Sooner or later, most people will need a lawyer to help them navigate the legal system – be it to draft or review a contract or a will, to handle a divorce or a traffic offence, or for legal representation in court. This is even more true for persons with disabilities globally, as they typically face systemic exclusion and marginalisation that inhibit their equal participation in all major sectors of society, including the justice sector (Kim, Skinner & Parish 2020). Persons with disabilities face an elevated risk of encountering different forms of violence and abuse compared to their peers without disability (World Health Organization & World Bank 2011). A recent meta-analysis that reported on 68 studies representing 12 427 participants showed that individuals with disabilities face a notably increased risk of sexual victimisation compared to their counterparts without disabilities (odd ratio = 2.27). Moreover, sensory impairment (i.e. visual and hearing impairment) was the type of disability associated with the highest risk of sexual victimisation (Mailhot Amborski et al. 2021). This meta-analysis also showed that individuals with disabilities in African countries face significantly greater odds of sexual victimisation compared to those in all other countries.

Communication disability increases the risk of violence and abuse (Badcock & Sakellariou 2022; Larson et al. 2023; Marshall & Barrett 2018). Persons with communication disabilities have limited communication skills and cannot rely solely on speech to meet their communication needs (White et al. 2020). For some individuals, understanding language (receptive language) may be affected and for others, only the ability to express themselves verbally is affected. Persons with communication disabilities may also have various coexisting disabilities, such as intellectual, physical, sensory or multiple disabilities (Bornman 2017). Additionally, the communication disability can be present from birth or acquired later in life, for example, through a stroke. These individuals can be of any age, gender or social background. Their vulnerability to violence and abuse is heightened because communication barriers may hinder their ability to disclose and report violence and abuse (Marshall & Barrett 2018; Saxton et al. 2001).

In some cases, misinterpretation may occur when individuals lack comprehension of (sexual) assault or are unable to articulate refusal, leading to a potentially erroneous perception of consent (Benedet & Grant 2007). The intersectionality of communication disability, sexual or gender-based violence and poverty arguably make these victims some of life’s most vulnerable persons (Atewologun, 2018; De Beco 2017; Ortoleva & Lewis 2012), making it necessary for them to participate in the justice system, preferably with the assistance of a lawyer.

Crucially, research also indicates that without the right accommodations, persons with communication disabilities can struggle to participate effectively in the justice system (White & Msipa 2018). Effective communication, particularly verbal communication, is crucial in reporting human rights violations, seeking assistance and accessing legal, medical and psychosocial support (White et al. 2021). However, persons with communication disabilities may, for example, find it difficult to express themselves through speech, understand what others are saying and concentrate for long periods. Persons with communication disabilities are often denied access to fair and equal treatment in the justice system because of the numerous barriers they experience, including being discredited, stigma, being perceived as vulnerable, encountering a lack of understanding from service providers and diminished capacity to report (Marshall & Barrett 2018).

Consequently, women with communication disabilities not only have an increased risk of experiencing sexual and gender-based violence, but they also run a higher risk of receiving inappropriate responses to it (Ortoleva & Lewis 2012; World Bank 2012). A vast amount of research already exists on the nature of accommodations that may be provided to ensure that persons with communication disabilities participate effectively in the justice system. However, these accommodations can only be of practical benefit to persons with communication disabilities if the lawyers working in the justice system as prosecutors, defence counsels and magistrates are aware of them and ensure their provision. Thus, this article aims to examine how much final-year law students – who represent the next generation of lawyers – know about court accommodations for individuals with communication disabilities.

The right to access justice is a human right enshrined in international human rights law. At a global level, Article 13 of the Convention on the Rights of Persons with Disabilities (CRPD) provides for the right to access justice, making it the first global human rights instrument to expressly provide for a substantive right to access justice (United Nations 2006). At a regional level, the right to access justice is enshrined in Article 13 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa (African Union 2018). South Africa has ratified both the CRPD (30 November 2007) and the African Disability Protocol (01 February 2023) indicating its willingness to uphold and be bound by the norms and standards set out in these instruments, including the right to access justice. It should be noted, however, that there is no standard definition for the term ‘access to justice’ (Nkhata 2022). Nevertheless, the meaning of access to justice can be gleaned from these instruments and from literature.

