About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2013
>>
[2013] ZAFSHC 111
|
|
Radebe and Others v Principal of Leseding Technical School and Others (1821/2013) [2013] ZAFSHC 111 (30 May 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 1821/2013
In the matter between:-
LERATO RADEBE
..............................................................
1
st
Applicant
LEHLOHONOLO RADEBE
................................................
2
nd
Applicant
SELLOANE MOTLOUNG
....................................................
3
rd
Applicant
EQUAL EDUCATION
..........................................................
4
th
Applicant
and
PRINCIPAL OF
LESEDING TECHNICAL
SCHOOL
.........................................................................
1
st
Respondent
CHAIRPERSON OF THE
SCHOOL
GOVERNING BODY,
LESEDING
TECHNICAL
SCHOOL
....................................................
2
nd
Respondent
DISTRICT DIRECTOR,
LEJWELEPUTSWA
DISTRICT
.........................................................................
3
rd
Respondent
HEAD OF DEPARTMENT,
BASIC
EDUCATION, FREE
STATE
...........................................
4
th
Respondent
MEC FOR EDUCATION,
FREE STATE
.........................
5
th
Respondent
MINISTER OF BASIC
EDUCATION
...............................
6
th
Respondent
_____________________________________________________
HEARD ON:
17 MAY 2013
_____________________________________________________
JUDGMENT BY:
PHALATSI, AJ
_____________________________________________________
DELIVERED ON:
30 MAY 2013
_____________________________________________________
[1] On 17 May 2013, the
applicants applied, on an urgent basis, for, among others, an order
declaring the first and second respondents’
conduct in
banishing the first applicant (“the learner”) from her
classroom during school hours to constitute a suspension
and to be
unlawful and discriminatory.
[2] After the hearing, I
granted the hereinafter mentioned orders and indicated that my
reasons will follow later. These are my
reasons for doing so.
[3] The applicants sought
the following orders:
“
1.
Dispensing with the forms, service and time limits prescribed in the
Rules of Court and granting leave for this application to
be heard as
a matter of urgency;
2. Declaring the First and Second
Respondents’ conduct in banishing the First Applicant (“the
learner”) from her
classroom during school hours to constitute
a suspension and to be unlawful and discriminatory;
3. Declaring the failure of the Third
to Sixth Respondents to intervene to remedy this course of conduct to
be unlawful and discriminatory;
4. Declaring that the First and Second
Respondents’ requirement that the learner may only attend
school if she cuts off her
dreadlocks discriminates unfairly against
her on the basis of her religion.
5. Declaring that the Respondents’
conduct towards the First Applicant violates her constitutional
rights to, amongst others,
equality, dignity, education, and the
freedoms of religion, belief, opinion, expression, association, and
culture.
6. Interdicting and restraining the
First and Second respondents from preventing the First Applicant from
participating fully as
a Grade 8 learner at their school, and from
harassing, disadvantaging, victimising her or discriminating against
her in any way;
7. Ordering the First and Second
Respondents to allow the learner to participate fully as a grade 8
learner at their school, with
immediate effect;
8. Ordering First to Third Respondents
to meet with the learner and the Second and Third Applicants (her
parents) within five school
days of the date of the Order, to assess
what learning she has missed since January 2013 and to draft or
implement a suitable program
of extra tuition to enable her to catch
up;
9. Ordering the First, Second and
Third Respondents to ensure that a majority of the officials and
employees under their direction
participate wholeheartedly in an
education and relationship building workshop to be provided by the
Human Rights Commission within
one month of the date of this Order;
10. Ordering the First and Second
Respondents to explain their error in banishing the learner from her
classroom, and their improved
understanding of the religious and
cultural rights of learners, to a full assembly of the learners and
educators of the Leseding
Technical High School within one month of
the date of this Order;
11. Ordering those Respondents who
oppose this application to pay the costs hereof; and
12. Further and/or alternative
relief.”
[4] I then granted the
following orders:
“
1. Leave is
granted for this application to be heard as a matter of urgency;
2. First and Second Respondents’
conduct in banishing the first applicant (“the learner”)
from her classroom during
school hours, is unlawful and
discriminatory;
4. The first and second respondents’
requirement that the learner may only attend school if she cuts off
her dreadlocks discriminates
unfairly against her on the basis of her
religion;
5. The respondents’ conduct
towards the first applicant violates her constitutional rights to,
amongst others, equality, dignity,
education and the freedoms of
religion, belief, opinion, expression, association, and culture.
6. First and second respondents are
interdicted and restrained from preventing the first applicant from
participating fully as a
Grade 8 learner at their school, and from
harassing, disadvantaging, victimising her or discriminating against
her in any way;
7. First and second respondents must
allow the learner to participate fully as a grade 8 learner at their
school, with immediate
effect;
8. First to fourth respondents to meet
with the learner and the second and third applicants (her parents)
within five school days
of the date of the Order, to assess what
learning she has missed since January 2013, and to draft and
implement programs of extra
tuition to enable her to catch up. The
programme must be drafted, implemented and completed on or before the
16
th
of July 2013;
11. The respondents to pay the costs
of the application, individually and severally, the one to pay, the
others to be absolved.”
URGENCY
[5] The respondents
contended that the matter was not urgent, based on three grounds,
namely:
5.1. That the applicants,
without any reasons, did nothing about the matter from 26 February
until 25 April 2013. This is a self-created
urgency, so the argument
goes, by simply waiting for several months.
5.2. The second ground is
that the applicants are seeking final relief, which is detrimental to
the respondents in not having sufficient
time to respond to the
application.
5.3. The third and final
ground is based on the fact that the matter has become moot insofar
as the Leseding Technical School is
concerned. This ground also
became the respondents’ main ground of opposition to the relief
sought by the applicants on the
merits.
5.4. I will deal with the
first ground purely for the purpose of urgency and the last two
grounds when I deal with the merits.
[6]
SELF-CREATED
URGENCY
6.1. The applicants, in
their heads of argument, attached a document detailing the chronology
of events and dates from the 9
th
of January 2013, up to
the date of instituting these proceedings. I do not intend to repeat
these events as they are also clearly
set out in the second
applicant’s founding affidavit, much of which is not disputed
by the respondents.
6.2. Suffice it to say
that during the months of March and April 2013, the second applicant
discussed his child’s exclusion
from classes at Leseding
Technical School with various officials, including Mr Ndlebe
(Director: Education Management & Governance,
Department of
Education; the Director and Chief Director, Mr Mokhobo; Mr Leepo and
Mr Havenga, from the district office and the
South African Human
Rights Commission. On 29 March 2013, the second applicant lost his
job as a result of poor attendance at work
whilst attending to his
daughter’s exclusion from education.
6.3. Based on the above,
I cannot find that the applicants did nothing about the matter during
the said period.
6.4. In any event, it is
not the respondents’ case that the delay was caused by the
first applicant and I find that, solely
on the basis hereof, the
respondents cannot succeed on this ground.
[7] 7.1 Section 28(2) of
the Constitution of South Africa, 1996, provides that in every matter
affecting the child, the child’s
best interests are paramount.
7.2. The serious invasion
of the first applicant’s (a child’s) right to basic
education occurs on an on-going basis
and every day that passes by
without her being in class, receiving education.
7.3. It is, therefore,
incumbent upon this Court to grant the child urgent protection. To
force her to await relief in the ordinary
course will be tantamount
to dereliction of duty.
7.4. On the basis hereof,
I find that this matter is urgent.
FACTS
[8] As every governing
body of a public school must adopt a code of conduct for its
learners, Leseding Technical School also has
a code of conduct.
Paragraph 4.3.3 of the code of conduct reads as follows:
“
Hairstyle
must be neat and short. No elaborate
style
(such as parting, shaven paths, steps, dyes, fizzes,
dreadlocks
and hairpieces) are allowed. Girls may have long hair or simple
braids, but long hair must be tied back out of the face.”
(My
underlining.)
Paragraph 5 of the said
code deals with the procedure to be followed when the code of conduct
has been infringed.
[9] It needs to be said
from the beginning that the validity, reasonableness or
constitutionality of the code of conduct, is not
challenged by the
applicants.
[10] 10.1. The main
contention of the applicants is that the second applicant, his wife,
the third applicant and his three children,
including the first
applicant, belong to the religion of Rastafari and that they are
members of the Rastafari House of Nyahbinghi.
10.2. It is further their
contention that members of this religion wear their hair in
dreadlocks, which they do not cut, and they
use natural products to
wash and condition their hair.
[11] The respondents
attempted to gainsay the fact that the first applicant is of
Rastafarian religion based on what the first applicant’s
grandmother purportedly told the first respondent. The applicants
objected that this is inadmissible hearsay evidence and the
respondents abandoned the said contention. This left the court with
the uncontroverted evidence of the applicants that the first
applicant is a member of the Rastafarian religion.
