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[2002] ZAWCHC 4
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D.A v Governing Body, The Settlers High School and Others (3791/00) [2002] ZAWCHC 4 (8 February 2002)
IN THE HIGH COURT
OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case
No 3791/00
In the
matter between:
D.A
Applicant
and
GOVERNING BODY, THE SETTLERS HIGH SCHOOL
First
Respondent
HEAD, WESTERN CAPE
EDUCATION DEPARTMENT
Second Respondent
MEMBER
OF THE EXECUTIVE COUNCIL FOR
EDUCATION IN THE
PROVINCE OF THE WESTERN CAPE
Third Respondent
------------------------------------------------------------------------------------------------------------
JUDGMENT:
8 FEBRUARY 2002
------------------------------------------------------------------------------------------------------------
VAN ZYL
J:
INTRODUCTION
[1] The applicant seeks on review to set aside the first
respondent's decision finding her guilty of serious misconduct and
suspending
her from attending school for a period of five days. The
suspension was stayed pending the finalisation of the review, which
is not
being opposed by any of the respondents.
[2] At the
time of the said decision, taken on 10 May 2000, the applicant was
fifteen years old and a grade 10 learner at the Settlers
High School
in Bellville. She no longer attends the school, so that the
implementation of the suspension is no longer in issue. The
matter
cannot, however, be regarded as moot in that the first respondent's
decision and sanction are permanently recorded on the
applicant's
school disciplinary record. It hence remains a blot on her school
career and may impact negatively on her personality,
dignity and
self-esteem. It may, indeed, affect her normal development into full
maturity and even have a seriously prejudicial affect
on her future
career. In addition it is important, I believe, that this court lay
down guidelines for dealing with and resolving
unfortunate situations
such as that which has given rise to the present application. From
this point of view the applicant was, in
my view, correctly advised
to take the first respondent on review without first attempting to
exhaust other available domestic remedies.
BACKGROUND
[3] The salient facts and circumstances may be dealt
with briefly. The applicant became interested in various religions at
an early
age. During December 1999 she decided to embrace the
principles of the Rastafarian religion. One of these principles is
that Rastafarians
are required to grow their hair into so-called
dreadlocks. Another is that Rastafarian women should cover their
heads.
[4] During
the first school term of 2000, the applicant, supported by her
mother, approached the headmaster of the school, one Mr
Trevor
Webster, on several occasions for permission to wear dreadlocks and a
cap, as an expression of her religion, while attending
school. When
no permission ensued, her religious convictions prompted her, during
April 2000, to attend school with a black cap covering
her
dreadlocks. The cap was crocheted by herself and matched the
prescribed school colours.
[5] Mr
Webster's response was that she was acting in conflict with the
school's code of conduct and in defiance of an arrangement,
negotiated with the applicant's mother, that she would not wear
headgear with her school uniform. He regarded her defiance of school
rules and authority as a disciplinary matter requiring referral to
the first respondent as governing body of the school. She was
thereupon summoned to attend a disciplinary hearing before the first
respondent on 10 May 2000.
[6] At the
hearing the applicant was charged with serious misconduct in that she
had acted in an unbecoming manner, in defiance of
school regulations,
by wearing headgear and growing dreadlocks according to Rastafarian
custom. Mr Webster testified that she had
caused "disruption and
uncertainty" by her conduct. More particularly disruptive was
her breach of school rules and defiance
of authority. This created a
situation which could escalate.
[7] The
applicant and her mother also testified. The gist of their evidence
was that the applicant had not caused any disruption and
that her
appearance was at all times neat and tidy. Both emphasised her need
to express her religious convictions and to develop
her
individuality.
[8] After
consideration of the evidence and argument tendered by the legal
representatives, the first respondent held that the applicant
was
"guilty of serious misconduct" as charged.
THE CODE OF CONDUCT
[9] The code of conduct provides for the required
apparel and general appearance of girl learners. Specific attention
is given to
hair, in respect of which the following appears:
The
basic rule is that hair must be neat and tidy.
No
coloured bands, slides, clips, bows etc other than white, navy
blue, light blue, black or, in the case of slides, the colour
of
the individual's hair.
No
"scrunchies" - elasticised bands worn around ponytails.
No
butterfly clips or clamps.
No
ponytails on top of the head.
Hair
must be tied up if below the collar.
Banana
clips are allowed but only in regulation colours.
Fringes
below the eyebrows must be clipped back.
No
"mod" hairstyles, eg punk or little curls or pigtails
hanging down the back or on top of the head.
Hair
may not be tinted or rinsed with a colour rinse. Any girl who
violates this rule will be required to restore her hair to
the
original natural colours. No highlights are allowed.
If
the hair is permed it may not be frizzy or stand out in all
directions.
No
big bows or fancy hair ornaments allowed.
[10] The
remainder of this section deals with clothing requirements, more
specifically shorts or dresses, shoes, blazers, raincoats,
jerseys,
stockings or socks and scarves.
[11] It is
significant that no mention is made, under the heading of "hair",
to dreadlocks or anything similar. There is
likewise no reference, in
the discussion of clothing, to headgear.
[12] It is
difficult to escape the conclusion that the members of the first
respondent, in considering the charges levelled against
the
applicant, did not apply their minds to the aforesaid provisions of
the code of conduct. If they had, they would, and indeed
should, have
realised that the growing of dreadlocks and the wearing of headgear
was not prohibited thereby.
