About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Equality Court
SAFLII
>>
Databases
>>
South Africa: Equality Court
>>
2006
>>
[2006] ZAEQC 1
|
|
Pillay v Kwazulu-Natal MEC of Education, Cronje and Others (AR 791/05) [2006] ZAEQC 1; 2006 (6) SA 363 (EqC) (5 July 2006)
IN THE HIGH COURT OF SOUTH AFRICA REPORTABLE
(NATAL PROVINCIAL DIVISION)
NPD EQUALITY COURT
CASE NO: AR 791/05
In the matter between:
NAVANEETHAM PILLAY
….........................................................
Appellant
and
KWAZULU-NATAL MEC OF EDUCATION,
INA CRONJE
…....................................................................
First
Respondent
MR THULANI CELE, SCHOOLS LIASON
OFFICER
….......................................................................
Second
Respondent
MRS A MARTIN, PRINCIPAL: DURBAN
GIRLS HIGH SCHOOL
….................................................
Third
Respondent
MRS F KNIGHT, CHAIRPERSON
SGB: DGHS
…....................................................................
Fourth
Respondent
JUDGMENT
KONDILE J
:
Introduction
This matter comes before us on appeal against a
Judgment of Ms. A C Moolman, a Magistrate of the Durban Equality
Court (“the
Court below”), delivered on 29
th
September 2005. The Court below dismissed the complaint lodged by
Appellant, in which, in effect, she sought an order:
interdicting and restraining Third Respondent from
violating her daughter’s right to equality or conducting
unfair discriminatory
practices against her, on the grounds of
religion, conscience, belief and culture.
directing First Respondent to assess progress made by
Third Respondent to achieve the goal of transformation.
The background
Appellant’s daughter who is a learner at Durban
Girls High School (“the school”) returned from the
school holiday
in the first week of the fourth term in the year 2004
wearing a nose stud, having had her nose pierced during the holiday.
The school’s code of conduct provides that, in
respect of jewellery, earrings – plain round studs/sleepers
may be
worn with one in each ear lobe at the same level and further
that no other jewellery may be worn except a watch.
Third Respondent sought an explanation from Appellant
for her daughter’s decision to wear the nose stud. Appellant,
in response,
stated that she allowed the piercing for several
reasons including the fact that this is a time honoured tradition.
She and her
daughter come from South Indian family that has sought
to maintain a cultural identity by respecting and implementing the
traditions
of the women before them.
Usually, a young woman, upon her physical maturity,
would get her nose pierced, as an indication that she is now
eligible for
marriage. While this physically orientated reasoning no
longer applies, they do still use the tradition to honour their
daughters
as responsible young adults.
After her sixteenth birthday, her grandmother will
replace the current gold stud with a diamond stud. This will be done
as part
of a religious ritual to honour and bless her daughter. It
is also a way in which the elders of the household bestow worldly
goods including other pieces of jewellery upon the young women. This
serves not only to indicate that they value their daughters
but is
in keeping with Indian tradition, that their daughters are the Luxmi
(goddess of prosperity) and Light of the house.
She herself has adhered to this tradition and wears a
nose stud. From this perspective she cannot and will not impose a
double
standard on her daughter. Her daughter is not wearing the
nose stud for adornment and fashion purposes. Family traditions are
handed down from generation to generation, not taken up as a trend.
Decision against the wearing of the nose stud.
On 2
nd
February 2005 Fourth Respondent took
a decision that Appellant’s daughter should not be allowed to
wear the nose stud.
This decision was to take effect on 4
th
April 2005.
Appellant then addressed a letter to First Respondent
appealing and asserting that Fourth Respondent’s decision was
a violation
of her daughter’s constitutional rights to
practise the religious and cultural traditions of her choice
especially when
they are common practice to the rest of her family;
that this right takes precedence over any school code particularly
when it
is not related to, nor has any bearing on, the actual
manner, attitude and conduct of the learner at school.
Second Respondent, in letter dated 6
th
May
2005 replied on behalf of First Respondent refusing Appellant’s
appeal. In endorsing the decision of the Fourth Respondent,
Second
Respondent wrote that “Schools are not obliged, as it is
unreasonable to expect them, to accommodate all idiosyncratic
practices.”
In letter dated 13
th
May 2005 Third
Respondent advised Appellant that the nose stud should be removed.
Appellant’s daughter was accordingly
given until Monday 23
rd
May 2005 to remove the nose stud, failing which the matter would be
referred to Fourth Respondent for disciplinary action to
be taken
against Appellant’s daughter.
