BLINDSA litigation to improve access to learning materials for pupils who are blind or visually impaired

Faranaaz Veriava is the head of the education rights programme and Demichelle Petherbridge is an education rights attorney at SECTION27.  

SECTION27 has a history of advocacy and litigation aimed at improving access to education materials, given the acknowledged primacy of education materials in realising the right to education and, ultimately, in enabling each person to live according to her or his potential. 

In 2017, for example, SECTION27 represented the South African National Council for the Blind in an application requiring that the Department of Basic Education (DBE) deliver Braille textbooks to all learners that are required to learn in Braille.  The DBE did not oppose the case and the settlement agreement was made an order of the court.

Within the context of South Africa’s commitment to inclusive education as set out in the 2001 White Paper on Inclusive Education, the BlindSA case now seeks to ensure that persons who are blind and visually impaired will no longer be excluded from having access to accessibly formatted educational materials.

The limited availability of reading material in accessibly formatted materials for persons who are blind and visually impaired is not only tragic, but an often understated crisis, which has led to a “book famine” in South Africa. While some better-resourced schools are sometimes able to afford textbooks for pupils who are blind and visually impaired, many schools still struggle to acquire all the books needed for each grade, due to their high costs. For example, the conversion of one Grade 4 textbook can cost about R600.

However, as one teacher in BlindSA’s case stated: “Learning is not only about textbooks; it is much broader. A learner should be able to do research by himself or herself, gather information from many sources, and use it effectively.” Pupils should therefore also be able to access educational materials beyond prescribed reading, and should have the same opportunities to research and discover as pupils who are not blind or visually impaired.

The lack of sufficient educational materials also contributes towards the country’s low literacy rates. According to the most recent 2016 Progress in International Reading Literacy Study (PIRLS) data, 78% of South African Grade 4 children did not reach the Low International Benchmark for reading. This is in stark contrast to the other participating countries. While the majority of PIRLS participants are high-income countries, South Africa still has a much higher percentage of non-readers (78%) than in comparable countries like Morocco (64%), Iran (35%) and Chile (13%). South Africa therefore requires urgent interventions that must improve literacy rates. 

Recognising this, various events were held around South Africa on 6 September 2021 to commemorate World Literacy Day. One such event was the launch of the South African Human Rights Commission’s (SAHRC) Report on the Right to Read and Write. The report establishes a minimum standard for literacy which is that a child must be able to read and write with understanding at a basic level, in their home language, by the age of 10.  

The report further establishes the PIRLS conceptual framework as the tool for assessing reading competence and sets the PIRLS Low International Benchmark as the evidence-based “threshold” for whether the minimum core standard has been reached when a pupil is 10 years old.

In keeping with the commitment to inclusive education, the report notes the following in respect of disabled persons:

“Currently, people with a disability have lower literacy rates than people without disabilities (Unesco, 2018) and it is important to ensure that the Right to Read and Write is also realised by learners with disabilities.” The report therefore notes that this “requires providing adjustments and accommodations to enable learners to participate ‘on an equal basis with others’”.

The report also highlights South Africa’s constitutional obligations and its responsibilities under international law in respect of pupils with disabilities.

South Africa ratified the Convention on the Rights of Persons with Disabilities (CRPD) and its Optional Protocol without reservation in 2007. The government is therefore obliged to respect and implement the rights of persons with disabilities as set out in the CRPD. Article 24, in particular, sets out state party obligations in respect of the right to education for persons with disabilities. It provides for persons with disabilities to live to their full potential and to participate effectively in society.

Article 24(2) requires that states parties ensure that “[p]ersons with disabilities receive the support required, within the general education system, to facilitate their effective education”. 

Article 24(3) deals with the taking of appropriate measures to “enable persons with disabilities to learn life and social development skills to facilitate their full and equal participation in education and as members of the community. To this end, state parties shall take appropriate measures”. Among other things, this includes “[f]acilitating the learning of Braille, alternative script, augmentative and alternative modes, means and formats of communication and orientation and mobility skills, and facilitating peer support and mentoring”.

The report also highlights that section 9 of the Constitution prohibits discrimination on the grounds of disability. It further recognises the rights of pupils with disabilities to dignity and to an education. It specifically notes the judgment in the case of Minister of Basic Education v Basic Education for All (BEFA) that held that in terms of the right to an education, which is enshrined in section 29(1)(a) of the Constitution, every pupil is entitled to a textbook in every subject at the commencement of the academic year.

Finally, the report notes that the obligations in terms of international law and the Constitution “require that the principle established in the BEFA case extend to learners with visual and other print disabilities to ensure that a textbook be provided in every subject by being translated into Braille or other accessible formats for learners with visual and other print disabilities”.

The BEFA judgment is the culmination of litigation initiated by SECTION27 in 2012, in a matter that became widely referred to as the “Limpopo textbook saga”. In this case,  the Limpopo department of education failed to deliver textbooks in the province, and the litigation was supported by evidence-based data on the role of textbooks in the improvement of educational outcomes.

For example, in the Southern and Eastern African Consortium for Monitoring Educational Quality (SACMEQ) III study, textbooks are classified as an “essential classroom resource” on the basis that effective teaching and learning cannot take place without them. They provide a minimum standard of educational environment to which all pupils are entitled. The study found that in 2007 the average South African Grade 6 pupil was in a school where only 45% of pupils had reading books and 36.4% had mathematics textbooks. This was significantly lower than our neighbouring states which have better educational outcomes in both literacy and numeracy. In considering the impact of textbook availability on performance, analyst and education researcher Nic Spaull, in his analysis of the SACMEQ study, notes that pupils with their own reading textbooks perform significantly better than those who have to share their textbooks with more than one other pupil.

For the blind or visually impaired, insufficient educational materials is often a reality. Without an exemption from obtaining permission from the copyright holder to convert educational materials into accessible formats, people with disabilities struggle to access these materials. This is because obtaining permission from the copyright holder can take an unreasonably long time; permission to convert such works may be refused without a valid reason; and requests to convert the works to accessible formats can, and often are, ignored. If an individual chooses to convert a book without the copyright holder’s permission, they are liable to a fine and even imprisonment. BlindSA argues that the copyright requirement therefore discriminates against persons with disabilities.

Given South Africa’s stated commitment to inclusive education, its obligations under international law and the Constitution in respect of disabled persons, and the established jurisprudence on textbooks as a core component of the right to education, it makes no sense that an antiquated apartheid law continues to deny persons with disabilities access to books.  There is also the urgent imperative to boost literacy rates in this country.  It is only fair and just that South Africa do what many countries around the world are doing in providing copyright rights exemptions for persons with disabilities. DM/MC