenting roles.

Ms Buda-Ramotlo agreed and again emphasised the role of the parent. She added that legislation had distanced the parent from the child and created ideal conditions for abuse of children simply because parents were often not involved in crucial decisions in children’s lives.

The Chairperson noted the critical issues raised by the NMFC, the disharmony of legislation, and the role of parents. It was agreed that the Committee would set up a workshop to look at the rights of children in the future.

Issues to be considered by the Committee
The Chairperson referred to the walkout of certain Members at the meeting held on 23 February 2011, when Democratic Alliance (DA) Members recused themselves on the grounds that, in the view of the DA, the mandate of the Committee did not include the National Youth Development Agency, and requested that all Members show due respect to the process of the Portfolio Committee.

The meeting was adjourned.


  • We don't have attendance info for this committee meeting

Download as PDF

You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.

See detailed instructions for your browser here.

Share this page: