Report of the CIB Expert Seminar on Building Non-Handicapping Environments,
Harare 1992
Access legislation and enforcement mechanisms in South Africa
Michael Masutha, DPSA, South Africa
Contents
There is no point in designing ideal statutory provisions
on access without at the same time incorporating effective and realistic
enforcement mechanisms for the practical implementation of such provisions.
It is again not very helpful to create well structured laws for the protection
of the rights of people with disabilities without alerting them to the existence
of such laws and stimulating their assertiveness of their rights protected
by those laws.
Finally, and equally important, without resources, financial or other, very
little is likely to be achieved. I shall attempt to deal briefly with each
of the above considerations:
Enforcement mechanisms
Depending on various factors, enforcement mechanisms
may either be pre-emptive or remedial, civil or criminal, etc.
A Statutory Body may designate a specified governmental, or parastatal organization,
etc. to monitor the observation of its provisions by affected parties or
persons, i.e., it may be statutorily required that building plans be authorized
by a government authority before permission to build can be obtained so
as to ensure the observance of the provisions set out in the statutory.
To illustrate this, the National Building Regulations and Building Standards,
Act No 103 of 1977 as amended in South Africa empowers the Minister of Economic
Affairs and Technology, to make regulations regarding, amongst other things:
"The preparation, submission and approval of plans and specification
of buildings, including the approval of amendments or alterations to plans
and specifications of buildings during the erection thereof."
Section 5 empowers a local authority (e.g., a city or town council), to
appoint a building control officer whose task, amongst others, is to make
recommendations to the local authority in question, regarding any plans,
specifications, documents and information submitted to such local authority
in accordance with Section 4. 3.
Section 4, in turn, prohibits the erection of buildings in respect of which
plans and the specifications are to be drawn and submitted in terms of the
Act and further prescribed the drawing and submission of such plans for
approval.
These provisions to some extent effectively ensure the government control
over the erection of buildings and the monitoring of compliance with statutory
requirements because of its pre-emptive or preventative nature, it can be
seen as ideal although many criticisms may be levelled against it.
Civil pre-emptive enforcement mechanisms
The most obvious of these is a court order for injunction
or interdiction. In this case, just like in the case of many other civil
remedies, the locus standi (legal stand) of the parties seeking a court
order to stop a developer to continue with his erecting of a building on
the grounds of non-compliance, would depend on the applicable laws on that
particular country. For example, in South Africa an action in the public
interest is not competent. You cannot bring an action in court against somebody
unless you can prove that you have a clear legal (and not just human) right
or substantial interest stake in the matter. You cannot bring action for
the protection of the general public, whereas in other jurisdictions, i.e.
the United States, it is possible to do so.
The remedial enforcement and mechanisms
Criminal sanctions, depending on the severity of the
penalty(ies) imposed by statutory criminal sanctions, can be used as a very
effective enforcement mechanism.
Section 4 (4) of the National Building Regulation and Building Standards
Acts, already referred to above, provides:
"Any person erecting any building in contravention of a provision of
sub-section (that is who erects a building without approval from the local
authority) shall be guilty of an offence and liable on conviction to a fine
not exceeding R100 for each day on which he was engaged in so erecting such
building." To close up any possible gaps a general penalty clause has
been incorporated in Section 24, which provides, "Any person convicted
of an offence under this Act in respect of which a fine or imprisonment
is expressly provided for, shall be liable to a fine not exceeding R4,000
or to imprisonment for a period not exceeding 12 months."
Another important prerequisite for the effectiveness of criminal sanction
is an efficient and effective policing mechanism. Section 15 (i) of the
above Act empowers "building control officers to enter at any reasonable
time any building or land" with a view of inspecting whether the owner
complies with the Act.
Section 2 (1) of the above Act allows the local authority to obtain a magistrate
Court (District Court) order for the demolishing of a building which does
not comply with the Act. It also allows for a local authority to apply for
an injunctive order to stop the continuation or commencement of erecting
a building which does not comply with the Act. The last part of the above
provision is a pre-emptive measure which we have already discussed earlier.
Private Action, the right of the individual to sue for damages for loss
sustained as a result of negligence on the part of the government in the
course of implementing its responsibilities under the act, is expressly
denied. This may prove unsatisfactory particularly when taking into account
the responsible role government should play. Government should be held responsible
for its actions at least in the same way as the individual is. In my opinion,
therefore, the exemption which is contained in section 23 of the Act cannot
be morally justified.
The Act does not expressly prohibit or allow private actions against persons
who fail to comply with the Act. This, in my view, creates an unnecessary
uncertainty which may be economically disadvantageous, e.g. for a disabled
person seeking relief.
Conscientizing the masses at grassroots about their rights
Unless the masses are made aware of their rights contained
in access legislation, the whole initiative becomes redundant. Mass conscientization
can be effected through awareness programs such as workshops, discussion
groups, the mass media and distribution of pamphlets containing information
that is accessible to the majority.
Presently the EQUILEG Working group was successful in hosting the first
mini-EQUILEG Seminar in Mozambique in July 1991. Judge Sacramento of the
high court of Mozambique gave an excellent presentation on legislation designed
to safeguard the rights of Mozambique's with disabilities. It was disappointing
however to note how surprised the disabled people of Mozambique who attended
the Seminar were to learn, for the first time in their lives, of the existence
of these excellent laws, which were never enforced, and from which they
had never derived any benefit. For example, the law requires front seats
in public buses to be saved for people with disabilities.
Resources
Public law enforcement mechanisms, some of which were
discussed above, depend solely on government initiative and therefore do
not require financial contribution.
On the part of the individual, often the only contribution that may be required
from the individual could be a mere reporting to the authorities to alert
them to a contravention taking place or threatening to take place. However,
in the case of civil/private action it often requires the expertise of legally
trained persons and this may be very costly. It is therefore necessary to
identify available and potential available resources and the Disability
Rights Movement has formed a joint initiative with lovers for Human Rights
to fight discrimination against people with disability. The Socio-Economic
Rights Unit of which I have been appointed a Director is to fulfil this
role.
Harare
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