As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
In 2007 in the case of MEC for Education: KwaZulu-Natal and Others v Pillay and Others the Constitutional Court, in a progressive judgment authored by then Chief Justice Pius Langa, affirmed the importance of South Africa’s constitutional commitment to diversity. Interpreting the relevant provision of the Equality Act, the Court found that an ostensibly neutral school disciplinary Code which failed to accommodate the cultural and religious practice of a Hindu learner to wear a nose stud unfairly discriminated against that learner.
There was discrimination, held the Court, because the norm embodied by the Code was in fact not neutral (despite the fact that the rules in the Code applied equally to all learners), because it enforced “mainstream and historically privileged forms of adornment, such as ear studs which also involve the piercing of a body part, at the expense of minority and historically excluded forms” of adornment. The Code was discriminatory because it placed a burden on learners who are unable to express themselves fully and must attend school in an environment that does not completely accept them. Other learners who form part of the mainstream do not suffer a similar fate.
In a diverse society like ours, institutions like schools have a special duty reasonably to accommodate the religious and cultural beliefs and practices of learners, employees or members. This principle of reasonable accommodation is well known in the field of disability law but must also be applied to non-discrimination law more generally – especially when interpreting and applying the Equality Act. As the Constitutional Court stated in the Pillay case:
At its core is the notion that sometimes the community, whether it is the State, an employer or a school, must take positive measures and possibly incur additional hardship or expense in order to allow all people to participate and enjoy all their rights equally. It ensures that we do not relegate people to the margins of society because they do not or cannot conform to certain social norms…. Our society which values dignity, equality, and freedom must therefore require people to act positively to accommodate diversity. Those steps might be as simple as granting and regulating an exemption from a general rule or they may require that the rules or practices be changed or even that buildings be altered or monetary loss incurred.
But often institutions like schools do not wish to respect diversity and would rather impose the values of the majority religious or cultural group on everyone rather than to accommodate the practices with which they do not agree or which they fear or despise. This seems to have happened to fifteen-year-old Odwa Sityatahe, a grade 8 pupil from Joe Slovo Engineering School in Khayelitsha, Cape Town, who has been suspended from the school for failing to cut his dreadlocks. Odwa is a Rastafarian for whom wearing dreadlocks is not a fashion statement.
For Rastafarians wearing dreadlocks and not cutting your hair is a required religious practice as this signals a spiritual connection between the individual and Jah [God]. The school sees the matter differently and last year Odwa was told to cut his hair. He refused, and when Odwa, his family and members of their congregation asked to see the principal, they claim they were chased away. He was then suspended from the school. Sadly, the Education MEC for the Western Cape has not rushed to Odwa’s defence because of the religious discrimination against him. (Could this be because an election is looming and standing up for the rights of Rastafarians do not win votes?)
Yesterday, Bronagh Casey, spokesman for provincial education MEC, Donald Grant, said that one could not assume that any constitutional right had been violated in this case. “It would be incorrect to assume that any constitutional or other rights have been violated. This could only be decided on by a court of law,” she said. (This reminded me a bit of Bheki Cele saying he is innocent because he has not been found guilty of a crime by a court of law – he was merely found by the Public protector to have breached the law and be guilty of maladministration.)
Casey has obviously not heard of the well-established rule of precedent in our law which states that courts are usually bound by their previous decisions. She must also (along with her boss), surprisingly, be either unaware of the precedent set by our highest court in the Pillay case or prepared to ignore the decisions of our Constitutional Court for politically expedient reasons.
If she had been aware of (or honest about) the fact that our system of precedent had addressed the situation in which Odwa finds himself, she and her boss might have had to sing another tune. She would then have known that our Constitutional Court has found that seemingly neutral disciplinary codes are seldom neutral. The norms of such a code often enforce mainstream and historically privileged practices and exclude marginalised practices – like the practices of the Rastafarian religion.
When a school or other body draws up a code of conduct, it should always provide for the reasonable accommodation of all the different cultural and religious practices of the pupils in that school. This requires more than mere tolerance of what is perceived as weird or alien beliefs and practices and requires a celebration of the diversity of cultures and religions in South Africa. This clearly did not happen in this case and I have no doubt that the school is acting unlawfully.
Our law is about as clear as a law can ever be that a school cannot suspend or expel a Rastafarian pupil for wearing dreadlocks, a practice required by his religion. Unlike the smoking of dagga, the wearing of dreadlocks is not illegal. And as the Constitutional Court found in the Pillay case, accommodating religious diversity will not have the horrible consequences envisaged by the intransigent and reactionary school governing body and the MEC for Education.
In the Pillay case the school argued that this was a “slippery-slope” case, because if one allowed one Hindu pupil to wear a nose stud then other children would also be encouraged to come forward and to claim exceptions for their own cultural practices and one will be stuck with a “parade of horribles”. Justice Langa answered this as follows:
[I]f there are other learners who hitherto were afraid to express their religions or cultures and who will now be encouraged to do so, that is something to be celebrated, not feared. As a general rule, the more learners feel free to express their religions and cultures in school, the closer we will come to the society envisaged in the Constitution. The display of religion and culture in public is not a “parade of horribles” but a pageant of diversity which will enrich our schools and in turn our country.
The school has a duty to accommodate Odwa’s religious practice and cannot require him to cut his hair. Even if a school rule requires short hair from boys, this seemingly neutral rule imposes a non-Rastafarian world view on everybody and is therefore unfairly discriminating against Odwa. The MEC should have known this and should have intervened decisively to protect Odwa so that the school would be prevented from infringing his rights. MEC Grant needs to engage with the school as he has a duty to ensure that schools dio not breach the constitutional and legal rights of pupils. If he fails to act immediately, he would be disrespecting the Constitution and would be failing to protect a vulnerable child whose constitutional rights are being infringed.BACK TO TOP