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.
Seemingly neutral codes of conduct often discriminate against individuals or groups who do not belong to the dominant economic, religious or cultural group in a society or in an organisation. But because those who draft such Codes are often unaware that they are merely codifying assumptions, prejudices or beliefs that they themselves are steeped in, they often seem incapable of accepting this fact. A recent Supreme Court of Appeal (SCA) judgment, confirming that the dismissal of several Correctional Services officers for failing to adhere to the Department of Correctional Services Dress Code was unlawful, illustrates this point well.
When the Department of Correctional Services fired several warders for refusing to cut their dreadlocks, they must have thought that they had a watertight case. After all, the Departmental Dress Code clearly prohibits male (but not female) Correctional Services officers from dying their hair or cutting it “in any punk style, including a ‘Dreadlocks’ hairstyle”.
What they never realised is that even if you ignore the terminally unhip assumption that “dreadlocks” is a “punk” hairstyle (don’t these people watch Vuzu, MTV or Mzanzi Magic), the Code is highly problematic because it aims to impose a very distinct religious and cultural worldview on all employees. In fact it has the whiff of apartheid era conservatism about it.
For, example the Code declares that for Female Officials “[u]nnatural hair colours and styles, such as punk, are disallowed”. But what are “natural” and “unnatural” hairstyles? Is a weave “natural” or “unnatural”? If a blond officer colours her hair black is that “natural” or “unnatural”. If an African officer colours her hair blonde is that “natural” or “unnatural”? Who decides what is “natural” and “unnatural” hair and on what basis? Don’t the people who drafted this Code know that hair is a highly political issue, often implicating race, gender, sexuality, culture, ethnicity and – yes – religion?
The Code further instructs that men may not wear their hair “longer than the collar of the shirt when folded down or cover more than half of the ear”. (I am almost certain they lifted that rule from the hair rules applicable to boys at Pietersburg Hoërskool in the early eighties when I was a pupil there.)
In Department of Correctional Services and Another v Popcru and Others, the SCA (in a judgment authored by Maya JA) did not comment on the specific cultural, racial and religious assumptions underlying this Code. But it did uphold the decision of the Labour Appeal Court that the dismissals were automatically unfair on the basis that it discriminated against the officers on the basis of religion, culture and gender.
Some of the dismissed officers based their claim on the fact that they were members of the Rastafarian religion, asserting that they wore dreadlocks as an outward manifestation of their religion – much like wearing a headscarf or a cross would be an outward manifestation of the religion of some Muslims or Christians. Other officers gave cultural reasons for their hairstyle. One – Mr Ngqula – said he wore his dreadlocks to obey his ancestors’ call, given through dreams, to become a “sangoma” in accordance with his Xhosa culture. Another – Mr Kamlana – said he was instructed to wear his dreadlocks by his ancestors and did so to overcome “intwasa”, a condition understood in African culture as an injunction from the ancestors to become a traditional healer, from which he had suffered since childhood.
The dismissed officers were relying on section 187(1)(f) of the Labour Relations Act which states that a dismissal is automatically unfair when it is based on either direct or indirect unfair discrimination. The Department originally argued that there had been no motive to discriminate against the dismissed officers and that they were dismissed, not because of their religion, culture or gender, but because of their failure to comply with a neutral policy and a lawful instruction to cut their hair.
This was obviously legal nonsense. Our law does not require you to prove a discriminatory motive before finding that discrimination had taken place as it focuses on the effects of the actions and not on the motives for it. Moreover, our law also prohibits indirect discrimination which occurs when a seemingly neutral rule or code disproportionately affect the members of a specific group. Clearly, a “neutral” rule prohibiting the wearing of “dreadlocks” will have a disproportionately negative effect on Rastafarians. Similarly, a “neutral” rule prohibiting anyone from wearing a “weave” would have a disproportionately negative effect on black women.
After dropping this patently silly argument, the Department proffered new reasons for the discrimination. First, it said that a prohibition of the wearing of “dreadlocks” by male (but not female) officers was:
critical for the enforcement and maintenance of discipline and security in a prison environment. Any deviations from uniformity to accommodate diversity would open the floodgates for exemption requests to the department’s detriment. Dreadlocks also posed a particular risk because they could easily be grabbed by an inmate to disarm an official.
Of course, this argument is often trotted out by the dominant group in the hope that it would make the discrimination invisible. But such an argument is highly problematic as it relies on the assumption that the dominant norm that the so called “neutral” rules are trying to impose on everyone would be invisible to all. I suspect that for many who devise these Codes and enforce them, the dominant norm is indeed invisible. Like fishes who spend their days in the sea and never get upset about being wet all the time because they have no idea how it must feel to be dry, most people steeped in the dominant culture do not realise that their views are a mere reflections of the assumptions, prejudices and beliefs of those who dominate the culture.
For example, I can’t imagine that in our macho culture a workplace Code of Conduct would ever prohibit male workers from wearing pants at work and would require them to wear skirts when they come to work. This is because the gender stereotypes about how men are “supposed” to dress are so deeply embedded in our culture that many people actually think it is “natural” or normal” without ever asking why or without ever thinking that some men might not like dressing up in pants.
The Department then came up with a new excuse for discriminating against officers because of their religion and their culture; that the real problem was not the dreadlocks, but the use of dagga that accompanies the wearing of dreadlocks. As the SCA explained:
The risk posed by dreadlocks, it was argued, is that they render Rastafari officials conspicuous and susceptible to manipulation by Rastafari and other inmates to smuggle dagga into correctional centres. This would negatively affect discipline and the rehabilitation of inmates.
This argument was also dismissed – for obvious reasons. Nothing in the Code actually link the wearing of “dreadlocks” with the use or smuggling of dagga and the point was only raised in the SCA. The obvious point not made by the SCA is that our prisons are awash in dagga – and not because there are a handful of Rastafarian warders in the Department of Correctional Services.
Lastly, it was argued that it was an inherent requirement of a job for warders to have short hair (well, at least if they are male warders – somehow it is never an inherent requirement for the job that a female warder should have short hair. This argument was also dismissed by the SCA who pointed out that:
Even assuming otherwise, no evidence was adduced to prove that the respondents’ hair, worn over many years before they were ordered to shave it, detracted in any way from the performance of their duties or rendered them vulnerable to manipulation and corruption. Therefore, it was not established that short hair, not worn in dreadlocks, was an inherent requirement of their jobs. A policy is not justified if it restricts a practice of religious belief – and by necessary extension, a cultural belief – that does not affect an employee’s ability to perform his duties, nor jeopardise the safety of the public or other employees, nor cause undue hardship to the employer in a practical sense.
This is not the first (and neither will it be the last) case in which those who embody the dominant prejudices, beliefs and assumptions of a specific institution or of broader society discriminate against others who do not form part of the dominant group and do not share its values. Why they never seem to learn from the mistakes of others is beyond me.BACK TO TOP