The importance of diversity in schools
MEC for Education: KwaZulu-Natal and Others v Pillay (2007)
What is the place of religious and cultural expression in public schools?
The practise of the wearing of a nose stud is central to my religious and cultural beliefs and it has been practised for centuries by the women in my family.
Navaneethum Pillay
Sunali’s mother, testifying on her behalf, August 2006
Background
At the centre of the storm is a tiny gold nose stud.
Chief Justice Pius Langa
from the Pillay judgment, 5 October 2007
In 2004, Sunali Pillay was a learner at Durban Girls’ High School. Upon returning to school from the holiday break, the school requested that she remove her nose stud. When she did not, the school threatened her with disciplinary hearings and actions which could have ultimately resulted in her getting suspended or expelled.
Wearing a nose stud was a time-honoured family and cultural tradition for Sunali and her South Indian family. The practice is meant to honour daughters as responsible young adults. The school, aware of this, still refused to allow Sunali to wear it, and threatened her with disciplinary hearings and actions.
Sunali’s mother, Navaneethum, intervened on her behalf. Upon reaching a deadlock in discussions with the school and the KwaZulu-Natal MEC for Education, Navaneethum took the matter to the Equality Court.
Path to the Constitutional Court
Equality Court
The Equality Court had to determine whether the school’s refusal to allow Sunali to wear the nose stud was a violation of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (also known as the Equality Act). The Equality Court found that while the school’s refusal was discrimination, it did not amount to unfair discrimination as the Code of Conduct had a valid purpose. The matter was appealed to the High Court.
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 [of Conduct] as being ‘to promote uniformity and acceptable convention amongst the learners’ and accepted the school’s evidence that undue permissiveness could result in a conflict with the Code.
Equality Court
from the Pillay judgment, 2005
High Court
The High Court disagreed with the Equality Court and found that the discrimination against Sunali was not only unfair, it violated her constitutional rights. The Court found that discrimination went against our society’s efforts to redress issues of discrimination. The school appealed the matter to the Constitutional Court.
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.
Judge Kondile
from the Pillay High Court judgment, 2006
Some of the Arguments
Navaneethum Pillay
Pillay argued that the School and KwaZulu-Natal MEC for Education had unfairly discriminated against Sunali and had violated her religious and cultural rights. She argued that there was no evidence that refusing Sunali an exemption from the school’s code improved discipline at the school.
Durban Girls High School and the MEC for Education - KwaZulu Natal
The school argued that the code cannot be said to be discriminatory as it affected all religions equally and the MEC argued that the school code cannot be said to be discriminatory as it affected all religions equally. They also argued that should the Constitutional Court find that there was discrimination against Sunali, then such discrimination was not unfair because the code was compiled on the basis of prior consultations with all relevant parties and that Ms Navaneethum Pillay had agreed to the code.
What did the Constitutional Court decide?
– Chief Justice Pius Langa, from the Pillay judgment, 5 October 2007
The discrimination was unfair and denied Sunali her constitutional right to freedom of religion and culture, as well as her right to freedom of expression. The Court ruled that the infringements to Sunali’s constitutional rights were not slight, as the School and MEC asserted, but created the impression that Sunali and her cultural practices and beliefs are unwanted, making the infringement unfairly discriminatory.
“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.” –
Chief Justice Pius Langa, from the Pillay judgment, 5 October 2007
Impact and Significance
This was the first case in any South African court which questioned whether voluntary religious and cultural practices are protected by the Constitution. In finding that the Constitution does protect these acts and expressions, the Constitutional Court asserted that these protections are essential to human dignity.
The Court pointed out that a Code of Conduct, like the one adopted by Durban Girls’ High School, is not a neutral document. The norms of such a code actually enforce mainstream and historically privileged practices and excludes marginalised practices.
This means that when a school or other body draws up a code of conduct, they should always make a reasonable accommodation for all the different cultural and religious practices. This requires more than mere tolerance of what is perceived as weird or alien beliefs and practices and requires a celebration of the diversity of cultures and religions in South Africa.
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.
Chief Justice Pius Langa
from the Pillay judgment, 5 October 2007
