MEC for Education: Kwazulu-Natal and Others v Pillay (CCT 51/06) [2007] ZACC 21; 2007 (3) BCLR 287 (CC); 2007 (2) SA 106 (CC); (2007) 28 ILJ 133 (CC) (5 October 2007)

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[2007] ZACC 21
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MEC for Education: Kwazulu-Natal and Others v Pillay (CCT 51/06) [2007] ZACC 21; 2007 (3) BCLR 287 (CC); 2007 (2) SA 106 (CC); (2007) 28 ILJ 133 (CC) (5 October 2007)

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CONSTITUTIONAL COURT OF SOUTH
AFRICA
CASE: CCT 51/06
[2007] ZACC 21
MEC
FOR EDUCATION: KWAZULU-NATAL First Applicant
THULANI
CELE: SCHOOL LIAISON OFFICER Second Applicant
ANNE
MARTIN: PRINCIPAL OF DURBAN GIRLS’
HIGH
SCHOOL Third Applicant
FIONA
KNIGHT: CHAIRPERSON OF THE GOVERNING
BODY
OF DURBAN GIRLS’ HIGH SCHOOL Fourth Applicant
versus
NAVANEETHUM
PILLAY Respondent
with
GOVERNING
BODY FOUNDATION First Amicus Curiae
NATAL
TAMIL VEDIC SOCIETY TRUST Second Amicus Curiae
FREEDOM
OF EXPRESSION INSTITUTE Third Amicus Curiae
Heard
on : 20 February 2007
Decided
on : 5 October 2007
JUDGMENT
LANGA CJ:
Introduction
What is the place of religious
and cultural expression in public schools? This case raises vital
questions about the nature of
discrimination under the provisions
of the Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000 (the Equality
Act) as well as
the
extent of protection afforded to cultural and religious rights in
the public school setting and possibly beyond.
At the
centre of the storm is a tiny gold nose stud.
The Parties
The first and second
applicants are the Member of the Executive Council for Education in
KwaZulu-Natal and the School Liaison
Officer for the KwaZulu-Natal
Education Department. I will refer to them collectively as “the
Department”. The third and
fourth applicants are the
headmistress of Durban Girls’ High School, Mrs Martin, and Mrs
Knight, the Chairperson of the Governing
Body of that School. I
will refer to the two collectively and the Durban Girls’ High
School itself interchangeably as either
“the School” or “DGHS”.
Any reference to “the applicants” is to all four applicants.
The respondent is Ms
Navaneethum Pillay who appears on behalf of her minor daughter,
Sunali Pillay (Sunali) who was, until the
end of last year, a
learner at DGHS. Ms Pillay runs a holistic centre known as Yabba
Dabba Do! Centre of Creativity.
Factual Background
Sunali applied for admission
to DGHS for the 2002 school year. Her mother signed a declaration
in which she undertook to ensure
that Sunali complied with the Code
of Conduct of the School (the Code). Sunali was admitted to the
School.
During the school holidays in
September 2004 Ms Pillay gave Sunali permission to pierce her nose
and insert a small gold stud.
When she returned to School after
the holidays on 4 October 2004, Ms Pillay was informed that her
daughter was not allowed to
wear the nose stud as it was in
contravention of the Code. The relevant part of the Code reads:
“
Jewellery: Ear-rings –
plain round studs/sleepers may be worn
, ONE in
each ear lobe at the same level. No other jewellery may be worn,
except a wrist watch. Jewellery includes any adornment/bristle
which may be in any body piercing. Watches must be in keeping with
the school uniform. Medic-Alert discs may be worn.”
Mrs Martin told Ms Pillay that
Sunali had received a laminated card to indicate that she had been
permitted to wear the nose stud
only until the end of October 2004.
This was in order to allow the piercing to heal so that the nose
stud would be capable of
being inserted and removed on a daily
basis. October came and went and Sunali did not remove the nose
stud. When the new academic
year of 2005 commenced, Sunali
returned to school with the nose stud still in place.
The School then requested Ms
Pillay to write a letter motivating why Sunali should be allowed to
continue to wear the stud. In
a letter dated 1 February 2005, Ms
Pillay apologised for not having discussed the issue of Sunali’s
nose stud with Mrs Martin
beforehand. She explained that she and
Sunali came from a South Indian family that intends to maintain
cultural identity by
upholding the traditions of the women before
them. The insertion of the nose stud was part of a time-honoured
family tradition.
It entailed that a young woman’s nose was
pierced and a stud inserted when she reached physical maturity as
an indication
that she had become eligible for marriage. The
practice today is meant to honour daughters as responsible young
adults. When
Sunali turned sixteen, her grandmother would replace
the gold stud with a diamond stud. She claimed that this was to be
done
as part of a religious ritual to honour and bless Sunali. Ms
Pillay made it clear that the wearing of the nose stud was not for
fashion purposes but as part of a long-standing family tradition
and for cultural reasons.
Following a meeting with the
Governing Body on 2 February 2005, Mrs Martin consulted with
recognised experts in the field of human
rights and Hindu tradition
in order to determine the School’s position. She was advised
that the School was not obliged to
allow Sunali to wear the nose
stud. The Governing Body accepted this advice and, on 3 March
2005, Mrs Martin informed Ms Pillay
of the decision not to permit
Sunali to wear the nose stud.
Ms Pillay was aggrieved by the
Governing Body’s decision. A stream of increasingly acrimonious
correspondence ensued between
her and Mrs Martin relating to the
reasons for the decision and the steps that would be taken as a
result. On 8 March 2005 Ms
Pillay wrote to the Department of
Education seeking clarity about its position, since she believed
that the Governing Body’s
decision violated her daughter’s
constitutional right to practice her religious and cultural
traditions. In May 2005, however,
Ms Pillay was informed that the
MEC supported the School’s approach. The School decided that if
Sunali did not remove the
nose stud by 23 May 2005 she would face a
disciplinary tribunal. Sunali did not remove the nose stud and a
hearing by the disciplinary
tribunal was then re-scheduled for 18
July.
The disciplinary hearing in
fact never took place as Ms Pillay took the matter to the Equality
Court on 14 July and obtained an
interim order restraining the
school from interfering, intimidating, harassing, demeaning,
humiliating or discriminating against
Sunali. The Equality Court
hearing for confirmation of the interim order was set down for 29
September 2005.
The Equality Court hearing
The issue before the Equality
Court was whether the School’s refusal to permit Sunali to wear
the nose stud at school was an
act of unfair discrimination in
terms of the Equality Act. The evidence presented by Ms Pillay
amounted to the following: the
practice of wearing the nose stud is
a tradition that is some 4000 to 5000 years old, hailing
predominantly from the south of
India. When a girl comes of age, a
stage marked by the onset of her menstrual cycle, the family
honours the fact of her becoming
a young woman. As part of the
ritual, a prayer is performed and her nose is pierced on the left
side for the insertion of the
nose stud. The ritual also serves
the purpose of endowing daughters with jewellery since a woman’s
dowry in patriarchal society
went to her husband and all she could
claim as her own was her jewellery. Further, according to
Ayurvedic medicine, the medicinal
branch of the Vedas, the left
side of the nose is directly related to fertility and childbearing.
Ms Pillay stressed that the
practice of wearing the nose stud or
ring plays an important part in many religions and is not limited
to Hinduism. On the other
hand, Hinduism has a variety of sects
that observe different practices.
Mrs Martin, on behalf of the
School, made the point that the Code had been drawn up in
consultation with the learners’ representative
council, parents
and the governing body. It is the practice of the School that
exemptions, based on religious considerations,
are made from the
provisions of the Code. Asked why an exemption was not granted to
Sunali on the basis of the religious reasons
given by Ms Pillay,
she stated that Ms Pillay had made it clear in her letter that the
nose stud was worn as a personal choice
and tradition and not for
religious reasons.
Dr Vishram Rambilass, called
by the School as an expert in Hindu religion, told the Court that
the practice in question is an
expression of Hindu culture. It was
not obligatory, nor was it a religious rite. Under
cross-examination, however, he conceded
that it was difficult to
distinguish between Hindu culture and Hindu religion and described
the situation as a “universal dilemma
of all cultures and
religions”. He stated further that it is difficult to pinpoint
what constitutes Hinduism, since there
are various schools that
have developed very differently.
The Equality Court held that
although a prima facie case of discrimination had been made out,
the discrimination was not unfair.
It characterised the purpose of
the Code as being “to promote uniformity and acceptable
convention amongst the learners”
and accepted Mrs Martin’s
evidence that undue permissiveness could result in a conflict with
the Code, “thereby creating
a disorderly environment.” In
reaching its conclusion the Court took into account several factors
namely: Ms Pillay had agreed
to the Code when she took Sunali to
the School; the Code was devised by the School in consultation with
the students, parents
and educators; and also that Ms Pillay had
failed to consult with the School before sending Sunali to it with
the nose stud.
The Court held that no impairment to Sunali’s
dignity or of another interest of a comparably serious nature had
occurred and
concluded that DGHS had acted reasonably and fairly.
In addition, the Court held that any harm that may have been caused
“was
as a result of [Sunali’s] and her mother’s own doing.”
This decision by the Equality Court was taken on appeal by Ms
Pillay
to the Pietermaritzburg High Court.
The High Court
In its
judgment, the High Court
1
(Kondile J with Tshabalala JP concurring) held that the conduct of
the School was discriminatory against Sunali and was unfair
in
terms of the Equality Act. It held that our society prohibits both
direct and indirect discrimination and aims to eliminate
entrenched
inequalities. It held further that the Equality Court had failed
to consider properly the impact of the Constitution
and the
Equality Act on the Code and that both religion and culture are
equally protected under the Equality Act and the Constitution.

Because the nose stud had religious and/or cultural significance to
Sunali, the failure to treat her differently from her peers
amounted to withholding from her “the benefit, opportunity and
advantage of enjoying fully [her] culture and/or of practising
[her] religion” and therefore constituted indirect
discrimination.
The
High
Court rejected arguments by the applicants that Sunali had waived
her right to insist on wearing the nose stud; that she could
not
complain about the prohibition because the Code had been the
product of extensive consultations; and that because Sunali
had
failed to testify on her own behalf her religious or cultural
belief in relation to the nose stud had not been established.
The
High Court held that Sunali’s failure to testify was irrelevant
as her mother had acted on her behalf, in her role as
a parent and
as a representative of the “Hindu/Indian” community.
In reaching the conclusion
that the conduct of the School amounted to unfair discrimination,
the High Court noted that Sunali
was part of a group that had been
historically discriminated against and that the School’s
contention that its rule prohibiting
the wearing of jewellery was a
general one applicable to every learner served only to prolong that
discrimination. It highlighted
the vulnerable and marginalised
status of Hindus and Indians in South Africa’s past and present,
the demeaning effect of denying
Sunali’s religion
―
and hence her identity
―
and the systemic nature of the discrimination. It held that the
insistence by the School on uniformity or similar treatment
was
inappropriate as it failed to dismantle structures of
discrimination. The Court held further that the desire to maintain
discipline in the School was not an acceptable reason for the
prohibition as there was no evidence that wearing the nose stud
had
a disruptive effect on the smooth-running of the School. The High
Court found that, in any event, there were less restrictive
means
to achieve the laudable objectives of the School as it could simply
explain to its learners that Sunali’s religion or
culture
entitles her to wear the nose stud.
The High Court accordingly set
aside the decision and order of the Equality Court and replaced it
with an order declaring “null
and void” the School’s
“decision, prohibiting the wearing of a nose stud, in school, by
Hindu/Indian learners”. The
School now applies for leave to
appeal to this Court against the decision of the Pietermaritzburg
High Court.
Proceedings in this Court
The application for leave to
appeal against the decisions of the Pietermaritzburg High Court was
set down for hearing in this
Court on 2 November 2006. The hearing
was however postponed at the request of Ms Pillay because Sunali
was about to write her
examinations. The hearing eventually took
place on 20 and 21 February 2007.
The
Department then lodged a notice purporting to withdraw from the
case on the basis that the matter had become moot on two grounds.

Firstly, Sunali would no longer be at school by the time the case
was decided and, secondly, new guidelines
2
on school uniforms had been issued by the National Department of
Education after the institution of the case. The Department
contended that any future case on the issue would have to be
brought in terms of the new guidelines and any decision in the

present case would no longer be relevant.
New directions specifically
required the parties to address the issue of mootness as well as
the merits. The Department was directed
to file written
submissions notwithstanding their purported withdrawal.
Three institutions were
admitted as amici curiae. These were: the Governing Body
Foundation (GBF); the Natal Tamil Vedic Society
Trust (NTVS); and
the Freedom of Expression Institute (FXI). The GBF, a voluntary
association of 500 public school governing
bodies with a total
population of over 300 000 learners, generally supported the
appeal. It stated that it interacts with government
on issues
relating to education and believes that the High Court judgment
will have significant consequences for all schools,
including its
members and accordingly it has a keen interest in the case. It has
conducted a survey of its member schools to
determine their opinion
on the nose stud issue and the responses indicate that the majority
of schools do not allow nose studs
to be worn. In the view of the
member schools, the wearing of a nose stud pursuant to the High
Court’s decision would impact
negatively on discipline in their
schools.
The NTVS had been admitted as
amicus curiae in the High Court and applied for that status again
in this Court. It is a religious
and cultural organisation with
origins as far back as 1957. Its members are Tamil speakers and
its aims are to “foster the
Tamil language and culture and the
religious practices of Tamil South Africans.” The NTVS also has
a more general interest
in the promotion of cultural and religious
diversity. The NTVS supported Sunali’s right to wear the nose
stud as part of her
Tamil heritage.
Finally, the FXI, a non-profit
organisation with the stated objective of promoting freedom of
expression in South Africa averred
that it is particularly
concerned with the development of South African law relating to
freedom of expression. Its interest
in the matter involved
highlighting freedom of expression issues raised by the case in
addition to the equality issues already
raised by the parties.
Submissions before this
Court
The Department contended that
the High Court erred in characterising the matter as an equality
claim within the contemplation
of the Equality Act. It argued that
there can be no case for discrimination where it cannot be said
that there is a “dominant
group” that is treated better than
Sunali. The complaint should rather have been brought as a freedom
of religion claim and
recourse to the Equality Court was, according
to the applicants, entirely misplaced. The applicants submitted
that in any event,
the Code cannot be said to be discriminatory as
it affected all religions equally. The School further criticised
the failure
to lead Sunali’s evidence as, in their view, this
makes it impossible to determine if discrimination had occurred.
It was further contended that
in the event of it being found that there was discrimination
against Sunali, such discrimination
was not unfair. In that
context the applicants pointed to a number of factors, namely: that
the Code was compiled on the basis
of prior consultations with all
relevant parties; the fact that Ms Pillay had agreed to the Code;
the popularity of nose studs
outside of Sunali’s culture; the
importance of uniforms in maintaining discipline; the need to give
deference to school authorities;
and the fact that the ban on the
wearing of a nose stud could only have a limited effect on Sunali’s
culture since she was
at liberty to wear the nose stud when she was
not at school.
These contentions were
substantially supported by the GBF. The Department did not persist
with its contention that the issue
before the Court was moot; on
the other hand, the School and the GBF argued that the matter was
not moot because of its impact
on all other schools. It also
disputed the claim that Sunali formed part of an identifiable
culture.
For her part, Ms Pillay took
the view that the issue is moot because Sunali was no longer a
learner at DGHS and, according to
her, the new guidelines have
changed the legal landscape. She also submitted that under the
Equality Act it was unnecessary
to show a comparator or a dominant
group. As long as a rule imposes disadvantage, it can be
discriminatory. She contended further
that Sunali’s failure to
testify was irrelevant as it was not raised when Ms Pillay was
cross-examined in the Equality Court.
Ms Pillay downplayed the
need to accord deference to the school authorities as well as the
role of consultation. She argued
that there was no evidence that
refusing Sunali an exemption improved discipline at the School.
While her primary case was based
on equality, she also sought to
assert the rights to freedom of expression and freedom of religion
as independent claims.
The NTVS and the FXI submitted
argument together. They emphasised the importance of culture.
While accepting that culture and
religion differ, they argued that
once a cultural practice is established, it should be treated
exactly the same as a religious
practice. They also took issue
with the reliance placed by the School and the GBF on the
perception of the nose stud as a desirable
fashion accessory. They
further argued that freedom of expression could be considered as a
separate right but that even if it
could not, it was still relevant
in interpreting the Equality Act. They contended that Sunali’s
right to freedom of expression
had been unjustifiably limited
because Sunali’s nose stud posed no risk of substantial
disruption to school activities.
Leave to Appeal
The parties were agreed that
the case raises a constitutional issue; it was also not disputed
that the applicants have reasonable
prospects of success on appeal.
There are, however, two issues that must be examined in order to
determine whether leave to
appeal should be granted. The first is
the fact that the Supreme Court of Appeal has been bypassed and the
second is the issue
of mootness. The central enquiry is whether it
is in the interests of justice for leave to appeal to be granted.
It is clear
that the issues in this case involve
matters that must
eventually be decided by this Court. The parties themselves have
made this patently clear.