Although the CRPD and the African Disability Protocol do not define access to justice per se, they conceptualise access as a broad concept that includes social, intellectual, communicative, institutional, physical and economic accessibility while considering the diversity within disability. Access to justice, therefore, includes access to facilities and access to services, systems and procedures. The term ‘justice’ encompasses the concepts of substantive, procedural and symbolic justice. Substantive justice deals primarily with citizens and the Government. In other words, it entails an assessment of the available claims or options citizens might have if they feel that their human rights have been violated because of discrimination rooted in their disability, resulting in, for example reduced employment or education opportunities (Raj 2023). Procedural justice centres on the opportunities and barriers individuals encounter when bringing their claims to institutions of justice such as the police and the courts. Barriers include physical, structural (legal process), communicative and/or language barriers, obstacles related to information and advice, high costs, uncertainties regarding outcomes and the inadequacy of court or tribunal settings (Flynn 2016). Symbolic justice, the third component, emphasises how a specific legal system fosters a sense of belonging and empowerment among citizens. All three components of justice (namely substantive, procedural and symbolic justice) are essential and must be present to uphold the right to access justice.

However, the focus of this article is on procedural justice as this is most pertinent for effective participation by persons with communication disabilities in the justice system. Article 13(1) of the CRPD and Article 13(1) of the African Disability Protocol specifically require the provision of accommodations to ensure that persons with disabilities have equal access to justice. Indeed, the provision of accommodations is one sure way of affording procedural justice to persons with communication disabilities.

Examples of accommodations that may be provided to persons with communication disabilities can be found in the CRPD, which perceives ‘communication’ as a concept that is broader than spoken language. According to Article 2 of the CRPD, communication includes (United Nations 2006):

Therefore, if crime victims with a communication disability wish to report the incident and file charges against the alleged offender at a police station, accommodations should be put in place to ensure their effective participation. If they are denied accommodations and clear and effective communication with the police officer is not possible or if information is presented in a format that is inaccessible to the individual, then they will have been denied the right to access justice. Ultimately, they would have been discriminated against based on disability, as the denial of reasonable accommodations constitutes disability discrimination (CRPD, Article 2; African Disability Protocol, Article 1).

Moreover, because human rights are inseparable, interdependent and interconnected, the denial of access to justice also results in the denial of other human rights and fundamental freedoms (Ortoleva 2011). For example, the right to equality and non-discrimination and the right to freedom from exploitation, violence and abuse may also be violated because of a denial of the right to access justice (CRPD, Articles 5 and 16).

South Africa has not yet domesticated the CRPD and the African Disability Protocol through the enactment of disability-specific legislation despite having ratified both instruments. Nevertheless, there are provisions in South African law that can be used to protect the right of persons with communication disabilities to access justice on an equal basis with others.

The Constitution of the Republic of South Africa (1996) upholds the right to equality before the law (section 9[1]) and prohibits discrimination on various grounds including disability in section 9(3). The prohibition of disability discrimination applies to all sectors, including the justice sector, providing a basis for overcoming barriers to accessing justice through the provision of reasonable accommodations.

Moreover, the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA, 2000) prohibits discrimination based on disability, which includes denial or removal of any supporting or enabling facility (section 9a), and the failure to eliminate obstacles and to reasonably accommodate (section 9[c]). Promotion of Equality and Prevention of Unfair Discrimination Act can therefore also be used as a basis for providing accommodations in the justice system. However, the Constitution and PEPUDA do not state the exact provisions that can be provided to persons with communication disabilities.

Recent legal reforms are useful for bridging this gap. For example, in the past, witnesses in the South African justice system were typically expected to participate by giving oral testimony (i.e. ‘viva voce’) in open court (Bekker 1994). As a result of the difficulties that persons with communication disabilities have with verbal communication, their participation in legal matters was restricted. Fortunately, South African lawmakers demonstrated their commitment to correcting this violation of human rights through section 7 of the Criminal and Related Matters (Amendment) Act 12 of 2021, which now allows any form of communication to be considered ‘viva voce’ should the person have disabilities that render them unable to speak. Hence, this legislation closely aligns with the CRPD, which directs State Parties, including South Africa, to establish suitable mechanisms for supporting individuals in exercising their rights. This involves facilitating their effective participation in court through the provision of appropriate accommodations (White 2021; White et al. 2020; White et al. 2021).

Furthermore, the Criminal and Related Matters (Amendment) Act amends section 170A of the Criminal Procedure Act to allow witnesses with physical, psychological or mental disabilities to testify through an intermediary, not just witnesses below the age of 18 years as was the case before. Extending the use of intermediaries (communication facilitators) to persons with these disabilities may also benefit persons with communication disabilities. The 2021 Amendment Act also provides for the use of intermediaries in proceedings other than criminal proceedings, thereby extending the accommodation of testifying with communication facilitation through an intermediary to other proceedings including civil and administrative proceedings. Cumulatively, these international and domestic instruments provide a legal basis for the provision of accommodations to persons with communication disabilities in South Africa.

This article relies on two conceptual frameworks for the provision of accommodations for the purposes of upholding the right of persons with communication disabilities to access justice. Firstly, the social model of disability informs the provision of accommodations by acknowledging that what prevents persons with communication disabilities from participating effectively in the justice system is not the impairment alone, but the interaction between impairment and environmental and attitudinal barriers (Msipa 2021). Therefore, to guarantee equal access to justice, it is crucial to offer accommodations to people with communication disabilities that address their specific needs (e.g. requesting frequent breaks; allowing communication systems) while also addressing environmental barriers (e.g. adjusting the lighting in court; considering the placement of communication system when providing testimony) as well as confronting attitudinal barriers (e.g. misconceptions about the ability of persons with communication disabilities to testify; use of intermediaries to rephrase questions). Secondly, the article emphasises the fact that the provision of accommodations is a right to which all persons with communication disabilities are entitled, not a privilege. South Africa, therefore, through its justice system, has a duty to uphold this right in court for all persons with communication disabilities. This position is informed by the human rights model of disability, which recognises the diversity of humanity and perceives disability as part of that human diversity. The human rights model emphasises the humanity of persons with disabilities and reiterates their entitlement to all human rights and fundamental freedoms based on that humanity. Therefore, it comes as no surprise that by employing a rights-based approach to disability, there has been a consistent global rise in awareness of disability rights and the eradication of discrimination based on disability over the last two decades. This trend was galvanised when the United Nations General Assembly adopted the CRPD and its Optional Protocol on 13 December 2006, which subsequently became the most rapidly negotiated human rights treaty to date (Watson et al. 2022).

Accommodations are the best means of guaranteeing access to justice, and all persons with disabilities have the right to receive them. Therefore, this study aimed to explore the awareness of final-year law students concerning court accommodations available for individuals with communication disabilities, allowing them to testify in a South African court. The results were used to gauge law students’ awareness of possible accommodations to inspire ideas for expanding the curriculum for undergraduate students. This knowledge could pave the way for legal practitioners to request these accommodations and ensure that the accommodations are aligned with the expectations of different members of the judicial system (e.g. lawyers, advocates, prosecutors, judges and magistrates).

The NGT discussion confirmed the findings from the biographic questionnaire as it became clear that the participants had not received any lectures about the provision of accommodations to guarantee equitable access to justice for individuals with communication disabilities. They expressed disappointment at not having received any lectures on the topic of accommodations and expressed a desire to learn more about disability. This is in line with a Canadian study that found that law students were generally very receptive to learning about disability and that professors expressed a keen interest in broadening their understanding in this field and exposing students to it (Lepofsky 2022).

Nevertheless, the number of Post-it notes generated during the NGT indicated the richness of the participants’ voices. Despite not having had specific lectures on disability, final-year students were able to draw on knowledge gleaned during their studies and provide a comprehensive range of different accommodations. As the students were familiar with one another, rapport was quickly established, thus creating a non-threatening environment, which yielded rich and diverse data. The students were eager to explain and justify their ideas, and being surprised that they were more aware of accommodations than they had initially anticipated, they suggested a comprehensive range of accommodations. Furthermore, although none of the participants had yet been to court, this did not negatively impact their knowledge of accommodations.

Although the participants did not know much about disability, they had some knowledge about accommodations. They based this knowledge on having a family member with a disability or having watched popular television shows in which persons with disabilities are featured (such as The Good Doctor, which stars an autistic medical doctor). To conceptualise various accommodations, the participants also drew parallels with accommodations for children. Furthermore, they asked questions about the various accommodations to relate this to existing knowledge, indicating that they were internalising the information (Lepofsky 2022). They related the accommodations to the rules of criminal procedure and evidence taught in procedural law, which is commonly recognised as a fundamental element in the study of law (Du Plessis & Welgemoed 2022). This led them to asking pertinent questions such as whether some of the accommodations they suggested, such as providing written testimony instead of oral testimony, would be permitted in court.

The nominal group discussion also revealed that the participants’ knowledge was compartmentalised in terms of the modules they had studied. For instance, when in camera proceedings were mentioned, they immediately related this to their civil procedure module where the Socratic pedagogy is applied. It is typically used during the training of undergraduate law students where, according to Du Plessis and Welgemoed (2022), they compartmentalise their work into ‘neat and artificial categories’. Crucially, the participants did not object to the provision of any of the accommodations, for example, on the basis of reasonableness. Instead, they were accepting of the fact that accommodations need to be considered on a case-by-case basis, which is in line with best practices in disability (White et al. 2020). This finding highlights the fact that at an undergraduate level, students need to be taught how to view a law topic through a disability lens (Lepofsky 2022). For instance, when addressing the Bill of Rights, students ought to learn that, for individuals with communication disabilities, the right to equality before the law includes acknowledging the right to access justice, particularly through the provision of various accommodations.

Universities should be encouraged to design an LLB curriculum that provides the most comprehensive and professional preparation for law students in anticipation of legal practice. Consistent with Article 9 of the CRPD, stakeholders should undergo training to address accessibility issues affecting individuals with disabilities (United Nations 2006).

Not all law students will opt for a career in litigation after obtaining their LLB degree. Nonetheless, the fact that they have legal training may lead many to professions involving litigation, such as serving as legal advisers or corporate lawyers. In these roles, they may act as the primary interface between their employers and practising attorneys or advocates. The chances that they will encounter persons with communication disabilities are significant. The primary responsibility of universities should be to determine the essential knowledge that lawyers, as members of a privileged profession, must possess at a minimum. This necessitates knowledge about disability. Students should at least be equipped with basic disability literacy skills, which refers to the fact that they should be educated about the components of disability etiquette, encompassing appropriate ways to address and engage with individuals who have disabilities (Van Niekerk, Maguvhe & Magano 2022). There should be an awareness of the need for physical accessibility (e.g. ramps at court buildings, chambers and bathrooms), as well as the techniques that guarantee effective communication with individuals with disabilities, both in face-to-face interactions and over the phone. Law students should be made aware of the procedural accommodations that could be made available to support persons with communication disabilities (White & Msipa 2018). This implies adequate internal and organisational capacity to provide accommodations when requested or needed. While disability literacy should be seen as a core skill for LLB students, a disability curriculum should be provided to all law students, not exclusively to those who are enrolled in specialised disability courses (Lepofsky 2022). Within the legal context, disability literacy entails the ability to acknowledge the necessity for and pinpoint the distinct services and benefits that individuals with disabilities might need. It also involves developing the capability to assist them in evaluating and understanding their options for accessing justice.

