Quote of the week

Universal adult suffrage on a common voters roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity.

Justice Albie Sachs
August and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3
11 October 2007

On nose studs and respect for cultural diversity

Ms Navaneethum Pillay is by all accounts a tenacious woman and after reading the Constitutional Court judgment in the case of MEC for Education: KwaZulu-Natal and Others v Pillay and Others I was feeling some pity for Ms. Pillay’s daughter, Sunali.

Sunali wore a nose stud to Durban Girls High School because she is from a Hindu family and claimed it was part of her cultural and religious tradition to do so. The school said they would make an exception if the wearing of a nose stud was a compulsory religious practice, but this was really a voluntary cultural practice which, if allowed, would open the floodgates to other learners to wear cultural adornments which in turn would fatally compromise the discipline at the school.

But Ms.Pillay did not want to let this cultural arrogance pass, so she embarked on a long legal battle that ended up in the Constitutional Court. In a groundbreaking judgment the Constitutional Court was for the first time asked to decide on the scope of the non-discrimination provisions in the Equality legislation to determine whether the School had unfairly discriminated against Sunali on the basis of her culture ad religion.

The majority judgment by Chief Justice Langa and the minority judgment by O’Regan are both striking for several reasons. The Court pointedly mentioned that the Equality Legislation was extremely badly drafted and hinted that if challenged it might possibly be found to be unconstitutional. It also noted that in cases like this it would be better for the child involved to give evidence about her own feelings about the cultural practice involved – something which did not happen in this case.

But the most striking aspect of the case is the Court’s nuanced understanding of the role of culture in our society and the ways in which minority cultural groups are marginalised and discriminated against and the way in which outsiders have a tendency to enforce their own views on the Other culture.

For example, Justice Langa points out that a Code of Conduct like the one adopted by Durban Girls High School is not a neutral document. The norms of such a code actually enforce mainstream and historically privileged practices and excludes marginalised practices.

This means that when a school or other body draws up a code of conduct, it should always make a reasonable accommodation of all the different cultural and religious practices. 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.

The School argued that this was a “slippery-slope” case, because if one allowed Sunali 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 case has profound consequences for our debate about diversity and places a heavy burden on any institution to accommodate those who do not form part of the majority and whose beliefs and practices are not embedded in the institutional culture of that institution through its codes and rules.

So often those who form part of the majority do not notice that the rules and codes they have adopted reflects their own cultural beliefs and practices – often seeing the rules and codes as natural and normal expressions of what is required for the institution. This judgment instructs institutions to move away from culturally specific rules and codes and requires them to engage with diversity and difference.

For example, a university who strictly applies a rule that no food or drink may ever be taken into a lecture hall, may have to revisit such a rule to carve out an exception for individuals of the Muslim faith who are sitting in a lecture at the time of the breaking of the fast during Ramadan.

Imagine how many other rules and practices will have to be revisited.

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