[12] On the 17
th
January 2013, the first applicant was excluded by the first
respondent from school and she was sent home, because she was wearing
dreadlocks, in contravention of the school’s code of conduct.
From then onwards, until May 2013, the first applicant would
attend
school and she would be removed from the classroom and made to sit
alone in the staffroom, until it was time for her and
other learners
to go home. She was therefore excluded from receiving education.
[13] 13.1 It is the
contention of the applicants that the code of conduct prevents the
wearing of dreadlocks as a hairstyle, but
that the first applicant is
wearing dreadlocks, because of her religion. The instruction that she
should cut her hair is an instruction
to violate her faith. The
applicants contend that:
by preventing the first
applicant from attending class, the respondents were treating her
differently from other learners in that
class;
such differentiation is
based on her religion;
it is unfair
discrimination; and
that it is in breach of
her constitutional right to equality.
13.2. The applicants
further contended that whilst the governing body has the power to
suspend a learner and that the Head of Department
may expel a
learner, this may only be done after following due processes,
complying with natural rights of justice and only after
a fair
hearing.
13.3. They further argue
that there is no provision in law that empowers a person to send a
child home, away from school, unless
the child has been lawfully
suspended and that no provision in law empowers a person to exclude a
child from her classroom and
to require her to sit in the staffroom
during learning hours, for weeks, thereby depriving him/her of
education.
13.4. They contend that
all these actions of the respondents are unauthorised by law and
unlawful in that they did not even follow
the procedure of their own
code of conduct. I must at this stage emphasise that no attempt was
made by the respondents to contradict
these allegations and
submissions.
[14] 14.1. The
respondents, instead, argued that the first applicant was admitted at
Thotagauta Secondary School, Welkom, pursuant
to the request of
second applicant and an agreement between him and a certain Mr
Ishmael Berry Tshabangu, the Deputy Chief Education
Specialist,
district office, on 23 January 2013.
14.2. They further argued
that since the first applicant was admitted at Thotagauta Secondary
School on 23 January 2013 and deregistered
at Leseding Technical
Secondary School as a result, the matter became moot as far as
Leseding Technical School is concerned.
14.3. Their further
submission is that it was Thotagauta Secondary School which had to
hold a disciplinary enquiry before it excluded
the first applicant
from attending school and, therefore, that the applicants should have
brought these proceedings against the
said school (Thotagauta).
[15] It is clear from the
record that at no stage did the first applicant attend school at
Thotagauta Secondary School and there
is no confirmation from the
principal of the said school that the first applicant was ever
admitted there. The third applicant
met with the principal of
Thotogauta on 24 January 2013, who told her that the school does not
accept Rastafarian learners. It
is also clear that the first
applicant continued to attend school at Leseding after she was
allegedly admitted at Thotagauta. At
no stage were the applicants
told that the first applicant had been deregistered at Leseding as
she was admitted at Thotagauta
by any of the respondents, until on 3
May 2013, in a letter by fourth respondent to Equal Education. In the
said letter, the fourth
respondent states that Mr Radebe (second
applicant) registered Lerato (first applicant) at Thotagauta
Secondary School. This is
clearly factually incorrect, as the first
applicant was never registered at Thotagauta, let alone by the first
applicant.
[16] The only basis of
the respondents’ contention that the first applicant was
admitted at Thotagauta Secondary School is
a letter dated 23 January
2013, written by a certain Mr S.R. Leepo of the Department of
Education in the district office, to the
principal of Thotagauta. I
quote from the said letter:
“
Kindly note
that the Department has been obligated to ensure that the following
learner is admitted in your school.”
(The
learner being the first applicant.)
[17] The respondents
argued that once the Head of Department has decided that a learner is
admitted at a certain school in the province,
no further action or
registration is required and no consent is needed from the principal
of that school. It is clear that this
contention cannot be correct,
as the cooperation and requirements of the school must be met before
a learner can be admitted at
any school. No learner can just be
imposed on a school.
[18] The respondents
conceded that this decision could not be made by the district office,
but only by the Head of Department. They
contended, however, that the
Head of Department has delegated this power to the district office
and that both the Court and the
applicants’ legal
representatives will be given the copies of the document in respect
of such delegation, before the end
of the day (17 May 2013). A week
later, at the time of writing of this judgment, I have as yet not
been provided with the said
document. In the absence of such
document, I must find that Mr Leepo acted
ultra vires
his
powers and that the said decision is invalid.