Small sample sizes are often critiqued for limited generalisability of the results, but using an NGT focusses on minimising the ‘participation paradox’ (that is where an increase in participants diminishes the role of the individual) by intentionally choosing a small sample and leveraging the strengths of both individual and group interviews (Giuliani et al. 2023; Naudé & Bornman 2021). To contain minimal group studies and ensure an effective yet manageable process, the group was restricted to a maximum of seven participants (McMillan et al. 2014). It should also be noted that the participants had strong personal experiences of disability in their own lives; hence they may have been more informed and thoughtful on the topic than their peers.

Students in their final year of undergraduate studies have a fundamental understanding of procedural law as the latter forms the basis of their law training in the years that preceded. Expanding on that, they could be guided to understand and appreciate disability rights to know how to apply the procedural law principles to serve as a vehicle for understanding how accommodations can be provided in line with human rights law. Making disability inclusion a focal point in the education of law students is essential. However, during undergraduate training, there is often little to no practical application as to how the laws and principles would manifest in a courtroom.

The Socratic method, which has been described as the signature training pedagogy for law students globally, focusses on classroom lectures with an emphasis on students solely engaging with theoretical concepts. At the core of these lectures lies discussion, complemented by the utilisation of textbooks, legislation and occasionally, authentic legal documents. Questions, answers and discussions revolve around the topics addressed at a particular stage of the course (Du Plessis & Welgemoed 2022). The Socratic method additionally necessitates lecturers to craft and organise questions, along with their responses to students’ questions, intending to steer students towards solutions. This presupposes that such an approach fosters critical thinking and the proficient presentation of ideas and responses to the relevant questions. However, this approach incorporates minimal or no practical application to simulated or real-life situations (Lepofsky 2022). Hence, students enter legal practice without experience of how to consider – from a holistic perspective – all evidence in a particular case (e.g. from a witness with a communication disability).

Elevating disability rights to have a consistent, robust and equitable emphasis in undergraduate law education is critical, aligning with the principles of equity, diversity and inclusion emphasised in the Constitution. It is critical that all personnel involved in the administration of justice, including police officers, lawyers, prosecutors, magistrates and judges, possess a certain understanding of how to promote and facilitate the effective participation of individuals with communication disabilities through the provision of accommodations throughout the legal process. Ideally, the impartation of this knowledge should start at the undergraduate level when pre-service legal practitioners are receiving legal practice training (Du Plessis & Welgemoed 2022).

At present, the legal professionals in South Africa lack adequate preparation to address the legal requirements of individuals with communication disabilities. This gap arises because legal education has predominantly, if not exclusively, concentrated on training undergraduate law students to cater to individuals without disabilities. In fact, law students can complete their legal studies without gaining any knowledge on how to fulfil the legal requirements of clients with disabilities by providing accommodations (Lepofsky 2022). Typically, disability rights and access to justice for persons with disabilities (and by implication communication disability) are taught at the Master’s level at South African universities, and most practising lawyers in South Africa do not hold a Master’s degree. Consequently, newly graduated lawyers entering the workforce possess minimal to no knowledge about offering accommodations to individuals with communication disabilities within the justice system.

The plea in this article is therefore that law students should be exposed to disability challenges as part of their training, for example, through conducting tutorial sessions on disability, verbal arguments, mock trials and the presentation of evidence. Mock trials can be in the format of brief class exercises or allocated dedicated time, for instance playing out a particular scenario about a person with a disability.

In summary, the research objectives and discussed themes led to the following conclusions:

The following recommendations emerged from the findings of the NGT: