Disability Equality Rights in South Africa: Concepts, Interpretation and the Transformation Imperative

Abstract

The Bill of Rights expressly prohibits unfair discrimination on the basis of disability; however the Constitutional Court has not yet addressed the meaning or scope of disability equality. This article seeks to develop an indigenous model of conceptualizing and interpreting equality for people with disabilities in South Africa. It draws form scholarship that has emerged from the global disability studies movement, and incorporates contemporary thinking about disability rights as a core component of international human rights. The article adopts the purposive, generous and inter-dependent approach of the Constitutional Court to interpreting the provisions of the Bill of Rights. The model of equality used in the article grows out of the transformative imperatives embodied in key legal instruments, prioritizing the enhancement of capabilities, the realization of self-worth and individual potential, the preservation of human dignity and the promotion of individual and collective self-determination. Pivotal in the analysis is a conception of equality that understands difference as not necessarily a basis of disadvantage, but as a source of richness and inherent value. Constitutional and statutory instruments provide the legal tools for pursuing a project of transformation in disability equality. They outline more than just an aspiration of equality, but create positive rights, provide access to remedies and establish an institutional framework for monitoring and enforcement. In exploring how the concept of disability, as a ground of equality protection, can be developed and applied, the article also seeks to promote a programme of broader societal transformation for people with disabilities.

Keywords: Disability Equality Rights, disability in South Africa