These issues have
been fully canvassed in two courts. We have also had the benefit
of c
omprehensive argument, presented by the parties and the
three amici curiae. In my view, it is not in the interests of
justice
in this case to require the parties to incur the additional
expense of going to the Supreme Court of Appeal before the matter

is decided by this Court.
With regard to mootness,
this Court has held that:
“
A case is moot and therefore
not justiciable if it no longer presents an existing or live
controversy which should exist if the
Court is to avoid giving
advisory opinions on abstract propositions of law.”
3
Sunali is no
longer at DGHS and the issue is therefore moot. This Court has
however held that it may be in the interests of justice
to hear a
matter even if it is moot if “any order which [it] may make will
have some practical effect either on the parties or
on others.”
4
The following factors have been held to be potentially relevant:
the nature
and extent of the practical effect that any possible order might
have;
5
the
importance of the issue;
6
the
complexity of the issue;
7
the
fullness or otherwise of the argument advanced;
8
and
resolving
disputes between different courts.
9
I do not agree with Ms
Pillay’s contention that the new guidelines that have been issued
by the Department have altered the
“legal landscape” in which
these questions must be considered. The implication of this
submission is that any decision this
Court may make will have no
relevance as it will have been decided under a legal regime that is
no longer applicable.
The
guidelines are not mandatory but are exactly what they purport to
be – a guide. The following features all demonstrate
the
non-binding nature of the guidelines: section 8(3) of the South
African Schools Act
10
which empowers the Minister to make the guidelines states that they
are for the “consideration” of schools; while some of
the
regulations are couched in mandatory language,
11
the vast majority – including those relating to religious and
cultural diversity – use the suggestive word “should”;
the
section on religious and cultural diversity is solely to “assist”
schools in determining their uniform policy;
12
when a governing body adopts a new code, the only requirement is
that it “should make [its] decision in terms of these
guidelines”;
13
and the strongest obligation that exists on governing bodies is
that they must “consider” the guidelines.
14
That hardly alters the “legal landscape” as schools, including
DGHS, might consider the guidelines and lawfully decide to
adopt
exactly the same provision that is currently before us. Any
aggrieved party would be entitled to bring exactly the same
challenge. That Ms Pillay might have an additional challenge based
on a failure to consider the guidelines does not seem relevant.
As already noted, this matter
raises vital questions about the extent of protection afforded to
cultural and religious rights
in the school setting and possibly
beyond. The issues are both important and complex, as is evidenced
by the varying approaches
of the courts below as well as courts in
foreign jurisdictions. Extensive argument has been presented, not
only from the parties
but from three amici curiae. There is
accordingly no doubt that the order, if the matter is heard, will
have a significant practical
effect on the School and all other
schools in the country, although it will have no direct impact on
Sunali. It is therefore
in the interests of justice to grant leave
to appeal.
What is at issue?
The first question is whether
the discrimination complained of by Ms Pillay flows from the Code
or from the decision of the School
to refuse an exemption. Ms
Pillay specifically identifies the decision of the School as the
problem, but the major part of the
arguments addressed to the Court
by all the other parties focused on the discriminatory nature of
the Code.
To my mind, it is the combination of
the Code and the refusal to grant an exemption that resulted in the
alleged discrimination,
not the one or the other in isolation.
There are two problems with
the Code, which operate together. The first is that it does not
set out a process or standard according
to which exemptions should
be granted, for the guidance of learners, parents and the Governing
Body. The School has itself developed
a tradition of granting
exemptions in certain circumstances. The second problem is the
fact that the jewellery provision in
the Code does not permit
learners to wear a nose stud and accordingly required Sunali to
seek an exemption in the first place.
It is true, however, that even
taking these flaws into account, this dispute would never have
arisen if the School had granted
an exemption to Sunali. Whether
the policy according to which that decision was taken was part of
the Code, or existed only
as the Governing Body’s tradition,
would ultimately have made no difference. Nonetheless, it is still
necessary for the Court
to address the underlying problems of the
Code. A properly drafted code which sets realistic boundaries and
provides a procedure
to be followed in applying for and the
granting of exemptions, is the proper way to foster a spirit of
reasonable accommodation
in our schools and to avoid acrimonious
disputes such as the present one. In sum, the problem is both the
decision to refuse
Sunali an exemption and the inadequacies of the
Code itself.
The correct approach to
“discrimination” under the Equality Act
Unfair discrimination, by both
the State and private parties, including on the grounds of both
religion and culture, is specifically
prohibited by sections 9(3)
and (4) of the Constitution, which read:
“
(3) The state may not
unfairly discriminate directly or indirectly against anyone on one
or more grounds, including race, gender,
sex, pregnancy, marital
status, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief,
culture, language and
birth.
(4) No person may unfairly
discriminate directly or indirectly against anyone on one or more
grounds in terms of subsection (3).
National legislation must be
enacted to prevent or prohibit unfair discrimination.”
The Equality Act is clearly the
legislation contemplated in section 9(4) and gives further content
to the prohibition on unfair
discrimination.
15
Section 6 of the Equality Act reiterates the Constitution’s
prohibition of unfair discrimination by both the State and private
parties on the same grounds including, of course, religion and
culture.
16
Although this Court has regularly considered unfair discrimination
under section 9 of the Constitution, it has not yet considered
discrimination as prohibited by the Equality Act. Two preliminary
issues about the nature of discrimination under the Act therefore
arise.
The first is that claims
brought under the Equality Act must be considered within the four
corners of that Act. T
his Court has held in the
context of both administrative and labour law that a litigant
cannot circumvent legislation enacted
to give effect to a
constitutional right by attempting to rely directly on the
constitutional right.
17
To do so would be to “
fail to recognise the important
task conferred upon the legislature by the Constitution to respect,
protect, promote and fulfil
the rights in the Bill of Rights.”
18
The same principle applies to the Equality Act.
Absent a direct challenge to the Act, courts must assume that the
Equality Act
is consistent with the Constitution and claims must be
decided within its margins.
The second issue is how the
definition of “discrimination” in the Equality Act should be
interpreted. Section 1 of the Equality
Act defines
“discrimination” as:
“
any act or omission,
including a policy, law, rule, practice, condition or situation
which directly or indirectly—
(a) imposes burdens,
obligations or disadvantage on; or
(b) withholds benefits,
opportunities or advantages from,
any person on one or more of
the prohibited grounds”.
The School, the GBF and, to a
lesser extent, the Department argued that in this case, there was
no comparator in the form of a
group that was treated better than
Sunali. They contended that although a comparator is not
specifically mentioned in the definition
in the Equality Act, it
should be implied as a requirement. Absent a comparator therefore,
no discrimination could be established.
Ms Pillay’s response to
this line of reasoning spawned a deeper debate about the extent to
which the Act must be informed
by section 9 of the Constitution and
this Court’s interpretation of that section.
I deal with that deeper
problem first and then turn to the specific question of the need
for a comparator. Section 39(2) of the
Constitution makes it clear
that the Act must be interpreted in light of the “spirit, purport
and objects of the Bill of Rights”
which includes section 9.
That does not mean that the Act must be interpreted to restate the
precise terms of section 9. The
legislature, when enacting
national legislation to give effect to the right to equality, may
extend protection beyond what is
conferred by section 9. As long
as the Act does not decrease the protection afforded by section 9
or infringe another right,
a difference between the Act and section
9 does not violate the Constitution. It would therefore not be a
problem if the definition
of discrimination in the Act included
forms of conduct not covered by section 9 as long as the
prohibition of those forms of
conduct conformed to the Bill of
Rights.
Fortunately, on the approach I
adopt below, the final determination of the more direct question of
whether the Equality Act always
requires a comparator can be left
for another day. I hold that there is an appropriate comparator
available in this case. It
is those learners whose sincere
religious or cultural beliefs or practices are not compromised by
the Code, as compared to those
whose beliefs or practices are
compromised. The ground of discrimination is still religion or
culture as the Code has a disparate
impact on certain religions and
cultures. The norm embodied by the Code is not neutral, but
enforces mainstream and historically
privileged forms of adornment,
such as ear studs which also involve the piercing of a body part,
at the expense of minority and
historically excluded forms. It
thus places a burden on learners who are unable to express
themselves fully and must attend
school in an environment that does
not completely accept them. In my view, the comparator is not
learners who were granted an
exemption compared with those who were
not.
19
That approach identifies only the direct effect flowing from the
School’s decisions and fails to address the underlying indirect
impact inherent in the Code itself.
It follows, therefore that the
Code coupled with the decision to refuse Sunali an exemption will
be discriminatory if they imposed
a burden on her or withheld a
benefit from her. In the circumstances of this case that will
require a showing that Sunali’s
religious or cultural beliefs or
practices have been impaired. It is to that question that I now
turn.
Discrimination
The prohibition of
discrimination on the basis of religion or culture in terms of the
Equality Act and section 9 of the Constitution
is distinct from the
protection of religion and culture provided for by sections 15
20
and 30
21
of the Constitution. The two rights may overlap, however, where
the discrimination in question flows from an interference with
a
person’s religious or cultural practices.
22
Therefore, in order to establish discrimination in this case, Ms
Pillay must show that the School in some way interfered with
Sunali’s participation in or practice or expression of her
religion or culture. This inquiry is similar to an inquiry under
sections 15 or 30, but it is not identical because the Court must
go on to consider whether the discrimination, if any, was unfair.
The alleged grounds of
discrimination are religion and/or culture. It is important to
keep these two grounds distinct. Without
attempting to provide any
form of definition, religion is ordinarily concerned with personal
faith and belief, while culture
generally relates to traditions and
beliefs developed by a community. However, there will often be a
great deal of overlap between
the two; religious practices are
frequently informed not only by faith but also by custom, while
cultural beliefs do not develop
in a vacuum and may be based on the
community’s underlying religious or spiritual beliefs.
Therefore, while it is possible
for a belief or practice to be
purely religious or purely cultural, it is equally possible for it
to be both religious and cultural.
With that brief introduction
in mind, I now address the facts of this specific case. The first
question is whether Sunali is
part of an identifiable religion or
culture. It was not contended that Hinduism is not a religion or
that Sunali is not a Hindu.
The GBF argued however that Sunali did
not show that she was part of an identifiable culture. While I do
not propose to provide
a comprehensive definition of culture, it is
necessary to consider the matter briefly. The GBF supported Lord
Fraser’s understanding
of “ethnic group” in the United
Kingdom’s Race Relations Act 1976
23
as being an appropriate starting point to define “culture”.
Lord Fraser held that
for
a group to constitute an “ethnic group” it must at least have
a
long shared history and a cultural tradition of its own, including
family and social customs and manners. Other relevant factors
would include a common geographical origin; a common language; a
common literature peculiar to the group; and a common religion
different from that of neighbouring groups or from the general
community surrounding it.
24
While
foreign jurisprudence is useful, the context in which a particular
pronouncement was made needs to be carefully examined.
25
Lord Fraser’s remarks were crafted in the specific context of
the English Race Relations Act and concerned legislation
specifically
directed at race and ethnicity, not at the concept of
culture, broadly understood. They are accordingly, in my view, not
a reliable
guide in interpreting the Equality Act. In addition,
discrimination on the basis of race, ethnic or social origin,
religion
and language is already prohibited by the Constitution and
the Equality Act. Our understanding of “culture” must
therefore
extend beyond the limits of those terms which seem to
have been the focus of Lord Fraser’s definition. At the same
time, if
too wide a meaning is given to culture, “the category
becomes so broad as to be rather useless for understanding
differences
among identity groups.”
26
(Footnote omitted.)
The
outer
limits of culture fortunately do not concern us in this case. Even
on the most restrictive understanding of culture,
Sunali is
part of the South Indian, Tamil and Hindu groups which are defined
by a combination of religion, language, geographical
origin,
ethnicity and artistic tradition. Whether those groups operate
together or separately matters not; combined or separate,
they are
an identifiable culture of which Sunali is a part.
Next, we need to consider the
religious and cultural significance of the nose stud. There were
two interrelated areas of contention.
The first was whether a
claim that a practice has religious or cultural significance should
be determined subjectively or objectively.
The second concerned
the absence of any evidence from Sunali herself.
It is accepted both in South
Africa
27
and abroad
28
that, in order to determine if a practice or belief qualifies as
religious a court should ask only whether the claimant professes
a
sincere belief. There is however no such consensus concerning
cultural practices and beliefs. There was much argument in
this
Court that because culture is inherently an associative practice, a
more objective approach should be adopted when dealing
with
cultural beliefs or practices. It is unnecessary in this case to
engage too deeply in that debate as both the subjective
and
objective evidence lead to the same conclusion. It is however
necessary to make two points.
Firstly, cultural convictions
or practices may be as strongly held and as important to those who
hold them as religious beliefs
are to those more inclined to find
meaning in a higher power than in a community of people. The
notion that “we are not islands
unto ourselves”
29
is central to the understanding of the individual in African
thought.
30
It is often expressed in the phrase
umuntu ngumuntu ngabantu
31
which emphasises “communality and the inter-dependence of the
members of a community”
32
and that every individual is an extension of others. According to
Gyekye, “an individual human person cannot develop and achieve
the fullness of his/her potential without the concrete act of
relating to other individual persons”.
33
This thinking emphasises the importance of community to individual
identity and hence to human dignity. Dignity and identity
are
inseparably linked as one’s sense of self-worth is defined by
one’s identity.
34
Cultural identity is one of the most important parts of a person’s
identity precisely because it flows from belonging to a
community
and not from personal choice or achievement. And belonging
involves more than simple association; it includes participation
and expression of the community’s practices and traditions.
Secondly, while cultures are
associative, they are not monolithic. The practices and beliefs
that make up an individual’s cultural
identity will differ from
person to person within a culture: one may express their culture
through participation in initiation
rites, another through
traditional dress or song and another through keeping a traditional
home. While people find their cultural
identity in different
places, the importance of that identity to their being in the world
remains the same. There is a danger
of falling into an antiquated
mode of understanding culture as a single unified entity that can
be studied and defined from outside.
As Martin Chanock warns us:
“
The idea of culture derived
from anthropology, a discipline which studied the encapsulated
exotic, is no longer appropriate. There
are no longer (if there
ever were) single cultures in any country, polity or legal system,
but many. Cultures are complex conversations
within any social
formation. These conversations have many voices.”
35
Cultures are living and
contested formations. The protection of the Constitution extends to
all those for whom culture gives meaning,
not only to those who
happen to speak with the most powerful voice in the present cultural
conversation.
The second debate I mentioned
earlier related to the absence of any evidence from Sunali. The
School argued that Sunali’s failure
to testify in the Equality
Court or to provide any affidavit renders it impossible for a court
to determine what her beliefs
are and this Court is accordingly
precluded from making a finding of discrimination.
It is always desirable, and
may sometimes be vital, to hear from the person whose religion or
culture is at issue. That is often
no less true when the belief in
question is that of a child. Legal matters involving children
often exclude the children and
the matter is left to adults to
argue and decide on their behalf. In
Christian Education South
Africa v Minister of Education
36
this Court held, in the context of a case concerning children, that
their
“
actual experiences and
opinions would not necessarily have been decisive, but they would
have enriched the dialogue, and the factual
and experiential
foundations for the balancing exercise in this difficult matter
would have been more secure.”
37
That is true for this case as
well. The need for the child’s voice to be heard is perhaps even
more acute when it concerns children
of Sunali’s age who should be
increasingly taking responsibility for their own actions and
beliefs.
However, as an analysis of the
evidence shows, Sunali’s failure to testify is not fatal to Ms
Pillay’s case. It is important
to note that the School does not
directly challenge the veracity of Ms Pillay’s testimony; it
simply argues that we should
have heard Sunali as well. I agree
with Ms Pillay that any difficulties they had with her testimony
should have been raised
in the Equality Court during
cross-examination, and not for the first time on appeal. It is
possible that if Ms Pillay had been
challenged on whether she
correctly represented Sunali’s belief, she would have called
Sunali, who was present in court, as
a witness.
In any event, we have the
specific admission of Mrs Martin that the nose stud has cultural
significance to Sunali although she
denies it has independent
religious significance. And we know how Sunali acted. Although
when Mrs Martin first confronted her
about the nose stud she agreed
to remove it, she consistently thereafter defied the will of the
School in order to adhere to
her belief. The initial failure can
easily be explained as a young woman uncertain about the
consequences of standing up against
the imposing authority of the
School’s headmistress. Sunali also endured a large measure of
insensitive treatment from her
peers, including the prefects of the
School, and media exposure, yet continued to stand by her belief.
All this points to the
conclusion that Sunali held a sincere belief
that the nose stud was part of her religion and culture.
The expert evidence of Dr
Rambilass, the School’s own expert witness, confirms the
impression that Sunali’s own conduct created.
The Doctor
accepted that the nose stud is a cultural practice that clearly has
“significance and value” and testified that
according to Hindu
tradition, nose piercing is part of the Shringaar which is
concerned with love, beauty and adornment, not
from the religious
texts. While Dr Rambilass disputed that the nose stud had
independent religious significance, he accepted
under
cross-examination that it is difficult to separate Hindu culture
and Hindu religion and that there are many different sects
of
Hinduism with different beliefs and practices. His evidence on
religion was also self-consciously focused on defining Hindu
religion according to the specific wording of the Vedic texts
rather than on a broader view of religion as being informed and
even defined by culture, tradition and practice.
In conclusion, the evidence
shows that the nose stud is not a mandatory tenet of Sunali’s
religion or culture; Ms Pillay has
admitted as much. But the
evidence does confirm that the nose stud is a voluntary expression
of South Indian Tamil Hindu culture,
a culture that is intimately
intertwined with Hindu religion, and that Sunali regards it as
such. The question arises whether
the nose stud should be
classified as a religious or cultural practice, or both. This
Court has noted that “the temptation
to force [grounds of
discrimination] into neatly self-contained categories should be
resisted.”
38
That is particularly so in this case where the evidence suggests
that the borders between culture and religion are malleable
and
that religious belief informs cultural practice and cultural
practice attains religious significance. As noted above, that
will
not always be the case: culture and religion remain very different
forms of human association and individual identity, and
often
inform peoples’ lives in very different ways. But in this
matter, culture and religion sing with the same voice and
it is
necessary to understand the nose stud in that light – as an
expression of both religion and culture.
The final question is whether
the Equality Act and the Constitution apply to voluntary religious
and cultural practices. This
question has not yet arisen before
South African courts. The School and the GBF have argued that
voluntary practices should
not be protected or should be accorded
less protection while Ms Pillay has taken the opposite stance.
The traditional basis for
invalidating laws that prohibit the exercise of an obligatory
religious practice is that it confronts
the adherents with a
Hobson’s choice between observance of their faith and adherence
to the law.
39
There is however more to the protection of religious and cultural
practices than saving believers from hard choices. As stated
above, religious and cultural practices are protected because they
are central to human identity and hence to human dignity which
is
in turn central to equality.
40
Are voluntary practices any less a part of a person’s identity
or do they affect human dignity any less seriously because
they are
not mandatory?
Freedom is one of the
underlying values of our Bill of Rights
41
and courts must interpret all rights to promote the underlying
values of “human dignity, equality and freedom”.
42
These values are not mutually exclusive but enhance and reinforce
each other. In
Ferreira v Levin NO and Others and Vryenhoek and
Others v Powell NO and Others
43
Ackermann J wrote that:
“
Human dignity has little
value without freedom; for without freedom personal development and
fulfilment are not possible. Without
freedom, human dignity is
little more than an abstraction. Freedom and dignity are inseparably
linked. To deny people their freedom
is to deny them their
dignity.”
44
A necessary element of freedom
and of dignity of any individual is an “entitlement to respect
for the unique set of ends that
the individual pursues.”
45
One of those ends is the voluntary religious and cultural
practices in which we participate. That we choose voluntarily
rather
than through a feeling of obligation only enhances the
significance of a practice to our autonomy, our identity and our
dignity.
The protection of voluntary as
well as obligatory practices also conforms to the Constitution’s
commitment to affirming diversity.
It is a commitment that is
totally in accord with this nation’s decisive break from its
history of intolerance and exclusion.
Differentiating between
mandatory and voluntary practices does not celebrate or affirm
diversity, it simply permits it. That
falls short of our
constitutional
project which not only affirms
diversity, but promotes and celebrates it. We cannot celebrate
diversity by permitting it only
when no other option remains.
As this Court held in
Minister of Home Affairs and Another v
Fourie and Another; Lesbian and Gay Equality Project and Others v
Minister of Home Affairs
and Others
:
46
“
The acknowledgment and
acceptance of difference is particularly important in our country
where for centuries group membership based
on supposed biological
characteristics such as skin colour has been the express basis of
advantage and disadvantage. South Africans
come in all shapes and
sizes. The development of an active rather than a purely formal
sense of enjoying a common citizenship
depends on recognising and
accepting people with all their differences, as they are. The
Constitution thus acknowledges the variability
of human beings
(genetic and socio-cultural), affirms the right to be different, and
celebrates the diversity of the nation.”
47
(Footnotes omitted.)
These values are shared with
other jurisdictions, such as Canada, to name one, where the Supreme
Court has affirmed the necessity
of protecting voluntary religious
practices.
48
The protection of voluntary
practices applies equally to culture and religion. Indeed,
it
seems to me that it may even be more vital to protect
non-obligatory cultural practices. Cultures, unlike religions, are

not necessarily based on tenets of faith but on a collection of
practices, ideas or ways of being. While some cultures may have
obligatory rules which act as conditions for membership of the
culture, many cultures, unlike many religions, will not have an
authoritative body or text that determines the dictates of the
culture. Any single member of a culture will seldom observe all
those practices that make up the cultural milieu, but will choose
those which she or he feels are most important to her or his
own
relationship to and expression of that culture. To limit cultural
protection to cultural obligations would, for many cultures
and
their members, make the protection largely meaningless.
It follows that whether a
religious or cultural practice is voluntary or mandatory is
irrelevant at the threshold stage of determining
whether it
qualifies for protection. However, the centrality of the practice,
which may be affected by its voluntary nature,
is a relevant
question in determining the fairness of the discrimination. That
is a point I return to later.
I therefore find that Sunali
was discriminated against on the basis of both religion and culture
in terms of section 6 of the
Equality Act. I proceed now to
consider whether or not that discrimination was fair.
Unfairness
Section 13(2)(a) of the
Equality Act
49
tracks section 9(5) of the Constitution
50
in placing the onus on the applicants to prove that discrimination
on a listed ground is fair. Section 14 of the Equality Act
deals
with the determination of unfairness. It reads:
“
(1) It is not unfair
discrimination to take measures designed to protect or advance
persons or categories of persons disadvantaged
by unfair
discrimination or the members of such groups or categories of
persons.
(2) In determining whether the
respondent has proved that the discrimination is fair, the following
must be taken into account:
(a) The context;
(b) the factors referred to in
subsection (3);
(c) whether the discrimination
reasonably and justifiably differentiates between persons according
to objectively determinable criteria,
intrinsic to the activity
concerned.
(3) The factors referred to in
subsection (2)(b) include the following:
(a) Whether the discrimination
impairs or is likely to impair human dignity;
(b) the impact or likely impact
of the discrimination on the complainant;
(c) the position of the
complainant in society and whether he or she suffers from patterns
of disadvantage or belongs to a group
that suffers from such
patterns of disadvantage;
(d) the nature and extent of
the discrimination;
(e) whether the discrimination
is systemic in nature;
(f) whether the discrimination
has a legitimate purpose;
(g) whether and to what extent
the discrimination achieves its purpose;
(h) whether there are less
restrictive and less disadvantageous means to achieve the purpose;
(i) whether and to what extent
the respondent has 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.”
The list of factors in section
14(3) includes issues that traditionally fall under a fairness
analysis ((a), (b), (c) and (e))
51
and questions normally relevant to a limitation analysis under
section 36(1) of the Constitution
52
((d), (f), (g) and (h)). Accordingly, the fairness test under the
Equality Act as it stands may involve a wider range of factors
than
are relevant to the test of fairness in terms of section 9 of the
Constitution. Whether that approach is consistent with
the
Constitution is not before us, and we address the question on the
legislation as it stands.
Before considering the
fairness of the discrimination in this case, it will be convenient
to make a few comments about the form
of the unfairness inquiry
under the Equality Act in circumstances such as the present. Much
was said by both parties in argument
about the principle of
“reasonable accommodation”. Ms Pillay specifically argued that
Sunali’s case should be decided
on that principle. It is
therefore necessary to consider both the content of the idea of
reasonable accommodation and its place
in the Equality Act.
The concept of reasonable
accommodation is not new to our law – this Court has repeatedly
expressed the need for reasonable
accommodation when considering
matters of religion.
53
The Employment Equity Act
54
defines reasonable accommodation as “any modification or
adjustment to a job or to the working environment that will enable
a person from a designated group to have access to or participate
or advance in employment”
55
and recognises making reasonable accommodation for designated
groups as an affirmative action measure.
56
There is also specific mention of the concept in the Equality Act.
It recognises that “failing to take steps to reasonably
accommodate the needs” of people on the basis of race,
57
gender
58
or disability
59
will amount to unfair discrimination. The Equality Act places a
duty on the state to “develop codes of practice . . . in order
to
promote equality, and develop guidelines, including codes in
respect of reasonable accommodation”
60
and permits courts to order that a group or class of persons be
reasonably accommodated.
61
Finally, section 14(3)(i)(ii) lists as a factor for the
determination of fairness the question whether the applicant has
taken
reasonable steps to accommodate diversity.
But what is the content of the
principle? At its core is the notion that sometimes the community,
whether it is the State, an
employer or a school, must take
positive measures and possibly incur additional hardship or expense
in order to allow all people
to participate and enjoy all their
rights equally. It ensures that we do not relegate people to the
margins of society because
they do not or cannot conform to certain
social norms. In
Christian Education
,
62
in the context of
accommodating religious belief in society,
a unanimous Court identified the underlying motivation of the
concept as follows:
“
The underlying problem in
any open and democratic society based on human dignity, equality and
freedom in which conscientious and
religious freedom has to be
regarded with appropriate seriousness, is how far such democracy can
and must go in allowing members
of religious communities to define
for themselves which laws they will obey and which not. Such a
society can cohere only if all
its participants accept that certain
basic norms and standards are binding. Accordingly, believers
cannot claim an automatic right
to be exempted by their beliefs from
the laws of the land. At the same time, the State should, wherever
reasonably possible, seek
to avoid putting believers to extremely
painful and intensely burdensome choices of either being true to
their faith or else respectful
of the law.”
63
The idea extends beyond
religious belief. Its importance is particularly well illustrated
by the application of reasonable accommodation
to disability law.
As I have already mentioned, the Equality Act specifically requires
that reasonable accommodation be made
for people with disabilities.
Disabled people are often unable to access or participate in
public or private life because the
means to do so are designed for
able-bodied people. The result is that disabled people can,
without any positive action, easily
be pushed to the margins of
society:
“
Exclusion from the
mainstream of society results from the construction of a society
based solely on ‘mainstream’ attributes
to which disabled
persons will never be able to gain access. Whether it is the
impossibility of success at a written test for
a blind person, or
the need for ramp access to a library, the discrimination does not
lie in the attribution of untrue characteristics
to the disabled
individual. The blind person cannot see and the person in a
wheelchair needs a ramp. Rather, it is the failure
to make
reasonable accommodation, to fine-tune society so that its
structures and assumptions do not result in the relegation and
banishment of disabled persons from participation, which results in
discrimination against them.”
64
While the extent of this
exclusion is most powerfully felt by the disabled, the same
exclusion is inflicted on all those who are
excluded by rules that
fail to accommodate those who depart from the norm. Our society
which values dignity, equality, and freedom
must therefore require
people to act positively to accommodate diversity. Those steps
might be as simple as granting and regulating
an exemption from a
general rule or they may require that the rules or practices be
changed or even that buildings be altered
or monetary loss
incurred.
The difficult question then is
not whether positive steps must be taken, but how far the community
must be required to go to enable
those outside the “mainstream”
to swim freely in its waters. This is an issue which has been
debated both in this Court
65
and abroad
66
and different positions have been taken. For instance, although
the term “undue hardship” is employed as the test for

reasonable accommodation in both the United States and Canada, the
United States Supreme Court has held that employers need only
incur
“a
de minimis
cost” in order to accommodate an
individual’s religion,
67
whilst the Canadian Supreme Court has specifically declined to
adopt that standard
68
and has stressed that “more than mere negligible effort is
required to satisfy the duty to accommodate.”
69
The latter approach is more in line with the spirit of our
constitutional project which affirms diversity. However, the
utility
of either of these phrases is limited as ultimately the
question will always be a contextual one dependant not on its
compatibility
with a judicially created slogan but with the values
and principles underlying the Constitution.
70
Reasonable accommodation is, in a sense, an exercise in
proportionality that will depend intimately on the facts.
It is now necessary to
crystallise the role that reasonable accommodation can play in the
Equality Act. As noted earlier, the
principle is mentioned on a
number of occasions in the Equality Act. What concerns us in this
case, however, is section 14(3)(i)(ii)
which states that taking
reasonable steps to accommodate diversity is a factor for
determining the fairness of discrimination.
71
From this it is clear that reasonable accommodation will always be
an important factor in the determination of the fairness
of
discrimination. It would however be wrong to reduce the test for
fairness to a test for reasonable accommodation, particularly
because the factors relevant to the determination of fairness have
been carefully articulated by the legislature and that option
has
been specifically avoided.
There may be circumstances
where fairness requires a reasonable accommodation, while in other
circumstances it may require more
or less, or something completely
different. It will depend on the nature of the case and the nature
of the interests involved.
Two factors seem particularly relevant.
First, reasonable accommodation is most appropriate where, as in
this case, discrimination
arises from a rule or practice that is
neutral on its face and is designed to serve a valuable purpose,
but which nevertheless
has a marginalising effect on certain
portions of society. Second, the principle is particularly
appropriate in specific localised
contexts, such as an individual
workplace or school, where a reasonable balance between conflicting
interests may more easily
be struck.
72
Even where fairness requires a reasonable accommodation, the other
factors listed in section 14 will always remain relevant.
The present case bears both
these characteristics and therefore, in my view, fairness required
a reasonable accommodation. Whether
that required the School to
permit Sunali to wear the nose stud depends on the importance of
the practice to Sunali on the one
hand, and the hardship that
permitting her to wear the stud would cause the School. Before I
address that question, there were
two points raised about the
context within which fairness should be determined. These relate
to the need for deference and the
consultation that went into the
making of the Code.
Deference
The School and the GBF argued
that courts should show a measure of deference to governing bodies
that are statutorily required
to run schools and have the necessary
expertise to do so. They relied for this proposition on decisions
of the European Court
of Human Rights
73
and the House of Lords
74
which invoke
the doctrine of the “margin of
appreciation”. The doctrine has been described as
“
a recognition by the
[European Court] that the domestic authorities of any given Member
State are generally in a better position
than an international court
of supervisory jurisdiction to reach a decision on an individual
case or to determine the extent to
which a measure was ‘necessary’
to deal with a particular issue.”
75
This Court has held that the
doctrine is not a useful guide when deciding either whether a right
has been limited
76
or whether such a limitation is justified.
77
This Court has recognised the
need for judicial deference in reviewing administrative decisions
where the decision-maker is, by
virtue of his or her expertise,
especially well-qualified to decide.
78
It is true that the Court must give due weight to the opinion of
experts, including school authorities, who are particularly
knowledgeable in their area, depending on the cogency of their
opinions. The question before this Court, however, is whether
the
fundamental right to equality has been violated, which in turn
requires the Court to determine what obligations the School
bears
to accommodate diversity reasonably. Those are questions that
courts are best qualified and constitutionally mandated
to answer.
This Court cannot abdicate its duty by deferring to the School’s
view on the requirements of fairness. That approach
is obviously
incorrect for the further reason that it is for the School to show
that the discrimination was fair. A court cannot
defer to the view
of a party concerning a contention that that same party is bound to
prove.
Consultation
In urging that the Code should
be respected, the School stressed the fact that it was devised
after extensive consultation with
parents, educators, staff, and
learners, and accordingly represented the combined wisdom of all
who participated in its construction
and should therefore be
respected. There is no doubt that consultation and public
participation in local decision-making are
good and deserve to be
applauded. They promote and deepen democracy. In the context of
the Code, it means that the School community
is involved in the
running of the School and acquires a sense of ownership over the
Code. In
Doctors for Life v Speaker of the National Assembly
and Others
79
Ngcobo J held, in the context of public participation in
crafting national legislation, that:
“
participation by the public
on a continuous basis provides vitality to the functioning of
representative democracy. It encourages
citizens of the country to
be actively involved in public affairs, identify themselves with the
institutions of government and
become familiar with the laws as they
are made. It enhances the civic dignity of those who participate by
enabling their voices
to be heard and taken account of. It promotes
a spirit of democratic and pluralistic accommodation calculated to
produce laws
that are likely to be widely accepted and effective in
practice. It strengthens the legitimacy of legislation in the eyes
of the
people.”
80
This, however, does not
immunise the resultant decisions, in effect the opinion of the
school community, from constitutional scrutiny
and review.
81
The reality is that many individual communities still retain
historically unequal power relations or historically skewed
population
groups which may make it more likely that local
decisions will infringe on the rights of disfavoured groups. In
sum, while local
democratic processes and consultation are
important constitutional values in their own right, their role in
the evaluation of
the substance of decisions, if any, should not be
overstated.
I turn now to the question of
the importance of the nose stud to Sunali and its effect on the
School.
The severity of the
infringement
The School submitted that the
infringement of Sunali’s right, if any, is slight, because Sunali
can wear the nose stud outside
of school. I do not agree. The
practice to which Sunali adheres is that once she inserts the nose
stud, she must never remove
it. Preventing her from wearing it for
several hours of each school day would undermine the practice and
therefore constitute
a significant infringement of her religious
and cultural identity. What is relevant is the symbolic effect of
denying her the
right to wear it for even a short period; it sends
a message that Sunali, her religion and her culture are not
welcome.
The School further argued that
the nose stud is not central to Sunali’s religion or culture, but
is only an optional practice.
I agree that the centrality of a
practice or a belief must play a role in determining how far
another party must go to accommodate
that belief. The essence of
reasonable accommodation is an exercise of proportionality.
Persons who merely appear to adhere
to a religious and/or cultural
practice, but who are willing to forego it if necessary, can hardly
demand the same adjustment
from others as those whose identity will
be seriously undermined if they do not follow their belief. The
difficult question
is how to determine centrality. Should we
enquire into the centrality of the practice or belief to the
community, or to the
individual?
While it is tempting to
consider the objective importance or centrality of a belief to a
particular religion or culture in determining
whether the
discrimination is fair, that approach raises many difficulties. In
my view, courts should not involve themselves
in determining the
objective centrality of practices, as this would require them to
substitute their judgement of the meaning
of a practice for that of
the person before them and often to take sides in bitter internal
disputes. This is true both for
religious and cultural practices.
If Sunali states that the nose stud is central to her as a South
Indian Tamil Hindu, it is
not for the Court to tell her that she is
wrong because others do not relate to that religion or culture in
the same way.
Centrality must be judged with
reference only to how important the belief or practice is to the
claimant’s religious or cultural
identity.
82
In reaching that decision the Court can properly look at a range
of evidence including evidence of the objective centrality
of the
practice to the community at large. That evidence however is only
relevant in so far as it helps to answer the primary
inquiry of
subjective centrality. The fact that a practice is voluntary may
also be relevant as many people will not feel that
voluntary
practices are central to their religious or cultural identity. But
there will also be those who, although they do
not feel obliged to
observe a certain practice, feel that it is central to their
identity that they do so. They too deserve
protection. In sum,
the School and this Court must consider all the relevant evidence,
but the ultimate question they must answer
is: “How central is
the nose stud to Sunali’s religious and cultural identity?”
However, the need for a subjective investigation
takes us back to
the complaint that Sunali did not give evidence regarding that
importance.
Ms Pillay’s case would no
doubt have been assisted by Sunali’s evidence. However, the
Court must evaluate such evidence as
there is. Ms Pillay stated
that the nose stud was not imposed on Sunali; she had wanted her
nose pierced since the age of four.
The nose stud was not worn for
fashion reasons but was inserted as part of a traditional ritual
and an expression of her religious
and cultural identity. In her
first letter to the School, Ms Pillay wrote that the stud “serves
not only to indicate that
we value our daughters, but in keeping
with Indian tradition, that our daughters are the Luxmi (Goddess of
Prosperity) and Light
of the house.” In her testimony Ms Pillay
stated that by inserting the stud:
“
we acknowledge our
daughters, the women in our family, as a very vital part of family
life. We honour them and we honour the divine
within them. And
that’s important. It’s important for every child to know that
she garners respect.”
The wearing of the nose stud
was also not without consequences to Sunali. She was obviously
under a great deal of stress and
her grades dropped because of the
School’s reaction to the nose stud and the related publicity.
She was regularly required
to explain herself to staff members and
prefects at the school and was threatened with disciplinary action.
In spite of these
difficulties, Sunali did not alter her conduct
or belief. None of this evidence was disputed and it all points to
a very strong
belief on Sunali’s part that the nose stud was
important for her identity. I am accordingly convinced that the
practice was
a peculiar and particularly significant manifestation
of her South Indian, Tamil and Hindu identity. It was her way of
expressing
her roots and her faith. While others may have
expressed the same faith, traditions and beliefs differently or not
at all, the
evidence shows that it was important for Sunali to
express her religion and culture through wearing the nose stud.
The next string of the
School’s centrality bow was that the infringement of Sunali’s
right to equality is less severe because
the nose stud is a
cultural rather than a religious adornment. This was also the
basis originally relied upon by the School
for refusing the
exemption and why it could recognise the stud’s cultural
significance without granting Sunali an exemption.
To my mind the
argument is flawed. As stated above,
83
religious and cultural practices can be equally important to a
person’s identity. What is relevant is not whether a practice
is
characterised as religious or cultural but its meaning to the
person involved. Pre-determining that importance based on what
will often be an imperfect or artificial categorisation reinforces
ideas about the respective roles and importance of religion
and
culture in peoples’ lives and fails to accommodate those who do
not conform to that stereotype.
The School
also argued that if Sunali did not like the Code, she could simply
go to another school that would allow her to wear
the nose stud. I
cannot agree. In my view the effect of this would be to
marginalise religions and cultures, something that
is completely
inconsistent with the values of our Constitution. As already
noted, our Constitution does not tolerate diversity
as a necessary
evil, but affirms it as one of the primary treasures of our
nation.
84
There may, however, be occasions where the specific factual
circumstances make the availability of another school a relevant
consideration in searching for a reasonable accommodation.
However, there are no such circumstances in this case and the
availability
of another school is therefore not a relevant
consideration.
The Code limits freedom of
expression
While considering the
centrality of the practice to Sunali or the effect that its
prohibition would have on her dignity, it bears
mentioning that the
ban affects other constitutional rights as well. The dual purpose
of the NTVS and FXI’s submission was
to stress the relevance of
the right to freedom of expression to the case and to show that it
had been infringed. They argued
that freedom of expression was
relevant both as a self-standing right and as a relevant factor in
determining unfair discrimination.
This was disputed by the
applicants and the GBF on the basis that the case had been brought
under the Equality Act which does
not make provision for
non-equality claims.
It is unnecessary in this case
to decide whether it is possible to rely directly on the right to
freedom of expression under the
Equality Act, or whether the ban on
the nose stud is an unjustifiable limit on that right. It suffices
to say that the extent
to which discrimination impacts on other
rights will be a relevant consideration in the determination of
whether the discrimination
is fair and that the ban on the nose
stud limited Sunali’s right to express her religion and culture
which is central to the
right to freedom of expression.
The effect on the School
It is no doubt true that even
the most vital practice of a religion or culture can be limited for
the greater good.
85
No belief is absolute, but those that are closer to the core
of an individual’s identity require a greater justification to

limit. The question is whether, considering the importance of the
stud to Sunali, allowing her to wear the stud would impose too
great a burden on the School.
The primary argument of both
the School and the GBF was that allowing Sunali to wear the nose
stud or allowing others like her
similar exemptions would impact
negatively on the discipline in schools and, as a result, on the
quality of the education they
provide.
This evaluation is correctly
characterised by Ms Pillay as relating to the factors in section
14(3)(f), (g) and (h) of the Equality
Act that are also part of the
traditional section 36 analysis. It is also part of determining
whether allowing the stud imposes
an undue burden. If allowing the
stud would cause indiscipline and a drop in academic standards,
that might indeed be an undue
burden to impose on the School.
86
It is helpful to separate the inquiry into its constitutive parts:
Is there a legitimate purpose? Does the limitation achieve
the
purpose? Are less restrictive means available to achieve the
purpose?
Both discipline and education
are legitimate goals. However, care must be taken not to state the
School’s interest too broadly.
Sunali’s interest in wearing
her nose stud could never outweigh the general importance of
ensuring discipline in schools.
The interest of the School must be
confined to refusing Sunali an exemption, not to the wearing of
uniforms in general because
this case is not about uniforms, but
about exemptions to existing uniforms.
87
This is important because Mrs
Martin presented evidence about the importance of uniforms in
promoting a culture of discipline
and respect for authority.
According to her, children, especially teenagers, need boundaries
and the school environment should
be a place where the influences
of modern commercial life are moderated to create a better learning
environment. The pressures
of modern fashion are particularly
intense as girls try to imitate and out-do each other. Uniforms
help to limit the impact
of that competition on the learning
experience. There is no reason to question this evidence and Ms
Pillay does not do so.
The guidelines too recognise the importance
of uniforms in the school environment.
88
Rules are important to
education. Not only do they promote an important sense of
discipline in children, they prepare them for
the real world which
contains even more rules than the schoolyard. Schools belong to
the communities they serve and that ownership
implies a
responsibility not only to make rules that fit the community, but
also to abide by those rules. Nothing in this judgment
should be
interpreted as encouraging or condoning the breaking of school
rules.
But this case is not about the
constitutionality of school uniforms. It is about granting
religious and cultural exemptions to
an existing uniform. The
admirable purposes that uniforms serve do not seem to be undermined
by granting religious and cultural
exemptions. There is no reason
to believe, nor has the School presented any evidence to show, that
a learner who is granted
an exemption from the provisions of the
Code will be any less disciplined or that she will negatively
affect the discipline of
others.
I am therefore not persuaded
that refusing Sunali an exemption achieves the intended purpose.
Indeed, the evidence shows that
Sunali wore the stud for more than
two years without any demonstrable effect on school discipline or
the standard of education.
Granting exemptions will also have the
added benefit of inducting the learners into a multi-cultural South
Africa where vastly
different cultures exist side-by-side.
The only confirmed effect of
granting Sunali an exemption is that some of the girls might feel
it is unfair. While that is unfortunate,
neither the Equality Act
nor the Constitution require identical treatment. They require
equal concern and equal respect.
89
They specifically recognise that sometimes it is fair to treat
people differently. In
Christian Education
90
this Court held:
“
It is true that to single
out a member of a religious community for disadvantageous treatment
would, on the face of it, constitute
unfair discrimination against
that community. The contrary, however, does not hold. To grant
respect to sincerely held religious
views of a community and make an
exception from a general law to accommodate them, would not be
unfair to anyone else who did not
hold those views.”
91
This reasoning can and should
be explained to all the girls in the School.
92
Teaching the constitutional values of equality and diversity forms
an important part of education. This approach not only teaches
and
promotes the rights and values enshrined in the Constitution, it
also treats the learners as sensitive and autonomous people
who can
understand the impact the ban has on Sunali.
The School and the GBF made
two more specific arguments about the effect of the nose stud on
the School. First, they argued that
the nose stud should be
treated differently because it is also a popular fashion item.
Second, they contended that even if the
nose stud was acceptable,
allowing it would necessitate that many undesirable adornments be
permitted. I address each in turn.
Asserting that the nose stud
should not be allowed because it is also a fashion symbol fails to
understand its religious and
cultural significance and is
disrespectful of those for whom it is an important expression of
their religion and culture.
93
In addition, to uphold the School’s reasoning
would entail greater protection for religions or cultures whose
symbols are well
known; those are in fact often the ones least in
need of protection. It would also have the absurd result that if a
turban,
yarmulke or headscarf became part of popular fashion they
would no longer be constitutionally protected, while they have
constitutional
protection as long as they remain on the fringes of
society.
I accept that the popularity of the nose stud may
make it more difficult to determine if a learner is practicing her
religion
or culture or trying to impress her friends. But once the
former is established, as it has been in this case, the mainstream

popularity of a religious or cultural practice can never be
relevant.
The other argument raised by
the School took the form of a “parade of horribles”
94
or slippery slope scenario that the necessary consequence of a
judgment in favour of Ms Pillay is that many more learners will
come to school with dreadlocks, body piercings, tattoos and
loincloths. This argument has no merit. Firstly, this judgment
applies only to bona fide religious and cultural practices. It
says little about other forms of expression. The possibility
for
abuse should not affect the rights of those who hold sincere
beliefs. Secondly, if there are other learners who hitherto
were
afraid to express their religions or cultures and who will now be
encouraged to do so, that is something to be celebrated,
not
feared. As a general rule, the more learners feel free to express
their religions and cultures in school, the closer we
will come to
the society envisaged in the Constitution. The display of religion
and culture in public is not a “parade of
horribles” but a
pageant of diversity which will enrich our schools and in turn our
country. Thirdly, acceptance of one practice
does not require the
School to permit all practices. If accommodating a particular
practice would impose an unreasonable burden
on the School, it may
refuse to permit it.
The manner in which the
matter was raised
One final issue needs
attention. It is common cause that the way in which Ms Pillay
dealt with the problem left much to be desired
and the School has
quite rightly complained about it. The School argued that this
should count against Ms Pillay in the determination
of whether the
conduct of the School was unfair. Ms Pillay has accepted that it
would have been preferable to approach the School
before the nose
stud was inserted, rather than to confront the School with the nose
stud and demand that it should be accommodated.
Ms Pillay has
apologised for her conduct.
It is obviously preferable for
these matters to be dealt with by approaching the relevant
authority before the issue arises.
It indicates an important
degree of respect and a desire to resolve the matter amicably
rather than through confrontation. In
South African
Broadcasting Corp Ltd v National Director of Public Prosecutions
and Others
95
Sachs J pointed out, in the context of television broadcasting
of court proceedings, that
“
it is not in the interests
of justice for matters such as these to be resolved under a sword of
Damocles. All the questions concerning
[these difficult issues]
should be worked out through an appropriate process of negotiation.
This not only establishes clear points
of reference. It gives
sufficient time for all those involved to accustom themselves to the
major changes involved.”
96
While it is uncertain whether
there would have been a different result, the process of negotiation
is inherently valuable. It is
part of a search for a reasonable
accommodation that will suit both parties.
It would be perfectly correct
for a school, through its code of conduct to set strict procedural
requirements for exemption.
It would also be appropriate for the
parents and, depending on their age, the learners, to be required
to explain in writing
beforehand why they require an exemption.
That would ensure that these difficult matters are resolved
responsibly, fairly and
amicably. It seems that the absence of
such a procedure in the Code is largely to blame, not only for the
manner in which the
complaint was raised, but for the way in which
it was resolved. It is a serious obstacle to a search for
reasonable accommodation
that an appropriate procedure was not in
place.
That said, the manner in which
the matter was raised can have only minimal relevance to the
question of fairness. Sunali should
not be adversely affected
because of the confrontational manner in which the complaint was
raised. However the complaint was
originally made, the School made
a decision on the exemption with input and co-operation from Ms
Pillay. I therefore find that
the conduct of Ms Pillay in this
case is not a weighty consideration in the determination of
fairness.
Conclusion
The discrimination has had a
serious impact on Sunali and, although the evidence shows that
uniforms serve an important purpose,
it does not show that the
purpose is significantly furthered by refusing Sunali her
exemption. Allowing the stud would not have
imposed an undue
burden on the School. A reasonable accommodation would have been
achieved by allowing Sunali to wear the nose
stud. I would
therefore confirm the High Court’s finding of unfair
discrimination.
It is necessary, however, to
add the following: everything on the record indicates that DGHS
maintains high academic standards
and that it has taken meaningful
steps to accommodate diversity in its community. It regularly
allows religious exemptions and
promotes the expression of culture
at various events on the school calendar. It is, in other words,
an excellent school. This
judgment is not an indictment on DGHS
but an indication of the complexities that have to be overcome in
order to achieve a fully
religiously and culturally sensitive
society, not least of all in the schools of our land.
It is worthwhile to explain at
this stage, for the benefit of all schools, what the effect of this
judgment is, and what it is
not. It does not abolish school
uniforms; it only requires that, as a general rule, schools make
exemptions for sincerely held
religious and cultural beliefs and
practices. There should be no blanket distinction between religion
and culture. There may
be specific schools or specific practices
where there is a real possibility of disruption if an exemption is
granted. Or, a
practice may be so insignificant to the person
concerned that it does not require a departure from the ordinary
uniform. The
position may also be different in private schools,
although even in those institutions, discrimination is
impermissible. Those
cases all raise different concerns and may
justify refusing exemption. However, a mere desire to preserve
uniformity, absent
real evidence that permitting the practice will
threaten academic standards or discipline, will not.
The order
I have found that the Code
coupled with the decision to refuse an exemption is discriminatory.
This is not a review of administrative
action but a claim based on
the Equality Act. If the matter were not moot, it would therefore
not be appropriate simply to set
the decision aside and send it
back to the School for reconsideration. It would instead be just
and equitable to set aside the
School’s decision and grant Sunali
the exemption. However, as Sunali is no longer at the School, that
is not appropriate.
But Ms Pillay and Sunali are still entitled to
a declarator that she was unfairly discriminated against. That the
matter is
moot does not alter that position. The declarator is
simply a reflection of this Court’s findings. A failure to grant
a declarator
would, to my mind, fail to vindicate Sunali’s right
and would therefore not qualify as effective relief.
There was a dispute amongst
the parties as to whether this Court should confirm the High
Court’s order, or fashion a new order.
I find it unnecessary to
determine the precise meaning of the order. At best, it is
ambiguous and I prefer to replace it with
an order specifically
limited to Sunali.
In addition, I deem it
appropriate to make an order rectifying the procedural defect in
the Code. I have held that the lack of
a procedure for exemption
is one of the primary reasons this dispute has arisen. As noted
earlier, section 21(2)(i) of the Equality
Act specifically allows
for an order that reasonable accommodation be made for a group or
class of persons. Section 8(1) of
the South African Schools Act
97
gives the power to the School’s Governing Body to adopt a code of
conduct in consultation with learners, parents and educators.
98
The power to adopt must necessarily include the power to amend.
Although the Governing Body itself is not before us, it is
properly
represented by its chairperson. In this case it is therefore
appropriate to order the School’s Governing Body to
amend the
Code to provide for reasonable accommodation for deviations from
the Code on religious and cultural grounds and a procedure
for the
application and granting of those exemptions.
Neither the High Court nor the
Equality Court made any order as to costs. Ms Pillay has raised an
important constitutional issue
and has been successful. She should
not have to bear her costs. The School has been at the centre of a
difficult constitutional
issue. If it is required to pay costs the
funds must come from what would otherwise be spent on the learners.
While it has
been ultimately unsuccessful, it has played an
important role in ventilating a difficult constitutional issue. It
will accordingly
be appropriate in my view for Ms Pillay’s costs
to be paid solely by the Department.
The following order is made:
Leave to appeal is
granted.
The appeal is dismissed.
The order of the High
Court is set aside and replaced with the following:
It is declared that the
decision of the Governing Body of Durban Girls’ High
School to refuse Sunali Pillay an
exemption from its Code of
Conduct to allow her to wear a nose stud, discriminated
unfairly against her.
The Governing Body of
Durban Girls’ High School is ordered, in consultation with
the learners, parents and educators
of the
School and within a reasonable
time, to effect amendments to the School’s Code of Conduct to
provide for the reasonable accommodation
of deviations from the Code
on religious or cultural grounds and a procedure according to which
such exemptions from the Code can
be sought and granted.
The first and second
applicants are ordered to pay the respondent’s costs.
Moseneke DCJ, Madala J, Mokgoro
J, Navsa AJ, Ngcobo J, Nkabinde J, Sachs J, Skweyiya J and Van der
Westhuizen J concur in the judgment
of Langa CJ.
O’REGAN J:
I have had the pleasure of
reading the judgment prepared by the Chief Justice in this matter.
Although there is much in his judgment
with which I agree, I
dissent in part from the order he proposes. It is necessary
therefore for me to set out my approach to
the matter which leads
to this different conclusion.
Education is the engine of
equal opportunity. Education in South Africa under apartheid was
both separate and deeply unequal.
Notoriously, HF Verwoerd
proclaimed in 1953 that –
“
Native education should be
controlled in such a way that it should be in accord with the policy
of the state . . . If the native
in South Africa today in any kind
of school in existence is being taught to expect that he will live
his adult life under a policy
of equal rights, he is making a big
mistake . . . There is no place for him in the European community
above the level of certain
forms of labour. . . .”
1
And the apartheid state
implemented this vision. Spending on Black school children in 1976
was a fraction of spending on White
school children. It is not
surprising then that education was the trigger for the Soweto revolt
by Black school children. Throughout
the 1970s and 1980s, the issue
of unequal education mobilised thousands of South Africans of all
ages to oppose the apartheid state.
When democracy dawned in 1994,
the picture was bleak. By and large South African children of
different colours were educated
separately in institutions which
bore the scars of the appalling policy of apartheid. Excellence in
the matriculation examination
at the end of twelve years of formal
schooling reflected this unequal past. A tremendous challenge
faced the new government.
Things have improved somewhat
but the pattern of disadvantage engraved onto our education system
by apartheid has not been erased.
In 2003 there were 440 396
candidates for matriculation, of whom 77,4% were Black, 7,2% were
Coloured, 3,8% were Indian and
10,5% were White. Only 73% of these
candidates passed and a tiny 19% obtained a university entrance
pass. While more than 50%
of all white candidates who wrote
obtained a university entrance pass, only just over 10% of Black
candidates who wrote did so.
2
There is much to be done to achieve educational equality of
opportunity.
As importantly, although the
law no longer compels racially separate institutions, social
realities by and large still do. Most
Black learners are educated
in township schools where there are generally no White learners at
all. Many White learners are
educated in schools where there is
only a sprinkling of Black learners. The absence of racial
integration in our schools remains
a problem for us all. It
deprives young South Africans of the ability to meet, and to learn
and play together.
Durban Girls’ High School,
the school at issue in this case, is one of the exceptions.
Although historically it was a school
for White girls under
apartheid law, that has changed dramatically in the last fifteen
years. Now, we were told from the bar,
of its approximately 1300
learners, approximately 350 are Black, 350 are Indian, 470 are
White and 90 are Coloured. Moreover,
it is an educationally
excellent school which produces fine matriculation results. It is
at the cutting edge of non-racial education,
facing the challenges
of moving away from its racial past to a non-racial future where
young girls, regardless of their colour
or background, can be
educated. This context is crucial to how we approach this case.
At one level, this is a case
about a school learner (“the learner”) who, after having had
her nose pierced, sought an exemption
from the school rule which
prohibited adornment of this sort. At another level, it is about
how schools and other educational
institutions establish rules and
processes to accommodate diversity in a manner which makes all
learners in the school feel that
they are equally worthy and
respected.
The school, like most South
African schools, requires its learners to wear a uniform. The
requirements of the uniform are set
out in the school’s Code of
Conduct which provides as follows –
“
SCHOOL UNIFORM
Only the official school
uniform may be worn to school. This includes regulation shoes,
shirts, skirts and bags.
Jerseys may only be worn under
a blazer. Learners may wear a jersey without the blazer in the
school grounds but not to assembly.
Jerseys must be regulation
school jerseys with no logos.
Girls must leave the grounds
after sport in full correct sports kit or the official track suit,
with appropriate footwear otherwise
they must be in full school
uniform.
All items of school uniform
must be
clearly marked
with your name.
Hair
must be
worn in a style that is acceptable to the school. Once the hair is
long, it must be tied up using navy-blue or black
clips, ribbons or
bands. Hair may
not
be
dyed
or
tinted
.
Appropriate
braids are permitted. Braids may only be from
colours 0 – 6. Any other braid colour is unacceptable. Braid
colouring must
match the natural hair colour.
Jewellery
: Ear-rings –
plain round studs/sleepers may be worn, ONE in each ear lobe at the
same level.
No other jewellery
may be worn, except a wrist
watch. Jewellery includes any adornment/bristle which may be in
any body piercing. Watches must
be in keeping with the school
uniform. Medic-Alert discs may be worn.
Nails
must be kept
short and must
NOT
be varnished.
Name badges
are
compulsory during school times. Each learner must wear her own
badge.
Only official school badges
are permitted.
Learners are not permitted to
wear any other adornment even of a sentimental nature.
. . . .
Learners are obliged to
abide by the regulations which have been adopted by the school,
regarding the wearing of school or sports
uniform. Failure to do so
will lead to Community Service or Detention.
”
Section 8 of the South African
Schools Act, 84 of 1996 (“the Schools Act”), requires governing
bodies
3
of schools to “adopt a code of conduct for learners after
consultation with learners, parents and educators of the school.”
4
The purpose of a code of conduct is to establish a “disciplined
and purposeful school environment, dedicated to the improvement
and
maintenance of the quality of the learning process.”
5
According to Mrs Martin, the principal of the school (“the
principal”), the Code of Conduct was drawn up by the school’s
Governing Body in consultation with parents and the Learners’
Representative Council.
When parents apply for the
admission of their daughters to the school, they are required to
sign a form declaring that they will
ensure that their daughters
comply with the Code of Conduct and regulations of the school.
This the learner’s mother
6
did.
The Code of Conduct does not
contain any express procedure for exemption from its terms.
However, in her evidence, the principal
made clear that from time
to time exemptions are granted by the school. For example, at
certain times during the year, some
learners of the Hindu faith
apply to wear “Lakshmi strings” in honour of the Goddess
Lakshmi, the deity of prosperity and
well-being in the home.
Similarly, requests from learners to wear hide bracelets as a mark
of respect on the death of a close
relative are granted. When
exemptions of this sort are granted, the learner is given a card
noting the permission, should any
teacher query her non-compliance
with the Code of Conduct.
It is also clear from the
principal’s evidence that the basis upon which exemptions are
granted is not clearly established.
An important consideration is
whether the exemption is sought on religious grounds, but this is
not a pre-requisite for the
exemption to be granted. In this case,
the learner sought an exemption after having had her nose pierced.
The principal then
asked for an account as to why the exemption was
sought. That account was provided by the learner’s mother as
follows:
“
I also regret that Sunali
and I did not discuss the piercing of her nose and seek your
endorsement prior to acting on her decision.
Simultaneously, I
reiterate my need, indeed my duty as a parent, to support Sunali’s
choices for herself.
As you know shortly after her
15
th
birthday, Sunali decide to pierce her nose with a
small gold stud. She has been requesting permission to do this
since the age
of 4. As per our traditions, her ears were pierced at
age 1.
I allowed the piercing for
several reasons:
(a) It is a time-honoured
family tradition. Sunali and I come from a South Indian family that
has sought to maintain a cultural
identity by respecting and
implementing the traditions of the women before us. Usually, a
young woman would get her nose pierced
upon her physical maturity
(the onset of her menstrual cycle) as an indication that she is now
eligible for marriage. While this
physically oriented reasoning no
longer applies, we do still use the tradition to honour our
daughters as responsible young adults.
After her 16
th
birthday, Sunali’s grandmother will replace the current gold stud
with a diamond. This will be done as part of a religious ritual
to
honour and bless Sunali. 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 we value our daughters, but in keeping with Indian tradition,
that our daughters are the Luxmi (Goddess of Prosperity) and Light
of the house.
(b) Sunali has demonstrated
both at school and at home that she is a responsible and emotionally
mature young woman capable of making
independent choices.
(c) I promised Sunali over the
years, each time she requested permission to pierce her nose, that I
would allow her to do so when
she was old enough and sufficiently
aware of her own identity to make this choice. I consciously choose
to keep my word to my
daughter.
(d) I myself have adhered to
this tradition and wear a nose ring. From this perspective, I
cannot and will not impose a double
standard on my child.
(e) Sunali and I live in a
spiritually aware holistic centre based on the values of integrity,
respect and compassion. This is
the system by which we relate to
each other and to the rest of the world. Our independent choices
are not intended to impact negatively
on any person or institution,
but rather to reflect who we truly are. I respect Sunali’s
choices for herself. It is not a choice
that will damage her in any
way. Instead, it has given her and will continue to give her a
sense of belonging, a heritage . .
. something missing from most
children’s lives as they struggle with a series of identity
crises.”
The school read this primarily
as seeking an exemption based on family tradition, though they did
recognise that there was a cultural
and religious aspect to the
question. Accordingly, the Governing Body sought some advice from
experts in Hinduism who advised
them that it was not necessary to
make an exemption for the learner on the basis that she sought.
The school refused the request
for an exemption and instructed the
learner to stop wearing the nose-stud. When she failed to desist,
they initiated disciplinary
proceedings against her.
The learner’s mother then
instituted proceedings in the Equality Court to prevent the
disciplinary proceedings going ahead on
the ground that the school
was discriminating against her daughter on the grounds of culture
and religion. The Equality Court
dismissed the claim, but the
Equality Appeal Court upheld it. The school and the educational
authorities now seek leave to appeal
to this court.
I agree with Chief Justice
Langa that this case falls to be determined under the Promotion of
Equality and Prevention of Unfair
Discrimination Act, 4 of 2000
(“the Act” or “Equality Act”), not directly on the basis of
section 9 of the Constitution
7
although I also accept that the Act should, where reasonably
possible, be interpreted consistently with section 9 of the
Constitution.
8
I turn now to a brief consideration of that Act.
Section 6 of the Act prohibits
unfair discrimination in the following terms –
“
Neither the State nor any
person may unfairly discriminate against any person.”
Discrimination is defined in
the Act as –
“
any act or omission . . .
which directly or indirectly—
imposes burdens,
obligations or disadvantage on; or
withholds benefits,
opportunities or advantages from,
any person on one or more of
the prohibited grounds.”
9
The prohibited grounds provided
in the definitions section are “race, gender, sex, pregnancy,
marital status, ethnic or social
origin, colour, sexual orientation,
age, disability, religion, conscience, belief, culture, language and
birth.”
10
This is not a closed list and it includes additional criteria for
identifying further grounds,
11
though this has no relevance in the present case.
The Act also provides guidance
for the determination of unfairness. Section 14 of the Act
provides that –
“
(1) It is not unfair
discrimination to take measures designed to protect or advance
persons or categories of persons disadvantaged
by unfair
discrimination or the members of such groups or categories of
persons.
(2) In determining whether the
respondent has proved that the discrimination is fair, the following
must be taken into account:
The context;
the factors referred to in
subsection (3);
whether the discrimination
reasonably and justifiably differentiates between persons
according to objectively determinable
criteria, intrinsic to
the activity concerned.
(3) The factors referred to in
subsection (2)(b) include the following:
(a) Whether the discrimination
impairs or is likely to impair human dignity;
(b) the impact or likely impact
of the discrimination on the complainant;
(c) the position of the
complainant in society and whether he or she suffers from patterns
of disadvantage or belongs to a group
that suffers from such
patterns of disadvantage;
(d) the nature and extent of
the discrimination;
(e) whether the discrimination
is systemic in nature;
(f) whether the discrimination
has a legitimate purpose;
(g) whether and to what extent
the discrimination achieves its purpose;
(h) whether there are less
restrictive and less disadvantageous means to achieve the purpose;
(i) whether and to what extent
the respondent has 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.”
This provision is not a model
of legislative clarity, as some observers have commented.
12
Section 14(2) is the key provision and provides that in
determining unfairness, a court will have regard to the context,
the
list of criteria in section 14(3) and whether the
discrimination is reasonably and justifiably based on objective
criteria intrinsic
to the activity concerned. The criteria in
section 14(3) are suggestive of a proportionality analysis: in
particular, it seems
as if the criteria identified in section
14(3)(a)-(e) should be weighed against the criteria in section
14(3)(f)-(i). How this
analysis should chime with section 14(2)(c)
is not clear. Section 14(2)(c) seems similar to the exception of
genuine occupational
requirement in English labour law,
13
or the bona fide occupational qualification analysis of the Civil
Rights Act in the United States of America.
14
Section 14(2)(c) is not in issue in this case so it is not
necessary to consider how it interrelates with the criteria
identified
in section 14(3). I shall return to a discussion of the
application of section 14 later in this judgment.
15
The court tasked with the
determination of whether unfair discrimination has taken place in
the first place is the Equality Court.
The scheme contemplated by
the Act is for the Equality Court to determine whether a
complainant has shown that there has been
an act or omission that
caused harm by imposing a burden or withholding a benefit on a
prohibited ground. Once the complainant
establishes this,
discrimination has been established. Then it is for the respondent
to show that the discrimination was not
unfair.
Section 21 of the Act
16
provides that a court may make a range of orders including a
declaratory order,
17
an order requiring the payment of damages,
18
an interdict restraining unfair discrimination,
19
a mandatory order including an order directing the reasonable
accommodation of a group or class of people,
20
an order that an apology be made
21
and an order requiring progress reports to be made.
22
In this case, the applicant
argues that the conduct of the school constituted unfair
discrimination on the grounds of culture
and religion. Argument
was also presented by the applicant and the Freedom of Expression
Institute concerning freedom of expression.
I am in complete
agreement with the Chief Justice’s consideration of these
arguments and have nothing to add.
23
Before turning to the question of unfair discrimination, I
consider it necessary to consider briefly the constitutional
approach
to culture and religion.
Culture and religion
Both “culture” and
“religion” are terms that resist definition. And it is not
desirable in this case to seek to identify
a determinative
definition of either. However our Constitution does treat them
differently. And that different treatment gives
us some
understanding of where the difference between the two concepts
lies. Section 9 of the Constitution prohibits discrimination
on
the grounds of both culture and religion,
24
but section 15 entrenches the right to freedom of “conscience,
religion, thought, belief and opinion” and does not mention
culture or cultural identity.
25
Here the different constitutional treatment of the two concepts
arises.
Section 30 entrenches the
rights to language and culture, without mention of religion, in the
following terms –
“
Everyone has the right to
use the language and to participate in the cultural life of their
choice, but no one exercising these
rights may do so in a manner
inconsistent with any provision of the Bill of Rights.”
Section 31 provides for certain
rights to members of cultural and religious communities in the
following manner –
“
(1) Persons belonging to a
cultural, religious or linguistic community may not be denied the
right, with other members of that community
–
(a) to enjoy their culture,
practise their religion and use their language; and
(b) to form, join and maintain
cultural, religious and linguistic associations and other organs of
civil society.
(2) The rights in subsection
(1) may not be exercised in a manner inconsistent with any provision
of the Bill of Rights.”
Although it is not easy to
divine a sharp dividing line between the two, it does seem to me
that our Constitution recognises that
culture is not the same as
religion, and should not always be treated as if it is. Religion
is dealt with without mention of
culture in section 15, which
entrenches the right to freedom of belief and conscience. By
associating religion with belief and
conscience, which involve an
individual’s state of mind, religion is understood in an
individualist sense: a set of beliefs
that an individual may hold
regardless of the beliefs of others. The exclusion of culture from
section 15 suggests that culture
is different.
The inclusion of culture in
section 30 and section 31 makes it clear that by and large culture
as conceived in our Constitution,
involves associative practices
and not individual beliefs. So, section 31 speaks of the right of
persons who are members of
religious, linguistic or cultural
communities “with other members of that community” to enjoy
their culture. This formulation
is drawn almost directly from
Article 27 of the United Nations International Covenant on Civil
and Political Rights, which provides
that people who belong to a
particular “minority” shall not be denied “in community with
other members of their group”
the right to enjoy their own
culture.
26
In this sense, it is understood that individuals draw meaning and
their sense of cultural identity from a group with whom they
share
cultural identity and with whom they associate. As Currie and De
Waal reason –
“
The right of a member of a
cultural or linguistic community cannot meaningfully be exercised
alone. Enjoyment of culture and use
of language presupposes the
existence of a community of individuals with similar rights. . . .
Therefore an individual right of
enjoyment of culture assumes the
existence of a community that sustains a particular culture.”
27
(Footnote omitted.)
By including religion in
section 31, the Constitution makes plain that when a group of
people share a religious belief, that group
may also share
associative practices that have meaning for the individuals within
that religious group. Where one is dealing
with associative
practices, therefore, it seems that religion and culture should be
treated similarly. In the case of an associative
practice, an
individual is drawing meaning and identity from the shared or
common practices of a group. The basis for these
practices may be
a shared religion, a shared language or a shared history.
Associative practices, which might well be related
to shared
religious beliefs, are treated differently by the Constitution
because of their associative, not personal character.
Religion however need not be
associative at all. A religious belief can be entirely personal.
The importance of a personal religious
belief is more often than
not based on a particular relationship with a deity or deities that
may have little bearing on community
or associative practices.
Where one is dealing with personal and individualised belief,
religion is to be considered differently
to culture, as the
Constitution makes clear. In such circumstances, it is appropriate
for a court to ask whether the belief
is sincerely held in order to
decide whether a litigant has established that it falls within the
scope of section 15. If a sincere
religious belief is established,
it seems correct that a court will not investigate the belief
further as the cases cited by
the Chief Justice in his judgment
make plain.
28
A religious belief is personal, and need not be rational, nor need
it be shared by others. A court must simply be persuaded
that it
is a profound and sincerely held belief.
A cultural practice on the
other hand is not about a personal belief but about a practice
pursued by individuals as part of a
community. The question will
not be whether the practice forms part of the sincerely held
personal beliefs of an individual,
but whether the practice is a
practice pursued by a particular cultural community. This
distinction needs to inform how we deal
with discrimination on the
grounds of religion and culture. Where one is dealing with an
associative religious practice such
as protected by section 31,
religion and culture will be treated very similarly. In this
regard it is worth noting that some
religions are far more
associative in character than others. Many African religions and
traditions are profoundly associative
in character. Our
Constitution recognises this and does not privilege one form of
religion over another, although associative
practices are treated
differently to what can loosely be described as personal beliefs.
Where one is dealing with religious
belief that is personal, as
contemplated by section 15, it will be treated differently to
culture. At times, this line may be
difficult to draw but that is
not the case here and nothing further need be said at this stage.
I set out the difference
between the constitutional protection of religion, on the one hand,
and associative religious and cultural
practices, on the other,
because I am uneasy with the approach taken by Langa CJ on two
issues. The first is whether religious
and cultural practices are
to be dealt with on the basis of the sincerely held beliefs of a
particular complainant;
29
and the second relates to the implications for the principles of
unfair discrimination as to whether a particular practice is
mandatory or not.
30
I shall return to these issues in a moment. First, I wish to
consider briefly the constitutional approach to culture.
The constitutional approach
to culture
Culture is a difficult concept
to define. As O’Keefe has highlighted, it has at least three
senses in modern usage: the first
is the concept of culture as
involving the arts; the second concept is culture in a more plural
form including handicraft, popular
television, film and radio; and
the third is anthropological conception of culture which refers to
the way of life of a particular
community.
31
There can be no doubt that it is the third concept of culture to
which our Constitution refers in sections 30 and 31, although
the
expression of the right to culture in international law may embrace
the first two conceptions, as O’Keefe argues.
In the anthropological sense,
all human beings have a culture. Human beings live in communities
and ordinarily share practices
that make life meaningful to that
community. Sections 30 and 31 of the Constitution protect the
rights of individuals within
communities to pursue cultural
practices. There can be no doubt that these are important rights
which protect diversity within
our country. The rights, like all
others in our Constitution, must be interpreted in light of the
founding value of human dignity
which asserts the equal moral worth
of human beings and the right of each and every person to choose to
live the life that is
meaningful to them. Understanding the right
to cultural life against the background of human dignity emphasises
that the rights
in sections 30 and 31 are associative rights
exercised by individual human beings and are not rights that attach
to groups.
They foster association and bolster the existence of
cultural, religious and linguistic groups so long as individuals
remain
committed to living their lives in that form of association.
These rights are important in
protecting members of cultural, religious and linguistic
communities who feel threatened by the
dominance or hegemony of
larger or more powerful groups. They are an express affirmation of
those members of cultural or other
groups as human beings of equal
worth in our society whose community practices and associations
must be treated with respect.
However, there is a constitutional
limit on the protection of associative practices. The rights may
not be exercised in a manner
inconsistent with other provisions of
the Bill of Rights.
It is also important to
remember that cultural, religious and linguistic communities are
not static communities that can be captured
in constitutional amber
and preserved from change. Our constitutional understanding of
culture needs to recognise that these
communities, like all human
communities, are dynamic. It is tempting as an observer to seek to
impose coherence and unity on
communities that are not, in the
lived experience of those who are members of those communities,
entirely unified. As Benhabib
observes –
“
In my view, all analyses of
cultures, whether empirical or normative, must begin by
distinguishing the standpoint of the social
observer from that of
the social agent. The social observer – whether an
eighteenth-century narrator or chronicler; a nineteenth-century
general, linguist, or educational reformer; or a twentieth-century
anthropologist, secret agent, or development worker – is the
one
who imposes, together with local elites, unity and coherence on
cultures as observed entities. Any view of cultures as clearly
delineable wholes is a view from the outside that generates
coherence for the purposes of understanding and control.
Participants
in the culture, by contrast, experience their
traditions, stories, rituals and symbols, tools, and material living
conditions through
shared, albeit contested and contestable,
narrative accounts. From within, a culture need not appear as a
whole; rather, it forms
a horizon that recedes each time one
approaches it.”
32
(Footnote omitted.)
Benhabib’s distinction
between the observer of a community and the member of a community
must remind South Africans of the colonial
approach to customary
law which sought to impose coherence and unity on a set of
customary rules and practices. The result of
this, as this Court
has recently observed, was to fossilise customary law and to
produce a distinction between customary law
in the courts and
textbooks.
33
This is counter to what has been called “living customary law”
34
– the evolving nature of customary law as practised and
experienced by members of communities. Our history must warn us

that when approaching culture in our new constitutional order,
courts, as outsiders, must seek to avoid imposing a false internal
coherence and unity on a particular cultural community.
How then should we approach
culture? The Chief Justice’s answer to this question is that
courts should urge respect for the
sincerely held beliefs of those
who assert cultural rights. My difficulty with that approach is
threefold. First, it does not
acknowledge sufficiently that
cultural practices are associative and that the right to cultural
life is a right to be practiced
as a member of a community and not
primarily a question of a sincere, but personal belief. If the
right to cultural life “cannot
be meaningfully exercised alone”
35
then an individualised and subjective approach to what constitutes
culture is faulty. In probing whether a particular practice
is a
cultural practice, some understanding of what the cultural
community considers to be a cultural practice, is important.
Of
course, we must approach this task with an acknowledgement of the
caution sounded by Benhabib. Cultures are not generally
unified
and coherent but are dynamic and often contested. Nevertheless,
the need to investigate whether a particular asserted
practice is
shared within the broader community, or portion of it, and
therefore properly understood as a cultural practice rather
than a
personal habit or preference, is central to determining whether a
cultural claim has been established.
Secondly, I am anxious that an
approach to cultural rights which is based predominantly on
subjective perceptions of cultural
practices may undervalue the
need for solidarity between different communities in our society.
After all, the Preamble of our
Constitution proclaims that, “South
Africa belongs to all who live in it, united in our diversity.”
36
It does not envisage a society of atomised communities circling in
the shared space that is our country, but a society that
is unified
in its diversity. That unity requires a “pluralistic
solidarity”
37
between our different racial, cultural, religious and linguistic
communities. That solidarity, of course, must not be based
on
domination by a majority culture or group, but on a shared
understanding of the human dignity of all citizens and the
recognition
of our need for solidarity with one another in our
common land.
My third difficulty with Langa
CJ’s conclusion – that a subjective sincerely held belief
regarding a cultural practice is
the central point of the
constitutional enquiry into a complaint of unfair discrimination on
the ground of culture – is that
it obscures the need to approach
diversity with the fundamental value of human dignity firmly in
mind. With human dignity as
the lodestar, it becomes clear that
treating people as worthy of equal respect in relation to their
cultural practices requires
more than mere tolerance of sincerely
held beliefs with regard to cultural practices. As Addis has
observed –
“
To treat individuals with
‘equal respect’ entails, at least partly, respecting their
traditions and cultures, the forms of life
which give depth and
coherence to their identities. And to treat those forms of life
with respect means to engage them, not simply
to tolerate them as
strange and alien. . . . [I]nsofar as paternalistic toleration does
not provide for . . . the notion of the
tolerator taking the
tolerated group seriously and engaging it in a dialogue, the polity
cannot cultivate an important virtue .
. . ‘civility (reciprocal
empathy and respect).’ One can hardly develop empathy for those
that one only knows as the alien
and strange. To have reciprocal
empathy is to first attempt to understand the Other, but there
cannot be understanding the Other
if one is not prepared to engage
the Other in a dialogue.”
38
(Footnote omitted.)
My understanding of how our
Constitution requires us to approach the rights to culture,
therefore, emphasises four things: cultural
rights are associative
practices, which are protected because of the meaning that shared
practices gives to individuals and to
succeed in a claim relating
to a cultural practice a litigant will need to establish its
associative quality; an approach to
cultural rights in our
Constitution must be based on the value of human dignity which
means that we value cultural practices
because they afford
individuals the possibility and choice to live a meaningful life;
cultural rights are protected in our Constitution
in the light of a
clear constitutional purpose to establish unity and solidarity
amongst all who live in our diverse society;
and solidarity is not
best achieved by simple toleration arising from a subjectively
asserted practice. It needs to be built
through institutionally
enabled dialogue. Once again as Addis reasons –
“
A genuine sense of shared
identity, social integration, in multicultural and multiethnic
societies will develop only through a process
where minorities and
majorities are linked in institutional dialogue. Shared identity,
like justice itself, is defined discursively.”
39
It is necessary now to return
to the Equality Act to consider how this understanding of culture
and cultural rights in our Constitution
affects the interpretation
and application of that Act in the light of the facts of this case.
Was there discrimination in
this case?
As set out above, the Equality
Act prohibits unfair discrimination on the ground of culture. In
determining whether an applicant
has established discrimination on
the ground of culture, a court will need to bear in mind that the
Constitution protects culture
as an associative right. It will not
ordinarily be sufficient for a person who needs to establish that
he or she has been discriminated
against on the grounds of culture
to establish that it is his or her sincerely held belief that it is
a cultural practice, or
that his or her family has a tradition of
pursuing this practice. The person will need to show that the
practice that has been
affected relates to a practice that is
shared in a broader community of which he or she is a member and
from which he or she
draws meaning.
It is clear on the facts of
this case that there are many women within the southern Indian
community who consider that wearing
a nose-stud or nose-ring
identifies them as members of that community. Wearing the
nose-stud connects them with their community
and establishes
continuity with former generations. In his affidavit placed before
the Equality Court, Dr Rambilass, the principal
of the Westville
Hindu School and an expert in Hinduism, averred that although
ear-piercing is one of the religious sacraments
prescribed by the
Sanskaras
, nose-piercing is not. He accepted, however, that
nose-piercing is a form of cultural expression common amongst Hindu
women.
His oral evidence in the Equality Court was to the same
effect. During it, he acknowledged that although wearing a
nose-stud
is not a religious practice, it is a cultural practice of
significance and value.
Although the applicant
disputed whether Dr Rambilass’s account of Hindu scriptures was
correct, in describing the reason that
the learner wished to wear
the nose-stud, she emphasised the cultural aspects of wearing the
nose-stud. Her evidence was as
follows –
“
The nose ring is not
jewellery, nor is it simply a body piercing. I don’t regard it as
such, my heritage and culture do not regard
it as such. If it were
jewellery it would be something that I’d be taking off my nose and
wearing to match my outfit. It’s
not merely an accessory, it is
an expression of my cultural identity. It proclaims to the world
who I am and where I come from.
It gives us a sense of belonging.”
Although the applicant argues
that the nose-stud was part of religious practice, it is clear that
its primary significance to
her family arises from its associative
meaning as part of their cultural identity, rather than from
personal religious beliefs.
This is consistent with Dr Rambilass’s
evidence which made plain that wearing a nose-stud is not a part of
Hindu religion.
Indeed, it is also clear that within the
applicant’s family, the wearing of the nose-stud is a matter of
choice. Two of the
applicant’s sisters, for example, do not wear
nose-studs and the applicant’s mother made plain that it was the
learner herself
who chose to wear the stud. In light of all the
above, I conclude that the applicant has established that the
wearing of the
nose-stud is a matter of associative cultural
significance, which was a matter of personal choice at least for
the learner in
this case, but that it is not part of a religious or
personal belief of the applicant that it is necessary to wear the
stud as
part of her religious beliefs.
Having established that
wearing the nose-stud is a cultural practice with associative
significance, the question arises whether
the applicant has shown
that the failure to afford the learner an exemption to wear the
nose-stud imposed a burden on the learner’s
exercise of her
cultural practice that has caused her harm. In formulating the
question in this way, it should be emphasised
that this case does
not concern a challenge to the general prohibition on the wearing
of jewellery set out in the school’s
Code of Conduct itself. It
concerns a challenge to the failure by the school to provide an
exemption to the learner.
In answering this question,
one of the issues that arises is whether the Equality Act, properly
construed, requires a complainant
to show that he or she has been
treated differently to some comparably-situated person. I agree
with the Chief Justice, that
it is not necessary in this case to
determine whether it is always necessary for a complainant to point
to a comparator in order
to establish discrimination in terms of
the Equality Act, as there is a comparator in this case.
40
Langa CJ finds the comparator to be those learners whose sincere
religious or cultural beliefs are not compromised by the Code.
In
my view, the correct comparator is those learners who have been
afforded an exemption to allow them to pursue their cultural
or
religious practices, as against those learners who are denied
exemption, like the learner in this case. Those learners who
are
not afforded an exemption suffer a burden in that they are not
permitted to pursue their cultural or religious practice,
while
those who are afforded an exemption may do so.
This is the correct comparator
in my view because the challenge really relates to a failure by the
school to afford the learner
an exemption. The challenge is thus
based on a failure to provide reasonable accommodation to the
learner in respect of a neutral
rule. In this I differ from the
position taken by the Chief Justice who sees the complaint both in
the text of the Code and
in the failure to grant an exemption.
41
In my view, the Code is entitled to establish neutral rules to
govern the school uniform. Indeed, uniforms by definition require
such rules. The only cogent complaint to be directed at the Code
is its failure to provide expressly for a fair exemption procedure,
a matter to which I return later.
I conclude that the applicant
has established that in failing to grant her an exemption to wear
the nose-stud in circumstances
where other learners are afforded
exemptions to pursue their cultural practices, the school did
discriminate against her.
Was the discrimination
unfair?
Where discrimination on the
basis of a cultural or religious practice is established by an
applicant, the next question will be
whether that discrimination is
unfair. It is clear from section 13 of the Act that once the
applicant has established a prima
facie case of discrimination, the
respondent will have to prove that the discrimination is not unfair
in terms of section 14(2).
42
The following criteria are relevant: the context;
43
the question whether the discrimination impairs or is likely to
impair human dignity;
44
the impact or likely impact of the discrimination on the
complainant;
45
the position of the complainant in society and whether he or she
belongs to a group which suffers from patterns of disadvantage;
46
the nature and extent of the discrimination;
47
whether it is systemic in nature;
48
whether it has a legitimate purpose;
49
whether and to what extent it achieves its purpose;
50
whether there are less restrictive and less disadvantageous means
to achieve the purpose;
51
and whether and to what extent the respondent has taken steps that
are reasonable to address the disadvantage or to accommodate
diversity.
52
As stated above,
53
section 14 is not a model of clarity, nor is it particularly
helpful to a court faced with the determination of what constitutes
fairness. As the Chief Justice has noted, there is not a challenge
to section 14 in this case
54
and it must be applied consistently with the Constitution as best
possible.
In assessing whether the
discrimination in this case is unfair, it is necessary to recognise
that it arises from the school’s
refusal to grant an exemption to
the learner to wear a nose-stud. There is no clear statement on
the record as to why the school
refused to grant an exemption. In
her letter communicating the School Governing Body’s decision to
the applicant, the principal
stated the following –
“
Thank you for your email
detailing and explaining Sunali’s wearing of a small gold stud in
her nose.
The information was presented
at the Governing Body meeting on 02 February 2005. The Governing
Body supports the Code of Conduct
of the school and are unanimous in
upholding the regulation which does not allow the wearing of a stud
in a learner’s nose.
Sunali may not wear this stud
at school. . . .
The school has not taken this
decision lightly and has consulted more widely than our own area of
expertise. The school’s uniform
rule takes precedence over
Sunali’s desire to continue in the traditional pattern of her
previous generations.”
In her evidence before the
Equality Court, the principal stated that the consultations she had
undertaken had involved discussions
with leading members of the
Hindu community who informed her that wearing a nose-stud was not a
requirement of the Hindu religion.