The rebuff from Respondents prompted Appellant, as
complainant, to institute proceedings and seek an order referred to
in paragraph
1 above, in terms of section 20 of the Promotion of
Equality and Prevention of Unfair Discrimination Act no. 4 of 2000
(“the
Equality Act”).
After hearing the evidence of Appellant, Dr. Rambilass
and Mrs. A Martin, who were the only witnesses who testified, the
court
below came to the conclusion that:
the school’s actions against Appellant’s
daughter were reasonable and fair in the circumstances.
the school did not discriminate or unfairly
discriminate against Appellant’s daughter.
Appellant’s daughter’s wearing of the nose
stud was in violation of the school’s code.
The preparation of the code of conduct, in schools, is
a requirement imposed on the governing body of a public school by
section
8 (1) of the South African Schools Act 84 of 1996 (“the
Schools Act”).
The Minister of Education may in terms of section 8 (3)
of the Schools Act determine guidelines for the consideration of
governing
bodies in adopting a code of conduct for learners.
The Guidelines for the consideration of governing
bodies in adopting a code of conduct for learners were promulgated
in Government
Notice 776 of 1998 – Government Gazette 1890
dated 15
th
May 1998 (“the Guidelines”).
Basis of the decision of the Court below
The reasoning of the Court below is as follows: The
governing body was obliged in terms of the Schools Act, to adopt a
code of
conduct for learners. The nose stud is, in terms of the
definition in the School’s code of conduct, jewellery. The
purpose
of the code of conduct is, among other things, to promote
discipline, uniformity and acceptable convention among the learners.
Appellant, although fully aware of the school’s code of
conduct, ignored it. “Having regard to the nature of the
school’s requirements contained in its code of conduct it is
hardly feasible to expect the school to bend the rules to
suit
(Appellant’s daughter’s) personal choice pertaining to
her culture or tradition.” The school acted within
the ambit
of the School’s Act.
It is apparent from para 17 above that the Court below
merely applied, literally, the School’s code of conduct and
disregarded
religious and cultural rights it found to have been
established by the evidence. It failed to properly or sufficiently
consider
whether the code of conduct is consistent with the
Constitution of the Republic of South Africa Act 108 of 1996 (‘the
Constitution”)
and the Equality Act or whether it complies
with the requirements of the empowering statute, the Schools’
Act and Guidelines.
This Court must therefore come to its own
conclusion based on all the evidence.
A conspectus of the evidence at the enquiry
established, in my view, that the wearing of the nose ring by Hindu
women of South
India is of cultural and religious significance. I am
further satisfied that that is also the conclusion reached by the
Court
below.
Contentions
Counsel for Respondents, whilst not disputing the
cultural significance of the nose stud, submitted that there is no
suggestion
in the complaint that the wearing of a nose stud has any
religious significance. I disagree. That suggestion is made both in
Appellant’s complaint (pleading) and in her evidence.
Appellant testified that religion historically evolved from culture;
that the nose stud is directly related to every female deity in
Hindu mythology; that Hinduism is not the only religion that
has the
nose stud as more than a mere body piercing or piece of jewellery;
that in the Bible it is said that Rebecca received
a nose stud from
Isaac as a betrothal gift. Further the Court below held that Dr.
Rambilass, the expert called by Respondents,
conceded that Hindu
religion can include Hindu culture; that the wearing of a nose stud
comes from the Hindu culture and that
when it comes to Hinduism it
is difficult to distinguish between religion and culture. Such a
conclusion is borne out by the
record of the evidence.
In any event it is irrelevant, for purposes of this
case, whether the unfair discrimination complained of, is based on
culture
only. In terms of section 9 of the Constitution it is
sufficient that the disadvantageous or harmful or prejudicial
treatment
is primarily based on one of the listed prohibited
grounds. See Brink v Kitshoff NO
[1996] ZACC 9
;
1996 (4) SA 197
(CC) para 43 and
section 13 of the Equality Act.
The following remarks of O’Regan J in Brink above
highlight the importance of the issue in this case.
“
(41) Section 8 (now section 9 of the
Constitution) was adopted then in recognition that discrimination
against people who are members
of disfavoured groups can lead to
patterns of group disadvantage and harm. Such discrimination is
unfair: It builds and entrenches
inequality amongst different groups
in our society. The drafters realised that it was necessary both to
proscribe such forms of
discrimination and to permit positive steps
to redress the effects of such discrimination. The need to prohibit
such patterns of
discrimination and to remedy their results are the
primary purposes of s 8 and, in particular, ss (2), (3) and (4).”
It has also been contended by Respondents that
Appellant chose to send her daughter to Durban Girls High School and
in doing so
both Appellant and her daughter were aware that the
school had a code of conduct which they accepted. The relevance of
these
contentions escape me as both counsel for the parties have
stated that fundamental rights and freedoms cannot be waived.
The Respondents have further submitted that the code of
conduct was adopted by the fourth Respondent after consultation with
the
learners, their parents and the educators of the school; that
the consultation also involved people drawn from every racial,
religious and cultural group in South Africa. The issue, however, is
not only whether there was extensive consultation on and support
for
the code of conduct but also whether it accords with the
Constitution, the Schools Act and the Guidelines. Compare S v
Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC) at para 206.
The further contention by Respondents, that it is
important for the school to adopt an approach in which all girls are
seen to
be treated in the same way, is also flawed. The Constitution
prohibits both direct and indirect discrimination, that is,
practices
whose purpose is to discriminate unfairly, or whose effect
or impact or outcome, irrespective of the motive or intention,
amounts
to unfair discrimination. Langa DP (as he then was) remarked
as follows, in this regard, in Pretoria City Council v Walker
[1998] ZACC 1
;
1998
(2) SA 363
(CC):
“
(31) The inclusion of both direct and
indirect discrimination, within the ambit of the prohibition imposed
by s 8 (2), evinces a
concern for the consequences rather than the
form of conduct. It recognises that conduct which may appear to be
neutral and non-discriminatory
may nonetheless result in
discrimination and, if it does, that it falls within the purview of s
8 (2).”
See also Equality and Non-Discrimination in South Africa
by S. B. O. Gutto p 127.
26. The conception of equality which insists on
symmetrical treatment fails to recognise or repair or avoid
establishing or entrenching
or intensifying deep patterns of historic
group discrimination and disadvantage which inevitably impair an
individual’s human
dignity. Sachs J expressed his views as
follows, in this respect, in National Coalition for Gay and Lesbian
Equality v Minister
of Justice
1999 (1) SA 6
(CC):
“
(132) The present case shows well that
equality should not be confused with uniformity; in fact, uniformity
can be the enemy of
equality. Equality means equal concern and
respect across difference. It does not presuppose the elimination or
suppression of
difference. Respect for human rights requires the
affirmation of self, not the denial of self. Equality therefore does
not imply
a levelling or homogenisation of behaviour but an
acknowledgment and acceptance of difference. At the very least, it
affirms that
difference should not be the basis for exclusion,
marginalisation, stigma and punishment. At best, it celebrates the
vitality that
difference brings to any society.”
Counsel for Respondents has submitted that it is
necessary for a person complaining that their rights have been
infringed to demonstrate
that fact; that there was no evidence from
Appellant’s daughter; that in this case whilst one is left in
no doubt regarding
the Appellant’s stance she is not the
person in respect of whom the alleged discrimination has taken
place. In my view
this submission overlooks the fact that Appellant
has, in the particulars of the complaint and the accompanying
affidavit, alleged
that the ongoing struggle with the school has
been traumatic and the source of much anxiety for her and her
daughter. The evidence
shows that she is acting in her personal and
representative capacities and in the interest of her ethnic group,
the Hindu/Indian.
Appellant’s interests in this matter are
inextricably entwined with those of her daughter and their group and
the Schools
Act affirms the rights of a parent in addition to the
rights of the learners and educators. The matter, therefore, affects
Appellant
as much as it affects her daughter and their group.
Appellant’s testimony and cross-examination of Respondents
witnesses
also reflect her comprehensive or intimate understanding
of the facts of or the issues in this case. The Appellant’s
evidence
has shown, to the satisfaction of the Court below and this
Court, that the wearing of a nose stud does in fact manifest their
culture and that she and her daughter sincerely believe that it is
necessary for their cultural identity, to observe the practice
in
question.
In any event, Appellant was acting in person, in the
Court below and section 4 of the Equality Act refers to the
principles that
should apply in the adjudication of proceedings
instituted in terms of or under the Equality Act. They include the
expeditious
and informal processing of cases, which facilitates the
participation by the parties to the proceedings and access to
justice
to all persons in relevant judicial forums. The principle of
access to justice is particularly important for unrepresented
parties.
Fairness, the right to equality and the interest of justice
should, as far as possible, prevail over mere technicalities.
The Respondents seem to imply that because the
preparation of a code of conduct in school is a requirement imposed
on Fourth Respondent
by the Schools Act there should be adherence to
it notwithstanding any inconsistency with the Constitution and the
Equality Act
and even if it does not comply with the requirements of
the empowering statute. In this regard they reflect the opinion of
the
Court below, referred to in para 17 above.
On this issue, the Respondents and the Court below
overlook the principle of legality. The Schools Act does not give
Fourth Respondent
carte blanche to impose on learners, in its code
of conduct, any type of provision. The parameters which have been
determined
by the Schools Act and the Guidelines have to be
observed.
The preamble to the Schools Act states that the country
requires a new national system for schools which will advance
democratic
transformation of society, combat racism and sexism and
all other forms of unfair discrimination and intolerance and protect
and advance our diverse cultures and languages, and uphold the
rights of learners, parents and educators.
The Guidelines provide that the code of conduct of a
school must, among other things, be subject to the Constitution, the
Schools
Act and the Provincial Legislation and reflect
constitutional democracy, human rights and transparency; that every
learner has
an inherent dignity and has the right to have his/her
human dignity respected and that that implies mutual respect
including
respect for one another’s convictions and cultural
traditions. They also provide that the learners freedom of
expression
is more than freedom of speech. It includes the right to
seek, hear, read and wear.
Clearly therefore the impugned provision of the schools
code of conduct is inconsistent with the Constitution, the Schools
Act
and the Guidelines. It therefore contravenes the Law and/or is
not authorised by the empowering statute and/or fails to comply
with
what the empowering legislation requires. It persists with the
practice that is specifically condemned in the schedule to
the
Equality Act namely the failure to reasonably and practicably
accommodate diversity in education.
A ban against the wearing of the nose stud undermines
the value of religious and cultural symbols and sends learners the
message
that Religious beliefs and cultural practices do not merit
the same protection as other rights or freedoms. If the school
accommodates
Appellant’s daughter and allow her to wear the
nose stud it would demonstrate the importance that our society
attaches
to protecting religious and cultural rights or freedoms and
to showing respect for its minorities. Compare Multani v Commission
Scolaire Marguerite-Bourgeoys
2006 SCC 6.
Respondents have also relied on the provisions of
section 8 (2) of the Schools Act which state that a code of conduct
must be
aimed at establishing a disciplined and purposeful School
environment, dedicated to the improvement and maintenance of the
quality
of the learning process. What this entails, in my view, in
the circumstances of this case, is that if some learners consider it
unfair that Appellant’s daughter may wear her nose stud, it is
incumbent on the school to discharge the obligation which
the
Constitution, the Schools Act and the Equality Act impose upon it,
to instil in their learners the value of cultural and
religious
tolerance. There is no need to suppress individuality to achieve
harmony. Compare Multani above.
The school should understand that the Constitution and
the Equality Act embrace a commitment to substantive equality in
which
the right to equality includes not only protection against
unfair discrimination but also the duty imposed on all South
Africans,
to engage in positive measures to eradicate systemic
patterns of inequality and unfair discrimination.
Appropriate approach.
In their heads of argument counsel for the parties seek
to rely directly on the provisions of section 9 of the Constitution.
I
do not consider such an approach appropriate. The Equality Act was
enacted to give effect to the rights contained in that section.
Appellant has found a cause of action on the Equality Act. The Court
below decided the matter in terms of that Act. It is therefore
impermissible for this Court, in the circumstances, to avoid the
provisions of the Equality Act, by going behind it and seeking
to
rely on section 9 of the Constitution. Support for this view is
found in Minister of Health v New Clicks SA (Pty) Ltd and
Others
2006 (2) SA 311
(CC) where Ngcobo J remarked at para 437:
“
Where, as here, the Constitution requires
Parliament to enact legislation to give effect to the constitutional
rights guaranteed
in the Constitution, and Parliament enacts such
legislation, it will ordinarily be impermissible for a litigant to
found a cause
of action directly on the Constitution without alleging
that the statute in question is deficient in the remedies that it
provides.
Legislation enacted by Parliament to give effect to a
constitutional right ought not to be ignored. And where a litigant
founds
a cause of action on such legislation, it is equally
impermissible for a court to bypass the legislation and to decide the
matter
on the basis of the constitutional provision that is being
given effect to by the legislation in question.”
See also paragraphs 95 and 96 of New Clicks case, pages
25, 35 and 36 of the Annual Survey of South African Law 2000 and
Multani
above. This Court will therefore adopt the analysis developed
specifically for the Equality Courts set out in chapter 3 of the
Equality Act.
