Defending Discrimination: On the Constitutionality of Independent Schools that Promote a Particular, if not Comprehensive, Vision of the Good Life

• Jurisdiction: South Africa
• Date: 27 May 2019
• Author: Stuart Woolman
• Citation: (2007) 18 Stell LR 31
• Published date: 27 May 2019
• Pages: 31-52

DEFENDING DISCRIMINATION: ON THE

CONSTITUTIONALITY OF INDEPENDENT

SCHOOLS THAT PROMOTE A PARTICULAR, IF

NOT COMPREHENSIVE, VISION OF THE GOOD

LIFE

Stuart Woolman

BA (Hons) JD MA LLD

Senior Lecturer, School of Law, University of Pretoria

Research Associate, Centre for Human Rights, University of Pretoria

Research Associate, South African Institute for Advanced Constitutional, Human Rights,

Public and International Law

1 Introduction

This article attempts to answer the following two linked, but distinct,

questions. First, to what extent does our current legal regime tolerate

independent schools that advance particular, if not comprehensive,

visions of the good life? Secondly, to what extent may such independent

schools discriminate between learners in terms of admissions policies or

expulsion procedures in order to further their legitimate, constitutional-

sanctioned religious, cultural or linguistic ways of being in the world?

These questions are particularly piquant because, when it comes to

public schools, the State’s tolerance for discriminatory religious, cultural

and linguistic admissions policies or expulsion procedures is extremely

limited and rightly inclines in favour of learners from historically

disadvantaged communities. As I have argued elsewhere,

1

the Constitu-

tion of the Republic of South Africa, 1996 (Constitution) does not

guarantee a right to single medium public schools, faith-based public

schools or culturally homogenous public schools.

Still, for those learners and their parents who want to know whether

they are entitled to create and to maintain a school that furthers a

particular linguistic, cultural or religious way of being in the world, the

Constitution contains a much more sanguine response. Under section

29(3), learners and their parents may, using their own resources, build an

independent school that offers their preferred medium of instruction, that

reinforces a specific cultural ethos, or that promotes a comprehensive

religious vision of the good life.

1

See Woolman Community Rights: Language, Culture and Religion in Woolman, Roux, Klaaren, Stein,

Chaskalson & Bishop (eds) Constitutional Law of South Africa 2 ed Original Service (March 2007) ch

58; Fleisch & Woolman ‘‘On the Constitutionality of Single-Medium Public Schools’’ 2007 23 SAJHR

(forthcoming).

31

(2007) 18 Stell LR 31

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2 Community rights

According to the received version of modern South African constitu-

tional history, justiciable community rights were anathema to both the

African National Congress (ANC) and the National Party (NP). The NP

believed that white minority interests would be better protected at the

level of distribution of governmental power, rather than by judicial

mechanisms. The NP proposed only non-discrimination guarantees and

individual rights to speak a language or to participate in ‘‘cultural life’’.

2

The most the ANC would concede were rights to form ‘‘cultural bodies’’,

to religious freedom, and, perhaps, to require that the State act positively

to further the development of South Africa’s eleven official languages.

3

The ANC insisted that minority rights qua static, non-demographically

representative levels of political representation were unacceptable. The

Bill of Rights, as it currently stands, constitutes the ANC’s compromise

between unfettered majority rule on the one hand, and structural

guarantees for privileged, but now ‘‘vulnerable’’, political minorities, on

the other.

The ANC’s concession was not insignificant. The Constitution’s

rejection of group political rights

4

was at least partially compensated

by the ‘‘notable levels of constitutional significance’’ to which cultural,

linguistic and religious matters were elevated.

5

The Constitution contains

six different provisions concerned with culture, eight with language and

four with religion.

6

The Constitution, as a liberal political document,

thereby carves out significant ‘‘private’’ space within which self-

supporting cultural, linguistic and religious formations might flourish.

Indeed, the Constitutional Court has recognised the sanctity of that

space. In Ex Parte Gauteng Provincial Legislature: In Re Dispute

Concerning the Constitutionality of Certain Provisions of the Gauteng

School Education Bill of 1995,

7

Kriegler J wrote that section 32(c) of the

2

See Government of the Republic of South Africa Proposals on a Charter of Fundamental Rights (2

February 1993) arts 6 and 34.

3

African National Congress A Bill of Rights for a New South Africa: Preliminary Revised Version (1992)

art 5(3)-(7).

4

See Sachs Opening Remarks at Konrad Adenauer Stiftung Multiculturalism Seminar (1999) available at

http://www.kas.org.za/Publi cations/SeminarReports/Multicu lturalism/Sachs.pdf, (access ed 1 April

2006) 1: ‘‘The instruments . . . of government are not based on cultural groups, cultural communities

or representation in terms of membership of a particular community.’’

5

See Venter The Protection of Cultural, Linguistic and Religious Rights at Konrad Adenauer Stiftung

Multiculturalism Seminar, available at http://www.kas.org.za/Publications/SeminarReports/Multi-

culturalism/VENTER.pdf, (accessed 1 April 2006) 19.

6

See Venter The Protection of Cultural, Linguistic and Religious Rights 19. Provisions of the Constitution

dealing with culture, language and religion include, but are not limited to: (a) ss 9, 30, 31, 235 (culture);

(b) ss 6, 29, 30, 31, 35, 235 (language); and (c) ss 9, 15, 30, 31 (religion). These various provisions were

driven, at least in part, by three constitutional principles enshrined in the interim Constitution.

Adherence to these principles – as part of the negotiated settlement – was price of peace. Two of the

principles required recognition of minority rights and another required the inclusion in the Constitution

of a provision ensuring a right of self-determination by any community sharing a common cultural and

language heritage.

7

1996 3 SA 165 (CC) pars 39-42.

32 STELL LR 2007 1

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