Tuesday, 3 January 2017

The ADHD child and the law, in the South African classroom. #ADD #Hyperactivity

Article by Marc Evan Aupiais (Attorney-at-Law)

Knowledge is a fickle spotlight. It opens the young, eager and ready human mind to the complex world, and enables a person of little sophistication to perform the vast feats of society's wise and ancient giants. By it, much is gained. By a lack of it - in a refined, ready to absorb, usable form - a poverty of potential menaces to escape and wreak terrible havoc upon the futures of those it sadly abandons.

Yet, even as education is the foundation of granite upon which our nation competes, today's education system is hardly a skeleton key. It is not always the foundational upliftment of every mind it so benevolently aims to empower. Due to forces beyond the control of their young, eager minds, many a child is terribly denied the sharp cutting edge of a refined scientific, linguistic and mathematically sound world view. Many children struggle to make sense of sentences and life giving lessons, amidst the echoes and mere wisps of the well meaning words which often occupy a classroom. For some disadvantaged souls, the classical method of education feels like tight restraints, tying them up and holding them back from actual learning. The sounds about them distract and pull attention as though they were the screech of nails upon a chalk board, as noise and light distract with the sort of diverting siren pull which the modern mind might only associate with ancestral figures witnessing the battle cries of mythical, or primeval creatures... the sort of seemingly dangerous distractions which, in ancient times, were thought to be conquered by heros of wit and learning.

Most schools will create ramps for the physically disadvantaged, and account for the diverse cultures and religions their pupils hold dear. Many also heed the government's herald call to adapt to the needs of a variety of different but equally dignified minds.

An education system created so many centuries ago, however, does not - and in fact can not - account for the needs of many a modern child. One such group of exceptions, often left in the shadows as their fellow students' learning styles are quickly accounted for, are children who suffer from the brain difference colloquially referred to as hyperactivity. It is these particular children, and how the law relates to their rights, and their needs, that I have chosen to write about in this instance.


Specifically, I will look into the topic of the rights of ADHD children in the classroom, in more general terms. Specific structures at various schools are likely unique. The legal advice of a well briefed attorney in a specific matter will be of use to a parent in a specific matter. I have provided details on how this may be procured by people of various income levels, which I have spoken of below where I set out the general legal framework. I have also quoted from and referred to parts of Law of South Africa (LAWSA), a legal encyclopaedia published by LexisNexis.

Language Used

While in medical circles, politically correct language, such as referring to children as differently abled, and so forth exists, the rights of children and adults who are differently abled, come from the rights of the disabled, namely the rights to equality and to dignity. A parent of an ADHD child may not view their child as having a disability, and in particular a learning disability, but this is where their rights emerge from.

The Law in general: a balancing of rights, interests, and reasonable measures

It is important to make note of the fact that rights relating to the disabled, often take the form of positive rights rather than the prohibitions of negative rights. When dealing with positive rights, matters become less absolute. Reasonable attempts to accommodate the disabled are required in order that they may not be discriminated against, however there is not an absolute obligation to accommodate all forms of disability all of the time.

ADHD (Attention Deficit Hyperactivity Disorder), is a medical condition. It tends to relate to a deficit in relation to attention, and can manifest in sometimes disruptive hyperactive behaviour. Due to the nature of the condition, children with ADHD often struggle in an ordinary school environment. There are methods for dealing with the issue, and educational campuses such as that at Wits, do teach educators how to deal with a diverse classroom. While the rights of the child are paramount, reasonability of measures to accommodate ADHD children, and the balancing of their and other students’ and schools’ rights must be entered into when dealing with the needs of an ADHD child.

Public Schools versus Private Schools' obligations

A robust system to deal with children with disabilities exists in government public education, and in the special schools’ system run by the state. More general legislation dealing with discrimination applies to private schools, which can be attended at a parent or guardian’s own cost, and should have comparable or better education standards than public schools, but which are less affected by legislative cover which places a higher burden on public schools to deal with children with disabilities.

The Constitution and the United Nations

The Constitution of the Republic of South Africa, 1996, in the equality clause of the bill of rights, forbids unjust discrimination against people with disability. Discrimination, directly or indirectly by the state or any person against the disabled is automatically presumed to be unfair. It is thus up to the perpetrator of such discrimination to prove that their actions are justified. The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), to which South Africa is a signatory, sets out rights to education and health, and ‘an adequate standard of living and social protection, including public housing, services and assistance for disability-related needs, as well as assistance with disability-related expenses in case of poverty’ (LAWSA).

Legislative Framework

However, it is in the form of legislation rather than that of the Constitution and treaty based rights, that rights are generally enforced. The Promotion of Equality and Prevention of Unfair Discrimination Act forbids discrimination against the disabled among others. Forms of discrimination include: ‘failing to eliminate obstacles that unfairly limit or restrict persons with disabilities from enjoying equal opportunities or failing to take steps to reasonably accommodate the needs of such persons’ (LAWSA). Note the standard of reasonableness, it is not an absolute command to accommodate.