[13] Of some interest in this regard is a schedule which was issued
by the Ministry of Education during April 1998 as Notice 776
of 1998.
In terms of
section 8(3)
of the
South African Schools Act
84 of
1996
, it lays down guidelines for consideration by governing bodies
in adopting a code of conduct for learners.
[14] The
focus in the schedule is on positive discipline
(section 1.4
and
1.6
)
and the need to achieve "a culture of reconciliation, teaching,
learning and mutual respect and the establishment of a culture
of
tolerance and peace in all schools"
(section 2.3).
This must be
done in the context of the democratic values of human dignity,
equality and freedom, as enshrined in the Bill of Rights
contained in
the Constitution of the Republic of South Africa, Act No 108 of 1996
(section 4.1). Every learner is accorded "inherent
dignity"
and "the right to have his/her human dignity respected", in
the sense of "mutual respect including respect
for one another's
convictions and cultural traditions" (section 4.3). In this
regard educators and learners are encouraged (in
section 4.4.1) "to
learn the importance of mediation and co-operation, to seek and
negotiate non-violent solutions to conflict
and differences and to
make use of due process of law".
[15] Freedom
of expression is accorded special mention in section 4.5.1 of the
schedule. It reads:
Freedom of expression is more than freedom of speech.
The freedom of expression includes the right to seek, hear, read and
wear. The
freedom of expression is extended to forms of outward
expression as seen in clothing selection and hairstyles. However,
learner's
rights to enjoy freedom of expression are not absolute.
Vulgar words, insubordination and insults are not protected speech.
When
the expression leads to a material and substantial disruption in
school operations, activities or the rights of others, this right
can
be limited, as the disruption of schools is unacceptable.
[16] I have sought in vain to find these principles
clearly enunciated in the code of conduct to which the applicant was
subject.
That does not, of course, mean that they do not have a role
to play in the interpretation and application of the code of conduct.
Even if, hypothetically, the growing of dreadlocks and the wearing of
headgear were prohibited by the code of conduct, the failure
to
comply with this prohibition should not be assessed in a rigid
manner. This would make nonsense of the values and principles set
forth in the schedule and would bring it into conflict with the
justice, fairness and reasonableness which underpins our new
Constitution
and centuries of common law.
[17] The
question should be asked, in this regard, whether or not the
prohibition is aimed at promoting positive discipline and whether
or
not non-compliance therewith justifies punishment or some other form
of sanction. This requires a spirit of mutual respect, reconciliation
and tolerance. The mutual respect, in turn, must be directed at
understanding and protecting, rather than rejecting and infringing
upon, the inherent dignity, convictions and traditions of the
offender. Most importantly adequate recognition must be given to the
offender's need to indulge in freedom of expression, which may or may
not relate to clothing selection and hairstyles, as provided
in
section 4.5.1 of the schedule.
SERIOUS MISCONDUCT
[18] The applicant was held to be guilty of "serious
misconduct" in that she grew dreadlocks and wore a cap. It has
been
clearly established that this conduct was not in conflict with
the provisions of the code of conduct. But even if it were, could
it
constitute "serious misconduct" in terms of section 2(1) of
the regulations relating to serious misconduct of learners
and
published as Provincial Notice (PN) 372/1997 on 31 October 1997? The
said section reads:
Subject
to the provisions of the Act, a learner at a school who -
has
been convicted by a court of a criminal offence and sentenced to
imprisonment without the option of a fine; or
used
or had in his or her possession intoxicating liquor or other drugs
on the school grounds or during a school activity; or
is
guilty of assault, theft or immoral conduct; or
has
been repeatedly absent without leave from school and/or classes; or
conducts
himself or herself, in the opinion of the governing body, in a
disgraceful, improper or unbecoming manner
shall be guilty of serious misconduct.
[19] The nature of the conduct set forth in subsections
(a) to (d) must of necessity assist in determining what constitutes
"disgraceful,
improper or unbecoming" behaviour for
purposes of subsection (e). Quite clearly it must be of a
particularly serious or aggravating
nature before it can be
classified as such. The kind of conduct envisaged by subsection (e)
is, in my view, something akin to immoral,
promiscuous or shockingly
inappropriate behaviour. An offence against the code of conduct could
not remotely be classified as such
behaviour. It is hence a blatant
absurdity to categorise the growing of dreadlocks or wearing of a
cap, even if it should be in conflict
with the code of conduct, as
serious misconduct. Even more so would this be the case if the real
problem were not so much the dreadlocks
and cap, but the applicant's
so-called defiance of authority. Even if Mr Webster's suggestion,
that this behaviour had caused disruption
or uncertainty, were borne
out by the evidence, it would still be a far cry from "serious
misconduct".
[20] It
follows that the first respondent did not even begin applying its
mind to the meaning and ambit of "serious misconduct"
as it
appears in section 2(1)(e) of the said regulations. Its finding in
this regard must hence be set aside. The suspension must
likewise be
set aside.
CONCLUSION
[21] In the event I would make the following order:
The application succeeds.
The decision of the first respondent, finding the
applicant guilty of serious misconduct, is set aside.
The suspension of the applicant by the first respondent
is set aside.
No order is made as to the costs of the application.
D H VAN
ZYL
Judge of the High Court of South Africa
I agree.
D VAN REENEN
Judge of the High Court of South Africa