It appears from this that the
school took the view that if the practice was a mandatory form of
religious adherence it would
qualify for an exemption, but if it
were not mandatory, it would not. This appears inconsistent with
the school’s practice
in relation to other exemptions. Two
examples were given of when an exemption had been granted
previously: the wearing of red
“Lakshmi strings” at certain
times of the year; and the wearing of hide bracelets to mark
respect after a funeral. It is
not clear in either case that these
are mandatory requirements of religious adherence. Indeed, it
seems likely that both these
practices are not mandatory but are
associative cultural or religious practices. It is not clear then
why exemptions were granted
in these circumstances but not in the
present case.
Given that the school had in
the past granted exemptions from rules for cultural practices, it
has not established that it acted
fairly in refusing an exemption
in this case on the ground that the applicant had not established
that the practice constituted
a mandatory requirement of her
religion. Exemptions had in the past been afforded to others for
cultural practices, so the justification
afforded by the school
does not establish the fairness of the refusal in this case.
An issue that was raised on
the papers that might have been relevant to the decision to refuse
the exemption was the fact that
the wearing of nose-studs is now
considered to be fashionable by many teenagers. This consideration
may have been taken into
account by the school in its decision to
refuse to permit the wearing of the nose-stud. Although this
factor may be a relevant
factor, it cannot be a determinative one.
Once it is established that the desire to wear a nose-stud is
genuinely based on a
cultural practice that is important to a
learner, the fact that it may coincide with current fashions,
cannot without more justify
a refusal to permit the learner to wear
the nose-stud. A school is an ideal place to educate other
learners about the difference
between fashion and cultural
practices and should an exemption for nose-studs be granted, a
school would be obliged to furnish
such education to its learners.
The unfairness I have
identified in this case lies in the school’s failure to be
consistent with regard to the grant of exemptions.
It is clear
that the school has established no clear rules for determining when
exemptions should be granted from the Code of
Conduct and when not.
Nor is any clear procedure established for processing applications
for exemption. Schools are excellent
institutions for creating the
dialogue about culture that will best foster cultural rights in the
overall framework of our Constitution.
Schools that have diverse
learner populations need to create spaces within the curriculum for
diversity to be discussed and
understood, but also they need to
build processes to deal with disputes regarding cultural and
religious rights that arise.
In this case, as required by
the Schools Act, the school established a consultation process to
draft a code of conduct which contained
the rules regulating the
uniform. I pause here to emphasise the importance of this
consultative process. The first step in
accommodating a plurality
of traditions within one institution is the need to consult widely
and carefully on common rules.
The process is likely not only to
improve the content of the rules, but also to foster their
legitimacy. On the other hand,
one of the great difficulties for
schools and other educational institutions is the relevant
transience of the learner population.
This transience makes it
desirable, especially in schools with changing demographic
profiles, to repeat the process of consultation
at regular
intervals.
The Code of Conduct once
adopted did not contain any express provision for exemptions,
either to regulate in what circumstances
they would be granted or
to establish a procedure whereby an exemption could be obtained.
In my view, it is this absence which
was a significant factor in
giving rise to the unfairness in this case. An exemption procedure
was established in an ad hoc
fashion which allowed certain
exemptions to be made but which did not establish the principles
for the granting of an exemption,
nor the process that had to be
followed to obtain one.
In this regard, I conclude
that the school failed in its obligations to the learner. Where a
school establishes a code of conduct
which may have the effect of
discriminating against learners on the grounds of culture or
religion, it is obliged to establish
a fair process for the
determination of exemptions. This principle requires schools to
establish an exemption procedure that
permits learners, assisted by
parents, to explain clearly why it is that they think their desire
to follow a cultural practice
warrants the grant of an exemption.
Such a process would promote respect for those who are seeking an
exemption as well as afford
appropriate respect to school rules.
An exemption process would require learners to show that the
practice for which they seek
exemption is a cultural practice of
importance to them, that it is part of the practices of a community
of which they form part
and which in a significant way constructs
their identity. The school’s authorities would in this way gain
greater understanding
of and empathy for the cultural practices of
learners at the school.
In this case, the learner has
never set out either orally or in writing her view as to why she
thinks the school should afford
her an exemption. This failure is
unexplained on the record. Only the learner’s mother’s voice
has been heard. This is
unfortunate. A fifteen-year old learner
who is seeking an exemption from school rules should as part of a
fair exemption process
be required to set out in writing or orally
her reasons for seeking an exemption. As citizens of a diverse
society we need to
be able to explain to the other members of
society why it is that our cultural practices require protection.
An exemption process
in a school environment, particularly where
one is dealing with learners in their teens, should require
learners to take responsibility
for the exemption they are seeking
by setting out their reasons for requiring the exemption. Such a
process contributes to an
enhancement of human dignity and
autonomy.
Once those reasons have been
provided, the school decision-making body would need to take into
account the following considerations:
the cultural or religious
practice on which the application for an exemption is based; the
importance of that practice to the
learner concerned; whether the
cultural or religious practice is mandatory or voluntary; whether
the relevant cultural or religious
community considers it to be a
practice which ordinarily warrants exemption from school rules; the
extent of the exemption required
(in other words how great the
departure from the ordinary school rule); and the effect of
granting the exemption on the achievement
of a “disciplined and
purposeful school environment, dedicated to the improvement and
maintenance of the quality of the learning
process.”
55
There can be no doubt that a
key factor in considering an application for exemption will be the
beneficial function of a school
uniform in the school environment
and the effect of the grant of any exemption on the wearing of
uniforms. The principal, both
in her affidavit and her oral
evidence before the Equality Court pointed to that function. In
her supplementary affidavit in
the Equality Court, the principal
stressed the value of a school uniform as follows:
“
Broadly speaking the aim was
to adopt a policy in regard to school uniform and appearance that
would ensure that the learners would
not be distracted by issues of
fashion from focussing on the task of getting a good education and
deriving the maximum benefit
from school activities. The aim is to
provide an environment where the girls are less subject to peer
pressure in regard to lifestyle
issues than is generally the case
outside the school and to avoid both distractions and manifest
distinctions between girls, particularly
distinctions based on
financial differences, that are easily created by different forms of
dress and appearance.”
The benefit of school uniforms
is also affirmed in the National Guidelines on School Uniforms
issued by the Minister of Education.
56
These guidelines state that school uniforms serve important
“social and educational purposes”.
57
Paragraph 6 of the guidelines provides as follows:
“
The adoption of a school
uniform can promote school safety, improve discipline, and enhance
the learning environment. In addition,
a school uniform is also
useful in:
(1) assisting school officials
in the early recognition of persons not authorised to enter a
school;
(2) helping parents and
learners resist peer pressure that leads children to make
unnecessary demands for particular and often expensive
clothing;
(3) decreasing theft,
particularly of designer clothing, jewellery and expensive footwear;
(4) minimising gang violence
and activity;
(5) instilling discipline in
learners; and
(6) helping learners
concentrate on their schoolwork.”
The approach to the granting
of exemptions will thus require an exercise in proportionality.
The importance of the cultural practice
to the learner, including
the question of whether it needs to be pursued during school hours,
will need to be weighed against
the effect that the grant of the
exemption may have on the important and legitimate principles that
support the wearing of a
school uniform. In performing this
exercise, a school needs to be fully apprised of the cultural
importance of the practice.
In this case, if the learner
had still been attending the school, it would have been appropriate
to refer the matter back to the
school to determine the exemption
in the light of the considerations set out above. This would have
promoted dialogue about
culture within the school and would have
required the learner to set out why she seeks an exemption from the
Code of Conduct.
She would have had to persuade the school of the
importance of the practice to her. There is no longer any purpose
in pursuing
this course as the learner has left school. In the
circumstances, it seems to me that no order should be made in this
regard.
I do not agree with Langa CJ
that it is appropriate to make a declaratory order that the
learner’s rights have been infringed.
58
The learner has left the school and the matter is accordingly moot
as between the learner and the school as Langa CJ accepts
in his
judgment.
59
I do not think an order in such circumstances is just and
equitable.
On the other hand, I agree
with Langa CJ that the Court should make an order calling upon the
school to effect amendments to its
Code of Conduct to provide for
the granting of exemptions from the Code of Conduct in the case of
religious and cultural practices.
60
The amendments to the Code of Conduct should only be adopted after
a proper process of consultation in terms of section 8 of
the
Schools Act has taken place. Once they have been adopted, the
school should provide a place in its curriculum for the Code
of
Conduct to be discussed with all learners in the classroom. That
discussion should include a discussion of the principles
on which
exemptions from the rules are granted and the process whereby that
happens. In particular, it seems important to stress
that parents
and learners need to accept that school rules should ordinarily be
observed. Where processes are established for
exemptions to be
granted, they must be followed. Encouraging the observance of
rules is the first step towards establishing
civility in an
institution.
Finally, I should add that
this has been an important case concerning the ground rules that
should apply in schools that have
a diverse student body. As
stated at the outset, sadly there are still too few schools in
South Africa whose learner population
is genuinely diverse. There
can be no doubt of the good faith of the applicant, the learner and
the school involved in this
case. It is inevitable given the
extraordinary transformation that the school in this case has
undergone that conflict about
the school and its rules should arise
from time to time. It needs to be emphasised however, that the
strength of our schools
will be enhanced only if parents, learners
and teachers accept that we all own our public schools and that we
should all take
responsibility for their continued growth and
success. Where possible processes should be available in schools
for the resolution
of disputes, and all engaged in such conflict
should do so with civility and courtesy. By and large school rules
should be observed
until an exemption has been granted. In this
way, schools will model for learners the way in which disputes in
our broader society
should be resolved, and they will play an
important role in realising the vision of the Preamble of our
Constitution: a country
that is united in its diversity in which
all citizens are recognised as being worthy of equal respect.
For the first and second
applicants: V Soni SC instructed by the State Attorney,
KwaZulu-Natal.
For the third and fourth
applicants: M Wallis SC, M du Plessis and L Naidoo instructed by RF
Sobey.
For the respondent: GJ Marcus
SC, S Govender SC and P Naidu instructed by Lawyers for Human Rights.
For the first amicus curiae: AM
Stewart SC instructed by Diane Gammie Attorneys.
For the second and third amici
curiae: S Budlender instructed by SR Sivi Pather Attorneys and the
Freedom of Expression Institute
respectively.
1
Pillay v MEC for Education,
KwaZulu-Natal, and Others
2006 (6) SA
363
(EqC);
2006 (10) BCLR 1237
(N).
2
The National Guidelines on School
Uniforms were issued in terms of the
South African Schools Act 84 of
1996
and published in Government Gazette 28538 GN 173, 23 February
2006.
3
National Coalition for Gay and
Lesbian Equality and Others v Minister for Home Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at fn 18. See also
JT Publishing
(Pty) Ltd and Another v Minister of Safety and Security and Others
[1996] ZACC 23
;
1997 (3) SA 514
(CC);
1996 (12) BCLR 1599
(CC) at para 15.
4
Independent Electoral Commission
v Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA
925
(CC);
2001 (9) BCLR 883
(CC) at para 11. See also
AAA
Investments Pty (Ltd) v Micro Finance Regulatory Council and Another
[2006] ZACC 9
;
2007 (1) SA 343
(CC);
2006 (11) BCLR 1255
(CC) at para 27.
5
Langeberg
above n at para 11.
6
Id.
7
Id.
8
Id.
9
AAA Investments
above n at para 27.
10
Act 84 of 1996.
11
For example: “The uniform
must
allow learners to
participate in school activities with comfort, safety and decorum”
(regulation 11); “
No
child may be refused admission to a
school because of an inability to obtain or wear the school uniform”
(regulation 14). (Emphasis
added.)
12
Regulation 29.
13
Regulation 23.
14
Preamble to guidelines.
15
See the long title of the Equality
Act which reads:
“
To give effect to section 9 read with item 23(1) of
Schedule 6 to the Constitution of the Republic of South Africa,
1996, so as
to prevent and prohibit unfair discrimination and
harassment; to promote equality and eliminate unfair discrimination;
to prevent
and prohibit hate speech; and to provide for matters
connected therewith.”
16
Section 6 reads: “Neither the State nor any person may unfairly
discriminate against any person.” The “prohibited grounds”
on
which discrimination is barred, are defined in section 1 which
repeats the list in section 9(3) of the Constitution.
17
Minister
of Health
and Another NO v New Clicks South Africa (Pty) Ltd (Treatment Action
Campaign and Another as
Amicus Curiae
)
2006 (2) SA 311
(CC);
2006 (1) BCLR 1
(CC) at paras 96 (Chaskalson CJ) and 434-437
(Ngcobo J);
South African National Defence Union v Minister of
Defence and Others
CCT 65/06, 30 May 2007, as yet unreported at
para 51.
See also
NAPTOSA and Others v Minister of
Education, Western Cape, and Others
2001 (2)
SA 112
(C) at 123I-J;
2001 (4) BCLR 388
(C) at 396I-J.
18
SANDU
above n at para 52.  See also
New Clicks
above n at para 96. Section 7(2) of the Constitution reads:
“The state must respect, protect, promote and fulfil the rights in
the Bill of Rights.”
19
This is the conclusion reached by
O’Regan J at para 164 below.
20
Section 15 reads:
“
Freedom of religion, belief and opinion.
―
(1) Everyone has the right to freedom of conscience,
religion, thought, belief and opinion.
(2) Religious observances may be
conducted at state or state-aided institutions, provided that
―
(a) those observances follow rules made by the
appropriate public authorities;
(b) they are conducted on an equitable basis; and
(c) attendance
at them is free and voluntary.
(3) (a) This section does not prevent legislation
recognising—
(i) marriages concluded under any tradition, or a
system of religious, personal or family law; or
(ii) systems of personal and family law under any
tradition, or adhered to by persons professing a particular
religion.
(b) Recognition in terms of paragraph (a) must be
consistent with this section and the other provisions of the
Constitution.”
21
Section 30 reads:
“
Language and Culture.
―
Everyone has the right to use the language and to
participate in the cultural life of their choice, but no one
exercising these
rights may do so in a manner inconsistent with any
provision of the Bill of Rights.”
22
Discrimination on religious or cultural grounds might also be
present where one religion or culture is treated in an inferior

manner, even though the treatment does not interfere with their
religious or cultural beliefs or practices.
23
Mandla and another v Dowell Lee
and another
[1983] 1 All ER 1062
(HL)
at 1066j-1067d.
24
Id.
25
See, for example,
Bernstein
and Others v Bester and Others NNO
[1996] ZACC 2
;
1996
(2) SA 751
(CC);
1996 (4) BCLR 449
(CC) at para 133 (Kriegler J);
Alexkor Ltd and Another v Richtersveld
Community and Others
[2003] ZACC 18
;
2004 (5) SA 460
(CC);
2003 (12) BCLR 1301
(CC) at para 33.
26
Gutmann
Identity in Democracy
(Princeton University Press,
Princeton 2003) at 38.
27
Prince v President, Cape Law
Society, and Others
[2002] ZACC 1
;
2002 (2) SA 794
(CC);
2002 (3) BCLR 231
(CC) (
Prince
II
) at para 42.
The majority
in
Prince II
did not express any disagreement with this part
of Ngcobo J’s judgment.
28
See, for example,
Syndicat Northcrest
v Amselem
2004 SCC 47
;
[2004] 2 SCR 551
(SCC) at
para 43;
Ross v New Brunswick School
District No 15
[1996] 1 SCR 825
at
paras 70-71; BVerfGE
33,
23 at 29;
Thomas v Review Board of the
Indiana Employment Security Division
[1981] USSC 66
;
450
US 707
(1981) at 715-716;
United States
v Ballard
322 US 78
(1944) at 86-87;
and
In re Chikweche
1995
(4) SA 284
(ZSC) at 289J
.
29
Port Elizabeth Municipality v
Various Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC);
2004 (12) BCLR 1268
(CC) at para 37.
30
A recognition of the importance of the community to the individual
is by no means unique to African thought. See, for example,
Kymlicka
Multicultural Citizenship: A Liberal Theory of Minority
Rights
(Claredon Press, Oxford 1995) at 89-90 quoting and
discussing Margalit and Raz “National Self Determination” (1990)
Journal of Philosophy
439 at 447-449; Donders
Towards a
Right to Cultural Identity?
(Intersentia, Antwerpen 2002)
especially at 30-31 and Almqvist
Human Rights, Culture and the
Rule of Law
(Hart Publishing, Oxford and Portland 2005)
especially at 40-42.
31
This translates literally as “a person is a person through other
people”.
32
Bhe and Others v Magistrate, Khayelitsha, and Others (Commission
for Gender Equality as
Amicus Curiae
); Shibi v Sithole and
Others; South African Human Rights Commission and Another v
President of the Republic of South Africa and
Another
[2004] ZACC 17
;
2005 (1)
SA 580
(CC);
2005 (1) BCLR 1
(CC) at para 163 (Ngcobo J).
33
Gyekye
Person and Community: Ghanaian Philosophical Studies
(1992) reprinted as “Person and Community in African Thought”
in Coetzee and Roux (eds)
Philosophy from Africa: A Text with
Readings
(Oxford University Press, Cape Town 1998) at 321.
34
See, for example,
Affordable Medicines Trust and Others v
Minister of Health and Others
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6)
BCLR 529
(CC) at para 59 and
National Coalition for Gay and
Lesbian Equality and Another v Minister of Justice and Others
1999
(1) SA 6
(CC);
1998 (12) BCLR 1517
(CC) at para 26.
