The achievement of equality is a founding value of the Constitution and section 9 of the Constitution states that no person or the State may unfairly discriminate directly or indirectly against a person on the grounds of disability. To give effect to section 9 of the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 (the Equality Act) was enacted. Section 9(c) of the Equality Act specifically states that no person may unfairly discriminate against any person on the grounds of disability, which includes “failing to eliminate obstacles that unfairly limit or restrict persons with disabilities from enjoying equal opportunities or failing to take steps to reasonably accommodate the needs of such persons”.
Therefore, a sporting event organiser cannot idly wait until an athlete or cyclist with a disability makes a request to participate in an event but reasonable measures need to be anticipated in advance to ensure inclusivity. The crux lies in the question of reasonability and what reasonable measures can be adopted to ensure participation, while ensuring the nature of the event is not changed.
In terms of the National Sport and Recreation Plan of 2012 (NSRP), one of the strategic objectives is to ensure that equal opportunities exist for all South Africans to participate in sport. This is a complex issue as this does not only require an understanding of the exact obstacles which prohibit, for instance, participation by persons with disabilities but also an understanding that persons with disabilities do not constitute a homogenous group. The Equality Act does not define the term ‘disability’ and South Africa’s White Paper on the Rights of Persons with Disabilities (the White Paper) states that ‘disability’ is “imposed by society when a person with a physical, psychosocial, intellectual, neurological and/or sensory impairment is denied access to full participation in all aspects of life”. To remove barriers to participation a ‘one-size-fits-all’ solution will not be the answer.
The barriers faced by sporting event organisers in South Africa not only involve the lack of guidelines – safety and security measures are also often raised as obstacles. In terms of the Safety at Sports and Recreational Events Act of 2010 (SASREA), the safety and security measures undertaken by the event organiser must be approved by the National Commissioner and depending on the categorisation of the event an ‘Event Safety and Security Committee’ may be appointed for the event. Unfortunately, there is no obligation on event organisers to consult with persons with disabilities to realistically determine how safety concerns can reasonably be addressed if they would like to participate in the said event.
The United Kingdom has taken a progressive leap in ensuring inclusivity in sports by publishing The Equality Standard: A Framework for Sport in 2004 (the Equality Standard). The Equality Standard provides guidance to sport organisations and sport governing bodies to develop initiatives to encourage participation in sport by people who share a ‘protected characteristic’. England Athletic, the governing body for athletics in England, for instance published a Disability Guidance for Track and Field Competition Providers in 2015, which addresses common examples of physical barriers to participation by athletes with disabilities and possible solutions – without changing the nature of the event.
An inclusive sport system – and ensuring all people can participate in sporting events – will not happen overnight in South Africa. However, to achieve inclusivity does not necessarily require extreme measures but it does require an understanding of all facets of the situation, which could only realistically be achieved by following a facilitative approach by all interested parties. Equality remains a foundational value of the nation and as such, achieving substantive equality means removing barriers that would otherwise bar South Africans from achieving their fullest potential.
*Special thanks to the Media Office of the Cape Town Cycle Tour and The Chaeli Campaign who provided us with the information on the participation of persons with disabilities in the event.
By Christine Botha: Legal Officer, Centre for Constitutional Rights