[19] On the basis of the
above findings, I find that the first applicant was never admitted at
Thotagauta Secondary School, but
that she is still registered as a
learner at Leseding Technical School and therefore the contention of
the respondents that the
matter has become moot in respect of
Leseding Technical School, is dismissed.
FINAL INTERDICT
[20] The requirements for
the grant of a final interdict are set out in the case of
Setlogelo
v Setlogelo
1914 AD 221
at 227, as follows:
There must be a clear
right on the part of the applicant.
In casu
,
it is clear that the first applicant has a clear right to basic
education. She has a right to be in class and receive education.
Section 3(6)(b) of the South African Schools Act provides that any
person who, without just cause, prevents a learner who is subject
to
compulsory attendance from attending a school, is guilty of an
offence and liable on conviction to a fine or imprisonment. This
illustrates how seriously the legislature views a learner’s
right to attend school. I, therefore, find that the applicants
have
established a clear right.
An injury committed or
reasonably apprehended.
I have already found that
the first applicant has been unlawfully excluded from receiving
education and for every day that she is
so excluded, the injury
continues. I, therefore, find that the injury,
in casu
, is not
only apprehended, but is actually committed and continuing.
The absence of any other
satisfactory remedy available to the applicant.
I have already found that
this matter must be dealt with as one of urgency, as delaying it only
causes more harm to the first applicant.
Maybe it is apposite to deal
with this issue at this juncture.
(c).1 The respondents
argued that the first applicant could be placed at Unitas Secondary
School in Welkom, as, primarily, among
other reasons, this school
does not have a code of conduct regarding hairstyle.
(c).2 The respondents
stated that, on the 10
th
of February 2013, the first
respondent called a parents’ meeting. At the said meeting, the
parents were unanimous that the
Rastafarians, as part of their
religion, use cannabis as part of their spiritual and inspirational
religious purposes. It was unclear
to them how a child can be allowed
to observe this religion and it was highly upsetting. Based on this
(the use of cannabis), the
code of conduct of the school should not
accommodate the one learner. This is not entirely correct, as in the
case of
Prince v President of the Law Society of the Cape of
Good Hope and Others
[2002] ZACC 1
;
2002 (3) BCLR 231
(CC) at paras [19] and
[55], it was stated that cannabis is not used by Rastafarian women
and children. In any event, there is
no allegation nor any evidence
that the first applicant is using cannabis.
(c).3 Be that as it may,
this clearly illustrates that the school and the parents are at
cross-purpose with each other. Whereas
the school’s code of
conduct prevents the wearing of dreadlocks as a
hairstyle
, it
is clear that the parents are against it as part of the Rastafarian
religion
. (My own emphasis.)
[21] It cannot be
overemphasised that religion is a very sensitive issue and that
religious intolerance can ruin the whole country.
One needs not look
at the whole world, as good examples of what religious intolerance
can do, can be found in our own African continent,
as in Northern
Mali and Northern Nigeria.
The courts of this
country must be alert and proactive and root out the evil of
religious intolerance in any form. They should nip
it in the bud
wherever and whenever it raises its ugly head.
[22] Now, acceding to the
submission that the first applicant be admitted at Unitas Secondary
School, because it does not have a
code of conduct on hairstyle,
would be a perpetuation of the discrimination based on religion. I am
not prepared to do that, but,
on the contrary, I would appeal to the
respondents and the powers that be, to educate and make our people
aware of the importance
and advantages of accepting our religious
diversity.
[23] I am, therefore,
satisfied that all the requirements for the granting of a final order
have been established by the applicants.
[24] In conclusion, I was
advised by counsel for the respondents that although this does not
form part of the papers, he has been
asked to convey to the court
that Leseding Technical School is full and cannot admit an extra
learner. Counsel for the applicants
stated that she had just taken
instruction and the first applicant has informed her that every day
she goes to class, she sits
in her own desk, before being removed and
taken to the staffroom. Her space is therefore still available. I do
not find it necessary
to deal with this issue, in the light of the
order that I have already made. I, therefore, granted the orders that
I did, in the
light of these reasons.
_________________
N.W. PHALATSI, AJ
On
behalf of applicants: Adv S. Harvey
Instructed
by:
Equal
Education Centre
Care
of Legal Aid South Africa
BLOEMFONTEIN
On
behalf of respondents: Adv J.Y. Claasen SC
Assisted
by:
Adv
M Mopeli
Instructed
by:
State
Attorney
BLOEMFONTEIN
/spieterse