An inclusive society, ideally, recognises and values persons with disabilities as equal participants in all spheres of life, including access to buildings. The United Nations Convention on the Rights of Persons with Disabilities (the Convention) which South Africa has ratified, defines disability as an evolving concept and further that disability is the result of the interaction between persons with disabilities and environmental barriers that hinder their full participation in society on an equal basis with others.

The Convention, in its preamble and general principles, recognises the importance of accessibility to the physical, social, economic and cultural environment, to health and education and to information and communication, to enable persons with disabilities to fully enjoy all human rights and fundamental freedoms. The Convention additionally addresses the fundamental issue of accessibility by stating that “member states should identify and eliminate obstacles and barriers and ensure that persons with disabilities can access their environment, transportation, public facilities and services”.

The Preamble to the Constitution commits South Africa to improving the quality of life of all citizens and freeing the potential everyone. The Constitution further declares the founding values of our society to be “human dignity, the achievement of equality and the advancement of human rights and freedoms.” The right to equality further includes disability as one of the grounds upon which the State, or any individual may not discriminate. The White Paper on an Integrated National Disability Strategy (INDS) moved away from the dated concept of viewing disability through the medical or welfare lens. This dated concept posited persons with disability as being unproductive and needing care. Instead, the INDS is a social model that focuses on rights and the fact that disability is a human rights and developmental issue. Importantly, the INDS places emphasis on the importance and need for an accessible environment, while acknowledging that barriers in the built environment prevent people with disabilities from participating in society.

Accessible building are those which individuals with disabilities can make use of in the same way as anyone else. As such, an accessible building should be considered in the context of whether the route to the building is approachable, pathways through the building are accessible and whether the facilities inside the building are usable.

The Guidelines for Human Settlement Planning Design, as developed by the Council for Scientific and Industrial Research, in conjunction with the Department of Human Settlements, emphasises the need for designing settlements with the pedestrian in mind. However, the consideration of the pedestrian with disability remains limited to ramps and access for paraplegics, as well as considerations of wheelchair users and sloped pavement kerbs. As Brian Watermeyer in his book ‘Disability and Social Change in South Africa’ points out – wheelchair users are not the only people with disabilities whose needs must be integrated into planning. There should also be greater consideration for people with sight and or hearing impairments, as well as other forms of disability.

The South African Human Rights Commission’s (SAHRC) review of built environment legislation and disability also shows the insufficient enforcement of certain regulations, rendering most of the nation’s public buildings inaccessible. In particular, the SAHRC found that the Building Standards Act did not require accessibility for special needs users. The National Building Regulations read with the South African Bureau of Standards Code of Practice regulate the construction of facilities for persons with disabilities, but its overall weakness is that the regulations are not legally enforceable.

It is apparent that the building legislation does not meet the barrier-free requirement as envisaged by the United Nations. South Africa has policies and legislation to protect and promote the general rights of persons with disabilities, however such laws and policies are insufficient in ensuring an accessible built environment. As such, the International Day of Persons with Disabilities is important in the campaign to raise awareness of the importance of accessibility for persons with disabilities. The Building Standards Act and its regulations require amendment in order to make mandatory accessibility for persons with disabilities. The specific requirements of various groups with disabilities should be accommodated in all built areas, whether newly constructed or existing structures being renovated. Ultimately, an overhaul of current legislation is required to ensure that fundamental principles of equality and dignity are at the forefront of the built environment. 

By Phephelaphi Dube, Legal Officer: Centre for Constitutional Rights