According to LAWSA:

'282 General Although South Africa does not presently have a centralised piece of legislation (unlike the position in countries such as the United States of America and the United Kingdom) dealing with issues of disability, various other statutes make reference to matters of relevance to people with disabilities. For example:


'The Mental Health Care Act1 provides for children who have severe or profound intellectual disabilities.


'The Children’s Act2 brings South African child care and protection legislation for disabled children in line with the United Nations Convention on the Rights of the Child and the United Nations Convention on the Rights of Persons with Disabilities, 2006. The Act states, for example, that in any matter concerning a child with a disability, consideration must be given to enabling the child’s participation and providing the child with conditions that ensure dignity, promote self-reliance and facilitate active participation in the community.


'The Preferential Procurement Policy Framework Act3 requires institutions (organs of state) to determine their preferential procurement policy and to implement it within the framework provided by the Act. The Act requires that a preference point system must be followed for certain contracts, and provides examples of specific goals that may be set in matters involving procurement, including contracting with persons, or categories of persons, historically disadvantaged by unfair discrimination on the basis of race, gender or disability.


'The Local Government Municipal Systems Act4 outlines mechanisms, processes and procedures for community participation, taking into account the special needs of disadvantaged groups, among them people with disabilities.'

Public Schools' Obligations and Special Schools

In accordance with the Public Schools Act, public schools are required to admit students and to meet their educational needs, and to not discriminate as they do so.

According to LAWSA:


'92 Classification The broad classification of schools in terms of the South African Schools Act1 is into public schools and independent schools.2 However, the need for making provision for learners with special education needs is recognised in broad terms in the national legislation.3 In the provincial legislation specific classification of schools is still made to a greater or lesser degree. While the provincial Acts reaffirm the general principle as laid down in the South African Schools Act that every public school should attempt to accommodate the needs of any learner who attends such school, they all contain specific provision with regard to learners with special education needs.4

'Some provincial Acts make provision for age requirements5 and determine the steps to be taken regarding admission of a child with special learning needs to a special school, at the request of a parent.6 Provision is also made for assessment by the principal or head of department and placement of such child at a special school after informing the parent.7'


'86 Membership of governing bodies The South African Schools Act1 provides for the membership of governing bodies for both ordinary public schools and for public schools for learners with special education needs. With regard to the former, the governing body comprises elected members, the principal in his or her official capacity and co-opted members.2 The latter do not have voting rights3 and are members of the community, co-opted to assist the governing body in discharging its functions.4 The elected members must come from the parents of learners, from educators as well as staff members who are not educators and from learners in grade eight or higher at the school.5 The latter must have been elected by the representative council of learners.6 Where the school is an ordinary public school that provides education to learners with special needs, the governing body must co-opt a person with expertise regarding these needs if this is practically possible.7 With regard to the number of elected members and the categories of persons they represent, the respective MEC responsible for education in the province must determine a formula to be published by notice in the Provincial Gazette which provides for a reasonable representation for each category and which would be applicable to the different sizes and circumstances of public schools.8 However, the number of parent members must comprise one more than the combined total of the other members with voting rights.9

'In a public school for learners with special education needs the governing body must comprise not only the categories of persons already mentioned, but in addition experts in appropriate fields of special needs education. If applicable, the disabled persons and representatives of organisations for the disabled, of the parents of learners with special needs and of sponsoring bodies must also be represented on the governing body.10'


Classing ADHD as a disability, reasonable efforts should be made to accommodate children who display this different form of learning ability. However, reasonableness calls into account a balancing of rights and duties.

Enforcing A Child's Rights

It is advisable that parents or guardians of ADHD children attempt to work together with education providers in order to attend to the needs of their children, and that they seek out schools and educators who have a preparedness to assist in the growth and development of their child, with mind given to that student's different form of learning ability. Persuasion can be a powerful tool and allows a soft touch approach in relation to the rights of a child with ADHD. This, however, is not always possible, and sometimes the assistance of a legal professional is required.

Procuring Legal Advice

Please be aware that the afore stated look into the topic of the rights of ADHD children in the classroom, does not constitute legal advice. Please consult your lawyer in relation to your individual legal needs. Please be aware also that the Law Society of the Northern Provinces provides an hour free consultation with an attorney they choose, in order to determine if you have a case in a matter. Please further be aware of Legal Aid’s 'toll free' legal advice phone line: 0800 110 110. In Gauteng, registered law firms taking cases for profit may be found for each area at the link: https://northernlaw.privyseal.com/find-an-attorney . Legal Aid may be contacted at their website, here: http://www.legal-aid.co.za/ .


I was very much pleased to read the information LAWSA has on the following topics, while I was researching this broad outline:

- LAWSA on schools
- LAWSA on disability
- LAWSA on Children and Family

No, people really don't need to warn you, to record your phone or personal conversations with them...