35
Chanock “Human Rights and
Cultural Branding: Who Speaks and How” in An-Na’im
Cultural
Transformation and Human Rights in Africa
(Zed
Books, London 2002) at 41. See also Benhabib
The
Claims of Culture: Equality and Diversity in the Global Era
(Princeton University Press, Princeton
2002) especially at 3-9.
36
[2000] ZACC 11
;
2000 (4) SA 757
(CC);
2000 (10)
BCLR 1051
(CC).
37
Id at para 53.
38
Harksen v Lane NO and Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC) at para 50;
1997 (11) BCLR 1489
(CC) at para
49.
39
See, for example,
Prince
v President, Cape Law Society, and Others
[2000] ZACC 28
;
2001
(2) SA 388
(CC);
2001 (2) BCLR 133
(CC) (
Prince
I
) at para 26;
Prince
II
above n at paras 145-147 (Sachs
J);
Christian Education
above
n at para 35.
40
See above n .
41
Section 7(1) reads: “This Bill
of Rights is a cornerstone of democracy in South Africa. It
enshrines the rights of all people
in our country and affirms the
democratic values of human dignity, equality and
freedom
.”
(Emphasis added.)
42
Section 39(1)(a) reads: “When interpreting the Bill of Rights, a
court, tribunal or forum must promote the values that underlie
an
open and democratic society based on human dignity, equality and
freedom
”. (Emphasis added.)
43
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC).
44
Id at para 49. While the majority
in
Ferreira v Levin
distanced
themselves from Ackermann J’s broad construction of freedom as a
self-standing right, there is nothing to suggest they
questioned his
link between freedom and dignity.
45
See Woolman “Dignity” in
Woolman et al (eds)
Constitutional Law
of South Africa
2 ed
(Juta, Cape Town 2006) at 36-11.
46
[2005] ZACC 19
;
2006 (1) SA 524
(CC);
2006 (3) BCLR
355
(CC).
47
Id
at
para 60.
48
See
Syndicat
above n
at paras 67-68.
49
Section 13(2)(a) reads:
“
If the discrimination did take place—
on
a ground in paragraph (a) of the definition of ‘prohibited
grounds’, then it is unfair, unless the respondent proves that
the discrimination is fair”.
50
Section 9(5) reads: “Discrimination on one or more of the grounds
listed in subsection (3) is unfair unless it is established
that the
discrimination is fair.”
51
See, for example,
Harksen
v Lane
above n at para 51 and para 50
respectively.
52
Section 36(1) reads:
“
Limitation of Rights.
―
The rights in the Bill of Rights may be limited only
in terms of law of general application to the extent that th e
limitation is
reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom, taking into
account
all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its
purpose; and
(e) less restrictive means to achieve the purpose.”
53
Prince I
above
n at para 17;
Prince II
above
n at para 76 (Ngcobo J) and paras 146-148 and 170-172 (Sachs J);
Fourie
above
n at para 159. The High Court has also mentioned the principle on
at least two occasions relating to employment. See
McLean
v Sasol Mine (Pty) Ltd Secunda Collieries; McLean v Sasol Pension
Fund
2003 (6) SA 254
(W) at para 45;
Public Servants Association of South
Africa and Others v Minister of Justice and Others
1997
(3) SA 925
(T) at 976G.
54
Act 55 of 1998.
55
Section 1.
56
Section 15(2)(c).
57
Section 7(e).
58
Section 8(h).
59
Section 9(c).
60
Section 25(1)(c)(iii).
61
Section 21(2)(i).
62
Above n .
63
Id
at
para 35.
64
Eaton v Brant County Board of
Education
[1997] 1 SCR 241
at para 67.
65
See
Prince
II
above n .
66
For a useful summary of the various positions see Pretorius et al
Employment Equity Law
(LexisNexis Butterworths, Durban 2001)
at 7-6–7-18.
67
Trans World Airlines Inc v Hardison
432 US 63
(1977) at 84.
68
Central Okanagan School District No 23 v Renaud
1992 CanLII 81 (SC)
;
[1992] 2
SCR 970
at 983g-985a.
69
Id at 984a.
70
See
Prince II
above n at para 155 (Sachs J).
71
Section 14 is quoted in para 69
above.
72
See the concurring judgment of
Deschamps and Abella JJ in
Multani v
Commission Scolaire Marguerite-Bourgeoys
2006 SCC 6
;
[2006]
1 SCR 256
at paras 129-134.
73
Sahin v Turkey
(2005)
41 EHRR 8
at paras 100-102.
74
R (on the application of Begum) v Head Teacher and
Governors of Denbigh High School
[2006] UKHL 15
;
[2006] 2 All ER 487
(HL) at
para 64.
75
Gordon et al
The
Strasbourg Case Law: Leading Cases from the European Human Rights
Reports
(Sweet and Maxwell, London 2001) at
4.
76
NCGLE v Minster of Justice
above
n at para 41.
77
S v Makwanyane and Another
[1995] ZACC 3
;
1995
(3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para 109 (Chaskalson P).
78
The reasons both for deference in
administrative review, and for limiting it, were well expressed in
Bato Star Fishing (Pty) Ltd v Minister
of Environmental Affairs and Others
[2004] ZACC 15
;
2004
(4) SA 490
(CC);
2004 (7) BCLR 687
(CC) at para 48.
79
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006 (12)
BCLR 1399
(CC).
80
Id at para 115 and at 1442B-D
respectively.
81
Makwanyane
above n at para 88 (Chaskalson P).
82
See the debate between the
majority and minority in
Lyng,
Secretary of Agriculture, et al v Northwest Indian Cemetery
Protective Association
et
al
485 US 439
(1988) at 457-458 and
474-475. Despite their disagreement, both the majority and minority
seem to support a purely subjective
approach to determining
centrality.
83
At para 53.
84
See
Fourie
above n at para 60.
85
See
Prince
II
above
n at paras 128-139 and
Christian
Education
above n at paras 29-31.
86
See, for example,
Canady
v Bossier Parish School Board
240 F 3d
437
(5
th
Cir 2001) at para 8.
87
See
Prince
II
above n at para 47 citing the
dissenting judgment of Blackmun J in
Employment
Division, Department of Human Resources of Oregon, et al v Smith, et
al
494 US 872
(1990) at 911
.
88
Regulation 6.
89
Fourie
above
n at paras 60, 95 and 112;
Pretoria
City Council v Walker
[1998] ZACC 1
;
1998 (2) SA 363
(CC);
1998 (3) BCLR 257
(CC) at paras 81 (Langa DP) and 130 (Sachs
J);
President of the Republic of South
Africa and Another v Hugo
[1997] ZACC 4
;
1997 (4) SA
1
(CC);
1997 (6) BCLR 708
(CC) at para 41;
Prinsloo
v Van der Linde and Another
[1997] ZACC 5
;
1997 (3)
SA 1012
(CC);
1997 (6) BCLR 759
(CC) at para 32.
90
Above n .
91
Id at para 42.
92
This matter was pertinently dealt
with in
Multani
above n at para 76.
93
Id at paras 71 and 74.
94
This term was employed by O’Connor
J in
Oregon v Smith
to
describe the majority’s list of extreme examples of possible
religious exemptions which they employed to justify their decision
that neutral rules would not violate the First Amendment. See
Oregon v Smith
above
n at 902.
95
[2006] ZACC 15
;
2007 (1) SA 523
(CC);
2007 (2) BCLR
167
(CC).
96
Id at para 152. See also
Central Okanagan
above n
at 995f-996f.
97
Above n .
98
Section 8(1) reads: “Subject to any applicable provincial law, a
governing body of a public school must adopt a code of conduct
for
the learners after consultation with the learners, parents and
educators of the school.”
1
Quoted in Omond
The
Apartheid Handbook: A Guide to South Africa’s Everyday Racial
Policies
(Penguin Books, Great Britain
1985) at 80.
2
Kane-Berman (ed)
South
Africa Survey 2004/2005
(South African
Institute of Race Relations, Johannesburg 2006) at 293-296.
3
According to section 16 of the
Schools Act, the governance of every public school is vested in its
governing body. Section 18 of
the Schools Act provides that
governing bodies must function in terms of a written constitution
which must comply with minimum
requirements determined by provincial
MECs for Education in the Provincial Gazettes.
4
Section 8 of the Schools Act provides in pertinent part that –
“
(1) Subject to any applicable provincial law, a
governing body of a public school must adopt a code of conduct for
the learners
after consultation with the learners, parents and
educators of the school.
(2) A
code of conduct referred to in subsection (1) must be aimed at
establishing a disciplined and purposeful school environment,
dedicated to the improvement and maintenance of the quality of the
learning process.
(3) The
Minister may, after consultation with the Council of Education
Ministers, determine guidelines for the consideration of
governing
bodies in adopting a code of conduct for learners.
(4) Nothing
contained in this Act exempts a learner from the obligation to
comply with the code of conduct of the school attended
by such
learner.
(5) A code of conduct must contain provisions of due
process safe-guarding the interests of the learner and any other
party involved
in disciplinary proceedings.”
5
See section 8(2) of the Schools Act.
6
She shall also be referred to as
the applicant.
7
See Langa CJ’s judgment at para
40 above.
8
Id at para 43.
9
Subsection 1(1)(viii).
10
Subsection 1(1)(xxii)(a).
11
Subsection 1(1)(xxii)(b).
12
See Albertyn et al (eds)
Introduction to the
Promotion of
Equality and Prevention of Unfair Discrimination Act, Act
4 of 2000
(Witwatersrand University Press, Johannesburg 2001) at 41 - 48.
13
Regulation 7(2) of the Race Relations Act 1976 (Amendment)
Regulations 2003 introduced the following exception to the
prohibition
in the Race Relations Act 1976 against discrimination in
the employment sphere –
“
This
subsection applies where, having regard to the nature of the
employment or the context in which it is carried out â€“
(a) being of a particular race or of particular ethnic
or national origins is a genuine and determining occupational
requirement;
(b) it
is proportionate to apply that requirement in the particular case;
and
(c) either â€“
(i) the person to whom that requirement is applied
does not meet it, or
(ii) the employer is not satisfied, and in all the
circumstances it is reasonable for him not to be satisfied, that
that person
meets it.”
14
Section 703e(1) of Title VII of the Civil Rights Act of 1964
provides that –
“
. . . it shall not be an unlawful employment
practice for an employer to hire and employ employees, for an
employment agency to
classify, or refer for employment any
individual, for a labor organization to classify its membership or
to classify or refer for
employment any individual, or for an
employer, labor organization, or joint labor-management committee
controlling apprenticeship
or other training or retraining programs
to admit or employ any individual in any such program, on the basis
of his religion, sex,
or national origin in those certain instances
where religion, sex, or national origin is a bona fide occupational
qualification
reasonably necessary to the normal operation of that
particular business or enterprise”.
15
See paras 167-168 below.
16
Section 21(2) of the Act provides
that –
“
After holding an inquiry, the court may make an
appropriate order in the circumstances, including –
(a) an interim order;
(b) a declaratory order;
(c) an order making a settlement between the parties to
the proceedings an order of court;
(d) an order for the payment of any damages in respect
of any proven financial loss, including future loss, or in respect
of impairment
of dignity, pain and suffering or emotional and
psychological suffering, as a result of the unfair discrimination,
hate speech
or harassment in question;
(e) after hearing the views of the parties or, in the
absence of the respondent, the views of the complainant in the
matter, an
order for the payment of damages in the form of an award
to an appropriate body or organisation;
(f) an order restraining unfair discriminatory
practices or directing that specific steps be taken to stop the
unfair discrimination,
hate speech or harassment;
(g) an order to make specific opportunities and
privileges unfairly denied in the circumstances, available to the
complainant in
question;
(h) an order for the implementation of special measures
to address the unfair discrimination, hate speech or harassment in
question;
(i) an order directing the reasonable accommodation of
a group or class of persons by the respondent;
(j) an order that an unconditional apology be made;
(k) an order requiring the respondent to undergo an
audit of specific policies or practices as determined by the court;
(l) an appropriate order of a deterrent nature,
including the recommendation to the appropriate authority, to
suspend or revoke
the licence of a person;
(m) a directive requiring the respondent to make
regular progress reports to the court or to the relevant
constitutional institution
regarding the implementation of the
court's order;
(n) an order directing the clerk of the equality court
to submit the matter to the Director of Public Prosecutions having
jurisdiction
for the possible institution of criminal proceedings in
terms of the common law or relevant legislation;
(o) an appropriate order of costs against any party to
the proceedings;
(p) an order to comply with any provision of the Act.”
17
Subsection 21(2)(b).
18
Subsections 21(2)(d) and (e).
19
Subsection 21(2)(f).
20
Subsection 21(2)(i).
21
Subsection 21(2)(j).
22
Subsection 21(2)(m).
23
At paras 93-94 above.
24
Section 9(3) of the Constitution
provides – “The state may not unfairly discriminate directly or
indirectly against anyone on
one or more grounds, including . . .
religion, conscience, belief, culture, language and birth.”
25
Section 15 of the Constitution provides –
“
(1) Everyone has the right
to freedom of conscience, religion, thought, belief and opinion.
(2) Religious observances may be conducted at state or
state-aided institutions, provided that â€“
(a) those observances follow rules made by the
appropriate public authorities;
(b) they are conducted on an equitable basis; and
(c) attendance at them is free and voluntary.
(3) (a) This section does not prevent legislation
recognising –
(i) marriages concluded under any tradition, or a
system of religious, personal or family law; or
(ii) systems
of personal and family law under any tradition, or adhered to by
persons professing a particular religion.
(b) Recognition in terms of paragraph (a) must be
consistent with this section and the other provisions of the
Constitution.”
26
Article 27 of the International
Covenant on Civil and Political Rights provides –
“
In
those States in which ethnic, religious or linguistic minorities
exist, persons belonging to such minorities shall not be denied
the
right, in community with the other members of their group, to enjoy
their own culture, to profess and practise their own religion,
or to
use their own language.”
See also Article 15(1)(a)
of the International Covenant on Economic, Social and Cultural
Rights which recognises the right of everyone
to take part in
cultural life.
27
See Currie and De Waal
The
Bill of Rights Handbook
5 ed (Juta &
Co, Lansdowne 2005) at 623-624. Currie and De Waal, at 623 at fn 3,
also rely on the General Comment adopted by
the Human Rights
Committee under Article 40, Paragraph 4 of the International
Covenant on Civil and Political Rights, No 23(50)
(art 27) (26 April
1994) at para 5.2.
28
See, for example,
Prince
v President, Cape Law Society and Others
[2002] ZACC 1
;
2002 (2) SA 794
(CC);
2002 (3) BCLR 231
(CC) at para 42;
Syndicat
Northcrest v Amselem
2004 SCC 47
;
[2004] 2 SCR 551
(SCC);
Thomas v Review Board of the
Indiana Employment Security Division
[1981] USSC 66
;
450 US 707
(1981), cited in the judgment of Langa CJ at para 52
above.
29
Langa CJ’s judgment at para 87
above.
30
Id at para 67.
31
O’Keefe “The ‘Right to Take
Part in Cultural Life’ under Article 15 of the ICESCR” (1998) 47
International and Comparative Law
Quarterly
904 at 905.
32
Benhabib
The
Claims of Culture: Equality and Diversity in the Global Era
(Princeton University Press, Princeton 2002) at 5.
33
Bhe and Others v Magistrate,
Khayelitsha, and Others (Commission for Gender Equality as
Amicus
Curiae
); Shibi v Sithole and Others;
South African Human Rights Commission and Another v President of the
Republic of South Africa and
Another
[2004] ZACC 17
;
2005 (1) SA 580
(CC);
2005 (1) BCLR 1
(CC) at para 90.
34
Id at para 87.
35
Currie and De Waal above n .
36
Preamble to the Constitution.
37
See Addis “On Human Diversity and the Limits of Toleration” in
Shapiro and Kymlicka (eds)
Nomos XXXIX: Ethnicity and Group
Rights
(New York Press, New York 1997) 112 at 126.
38
Id at 121.
39
Id at 128.
40
Langa CJ’s judgment at para 44
above.
41
Id at para 36. Further, in para 37
the Chief Justice states that “[t]he second problem is the fact
that the jewellery provision
in the Code does not permit learners to
wear a nose stud and accordingly required Sunali to seek an
exemption in the first place.”
42
The provisions of section 14 are
set out in para 136 above.
43
Subsection 14(2)(a).
44
Subsection 14(3)(a).
45
Subsection 14(3)(b).
46
Subsection 14(3)(c).
47
Subsection 14(3)(d).
48
Subsection 14(3)(e).
49
Subsection 14(3)(f).
50
Subsection 14(3)(g).
51
Subsection 14(3)(h).
52
Subsection 14(3)(i) of the Act.
53
See para 137 above, especially the
comment concerning section 14(2)(c).
54
Langa CJ’s judgment at para 70 above.
55
As provided for in section 8(2) of the
Schools Act.
56
The National Guidelines on School
Uniforms were issued in terms of the Schools Act and published in
Government Gazette 28538 GN
173, 23 February 2006.
57
Id at para 1.
58
Langa CJ’s judgment at para 115
above.
59
Id.
60
Id at para 117.