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[2013] ZASCA 40
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Department of Correctional Services & another and Another v Police and Prisons Civil Rights Union (POPCRU) and Others (107/12) [2013] ZASCA 40; (2013) 34 ILJ 1375 (SCA); 2013 (4) SA 176 (SCA); [2013] 7 BLLR 639 (SCA); 2013 (7) BCLR 809 (SCA); [2013] 3 All SA 1 (SCA) (28 March 2013)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 107/12
In the matter between:
DEPARTMENT OF CORRECTIONAL
SERVICES
.........
First Appellant
AREA COMMISSIONER: POLLSMOOR
MANAGEMENT AREA
.....................................................
Second
Appellant
and
POLICE AND PRISONS CIVIL
RIGHTS
UNION (POPCRU)
...............................................................
First
Respondent
EGANAMANG JAMES LEBATLANG
........................
Second
Respondent
THAMSANQA RUSSEL NGQULA
.................................
Third Respondent
LUCKY THAMSANQA KAMLANA
............................
Fourth
Respondent
COHEN JACOBS
.................................................................
Fifth
Respondent
MDUDUZI KHUBHEKA
....................................................
Sixth
Respondent
Neutral citation:
Department of Correctional Services & another v POPCRU &
others
(107/12)
[2013] ZASCA 40
(28 March 2013)
Coram:
NUGENT, MAYA, and
PILLAY JJA, PLASKET and MBHA AJJA
Heard:
19 FEBRUARY 2013
Delivered:
28 MARCH 2013
Summary:
Labour Relations Act 66 of 1995
–
section
187(1)(
f
)
–departmental dress code prohibiting wearing of dreadlocks by
male correctional officers – whether dismissal of Rastafari
and
Xhosa respondents for refusing to cut their dreadlocks worn in
observance of sincerely held religious and cultural beliefs
discriminatory and automatically unfair on grounds of religion,
culture and gender – meaning of
s 187(2)(a).
_________________________________________________________
ORDER
___________________________________________________________
On appeal from
: the Labour
Appeal Court, Cape Town (Murphy AJA, Waglay DJP and Davis JA sitting
as court of appeal).
The appeal is dismissed with
costs that include the costs of two counsel.
___________________________________________________________
JUDGMENT
___________________________________________________________
MAYA JA (NUGENT, PILLAY JJA,
PLASKET AND MBHA AJJA concurring)
[1] This is an appeal from a
judgment of the Labour Appeal Court (‘the LAC’, per
Murphy AJA, Waglay DJP and Davis JA
concurring), with special leave
of this court. The LAC upheld the decision of the Labour Court (Cele
J) that the dismissals of
the second to sixth respondents (the
respondents) were automatically unfair as contemplated in
section
187(1)(
f
) of the Labour Relations Act 66 of 1995 (the LRA). As
a basis for its conclusion, the Labour Court had found that the
respondents
were unlawfully subjected to gender discrimination. On
appeal, the LAC added two grounds of discrimination, religion and
culture,
as further support for the finding.
[2] The facts are largely common
cause. The respondents are male former correctional officers of the
first appellant (the department).
All were members of the first
respondent, a trade union, and held various positions at Pollsmoor
Prison, Cape Town (Pollsmoor)
at the time of their dismissals in June
2007. They each had long service with the department and were
exemplary employees. A common
feature among them was their hairstyle.
They all wore dreadlocks albeit for different reasons. It is their
refusal to cut their
hair when ordered to do so under the
department’s Corporate Identity Dress Code (the dress code)
that led to their dismissals
and these proceedings.
[3] The dress code made
provision, in clause 5, for ‘Personal appearance’
relating to wearing of jewellery, make-up,
moustaches and beards and
hairstyles. Clause 5.1 dealt pertinently with hairstyles and read:
‘
Hairstyles
The following
guidelines are [laid] down for the hairstyles of all Departmental
officials. In judging whether a hairstyle is acceptable,
neatness is
of overriding importance.
5.1.1
Hairstyles:
Female officials
5.1.1.1 Hair must be
clean, combed or brushed and neat at all times (taken good care of).
Unnatural hair colours and styles, such
as punk, are disallowed.
5.1.2 Hairstyles:
Male officials
5.1.2.1 Hair may not
be longer than the collar of the shirt when folded down or cover more
than half of the ear. The fringe may
not hang in the eyes.
5.1.2.2 Hair must
always be clean, combed and neat at all times (taken good care of)
5.1.2.3 Hair may not
be dyed in colours other than natural hair colours or cut in any punk
style, including a “Dreadlocks”
hairstyle.
5.1.2.4 No
decorations (e.g. beads, clips)
5.1.2.5. May be worn
on the hair.’
It is the ‘Rasta man’
hairstyle prohibition in clause 5.1.2.3 that the respondents
contravened.