Foreign Law
The parties, presumably because of the provisions of
section 39 (1) of the Constitution, have referred us to a number of
cases
decided in foreign courts. These other jurisdictions may have
legal systems which may be different from ours. The Constitutional
Court has warned that it may be dangerous to rely on ostensibly
analogous material from other jurisdiction. This means we have
to
tread warely. In Brink above the Court remarked as follows, in this
regard.
“
(39) (V)arious conventions and national
constitutions are differently worded and that the interpretation of
national constitutions,
in particular, reflects different approaches
to the concepts of equality and non-discrimination. The different
approach adopted
in the different national jurisdictions arise not
only from different textual provisions and from different historical
circumstances,
but also from different jurisprudential and
philosophical understandings of equality.”
Determination of discrimination
In terms of section 13 (1) of the Equality Act,
Appellant has to make out a prima facie case of discrimination. In
that event
the Respondents have to prove, on the facts before the
Court, that the discrimination did not take place as alleged or that
the
conduct is not based on one or more of the prohibited grounds.
The Court below held that the Appellant made out a
prima facie case of discrimination against Respondents. I share that
view.
Substantive equality involves understanding that equality
includes a recognition of difference. People who are not similarly
situated should not be treated alike. The school failed to
differentiate in favour of Appellant’s daughter, whose
minority
group is different in material or significant ways from the
majority group of the learners of the school.
The schools code of conduct prevents Appellant’s
daughter from wearing a nose stud which on the evidence, correctly
accepted
by the Court below, is of cultural and/or religious
significance to her and her group. The code of conduct, accordingly
withholds
from her and her group the benefit, opportunity and
advantage of enjoying fully their culture and/or of practising their
religion.
That constitutes discrimination in terms of section 1
(viii) of the Equality Act. Religion and culture, in respect of
which the
discrimination has occurred, form two of the prohibited
grounds listed in section 1 (xxii) (a) of the Equality Act.
Therefore
unfair discrimination can immediately be presumed.
In view of the fact that Appellant has made out a prima
facie case of discrimination and in view of the fact that
Respondents
have not proved, on the facts before Court, that the
indirect discrimination that has been alleged by Appellant has not
taken
place and have not proved that their conduct is not based on
one or more of the prohibited grounds, Respondents need to prove,
in
terms of section 13 (2) (a) of the Equality Act, that the
discrimination is fair.
Determination of fairness
It is clear from the evidence that the impugned
provision of the code of conduct does not constitute a measure
designed to protect
or advance persons or categories of persons
disadvantaged by unfair discrimination or the members of such groups
or categories
of persons. It therefore cannot be said that
Respondents’ conduct is not unfair discrimination in terms of
section 14 (1)
of the Equality Act.
Section 14 (2)
(a) The Context
45. The adjudication of this factor requires a
historical understanding of the type of society that South Africa
once was and against
which the Constitution has set itself. See The
Bill of Rights Handbook by Iain Currie & Johan de Waal fifth
edition p 231.
There should be an understanding of the position of
Appellant’s group within the structures of advantage and
disadvantage
in society in the past. Racial, gender and other
differences have been deeply entrenched in our society. The
discrimination enquiry
should therefore look beyond the form of
impugned provision of the code of conduct to understand its actual
harmful effect or impact
on real people in the context of the place
of the group in the entire ethnic or social, political, economic and
legal structure
of our society.
46. I share the view that attention to social context
and the recognition of the cultural diversity of people by judicial
officers,
help to construct a society in which difference and
diversity are not tied to prejudice and disadvantage but are affirmed
and celebrated.
The failure to recognise difference and disadvantage
could lead to injustice for communities and individuals whose values,
circumstances
and way of life are different from those in authority.
47. The school, by adopting formal equality which does
not take into account actual social and economic disparities or
material
and significant differences between groups and individuals
and which ignores the historical burden of inequality which the
Constitution
seeks to overcome, neglects the deepest commitment of
the Constitution. Support for this view is found in Minister of
Finance and
Another v Van Heerden
[2004] ZACC 3
;
2004 (6) SA 121
(CC) para 26 where
Moseneke J held:
“
The jurisprudence of this Court makes plain
that the proper reach of the equality right must be determined by
reference to our history
and the underlying values of the
Constitution. As we have seen a major constitutional object is the
creation of a non-racial and
non-sexist egalitarian society
underpinned by human dignity, the rule of law, a democratic ethos and
human rights. From there emerges
a conception of equality that goes
beyond mere formal equality and mere non-discrimination which
requires identical treatment,
whatever the starting point or impact.”
48. Appellant and her daughter are members of a group
that was subjected to systemic legal, political, social and economic
inequalities
in the past. These inequalities still remain embedded in
the social structures, practices and attitudes. The conduct of the
school
towards Appellant, her daughter and their ethnic group in this
context is not fair as it forbids the unobtrusive celebration of
their religious or cultural tradition.
Factors referred to in section 14 (3).
Whether the discrimination impairs or is likely to
impair human dignity.
49. The value aspect of human dignity referred to in
section 1 read with sections 7 (1), 36 (1) and 39 (1) of the
Constitution is
at issue. The Constitution asserts dignity to
contradict our past and to inform the future of the necessity to show
respect for
the intrinsic worth of all human beings. See Dawood and
Others v Minister of Home Affairs
[2000] ZACC 8
;
2000 (3) SA 936
(CC) at para’s
34-37. In President of South Africa and Another v Hugo
1997 (4) SA 1
(CC) Goldstone J stated at para 41:
“
At the heart of the prohibition of unfair
discrimination lies a recognition that the purpose of our new
constitution and democratic
order is the establishment of a society
in which all human beings will be accorded dignity and respect
regardless of their membership
of particular groups . . .”
50. In para 23 of National Coalition for Gay and Lesbian
Equality above, Ackermann J associated himself with the point made in
the
Supreme Court of Canada, in the case of Vriend v Alberta, that
fear of discrimination leads to concealment of true identity and
this
is harmful to personal confidence and self esteem and a potential
harm to the dignity and perceived worth.
51. Appellant and her daughter revealed their true
identity. It is not just fear of, but discrimination itself, in their
case. Here
we have actual harm to dignity as a result of unfair
treatment and not just potential harm. The failure by the school to
recognise
the full place of Appellant’s group in its society
and to allow Appellant, her daughter and their group the right to
enjoy
their culture and to practise their religion, as embodied in
the nose stud and the reference to their religion and culture, by
First and Second Respondents, as “idiosyncratic practices”,
amount to a repudiation of their equal worth and respect
as human
beings, regardless of individual differences. The discrimination in
this case impairs human dignity and is unfair.
52. Appellant’s own sentiments, expressed during
her testimony, and which are fitting under this factor, and found at
page
213 of the record are the following:
“
I think it is important that we promote
respect for other people’s religions and other people’s
understanding of themselves
and acts of discrimination are personal.
They speak directly to a person’s self-esteem and self-respect.
They speak directly
to our mental body, our emotional body and our
spiritual body and to denigrate that, to demean or humiliate or hurt
another’s
soul negates every religion in the world, not just
Hinduism . . .”
(b) The impact or likely impact of the discrimination on
the complainant.
53. Appellant, her daughter and their group have been
victims of systemic inequality and unfair discrimination in the past.
The
consequence or effect of the equal treatment or apparently
neutral actions of the school on them without any regard to
underlying
patterns of inequality is the reinforcement and
perpetuation of the social and structural inequalities or patterns of
group disadvantage
or exclusion. The focus of the equality clause in
the Constitution is not treatment but impact. The school’s
action threatens
the self-esteem or disturbs the internal equilibrium
and undermines the dignity of Appellant and her daughter. They feel
harassed,
demeaned, humiliated and traumatised as a result of the
discrimination. The indirect discrimination with such group based
negative
and prejudicial impact nurture, entrench and intensify the
patterns of social disadvantage and harm and is not fair.
(c) The Position of the Appellant in society and whether
she suffers from patterns of disadvantage or belongs to a group that
suffers
from such patterns of disadvantage.
54. Appellant and her daughter belong to the
Hindu/Indian group. This is a group that is socially vulnerable and
suffers from historically
created patterns of disadvantage. The
impugned provision of the code of conduct adds another form of
subordination and marginalisation
of a disfavoured group, by the
school. In failing to differentiate, on the grounds of culture or
religion, between groups that
are materially different the school
commits what is regarded as a major contemporary form of unfair
discrimination.
(d) The nature and extent of discrimination.
55. The discrimination is not limited to Appellant and
her daughter only. There is evidence that thirty other school
principals
do not allow nose studs, in their codes of conduct.
Appellant correctly characterised that state of affairs as systematic
discrimination.
