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

• Jurisdiction: South Africa
• Judge: Tshabala JP and Kondile J
• Judgment Date: 05 July 2006
• Citation: 2006 (6) SA 363 (EqC)
• Docket Number: AR791/05
• Hearing Date: 21 April 2006
• Counsel: S M Govender SC (with P Naidu) for the applicant. M K Govender for the first and second respondents. M J D Wallis SC for the third and fourth respondents. M L Pillay SC (with D Pillay) for the Amicus Curiae.
• Court: Equality Court

Kondile J:

Introduction H

[1] This matter comes before us on appeal against a judgment of Ms A C Moolman, a magistrate of the Durban Equality Court ('the court below'), delivered on 29 September 2005. The court below dismissed the complaint lodged by appellant, in which, in effect, she sought an order: I

(a)

interdicting and restraining third respondent from violating her daughter's right to equality or conducting unfair discriminatory practices against her, on the grounds of religion, conscience, belief and culture;

(b)

directing first respondent to assess progress made by third respondent to achieve the goal of transformation. J

Kondile J

The background A

[2] Appellant's daughter, who is a learner at Durban Girls' High School ('the school'), returned from the school holiday in the first week of the fourth term in the year 2004 wearing a nose stud, having had her nose pierced during the holiday. B

[3] The school's code of conduct provides that, in respect of jewellery, earrings - plain round studs/sleepers - may be worn, with one in each ear lobe at the same level, and further that no other jewellery may be worn, except a watch. C

[4] Third respondent sought an explanation from appellant for her daughter's decision to wear the nose stud. Appellant, in response, stated that she allowed the piercing for several reasons, including the fact that this is a time-honoured tradition. She and her daughter come from a South Indian family that has sought to maintain a cultural identity by respecting and implementing the traditions of the women before them. D

[5] Usually, a young woman, upon her physical maturity, would get her nose pierced, as an indication that she is now eligible for marriage. While this physically orientated reasoning no longer applies, they do still use the tradition to honour their daughters as responsible young adults. E

[6] After her 16th birthday, her grandmother will replace the current gold stud with a diamond stud. This will be done as part of a religious ritual to honour and bless her daughter. It is also a way in which the elders of the household bestow worldly goods, including other pieces of jewellery, upon the young women. This serves not only to indicate that they value their daughters but is in keeping with Indian F tradition that their daughters are the Luxmi (goddess of prosperity) and Light of the house.

[7] She herself has adhered to this tradition and wears a nose stud. From this perspective, she cannot and will not impose a double standard on her daughter. Her daughter is not wearing the nose stud for G adornment and fashion purposes. Family traditions are handed down from generation to generation, not taken up as a trend.

Decision against the wearing of the nose stud

[8] On 2 February 2005 fourth respondent took a decision H that appellant's daughter should not be allowed to wear the nose stud. This decision was to take effect on 4 April 2005.

[9] Appellant then addressed a letter to first respondent appealing and asserting that fourth respondent's decision was a I violation of her daughter's constitutional rights to practise the religious and cultural traditions of her choice, especially when they are common practice to the rest of her family; that this right takes precedence over any school code, particularly when it is not related to, nor has any bearing on, the actual manner, attitude and conduct of the learner at school. J

Kondile J

[10] Second respondent in a letter dated 6 May 2005 replied on behalf of first respondent, refusing appellant's A appeal. In endorsing the decision of the fourth respondent, second respondent wrote that '(s)chools are not obliged, as it is unreasonable to expect them, to accommodate all idiosyncratic practices'.

[11] In a letter dated 13 May 2005 third respondent advised appellant that the nose stud should be removed. Appellant's B daughter was accordingly given until Monday 23 May 2005 to remove the nose stud, failing which, the matter would be referred to fourth respondent for disciplinary action to be taken against appellant's daughter.

[12] The rebuff from respondents prompted appellant, as complainant, to institute proceedings and seek an order referred to in C para [1] above, in terms of s 20 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 ('the Equality Act').

[13] After hearing the evidence of appellant, Dr Rambilass and Mrs A Martin, who were the only witnesses who testified, the court D below came to the conclusion that:

(a)

The school's actions against appellant's daughter were reasonable and fair in the circumstances.