[4] Until the appointment of the
second appellant as area commissioner of Pollsmoor on 15 January
2007, there does not appear to
have been any clear guide in the
institution about the enforcement of the dress code and other
departmental policies pertaining
to discipline and security. There
had been no objection whatsoever to the respondents’ hairstyle
which was also sported by
a handful of women correctional officials.
[5] The commissioner immediately
set about bringing sweeping changes to tighten controls and bring the
prison to order. On 18 January
2007 he convened a meeting with the
prison personnel and managers. Various issues relating to compliance
with departmental policies,
performance management and human resource
management were discussed. Chief on the agenda were the
commissioner’s concerns
about security risks and the flouting
of the dress code and other policies in the institution. Following
the deliberations, he
issued a written instruction on the next day
directing correctional officers to attend to their hair in compliance
with the dress
code or advance reasons by 25 January 2007 why
corrective action should not be taken against them. Some of the
officers abided
the instruction and some of those who wore dreadlocks
promptly cut their hair to meet the requirements set out in the dress
code.
The respondents did not.
[6] On 26 January 2007 the
commissioner wrote to ask them to give reasons why they should not be
suspended for contravening the
dress code. Their responses were
varied. Messrs Lebatlang, Jacobs and Khubheka attributed their
hairstyle to their Rastafarian
religion. They said their hairstyle,
an outward manifestation of the religion, did not prejudice the
department’s interests.
The instruction to cut their hair
undermined their freedom of religion, which was recognised and
protected by the Constitution,
and constituted unfair discrimination
on that basis.
[7] Messrs Ngqula and Kamlana
gave cultural reasons for their hairstyle. Mr Ngqula said he wore his
dreadlocks to obey his ancestors’
call, given through dreams,
to become a ‘sangoma’ or traditional healer in accordance
with his Xhosa culture. He requested
permission to wear them until
December 2007 when he would shave his head as part of a cleansing
ritual to complete the process.
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. Both viewed the instruction to
cut their hair as an incursion on their fundamental right to practice
their culture and
discrimination against them on the ground of
culture.
[8] On 2 February 2007 the
respondents were suspended from duty. The commissioner’s
attitude was that ‘compliance with
policy cannot be negotiated
at management area and notwithstanding any religion, beliefs or
otherwise, employees have to adapt
to the employer’s policy and
not the other way round’. Thereafter, the respondents were
charged with breaching the
Disciplinary Code and Procedure and the
dress code by wearing dreadlocks on duty, alternatively failing to
carry out a lawful order
or routine instruction without just or
reasonable cause by refusing to keep their hair in accordance with
the dress code while
on duty.
[9] The respondents refused to
participate in the disciplinary hearing conducted between 4 and 7
June 2007. They believed that the
chairperson of the proceedings, who
denied them legal representation despite a previous undertaking to
allow it and refused their
consequent request for his recusal, was
biased. They were dismissed with immediate effect.
1
They lodged an internal appeal
but it was disregarded after they neglected to file the requisite
grounds of appeal.
2
[10] The respondents referred the
dispute to the Labour Court. Their primary claim was for a declarator
that their dismissals were
automatically unfair because the
department had unfairly discriminated against them directly or
indirectly on the grounds of religion,
conscience, belief, culture
and gender as envisaged by section 187(1)(
f
) of the LRA.
Section 187(1)(
f
) renders a dismissal ‘automatically
unfair if the … reason for the dismissal is … that the
employer unfairly
discriminated against an employee, directly or
indirectly, on any arbitrary ground, including, but not limited to
race, gender,
sex, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, political
opinion, culture,
language, marital status or family responsibility.’
In addition to further and alternative claims which became redundant
and need not be detailed here, the respondents sought ancillary
relief including damages, compensation and reinstatement to their
posts.
[11] The respondents’
testimony expatiated on their reasons for wearing the dreadlocks that
they had advanced to the commissioner
to repel suspension. Its gist
was that they were adherents of Rastafarianism and Xhosa culture,
respectively. They wore the impugned
hairstyle as a ritual in
observance of their sincerely held religious and cultural beliefs. A
traditional healer, Mr Toyo Khandekana,
was called as an expert
witness on behalf of Messrs Ngqula and Kamlana. He described
dreadlocks or ‘ivitane’, as he
said they are called in
isiXhosa, as a symbol in the realm of Xhosa spiritual healing that
their wearer has heeded the call of
his ancestors to become a
traditional healer. The hair is, however, kept only temporarily. It
is shaved off at a cleansing ceremony,
a sacred, elaborate affair
which includes the use of dagga, conducted at completion of the
process to signify the initiate’s
transition into a traditional
healer.
