Religious and cultural rights
Faith, culture and the school classroom.
Harmonising beliefs and codes of conduct.
The topic of children's right to education versus their rights to religion and culture is often debated in South Africa. We live in a culturally diverse society where the right to education and the child's right to partake in the religious and cultural life of their choice may clash. This is usually seen in schools where certain cultural and religious clothing or hairstyles are not allowed by the school. The direct consequence of this may be that the child's right to participate in a particular religion and/or culture could be foregone in favour of the right to education.
Religious and cultural rights are part of the human rights protected in the Constitution, and so is the right to basic education. This article will explore some practical instances of how the rights were treated, as well as what parents can do to resolve disputes if their children's rights are violated.
National Guidelines on School Uniforms
The National Guidelines on School Uniforms (“Guidelines”) were published under the South African Schools Act 84 of 1996 to assist schools in striking a balance between the rights.
The Guidelines provide that schools are required to take into account religious and cultural diversity in their school uniform policy and dress codes. Learners whose religious and cultural beliefs are compromised by a school's policy must be accommodated. If wearing items of clothing such as headscarves and yarmulkes is part of a learner's religious practice or obligation, schools should observe the constitutional rights and refrain from prohibiting the learner from wearing such items. This also extends to beards and other forms of religious or cultural expression demonstrated by learners.
However, the learner will have to produce proof of being affiliated with a particular religion or culture, such as a letter from a religious organisation.
Striking a balance between the rights
There are two incidents from a school in Uitenhage that highlight the conflict between learners' religious and cultural beliefs, and how the school accommodated the learner's rights in one instance.
In 2018, a grade 8 learner was barred from attending classes until he trimmed his afro hairstyle. The school had a policy that strictly provided that learners should keep their hair “short and neatly combed”. Some parents and learners believed that the school's code of conduct, particularly its hair policy, was outdated.
The same school had a similar incident in 2013, where a learner was removed from the school premises for wearing dreadlocks. In this instance, the Rastafarian local community opposed the learner's expulsion on the basis that the learner's dreadlocks were an intrinsic part of his cultural beliefs, which should be embraced by the school. Due to these protests, the school subsequently permitted learners to wear dreadlocks only if their parents could show that Rastafarian cultural practices formed the basis of their belief system.
This scenario demonstrates a shift towards accommodating learners with valid and proven religious and cultural beliefs. It also indicates how schools may sometimes make exceptions in relation to their strict uniform policies to allow learners to continue exercising their right to basic education.
However, the fact that the school accommodated one learner's beliefs and not the other, leaves much to be desired. The specific criteria to be used in assessing whether an exception would be warranted in any given situation, other than proven religious and/or cultural affiliation, has not been made clear.
These types of incidents are sometimes referred to court where clarity on how schools should address these cases in the future can be obtained. In the matter of MEC for Education: Kwazulu-Natal and Others v Pillay (CCT 51/06) (2007) ZACC 21, the Constitutional Court held that a public school's decision to prevent a learner from wearing a nose stud to school constituted unfair discrimination because the learner wore the stud as a cultural practice and to observe her religion.
As the High Court remarked in the matter of Radebe v Principal of Leseding Technical School (1821/2013) (2013) ZAFSHC 111, a school has to educate itself on the “importance and advantages of accepting our religious diversity”.
Steps to take if a child is faced with religious and cultural discrimination
Parents are encouraged to first approach the school directly to try and reach a solution before seeking assistance from the courts.
If the school fails to assist the learner and accommodate the learner's religious or cultural practices, the parents may lodge a complaint with the South African Council for Educators:
Tel: 012 663 9517
E-mail: ethics@sace.org.za
Mail: Chief Executive Officer, South African Council for Educators (SACE), Private Bag X 127, Centurion 0046.
Hand delivery: Chief Executive Officer, South African Council for Educators (SACE), 240 Lenchen Avenue, Centurion 0046.
There are many forums that parents and learners can approach for assistance in the event that they do not succeed in one forum. The Department of Education, South African Human Rights Commission or the courts can be approached. It is advisable to obtain legal advice first to establish the most effective route for the specific matter.
Conclusion
From natural hairstyles to nose studs and hijabs, the wearing of certain hairstyles and traditional pieces of clothing in schools has become a contentious issue as some deem these methods of expression to be in conflict with school dress codes. Schools should accommodate learners' religious and cultural rights without impacting their right to basic education. Although it is not always clear where to draw the line on the limitation of these rights, it is good to note that the courts have positively been dealing with these matters and have allowed learners to exercise their religious and cultural rights.
Did you know…The National Guidelines on School Uniforms were introduced on 23 February 2006 by the then Minister of Education, Naledi Pandor, and have been in operation since then.