MEC for Education, KwaZulu-Natal, and Others v Pillay

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, Navsa AJ, Ngcobo J, Nkabinde J, O'Regan J, Sachs J, Skweyiya J and Van Der Westhuizun J
• Judgment Date: 05 October 2007
• Citation: 2008 (1) SA 474 (CC)
• Docket Number: CCT51/06
• Hearing Date: 20 February 2007
• Counsel: V Soni SC for the first and second applicants M Wallis SC (with M du Plessis and L Naidoo) for the third and fourth applicants
• Court: Constitutional Court

Langa CJ:

Introduction

[1] 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 G 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. H

The parties

[2] 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 I 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. J

Langa CJ

[3] The respondent is Ms Navaneethum Pillay who appears on behalf of her minor daughter, Sunali Pillay (Sunali) who was, until the A end of last year, a learner at DGHS. Ms Pillay runs a holistic centre known as Yabba Dabba Do! Centre of Creativity.

Factual background B

[4] 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.

[5] During the school holidays in September 2004 Ms Pillay gave Sunali permission to pierce her nose and insert a small gold stud. When C 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 D other jewellery may be worn, except a wristwatch. 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.

[6] 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 E 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. F

[7] 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 G 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 H adults. When Sunali turned 16 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. I

[8] 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 J

Langa CJ

2005, Mrs Martin informed Ms Pillay of the decision not to permit Sunali to wear the nose-stud. A

[9] 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, B since she believed that the governing body's decision violated her daughter's constitutional right to practise 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 C disciplinary tribunal. Sunali did not remove the nose-stud and a hearing by the disciplinary tribunal was then rescheduled for 18 July.

[10] 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, D 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 E

[11] 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 4 000 to 5 000 years old, hailing predominantly from the south of India. When a girl F 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 G 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 I Hinduism has a variety of sects that observe different practices.

[12] 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. J

Langa CJ

[13] Dr Vishram Rambilass, called by the school as an expert in Hindu religion, told the court that the practice in question is an A 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 B what constitutes Hinduism, since there are various schools that have developed very differently.

[14] 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 C 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 D 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] E 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

[15] In its judgment, the High Court [1] (Kondile J with Tshabalala JP concurring) held that the conduct of the F 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 G 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...