Introduction to law
The case of the MEC for education: KwaZulu-Natal and Others v Pillay was heard by the Constitutional court as an appeal from the KwaZulu-Natal high court on the 20th and 21st February 2007.
Sunali Pillay, a learner at DGHS was found to be in violation of the school’s code of conduct as she returned from the holidays with a nose stud.
Ms Pillay, the mother of Sunali Pillay corresponded with the school on the matter however when the school decided that Sunali should not be allowed to wear the nose stud Ms Pillay took the matter to the equality courts as she felt her daughters cultural and religious rights had been ignored.
The equality court ruled in favour of the school and it was found that Sunali was not the victim of unfair discrimination.
This decision was overturned on appeal at the High Court which found that Sunali Pillay had in fact been the recipient of unfair discrimination.
An appeal was lodged by the department and the school which was dismissed due to the majority judgement written by chief justice Langa who found that the decisions made concerning this matter had the potential to affect many schools and was therefore in interest to the courts and he ordered the amendment of the Code
A separate judgment was written by O’Reagen J in which she agreed with the order that the code be amended.
The decision of the school which prohibited Sunali Pillay from wearing a nose stud and their refusal to grant her an exemption
Weather the aforementioned decision was an act of discrimination due to the code or the school
The oversights in the code
Rule of law
The equality act section 9(3) and (4) which state:
(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.”
Section 6 of the equality act:
(6) “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.”
Freedom of religion, belief and opinion from section 15 in the bill of rights
The right to language and culture section 30 of the bill of rights which states:
(30) “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.”
Application of the law
Human rights are the basic rights afforded to all humans regardless of any statues and the right to equality is one of the main rights afforded to humans. The equality act was created to eradicate economic and social inequalities in a democratic south Africa by affording equal rights and treatment to all individuals on the grounds of “race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth” which is stated in section (3) of the act. Sunali Pillay’s rights were violated according to section 6 of the equality act which states that no person or state may unfairly discriminate against another person on the grounds of religion or culture. The voluntary practice of wearing a nose stud was a part of Sunali’s Indian Tamil Hindu culture and religion as it is hard to separate the two. The school’s decision to not let Sunali wear a nose stud was therefore in direct violation of Sunali’s rights according to section 15 and 30 of the bill of rights which protects religious and cultural practices and the freedom to engage in them. The code of conduct stated that “jewellery: Earrings – plain round studs/sleepers may be worn, One in each 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.” This in itself was discriminatory as the rule concerning what jewellery is allowed to be worn made provisions for certain cultural or religious practices while banning others meaning that not all learners had equal opportunities to express their cultural and religious identity.
The equality court ruled in favour of the school on the issue of whether the decision to refuse Sunali permission wear a nose stud was an act of discrimination or not. The court concluded that Sunali had not been unfairly discriminated against. The argument was that Sunali had agreed to follow the Code which she violated by wearing the nose stud and that the practice of wearing a nose stud was a voluntary practice of Sunali’s culture not her religion and therefore the school did not grant her an exemption.
The decision of the equality court was overturned on appeal at the high court who found that Sunali’s rights had been violated and the school had unfairly discriminated against her according to the equality act, which prohibits direct or indirect discrimination by the state or any person on the grounds of religion or culture. The verdict forbidding Hindu or Indian learners from wearing a nose stud was declared invalid
The appeal lodged by the school and the department was dismissed by the majority judgement written by Chief Justice Langa. He found the matter to be of great interest to the courts as the outcome would have an impact on the majority of schools in south Africa and that the rule in the code concerning the wearing of jewellery could cause indirect discrimination by denying some their cultural and religious rights while allowing others to express them freely. Langa CJ observed that the school had unfairly discriminated against Sunali by their refusal to allow her to wear a nose stud as voluntary and compulsory practises are protected under the Equality act. Furthermore, the Chief Justice ordered that the code be amended to accommodate cultural and religious practices. A separate judgement was written by O’Reagen J who considered the link between culture and religion in relation to our constitution which requires that public institutes such as schools provide an environment where learners from different religions and cultures are afforded equal treatment. In her judgement she agreed with the fact that the code was discriminatory on the grounds that there it did not contain a proper procedure to grant exemptions and that this needed to be amended to avoid unfair discrimination.