In Pursuit of Equality in South Africa

Evaluating the Extent to which the Civil Aviation Regulations Accommodate Persons with Mental Disabilities

MANDIVAVARIRA MUDARIKWA

 

INTRODUCTION

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) explains the concept of reasonable accommodation and unequivocally links it to the realisation of all human rights of persons with disabilities. The CRPD is the first binding international law treaty where reasonable accommodation has been defined1. The CRPD frames reasonable accommodation within the equality and non-discrimination context and, in doing so, some have argued that ‘the CRPD animates both theoretical as well as practical discussions about rendering all rights meaningful for some 650 million persons with disabilities worldwide.’2

Within this context, the article discusses the concept of reasonable accommodation as entrenched in the CRPD and evaluates the extent to which it can be reconciled with the provisions of the South African Civil Aviation Association (SACAA) Civil Aviation Regulations (2011): Carriage of Passengers with Disability (henceforth ‘the SACAA Regulations’). It will be argued that the current SACAA regulations are failing to reasonably accommodate persons with disabilities as it unduly and disproportionally burdens persons with disabilities seeking to travel by air.

REASONABLE ACCOMMODATION AND EQUALITY WITHIN THE CONTEXT OF THE CRPD

The CRPD enshrines the principle of reasonable accommodation, defining it as a ‘necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’3. Thus, on the basis of the principle of reasonable accommodation, positive measures should be implemented in order to limit any systemic discrimination against persons with disabilities4. The duty to reasonably accommodate persons with disabilities applies to both State and non-State actors, specifically airlines for the purpose of this article. Airlines are, therefore, required to reasonably adjust and modify their services, policies and practices in order to ensure that any obstacles that impede the inclusion and use of air travel by persons with disabilities are addressed in order to ensure that there is substantive equality in accessing air travel.

Additionally, Article 5 of the CRPD explains the equality and non-discrimination context of reasonable accommodation. Article 5 mandates all State parties to ‘take all appropriate steps to ensure that reasonable accommodation is provided’ in order to ‘promote equality and eliminate discrimination’5. Reasonable accommodation, therefore, plays a pivotal role in bridging and unifying all human rights in order to advance equality of persons with disabilities6.

Perhaps it is useful for the context of this article to note that Article 2 of CRPD defines disability discrimination as:

‘any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation.’

It can thus be argued that the amalgamation of reasonable accommodation within non-discrimination in Article 2 of the CRPD mandates the realisation of fundamental civil and political rights to include positive measures in order to address ongoing systemic discrimination against persons with disabilities7. Additionally, the amalgamation of reasonable accommodation and equality creates an immediate obligation to reasonably accommodate persons with disability. As the obligation to reasonably accommodate the needs of persons with disabilities is an obligation within the general application section of the CRPD, the immediate obligation is, therefore, applicable to both civil and political rights, as well as economic, social and cultural rights. More importantly, within the context of all these rights, the failure to reasonably accommodate the needs of persons with disabilities amounts to unfair discrimination.

SUBSTANTIVE EQUALITY IN SOUTH AFRICA

The Constitution of the Republic of South Africa explains that equality includes the full and equal enjoyment of all rights and freedoms and, to promote equality, legislative and other measures may be put in place to protect and/or advance the rights of persons or groups of persons disadvantaged by unfair discrimination8. Equality is one of the democratic values9 of South Africa and its centrality as both a right and a value has been underscored by the numerous references to it in provisions of the Constitution and in many judgments of the Constitutional Court10.