The discrimination affects a broader group. The
situation has been ongoing. It is however not part of a necessary
broader scheme
to overcome particular discrimination. The
discrimination negates traditions which, on the evidence, have been
followed by generations
of Appellant’s group for centuries. The
drafters of the Constitution and of the Equality Act saw fit to
specify culture and
religion as two of the prohibited grounds of
discrimination, as they recognised that systematic patterns of
discrimination on grounds
other than race have caused and many
continue to cause considerable harm. See Brink above at para 41. The
discrimination in this
regard is not fair.
(e) Whether the discrimination is systemic in nature.
56. A discrimination suffered by Appellant, her daughter
and their group is deep-rooted and entrenched in the structures and
institutions
of society. There is evidence that the Hindus/Indians
constitute a cultural and religious minority in the schools governing
council,
teaching staff and learners which is vulnerable to
discriminatory treatment. It is individuals who are members of such
minorities
who must look to the Constitution and the Equality Act for
protection. The failure to recognise difference and disadvantage
leads
to injustice for communities and individuals whose values,
circumstances and ways of life are different from those of the
majority.
The form of discrimination which results from a schools
code of conduct is invisible as it is meted out through practices and
rules
that appear to be neutral yet they operate to exclude the
disfavoured groups. As the code of conduct reinforces social,
structural
and institutionalised inequality and unfair discrimination
it is systemic in nature and is not fair.
(f) Whether the discrimination has a legitimate purpose.
57. The Schools Act states, in its preamble, that the
country requires a new national system for schools which, among other
things,
advance the democratic transformation of society and combat
all forms of unfair discrimination and intolerance, protect and
advance
our diverse cultures and languages. According to the
Guidelines, the school must protect, promote and fulfil the rights
identified
in the Bill of Rights, including respect for one another’s
convictions and cultural traditions. As the impugned provision
of the
school’s code of conduct violates cultural and religious rights
of Appellant and her daughter, it does not serve a
legitimate or an
authorised purpose and is therefore not fair.
58. Counsel for Respondents has submitted that the rules
in the code of conduct serve the important purpose of the equality of
treatment
and that it is important that the rule in this case is
facially neutral and is not directed or targeted at the particular
cultural
practice on which the Appellant relies. This submission
cannot be sustained. Substantive equality does not require symmetry.
It
demands asymmetry. I have made it clear hereinbefore that the
failure to differentiate or the facially neutral rule relied on by
Respondents is regarded as a major contemporary form of unfair
discrimination. It fails to dismantle structures and practices which
unfairly obstruct or unduly attenuate enjoyment of rights and
freedoms. Therefore its purpose is illegitimate.
(g) and (h) Whether and to what extent the
discrimination achieves its purpose and whether there are less
restrictive and less disadvantageous
means to achieve the purpose.
59. The criteria set out in section 14 (3) (g) and (h)
involve the assessment and weighing up of the relationship between
the discriminatory
conduct and its purpose. If the conduct does not
achieve its purpose or if the purpose could be achieved by less
burdensome means,
the discrimination is more likely to be unfair.
Since the impugned provision of the schools code of conduct
reinforces what the
empowering legislation and the Constitution
require it to address and eliminate, indirect discrimination, it
serves no legitimate
purpose. When no legitimate purpose is served
the discrimination is unfair and an assessment and weighing up stage
cannot be reached.
60. Respondents have alleged that a wearing of a nose
stud, in contravention of the schools code of conduct, affects the
smooth
running of the school. This suggests that the discrimination
has a disciplinary purpose. Respondents have however provided no
evidence
of how the smooth running of the school was, at any stage,
affected by the wearing of the nose stud by Appellant’s
daughter.
The existence of concerns relating to discipline must be
unequivocally established and be sufficient for the infringement of a
constitutional right or freedom to be justified. Here there is no or
no compelling justification. Compare Multani above. Kriegler
J in S v
Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC) at para 210 said in this
regard:
“
At the very least the reasonableness of a
provision which flies directly in the face of an entrenched right
would have to be cogently
established. . .”
61. Another point raised by Respondents is that learners
are very quick to notice whether other learners are exempted from
compliance
with the code of conduct and this leads to discontent. The
following response by Appellant to counsel for Respondents’
question,
during cross-examination at page 241 of the record, is to
me, apposite.
“
Q You see I just want to know your response
as a parent, and one of the people entitled to elect the governing
body, how you expect
the school to deal with those problems or is
that irrelevant to you?
A Absolutely not. I think it is a very simple matter to explain to
any child that legally (Appellant’s daughter) has a right
to
follow her religious and cultural tradition.”