[12] None of the respondents’
evidence was disputed. The appellants merely sought to establish that
there had been no motive
to discriminate against them and that they
were dismissed, not for their religion, culture or gender, but for
their failure to
comply with a neutral policy and a lawful
instruction to cut their hair.
[13] The commissioner testified
about the large scale non-compliance with departmental policies in
numerous areas including security,
human resource issues, corporate
dress and prison management that he found when he commenced duties at
Pollsmoor. He told of serious
problems with discipline and security
and the flouting of the dress code and human resource policies which
resulted in high levels
of absenteeism, assaults among inmates and
correctional officers, escapes by inmates, corruption and misuse of
official vehicles
and finances and many other issues. His
interventions through the enforcement of the department’s
policies, including the
dress code, yielded positive results as
service delivery, discipline, team work and security improved
dramatically in the institution.
[14] According to the
commissioner, supported by the expert witness called on the
appellants’ behalf, Mr Ndebele, the uniformity
of dress and
appearance provided by the dress code is intertwined with and
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.
[15] The Labour Court accepted
that the respondents were dismissed because they wore dreadlocks and
disobeyed the commissioner’s
instruction to cut them; that they
wore the dreadlocks in pursuance of sincerely held religious or
cultural beliefs and that their
female counterparts were not
prohibited from wearing dreadlocks. In the court’s view, it was
‘beyond doubt that the
impact of the instruction would have a
devastating impact on their beliefs’ and faith. However, the
court found that they
failed to draw their beliefs to the
commissioner’s attention and to assert their right to their
faith. Thus, they failed
to establish a ‘causal link …
between the prohibited reasons for dismissal and the circumstances of
the dismissal’
and ‘factual causation, that is a belief
in religious and cultural practices had not been proved to have been
the
sine qua non
or prerequisite reason for the dismissal’.
[16] The court therefore found no
direct or indirect discrimination against the respondents on the
grounds of religion, belief or
culture. Instead, it held that the
respondents had established discrimination against themselves on the
basis of gender as the
appellants did not show ‘why the
biological differences between men and women had to justify
discriminating between them
… when it came to dreadlocks’.
The court concluded that the appellants had failed to rebut the
presumption of unfairness
of the commissioner’s instruction and
that the dismissals were automatically unfair. It ordered
reinstatement of those the
respondents who sought it and compensation
for those who no longer wanted their jobs.
[17] The appellants did not
accept the judgment and took the matter to the LAC. Without first
applying for leave, the respondents
also noted a cross-appeal against
the Labour Court’s failure to find unfair discrimination also
on the grounds of religion,
belief or culture. As indicated, the LAC
dismissed the appeal and held the dismissals automatically unfair on
the bases of religion,
culture and gender. The court found the
cross-appeal, which it said required no leave to be instituted as the
rules of court made
no provision therefor, unnecessary because the
respondents accepted the order of the Labour Court but merely sought
to have its
judgment confirmed on additional grounds. The court made
no order in respect of the cross-appeal and ordered each party to
bear
its own costs.
[18] On further appeal to this
court, the appellants raised a number of grounds which were duly
motivated in their heads of argument.
However, the issues trimmed
down significantly in argument before us. The appellants’
counsel conceded most of the issues
previously raised by his
predecessor. These included a concession that the dress code operated
disparately among correctional officers
and was directly
discriminatory on all three proscribed grounds, namely religion,
culture and gender. The concession was well made.
Indeed, but for
their religious and cultural beliefs, the respondents would not have
worn dreadlocks. And but for that fact and
their male gender, they
would not have been dismissed. The disparate treatment constituted
discrimination and the appellants’
motives and objectives of
the dress code are entirely irrelevant for this finding.
3
[19] In the event, the
appellants’ case distilled to simply that the discrimination
was justifiable because it sought to eliminate
the risk and anomaly
posed by placing officers who subscribe to a religion or culture that
promotes criminality – in the
form of the use dagga – in
control of a high regulation, quasi-military institution such as a
prison. It was contended that
the department’s real problem lay
not with the hairstyle worn by Rastafari and ‘intwasa’
initiates as such but
their faiths which require the use of dagga, an
illegal and harmful drug, as an integral ritual in their observance.
[20] The appellants’
counsel pointed out that South Africa expends a huge effort in the
discharge of its international obligation
to combat the drug war to
which the use of dagga is central. 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. It was also submitted
that the department was not particularly
concerned with female
officials who wore dreadlocks. This was so because the risk in
females was significantly reduced as it is
not unusual for them to
wear long hair. Further, it is notorious and was accepted as true by
the Constitutional Court in
Prince
v President, Cape Law Society
,
4
that women and children are not
involved in the use of dagga in Rastafarianism. The dress code
therefore served an important and
legitimate government purpose
because Rastafari officials would not be easily identifiable if they
did not wear dreadlocks.