The Constitutional Court in Bhe v Magistrate, Khayelitsha11 stated that the achievement of equality is one of the founding values of the Constitution and section 9 of the Constitution also guarantees equality ‘to ensure that the opportunity to enjoy the benefits of an egalitarian and non-sexist society is available to all, including those who have been subjected to unfair discrimination in the past. Thus section 9(3) of the Constitution prohibits unfair discrimination by the State “directly or indirectly against anyone” on grounds which include race, gender and sex.’12

Depending on the nature and extent of disability, special actions may have to be taken in order to ensure that the needs of persons with disabilities are taken into account and any barriers to their participation and inclusion in varying contexts are removed13. Further, in the context of enjoying equality within our differences and the ability to enjoy equality for those who are considered ‘different’ or ‘the other’, the Constitutional Court in the National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others14 states that:

‘The desire for equality is not a hope for the elimination of all differences. The experience of subordination – of personal subordination, above all – lies behind the vision of equality. To understand “the other” one must try, as far as is humanly possible, to place oneself in the position of “the other”. It is easy to say that everyone who is just like “us” is entitled to equality. Everyone finds it more difficult to say that those who are “different” from us in some way should have the same equality rights that we enjoy. Yet so soon as we say any … group is less deserving and unworthy of equal protection and benefit of the law all minorities and all of … society are demeaned. It is so deceptively simple and so devastatingly injurious to say that those who are handicapped or of a different race, or religion, or colour or sexual orientation are less worthy.’15

The South African equality jurisprudence draws a distinction between formal and substantive equality, with the latter being the preferred form of equality in South Africa. Substantive equality is aimed at ensuring equality of outcome and opportunity and can tolerate disparities in treatment of persons in order to achieve this aim16. Further, it has been argued that a purposive approach to the Constitution and the Bill of Rights mandates an understanding of the equality clause in section 9 that is grounded in the substantive understanding of equality17.

Moreover, the formulation of disability discrimination in the CRPD above is consistent with the understanding of differentiation and discrimination within the context of South Africa. The equality conceptualisation in South Africa makes a distinction between mere differentiation and differentiation on illegitimate grounds of differentiation as listed in the Constitution18. It is also important to note that, within this context, the Constitution does not prohibit discrimination; it prohibits unfair discrimination19. The Constitutional Court has stated that what makes discrimination unfair is the impact of the discrimination on those who are being differentiated20. It has been found that unfair discrimination ‘principally means treating people differently in a way which impairs their fundamental dignity as human beings, who are inherently equal in dignity.’21 Thus, the value of dignity in understanding unfair discrimination cannot be overlooked.

EVALUATING THE SACAA REGULATIONS WITHIN THE CONTEXT OF EQUALITY AND REASONABLE ACCOMMODATION

The Civil Aviation Act22 does not provide any information or guidance on the transportation of persons with disabilities by airlines. However, section 155 of the Civil Aviation Act enables the Minister of Transport to enact regulations on the implementation of the Civil Aviation Act. Accordingly, the SACAA Regulations were enacted23. Regulation 120.07.34 provides the legal framework on the carriage of persons with a disability and Regulation 120.07.35 provides the framework for the limitations of carriage of children and persons with disabilities.

Regulation 120.07.34 authorises an air service operator to establish procedures for carriage of passengers with disabilities24. For the purposes of this article, I have focused on the regulation that specifically focuses on passengers with mental disability. The SACAA states as follows:

A person with a mental disability shall not be carried in the aeroplane unless

a) he or she is accompanied by an able-bodied assistant; and
b) a medical certificate has been issued by a medical practitioner certifying that the person with the mental disability is suitable for carriage by air and confirming that there is no risk of violence from such person.25 [Emphasis added]

The language of the regulation above is very clear that without an able-bodied assistant and note from a medical practitioner stating that the intending passenger with a mental disability is not violent, he/she cannot travel by air. This is a blanket requirement for all passengers with disability, without any consideration of the person’s previous flying history, the nature and detail of their disability and history of any related violence, if any.