Appellant’s reply, in fact, reminds the
Respondents of their general duty to educate the learners about the
provisions of
the Constitution, the Schools Act and the Guidelines,
relevant to the rights and freedoms of each learner. This is a less
restrictive
and less disadvantageous means to achieve discipline.
62. The Respondents attempts to let the unfair
discrimination creep in, in the guise of discipline, cannot therefore
succeed. Even
if we assume that the impugned provision has a
legitimate schools disciplinary purpose there is a less restrictive
and less disadvantageous
means to achieve that purpose, as I have
mentioned above. I repeat that if some learners consider it unfair
that Appellant’s
daughter may wear her nose stud to school, it
is incumbent on the school to discharge its obligation to instil in
its learners
the values of religious and cultural tolerance, in other
words, to instil discipline in them. The Respondents would, at the
same
time, thereby be affirming Appellant’s daughter’s
dignity which is at the foundation of our democracy.
(i) Whether and to what to extent the Respondents have
taken such steps as being reasonable in the circumstances to:
(i) address the disadvantage which arises from or is
related to one or more of the prohibited grounds; or
(ii) accommodate diversity
There is no evidence indicating that Respondents have
taken any steps, let alone reasonable steps, to address the
disadvantage
caused by the discrimination suffered by Appellant,
her daughter and their group or to accommodate diversity.
Respondents have
also not shown that they have initiated any
process to redress the inequality and indirect discrimination which
on the evidence
has occurred.
64. The factors (a) – (e) above objectively
considered, either singly or cumulatively, conclusively establish, in
my view,
that Respondents have failed to prove that the
discrimination in this matter is fair.
65. The factors (f) – (i) above have not
established that the unfair discrimination has a legitimate purpose
as it does not
comply with what the empowering legislation, the
Guidelines and the Equality Act require: to protect, promote and
fulfil the rights
identified in the Bill of Rights including respect
for one anothers convictions and cultural traditions. They also have
not established
that Respondents have taken steps to address the
disadvantage which has arisen or to accommodate diversity.
Section 14 (2) (c) whether the discrimination reasonably
and justifiably differentiates or fails to differentiate between
persons
according to objectively determined criteria intrinsic to the
activity concerned.
66. The impugned provision of the code of conduct allows
the wearing, in school, of jewellery in the form of earrings –
plain
round studs/sleepers, probably for fashion and adornment
purposes but forbids the wearing, in school, of a very tiny nose
stud,
for cultural and/or religious purposes. This differentiation is
not rationally connected to a legitimate objective and is arbitrary.
The Court below found that the evidence established that cultural and
religious rights are implicated in this case. The Respondents
acknowledge that the evidence established that the wearing of a nose
stud is, at least, of cultural significance to Appellant,
her
daughter and their group.
67. Appellant described the nose stud worn by her
daughter as an extremely small stud that can barely be noticed. The
Court below
described it as a very tiny gold stud. Third Respondent
realises that the nose stud is small. Appellant also asserted that
the
nose stud does not, in any way, hinder the educational system or
the smooth running of the school or her daughter’s performance
as a learner. There is no evidence to contradict these assertions.
68. The indirect discrimination, on the evidence, is not
capable of objective substantiation in terms of criteria intrinsic to
the
educational system. It is not authorised by the empowering
statute. It does not accommodate diversity. Such indirect
discrimination
is, in my view, arbitrary, unlawful, unreasonable and
unjustifiable in an open and democratic society based on human
dignity, equality
and freedom.
69. In all the circumstances, I find that unfair
discrimination against Appellant, her daughter and their group has
taken place
as alleged by Appellant.
70. I accordingly propose the following order:
(a) The appeal is allowed.
(b) The order of the Court below is replaced with the
following:
“
The decision, prohibiting the
wearing of a nose stud, in school, by Hindu/Indian learners, is
declared null and void.”
(c) No order is made in respect of costs.
I agree. It is so ordered. ____________________
TSHABALALA JP
JUDGMENT RESERVED: 21
ST
APRIL
2006
JUDGMENT HANDED DOWN: 5
TH
JULY
2006
COUNSEL FOR APPELLANT: ADV. S M GOVENDER SC
with
ADV. P NAIDU
Instructed by: Pretoria Law Clinic
FOR AMICUS CURIAE: ADV. L PILLAY SC
with
ADV. D PILLAY
Instructed by: S R Sivi Pather attorneys
FOR 1
ST
AND 2
ND
RESPONDENTS: MR. M K GOVENDER
State attorney
FOR 3
RD
AND 4
TH
RESPONDENTS: ADV. M J D WALLIS SC
Instructed by: R F Sobey