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Report of the CIB Expert Seminar on Building Non-Handicapping Environments, Harare 1992


Enforcement issues

The second session of the general discussion session examines practical issues of implementation and enforcement.

Neville Cohen
My first point of advocacy as to how to achieve our objective in barrier-free design is, do your homework! In South Africa we went around and looked at the various proposals and enacted legislations in developed countries. We looked at the system in Britain, the US, numerous European states, Canada and we eventually came up with the Australian system which seemed to meet our requirements as closely as possible. We presented it to our Bureau of Standards and it was thrown out in a very short time, because it put too much of a burden on architects, developers and would have been too costly. After a careful examination of these reactions we drew up our own amalgam of what we thought were the best-suited areas in each of these different legislative procedures. We then decided to simplify it even further.

When you try to come up with the ultimate in access legislation already at your first go, you will only make things difficult for everybody. We chose what we considered to be the most appropriate parts, simplified them and made them suit the requirements of the country. Looking at Africa as a whole there is hardly a country which can be called developed. On the other hand there are a number of countries which are very undeveloped. In every one of these countries there is an amalgamation of rural and urban areas. Whatever we put in as legislation must apply equally to the rural and urban areas. When we sent our draft documents to every municipality in the country to the various associations dealing with different types of disability including sensory disability, intellectual disability and physical disability I was surprised at how little response we got. One particular municipality wrote back to us, "Your document is very interesting but we have got no disabled people in Upington". I use that as an example because if people have not been exposed, I am talking about non-disabled people, to disabled people they will obviously come up with that sort of comment.

We had an enormous amount of help from one of the state departments, the Department of Public Works. They deal mainly with state buildings and state structures, whether they be a sports field or the houses of parliament or a post office or a police station. We sent this document at their expense to various authorities throughout the country and we had very little response. In the interim, the document went through its first stage in Parliament and within a few months we actually had a document which had already been promulgated. We then decided to send this document to those very same people under registered post to advise them that it was now an Act of Parliament and that whether they had disabled people or not, they ought to comply. It was very interesting that we had a 95 per cent return on this particular document. Since then many things have happened in the local authorities. That is where things happen. We can pass legislature at the highest level but unless it is monitored and accepted by the local authorities, we can expect to get nowhere.

I should divide architects into two categories, the informed and aware architects and the ill-informed. I want to quote an example. A museum in South Africa is presently being re-sited. Provisions have been made for ten special, so-called disabled toilets. They were far larger than the prescribed ones, everything was according to prescription as per our documentation. There were three walls and a door with a fancy door-closer, the whole forming a maze of walls which was intended for the privacy of those using the toilet cubicle. I pointed out to the architects that unlike a public toilet convenience there was likely to be only one person in that cubicle at a time who would not require all these walls or the fancy door-closers for their privacy. Worse, because of the positioning of these basically unnecessary walls, the cubicles would be inaccessible for persons using wheelchairs. The example illustrates another point as well. We saved the cost of the walls. When things are designed correctly, the cost is no greater. When we have to alter them at some later stage, the cost can be ten or a hundred fold the original cost of that particular construction.

I want to stress the importance of finding friends among those who have power. Initially, I will set out to find friends who are also disabled or who have been touched by disability in some way in that either their friends or their family have a close relative who has some disability. In almost every case, this is where I have found the greatest support. To illustrate that point I can cite another example. The largest public library in Johannesburg is housed in a building that is now a national monument. You cannot alter its facade, remove its steps, cannot put ramps in the front, it must be preserved in its original form. For about the past 15 years I have been trying to get the building made accessible in one way or another. Recently, the chief librarian informed me that the building is now accessible. They found a place to put an internal elevator in and enlarged the toilet. I asked why for 15 years I was unable to do this with all the friends I have in the municipality. It turned out that the Counsellor for Culture in Johannesburg was involved in an accident and used a wheelchair for six months. During that time he went to the library to borrow a book and found that it was totally inaccessible. Within a matter of six weeks the elevator had been installed. I contacted him and he promised to set up a special committee within the management committee of the Johannesburg City Council to examine the problems of barrier-free design.