This section of the Regulation highlighted above not only amounts to unfair discrimination directly against persons with disabilities seeking to travel by air, it also unduly burdens persons with mental disabilities as it requires all persons with mental disabilities to have an able-bodied assistant fly with them all the time. The Regulation does not specify who pays for the costs of the additional ticket for the able-bodied assistant and who actually qualifies as an able-bodied assistant. From our work at the Legal Resources Centre (LRC), we have learnt that airlines generally require passengers with mental disabilities to pay for the able-bodied assistants; essentially every time a person with a mental disability has to fly they must buy two tickets, without exception. The requirement for an able-bodied assistant has, in practice, not been limited to only persons with mental disabilities, as the LRC has received complaints where persons with physical disabilities were not allowed to travel because they did not have an able-bodied assistant.

To understand the nature of the failure to reasonably accommodate, which amounts to unfair discrimination against persons with mental disabilities (physical included too in terms of the practice of the airlines), I have compared the SACAA Regulation to the European Union Interpretative Guidelines on the European Union Regulation (henceforth ‘the EU Regulation’) concerning the rights of disabled persons with reduced mobility when travelling by air26. This comparison should not be seen as endorsing the EU Regulation as the model standard for accommodation, but simply to provide a comparison on how persons with disabilities are understood and accommodated in air travel in a different jurisdiction.

The European Commission issued the European Commission Interpretative Guidelines as it found that disabled passengers continue to face several obstacles when travelling by air, especially unjustified restrictions based on unclear safety purposes27. The EU Interpretative Guideline emphasises that ‘the general rule is that disabled persons and persons with reduced mobility can travel alone as any other passenger.’28 The requirement of an able-bodied assistant is thus an exception to the general principle of non-discrimination, equality and inherent dignity that restrains air carriers from imposing special conditions on a disabled person seeking to travel by air. Thus, it is recognised that the requirement of an able-bodied assistant is discriminatory and must be applied only for safety reasons and in specific cases29. In the constitutional context, these exceptions must therefore be applied only in a manner that does not unfairly discriminate against persons with disabilities, i.e. must not treat persons with disabilities as if they are inherently unequal in dignity when compared to persons without mental disabilities and disabilities generally. The EU Interpretative Guideline also emphasises that, when an air carrier requires a passenger to be accompanied, it must motivate its decision and provide a clear explanation, quoting the relevant legislation30.

Indeed, the EU Interpretative Guidelines provide that the air carrier may require a disabled person to be accompanied only when the person is not self-reliant and could represent a risk to safety31. Additionally, the EU Interpretative Guidelines provide that carriers may ask questions related to safety rules to disabled persons seeking to travel by air in order to determine whether they need to travel with an able-bodied assistant or not32. It is therefore possible to identify such persons, instead of applying a blanket exclusion policy that fails to appropriately differentiate between different types and degrees of disabilities. Also, it is clearly stated that air carriers can only ask a passenger with mental disability to provide medical proof about his or her condition when there is reasonable doubt that the passenger can travel without assistance during the flight33. In addition, the EU Interpretative Guidelines address the issue of paying for two seats and state that the assistant’s seat should be offered by the air carrier for free or at a significantly lower rate34.

Thus, the nature of the disability and the degree of limitation of each person are taken into account by the EU Regulation when applying restrictions to disabled air travellers for the purpose of safety. On the contrary, the SACAA Regulation requirement of an able-bodied assistant, and a medical note that a passenger with a disability is not violent, is blanketly applied and fails to appropriately differentiate between varying and degrees of disabilities. By requiring every passenger with a mental disability to fly with an able-bodied assistant at their own cost, air carriers are carrying out a discriminatory demand on the basis of disability, which is contrary to the obligation to reasonably accommodate persons with disability in service provision. Given the unfair impact and undue burden this requirement places on persons with mental disabilities, it amounts to unfair discrimination in terms of section 9 of the Constitution of South Africa35.

More worryingly, the SACAA Regulations’ departure point is very different from the EU Regulations. The SACAA Regulations depart from an understanding of mental disability as a disability that incapacitates such individual from travelling alone and causes violent behaviour that will threaten the safety of passengers. This departure point provides important insight into how persons with mental disabilities are perceived and, given the wide application of this requirement, about how all persons with disabilities are perceived. By requiring a confirmation letter from a doctor stating that the person concerned is not violent, the SACAA Regulation assumes that all persons with mental disabilities are violent and therefore a threat to airlines and their passengers. This departure, when placed within the context of both the CRPD and Constitution of South Africa, fails to serve the transformative purpose of both instruments, as well as the reasonable accommodation requirement within the equality context.

