Michael Masutha, DPSA, South Africa
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:
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.
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.
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.
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.
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.