Sven Thiberg
As a structure for our discussion let me describe what I call the legal chain. All people are our friends, even the architects, but it is important to have a system which ensures that accessibility is put in place, even if enemies are involved. This legal chain includes the following steps: first legislation; then codes and recommendations or standards; then the design process where different consultants are involved in designing the project; then the building permit process which is one of the prerequisites for the whole system of control; the financing process; the construction phase where sometimes the drawings are not followed very well; site control; and then a use period where things are added and put into work which can be very dangerous for accessibility as such; and then on all these steps there needs to be some type of enforcement to insure that rules are followed. Each project has to go through the process. At each stage there is the danger that something goes wrong, so an understanding is needed of what has to be done and how, also the possibility of control or monitor what's happening. This process differs with each country.

process diagram></CENTER>
<P>Mr. Cohen touched on the distribution of responsibility between the central
authorities and local authorities and the competence of the local authorities.
It would be interesting to hear more about this division of responsibility
in your region.<BR>
Neville Cohen<BR>
Our building regulations contain sections dealing with walls, structures,
sewage, electricity, etc. As in the case in most countries, one has to submit
plans before a building permit is obtained. It has been my experience that
the officers who examine these plans really do not understand electricity
or sewerage or the problems of accessibility for disabled people. Also,
we all know that there are ways of getting around such legislation. Our
problem is that we as advocates do not have the manpower to check every
building whether it complies with access norms. In certain municipalities
plans have to bear a stamp where the architect certifies that a building
meets the sewage requirements of the City of Johannesburg or the electrical
requirements. In South Africa most of the plans go through anything up to
14 or 15 departments to see that they do not contravene any of the written
or unwritten regulations. I have suggested a special stamp where the architect
as the responsible person says that a certain building will meet section
S (access requirements) of the building regulation. If that happens, a lot
of the load will be taken off our shoulder.<BR>
Phillip Thompson<BR>
This highlights the fact that there is a very long road one has to travel
in an attempt to facilitate these changes. Even with legislation specifically
related to accessibility it still remains a tremendous task to ensure that
legislation is transferred into common practice mechanisms. The national
building regulations in South Africa were not automatically adopted by each
of the local authorities in 1986. There was a period of three years when
the local authorities had the opportunity to introduce the regulations and
at the same time put forward proposals to amend the regulations to meet
their specific requirements. The 1990 version has now been generally accepted
as an Act. We have two parts of the code: the Legal Act in our legislation
and a section called Deemed to Satisfy. The Legal Act covers the principles
and the Deemed to Satisfy the more specific requirements as guidelines to
meet the conditions of the Act. Those Deemed to Satisfy rules are often
misinterpreted. Regardless of how many pages of detailed controls you might
put in place, it is very difficult to address every situation and make sure
they are enforced.<BR>
Excerpt from the law:
In any building contemplated in Regulation S1 there shall be
a means of access suitable for use by disabled persons, including those
who use a wheelchair, or who are able to walk but who are unable to negotiate
steps from the outside of that building to the ground story and, where such
building contains an elevator, from the ground story to any other story
served by such elevator.<BR>
Number 2:   Where parking for
more than 50 motor vehicles is provided or in connection with any building
having a means of access contemplated in Sub-regulation 1, adequate space
shall be provided for the parking of motor vehicles used by disabled persons
and a means of access suitable for the use by such persons shall be provided
from such parking area whether such parking area be inside or outside such
building to the ground story of such building.<BR>
Number 3:   Notwithstanding
the requirements for means of access contained in Sub-regulations 1 and
2, where a suitable means of access from outside such building or from any
parking area contemplated in the regulation is provided, to any story other
than the ground story. And this applies to buildings where the main entrance
is not on the ground floor.<BR>
Number 4:   Means of access
suitable for use by persons in a wheelchair shall be provided to any auditorium
or hall situated in any building contemplated in Sub-regulation 1. And such
auditorium or hall shall, in relation to its seating capacity, be provided
with sufficient open space to accommodate an adequate number of wheelchairs.<BR>
Where in terms of Regulation B1, toilet facilities are required in any building
which is a building contemplated in Regulation S and has a means of access
contemplated in Sub-regulation 1 - that means that in any building which
is accessible in terms of these regulations - an adequate number of such
facilities shall be suitable for use by disabled persons and shall be accessible
to such persons provided that toilet facilities shall not be required in
any such building classified as H3. - That is a domestic building. - In
any building provided with facilities for disabled persons any commonly
used path of travel shall be free of obstruction which could impede or endanger
the travel of such persons or the presence of such obstructions shall be
made evident in a signal manner to people with impaired vision. 
Michael Masutha<BR>
Building regulations and access legislation should not be seen in isolation
in the course of our struggle for equal opportunities and freedom from discrimination.
An example of a case, which I have fortunately been able to resolve without
the need of going to court, involves a child who has rheumatoid arthritis.
He was denied access to a school because the school was not accessible and
the school felt that because of its inaccessibility the child would not
be able to function in such a school and recommended the child should go
to a special school for disabled children. To get admitted to the special
school he would have to wait for the next five years. Because the queue
for admission was so long that by the time five years had elapsed the child
would have been 19 and, because of age, would not have qualified for admission
to that school.<BR>
These are some of the practical problems we face. The question of enforcement
is very fundamental. Comrade Neville has indicated to me during tea break,
that the normal procedures and the normal principles of enforcement would
be applicable as far as this statue is concerned as well. The reality is
that the enforcement of statutes, if left in the hands of courts is often
contingent upon interpretation and you will find that courts do not want
to be seen to be interpreting the statutes beyond their intention of legislation.
Therefore it is important that enforcement mechanisms are sufficiently entrenched
inside legislative mechanisms because that saves costs. Instead of lawyers
having to go through a series of books trying to find justification of a
particular interpretation, already you have a clear enforcement mechanism
in a statute that does not need interpretation. As to the question of local
authorities being relied upon as enforcement mechanisms, that can be particularly
effective in a pre-emptive context where, for instance, you would find that
plans would have to pass through certain authorities for authorization before
construction takes place. As we know, however, things may leak as was indicated
earlier on. The intention to pre-empt may be defeated, whereby you may find
that building plans are not followed at the time of construction. The big
question is, how do you rectify that situation? Courts may feel that it
would be overstepping the ladder to, for instance, provide remedies such
as allowing the demolition of buildings. I would like to hear from Comrade
Neville on the question of the application of the act from the geographical
perspective, that is, whether it covers rural areas as well.<BR>
Neville Cohen<BR>
The national law covers both rural and urban areas. In the rural areas most
of the buildings tend to be residential. But for buildings designed for
use by the public such as office buildings or sports stadia, the local municipality
must comply, since it is a national regulation.<BR>
From the point of view of enforcement of any regulation, one has to look
to the local authority to enforce any law whatsoever which is also the most
convenient way of doing it.<BR>
As far as enforcement through legal action, when we do take a case to law,
we have to have a reasonable chance of winning it. In many countries if
a law is transgressed and is taken to court, and if you have sufficient
merits to win that case, it becomes a precedent. We are hoping that in the
very near future, we will have to take somebody to law. However, our policy
has been in the past that when we find transgression, that we should not
immediately become offensive. We should go to the architects and developers
of that building and say, Do you know that you have transgressed a law?
Because we would rather make friends than enemies, at this point in time.
I am quite prepared to fight a case in courts but it might do us more damage
by doing so before giving due advice to the people who have transgressed
the law.<BR>
Our present legislation does not apply to buildings that were either designed
or built before 1986. However, there is a commentary in the code which reads:

We are trying to persuade the owners of those buildings to make the necessary changes and even to involve the costs themselves. When altering an existing public building it immediately has to comply with the current law.

Safaa Issa
I would like to comment on the cost of remodelling old or existing buildings from the United States experience. Their experience has shown that this cost has been between 3 and 16 per cent of the total cost of the building. This also takes into consideration the lost time of productivity while using this building for remodelling and changing it to an accessible one.

Alexander Phiri
The presence or absence of strong organizations of persons with disabilities is often decisive. For example, in Bulawayo, the hub of the disability movement in the country, there is the spirit and the consciousness. We just knock on the door and our city counsellors give us a good ear. But in the rural areas it is pathetic. There is a lot of development going on, it has been going on since independence: community hall, schools including hospitals, but they are not accessible.

Sven Thiberg
What we are trying to find is a system which functions without strong disability movements, which functions by its own.

Adolf Ratzka
I would like to draw the parallel to the area of fire safety. Does compliance with regulations for fire safety in buildings depend on the existence of a local citizen's group for fire safety? When I had difficulties with my own apartment in Stockholm. As an ordinary flat in a multi-family structure it should have been completely wheelchair accessible. I called up the building inspector and asked, "How could you overlook these thresholds of 7.5 cm when the law specifies a maximum of only 3 cm?" He said, "We have too much to do, all we manage to check is fire safety". So the question is, how does accessibility get the same status as fire safety? Perhaps one strategy could be to have one general heading, Safety, which includes both fire safety and those aspects which we consider necessary in order to safely gain access into a building.

Phillip Thompson
I think you have to look realistically about the process which generates any laws or building regulations. Fire safety and any other regulation is actually a function of public demand. Fire safety legislation came about by virtue of bad experience in buildings where people did not manage to escape. Regrettably, we can not rely on the general public to provide that demand. We as the consumers in this instance have to provide the demand for the legislation. Although it is a very nice concept to develop legislation that is self-enacting, in practice it would be very difficult.

We all need the development of legislation to move in a normal way but I think if interested groups do not put forward their concerns, society will not take heed of their needs. I think that is the whole idea why we have civil rights movements and movements for liberation from colonial rule.

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