To understand the nature of the failure to conform to the transformative purpose of reasonable accommodation and equality in CRPD and the Constitution, an example of the implementation of the SACAA Regulations is provided. Relying on this section of the Regulation, an airline operating in South Africa has drafted its own questionnaire in order to ‘assess whether the passenger qualifies to travel without a self-supplied able-bodied assistant’36. A medical practitioner is meant to complete Part C of the form, titled ‘Medical Assessment’. It is important to note that some of the questions addressed to the medical practitioner are problematic and can be considered as treating persons with disabilities as if their human rights are not important when travelling by air. For instance, question 1 of this questionnaire asks the following question: ‘Would the physical and/or mental condition of the patient be likely to cause distress or discomfort to other passengers?’37 Again, I refer to the EU Interpretative Guidelines to understand the extent to which comfort of other passengers may be taken into consideration when the needs of a person with a disability are being considered for air travel. The Guideline states that ‘comfort is not in itself sufficient grounds to deny carriage or require disabled persons and persons with reduced mobility to be accompanied.’38

The belief that mental disability is synonymous with violent behaviour is flawed and baseless. Indeed, there are some persons with mental disability who have been violent in some cases, but this is not the norm for all persons with mental disabilities. This belief is contrary to article 8 of the CRPD, which states that States should adopt appropriate measures in order ‘to raise awareness throughout society … regarding persons with disabilities, to foster respect for the rights and dignity of persons with disabilities’39 and ‘to combat stereotypes, prejudices and harmful practices relating to persons with disabilities…’40.

It is fair to argue that the extent of the failure to reasonably accommodate persons with mental disabilities by the SACAA Regulations can also be ascertained by how much the SACAA Regulation expects of the airlines in assisting persons with mental disabilities seeking to fly. Regulation 120.07.35 provides some insight on this as it states that:

‘(2) At least one able-bodied assistant shall be carried for every group of five passengers with a disability or unaccompanied minors, or a part or combination thereof, and such assistant shall be assigned with the responsibility for the safety of such passengers or minors: Provided that the passengers with a disability can assist themselves.
(3) In addition to the provisions of sub-regulation (2), for each one passenger with a disability who cannot assist himself or herself, an able-bodied assistant shall be assigned to solely assist such passenger.’

There are a number of shortcomings with these provisions that ultimately leaves the airline without any positive or negative obligations. It is unclear whether the able-bodied assistant for persons with disabilities envisaged in both scenarios above is at the expense of the airline or the passengers involved. As already stated, the LRC has received a number of complaints where persons with mental and other disabilities are required to fly with an attendant at all times at their own cost. The implications of this have already been discussed. Additionally, the qualification of ‘can(not) assist themselves’ is not defined in either the Act or the SACAA Regulations, leaving the airlines to decide what this term entails for disabled persons in their policies.

This falls short in the realm of reasonable accommodation when compared to the EU Guidelines. Article 11 of the EU Regulation states that air carriers and airport employees must be trained to meet the needs of persons with disabilities. The EU Regulation clearly provides that ‘in order to give disabled persons opportunities for air travel comparable to those of other citizens, assistance to meet their particular needs should be provided at the airport, as well as on board aircraft, by employing the necessary staff and equipment’41.

CONCLUSION

It is submitted that the rights of persons with disabilities and safety requirements/concerns could be reconciled in a more accommodating manner that will enable persons with mental disabilities and disabilities generally to fly without undue burden in South Africa. By making the requirement of an able-bodied assistant a general rule, instead of an exception, the SACAA Regulation is unfairly discriminating against disabled persons, consequently failing to reasonably accommodate the needs of persons with disabilities seeking to fly. Equally important is the additional context in which disability is understood, i.e. that all persons with mental disabilities are violent in nature, which at all time places the safety of the airlines, the employees and passengers in danger. As argued in the article, this unfairly impacts on the equal worth and dignity of persons with disabilities seeking to travel.