Article by Marc Evan Aupiais (Attorney-at-law)

This might be a eureka moment for some, but covertly recording your own telephone conversations, or your in person ones for that matter, is not unlawful in South Africa.

The flip side is also true: if you don't trust someone not to record your conversations with them, don't say anything orally that you wouldn't want splashed across the front page of a newspaper, in writing.

Like the private Facebook message a certain now infamous High Court judge wrote several years ago, which someone unearthed when they saw an opportunity to promote their social media company, your personal conversations can come back to bite you ages after you forgot you even had them. Audio recordings of personal, private, oral conversations, have also, in the past, been used at court.

Those recorded warnings that you get when calling certain companies are done out of politeness, or otherwise due to it being the company, not the individual making the recordings.

In fact, telephone voice recordings are often enough 'discovered' (declared as evidence to be used) in litigation and are used in court, against unsuspecting members of companies or the general public. Some companies specialise in such a practise and make phone calls prior to litigation, in order to use the contents of the calls against the unsuspecting targets of their work. If what you say later on the witness stand contradicts what you said on the telephone, they might claim that you are unreliable, or changed your story.

While RICA bans third party monitoring outside specific ambits, it does allow a person who is not an officer of the law to record and allow others to listen in on their own conversations (those in which they are one of the parties). The Act also allows for recordings to be made of speech made generally to multiple persons, when the recording individual is within natural hearing range, such as where a person is party to a meeting in the board room.

What I am referring to is sections 4 (1) and 5 (1) of the Act, namely:

'(1) Any person, other than a law enforcement officer, may intercept any communication if he or she is a party to the communication, unless such communication is intercepted by such person for purposes of committing an offence.'

'(1) Any person, other than a law enforcement officer, may intercept any communication if one of the parties to the communication has given prior consent in writing to such interception, unless such communication is intercepted by such person for purposes of committing an offence.'

Other provisions of the act deal with when law enforcement officers may make recordings, but that is not the ambit of this article.

So, firstly, what does intercept mean in terms of the act?

In terms of section 1:

'“intercept” means the aural or other acquisition of the contents of any communication through the use of any means, including an interception device, so as to make some or all of the contents of a communication available to a person other than the sender or recipient or intended recipient of that communication, and includes the –
(a) monitoring of any such communication by means of a monitoring device;
(b) viewing, examination or inspection of the contents of any indirect communication; and
(c) diversion of any indirect communication from its intended destination to any other destination,
and “interception” has a corresponding meaning;'

'“monitor” includes to listen to or record communications by means of a monitoring device, and “monitoring” has a corresponding meaning;'

'“monitoring device” means any electronic, mechanical or other instrument, device, equipment or apparatus which is used or can be used, whether by itself or in combination with any other instrument, device, equipment or apparatus, to listen to or record any communication;'

'“indirect communication” means the transfer of information, including a message or any part of a message, whether –
(a) in the form of –
(i) speech, music or other sounds;
(ii) data;
(iii) text;
(iv) visual images, whether animated or not;
(v) signals; or
(vi) radio frequency spectrum; or
(b) in any other form or in any combination of forms,
that is transmitted in whole or in part by means of a postal service or a telecommunication system;'

'“direct communication” means an –
(a) oral communication, other than an indirect communication, between two or more persons which occurs in the immediate presence of all the persons participating in that communication; or
(b) utterance by a person who is participating in an indirect communication, if the utterance is audible to another person who, at the time that the indirect communication occurs, is in the immediate presence of the person participating in the indirect communication;'

That leaves need for the definition of a party to the communication, also in terms of section 1, that would be:

'“party to the communication”, for purposes of –
(a) section 4, means, in the case of –
(i) a direct communication, any person –
(aa) participating in such direct communication or to whom such direct communication is directed; or
(bb) in whose immediate presence such direct communication occurs and is audible to the person concerned, regardless of whether or not the direct communication is specifically directed to him or her; or
(ii) an indirect communication –
(aa) the sender or the recipient or intended recipient of such indirect communication;
(bb) if it is intended by the sender of an indirect communication that such indirect communication be received by more than one person, any of those recipients; or
(cc) any other person who, at the time of the occurrence of the indirect communication, is in the immediate presence of the sender or the recipient or intended recipient of that indirect communication; and
(b) section 5, means, in the case of –
(i) a direct communication, any person participating in such direct communication or to whom such direct communication is directed; or
(ii) an indirect communication –
(aa) the sender or the recipient or intended recipient of such indirect communication; or
(bb) if it is intended by the sender of an indirect communication that such indirect communication be received by more than one person, any of those recipients;'



This article does not constitute legal advice. For legal advice, consult your attorney, with all the facts of your matter, in person, and within the context in which such advice is to be deemed reliable and applicable to your circumstances. This article, while based on research of the law, is published purely for topic interest purposes, and cannot replace the advice of a properly briefed legal practitioner.

Friday, 28 October 2016

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