[21] Once discrimination has been
established on a listed ground, unfairness is presumed, and the
employer must prove the contrary.
5
Relevant considerations in this
regard include the position of the victim of the discrimination in
society, the purpose sought to
be achieved by the discrimination, the
extent to which rights or interests of the victim of the
discrimination have been affected,
whether the discrimination has
impaired the human dignity of the victim,
6
and whether less restrictive
means are available to achieve the purpose of the discrimination.
7
[22] Without question, a policy
that effectively punishes the practice of a religion and culture
degrades and devalues the followers
of that religion and culture in
society; it is a palpable invasion of their dignity which says their
religion or culture is not
worthy of protection and the impact of the
limitation is profound.
8
That impact here was devastating
because the respondents’ refusal to yield to an instruction at
odds with their sincerely
held beliefs cost them their employment.
[23] Whether the discriminatory
impact of the dress code was justifiable stands to be decided under
the provisions of s 187(2)(
a
)
of the LRA as the constitutionality of the policy was not
challenged.
9
According to the section ‘a
dismissal may be fair if the reason for dismissal is based on an
inherent requirement of the particular
job’. An inherent
requirement of a job has been interpreted to mean ‘a permanent
attribute or quality forming an …
essential element …
and an indispensable attribute which must relate in an inescapable
way to the performing of a job’.
10
[24] The appellants face an
insurmountable hurdle. The case they advanced in evidence was that
the rationale for the dress code
was to entrench uniformity and
neatness in the dress and appearance of correctional officials which
would engender discipline and
enhance security in the prison
facility. The about turn during argument in this appeal did their
cause no good. The dress code
was not shown to be concerned with the
use of dagga, the prevention of which it is now touted to have
targeted. The appellants
laid no foundation for their belated
argument, as their counsel properly acknowledged.
[25] 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.
11
No rational connection was
established between purported purpose of the discrimination and the
measure taken. Neither was it shown
that the department would suffer
an unreasonable burden if it had exempted the respondents. The appeal
must, therefore, fail.
[26] In the result the following
order is made.
The appeal is dismissed with
costs that include the costs of two counsel.
___________________
MML MAYA
JUDGE OF APPEAL
APPEARANCES:
For
appellants: N Arendse SC (with S O’Brien)
Instructed
by:
State
Attorney, Cape Town
State
Attorney, Bloemfontein
For
respondents: M L Sher
G
A Leslie
Instructed
by:
Parker
& Khan Inc, Cape Town
EG
Cooper Majiedt Inc, Bloemfontein
1
The
presiding officer, Mr SB Masemula, seems to have assumed a
particularly hard line to the matter, judging from the tone of
his
findings. For example, in respect of the fifth respondent he said
‘Mr Jacobs is a married man with two dependents …
and
he should have th[ought] about his family but he has a BA law degree
and LLB in qualification that is why he display[s] this
behavior so
[it] is better for him to look where they will accommodate him with
that hairstyle but the relationship with the
Department is broken
and I have no other option than to dismiss him with immediate effect
to give him a chance to wear his dreadlocks
freely.’
2
Department
of Correctional Services Resolution 1 of 2006 provides for the
appeal procedure and submission of grounds of appeal.
3
Pretoria
City Council v Walker
[1998] ZACC 1
;
1998 (2) SA 363
(CC) para 44;
R v
Birmingham City Council Ex parte Equal Opportunities Commission
[1989] AC 1155
at 1194A-D.
4
Prince
v President, Cape Law Society
2002 (2) SA 794 (CC).
5
Harksen
v Lane NO
[1997] ZACC 12
;
1998 (1) SA 300
(CC) para 48.
6
Hoffman
v South African Airways
[2000] 12 BLLR 1365
(CC) para 27;
Harksen v Lane NO
[1997] ZACC 12
;
1998 (1) SA 300
(CC) para 51.
7
Christian
Education South Africa v Minister of Education
[2000] ZACC 11
;
2000 (4) SA 757
(CC) para 31.
8
Prince
v President, Cape Law Society
[2002] ZACC 1
;
2002 (2) SA 794
(CC) para 51
.
9
Minister
of Health v New Clicks South Africa (Pty) Ltd (Treatment Action
Campaign and another as Amici Curiae)
2006 (2) SA 311
(CC)
(2006
(1) BCLR 1)
paras 96, 434-437;
MEC for Education, KwaZulu-Natal v
Pillay
[2007] ZACC 21
;
2008 (1) SA 474
(CC) para 40.
10
Dlamini
v Green Four Security
[2006] 11 BLLR 1074
(LC) para 40; Cooper,
Carole ‘The Boundaries of Equality in Labour Law’ (2004)
25
ILJ
813.
11
Bhinder
v Canadian National Railway Co
[1985] 2 SCR 651
para 29.