‘Undoubtedly, denial of the equality and human dignity of people with disabilities is a palpable, deep-seated injustice. It should not be allowed to persist unchallenged, including in the African region. In the age of human rights, ‘rights’ are an essential currency for challenging the pervasive denial of the equal citizenship of people with disabilities across the whole gamut of our socioeconomic sectors.’42

The airlines operating in South Africa, therefore, ought to do more and do better to reasonably accommodate persons with disabilities seeking to travel by air, with the result that they will comply with their constitutional obligations.


 

  1. Lord, Janet and Brown ‘The Role of Reasonable Accommodation in Securing Substantive Equality for Persons with Disabilities: The UN Convention on the Rights of Persons with Disabilities’ (2010), available at SSRN: http://dx.doi.org/10.2139/ssrn.1618903
  2. Ibid
  3. 2007 UN Convention on the Rights of Persons with Disabilities, Definitions
  4. Lord et al supra note 1 page 4
  5. Article 5 (3) of 2007 UN Convention on the Rights of the Persons with Disabilities
  6. Lord et al supra note 1 page 4
  7. Lord et al supra note 1 page 5
  8. Section 9(2) of the Constitution of the Republic South Africa
  9. Sections 1 and 7 of the Constitution of the Republic South Africa
  10. Sections 1, 3, 7, 8, 9, 36 and 39 of the Constitution of the Republic of South Africa. See also Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC); 1997 (6) BCLR 759 (CC) at para 20; Harksen v Lane NO and Others 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC) at paras 41–53; National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999(1) SA 6 (CC); 1998 (12) BCLR 1517 (CC) at para 17; National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC) at para 32
  11. 2005 (1) BCLR 1 (CC)
  12. Ibid para 50
  13. Currie and De Waal The Bill of Rights Handbook (2015) Juta, pages 234–235
  14. 998 (12) BCLR 1517
  15. Ibid para 22
  16. Currie and De Waal The Bill of Rights Handbook (2015) Juta, page 213
  17. Ibid at page 214
  18. Section 9(3) of the Constitution of the Republic of South Africa. Currie and De Waal The Bill of Rights Handbook (2015) Juta, page 213
  19. Ibid page 223
  20. Harksen (note 10) paras 50–51
  21. Prinsloo (note 10) para 31
  22. Act 13 of 2009
  23. Applicable Regulations: GNR.425 of 1 June 2012: Civil Aviation Regulations, 2011, available at http://209.203.9.244/LexisNexis/Lnb.asp (Government Gazette No. 35398)
  24. Regulation 120.07.34(1)
  25. Regulation 120.07.34(4)
  26. Regulation (EC) No 1107/2006 of the European Parliament and the Council of 5 July 2006
  27. European Commission Press release: http://europa.eu/rapid/press-release_IP-12-602_en.htm
  28. EU Interpretative Guidelines, page 8
  29. EU Interpretative Guidelines, page 8
  30. Article 4(4) of the Regulation
  31. EU Interpretative Guidelines, page 8
  32. EU Interpretative Guidelines, page 8
  33. EU Interpretative Guidelines, page 4
  34. EU Interpretative Guidelines, page 8
  35. 1996 Constitution of the Republic of South Africa
  36. See COMAIR Questionnaire at www.ba.com
  37. Ibid
  38. Interpretative Guidelines, page 4
  39. 2007 UN Convention on the Rights of Persons with Disabilities, article 8(b)
  40. 2007 UN Convention on the Rights of Persons with Disabilities, article 8(a)
  41. Recital (4) of the EU Regulation
  42. Changing the landscape: Core Curriculum on Disability Rights for Undergraduate Law Students in Africa (2015) PULP, page 3