(b)

the school did not discriminate or unfairly discriminate against appellant's daughter. E

(c)

Appellant's daughter's wearing of the nose stud was in violation of the school's code.

[14] The preparation of the code of conduct, in schools, is a requirement imposed on the governing body of a public school by s 8(1) of the South African Schools Act 84 of 1996 ('the Schools Act'). F

[15] The Minister of Education may, in terms of s 8(3) of the Schools Act, determine guidelines for the consideration of governing bodies in adopting a code of conduct for learners.

[16] The Guidelines for the consideration of governing bodies in G adopting a code of conduct for learners were promulgated in Government Notice 776 of 1998 - Government Gazette 1890 dated 15 May 1998 ('the Guidelines').

Basis of the decision of the court below

[17] The reasoning of the court below is as follows: the governing H body was obliged, in terms of the Schools Act, to adopt a code of conduct for learners. The nose stud is, in terms of the definition in the school's code of conduct, jewellery. The purpose of the code of conduct is, among other things, to promote discipline, uniformity and acceptable convention among the learners. Appellant, although fully aware of the school's code of conduct, ignored it. I

'Having regard to the nature of the school's requirements contained in its code of conduct, it is hardly feasible to expect the school to bend the rules to suit [appellant's daughter's] personal choice pertaining to her culture or tradition.'

The school acted within the ambit of the Schools Act. J

Kondile J

[18] It is apparent from para [17] above that the court below merely applied, literally, the school's code of conduct and A disregarded religious and cultural rights it found to have been established by the evidence. It failed to properly or sufficiently consider whether the code of conduct is consistent with the Constitution of the Republic of South Africa, 1996 ('the Constitution'), and the Equality Act, or whether it complies with the B requirements of the empowering statute, the Schools Act, and the Guidelines. This Court must therefore come to its own conclusion based on all the evidence.

[19] A conspectus of the evidence at the enquiry established, in my view, that the wearing of the nose ring by Hindu women of South India is of cultural and religious significance. I am further satisfied C that that is also the conclusion reached by the court below.

Contentions

[20] Counsel for respondents, whilst not disputing the cultural significance of the nose stud, submitted that there is no suggestion in D the complaint that the wearing of a nose stud has any religious significance. I disagree. That suggestion is made both in appellant's complaint (pleading) and in her evidence. Appellant testified that religion, historically, evolved from culture; that the nose stud is directly related to every female deity in Hindu mythology; that E Hinduism is not the only religion that has the nose stud as more than a mere body-piercing or piece of jewellery; that, in the Bible, it is said that Rebecca received a nose stud from Isaac as a betrothal gift. Further, the court below held that Dr Rambilass, the expert called by respondents, conceded that Hindu religion can include Hindu culture; that the wearing of a nose stud comes from the Hindu culture F and that, when it comes to Hinduism, it is difficult to distinguish between religion and culture. Such a conclusion is borne out by the record of the evidence.

[21] In any event it is irrelevant for purposes of this case whether the unfair discrimination complained of is based on culture only. In terms of s 9 of the Constitution, it is sufficient that the G disadvantageous or harmful or prejudicial treatment is primarily based on one of the listed prohibited grounds. See Brink v Kitshoff NO 1996 (4) SA 197 (CC) (1996 (6) BCLR 752) at para [43], and s 13 of the Equality Act.

[22] The following remarks of O'Regan J in Brink at para [42] highlight the importance of the issue in this case. H

'Section 8 [now s 9 of the Constitution] was adopted then in recognition that discrimination against people who are members of disfavoured groups can lead to patterns of group disadvantage and harm. Such discrimination is unfair: it builds and entrenches inequality amongst different groups in our society. The drafters realised that it I was necessary both to proscribe such forms of discrimination and to permit positive steps to redress the effects of such discrimination. The need to prohibit such patterns of discrimination and to remedy their results are the primary purposes of s 8 and, in particular, ss (2), (3) and (4).'

[23] It has also been contended by respondents that appellant chose to send her daughter to Durban Girls' High School and, in doing so, both J

Kondile J

appellant and her daughter were aware that the school had a code of conduct which they accepted. The A relevance of these contentions escape me, as both counsel for the parties have stated that fundamental rights and freedoms cannot be waived.

[24] The respondents have further submitted that the code of conduct was adopted by the fourth...