IN THE HIGH COURT OF SOUTH AFRICA REPORTABLE(NATAL PROVINCIAL DIVISION)NPD EQUALITY COURT CASE NO: AR 791/05In !" #$"% &"'""n:NAVANEETHA( PILLAY A))"**$n$n+,-A.ULU/NATAL (EC OF EDUCATION0INA CRON1E F2%3 R"3)4n+"n(R THULANI CELE0 SCHOOLS LIASONOFFICER S"54n+ R"3)4n+"n(RS A (ARTIN0 PRINCIPAL: DURBANGIRLS HIGH SCHOOL T!2%+ R"3)4n+"n (RS F ,NIGHT0 CHAIRPERSON SGB: DGHS F46%! R"3)4n+"n1UDG(ENT,ONDILE 1:Introduction1. This matter comes before us on appeal against a Judgment of Ms. ACMoolman, aMagistrateoftheDurbanEqualitCourt!"the Court belo#$%, deli&eredon'(th)eptember '**+. The Court belo# dismissed the complaint lodged b Appellant, in #hich, in effect, she sought an order,!a% interdicting and restraining Third -espondent from &iolating her daughter.s right to equalit or conducting unfair discriminator practices against her, on the grounds of religion, conscience, belief and culture.!b% directing /irst -espondent to assess progress made b Third -espondent to achie&e the goal of transformation.The bac0ground '. Appellant.s daughter #ho is a learner at Durban 1irls 2igh )chool !"the school$% returned from the school holida in the first #ee0 of the fourth term in the ear '**3 #earing a nose stud, ha&ing had her nose pierced during the holida.4. The school.s code of conduct pro&ides that, in respect of 5e#eller, earrings 6 plain round studs7sleepers ma be #orn #ith one in each ear lobe at the same le&el and further that no other 5e#eller ma be #orn e8cept a #atch.3. Third-espondent sought ane8planationfromAppellant forher 'daughter.s decision to #ear the nose stud.Appellant, in response, stated that she allo#ed the piercing for se&eral reasons including the fact that this is a time honoured tradition.)he and her daughter come from)outhIndianfamilthat has sought tomaintaina cultural identit b respecting and implementing the traditions of the #omen before them.+. 9suall, a oung #oman, upon her phsical maturit, #ould get her nosepierced, as anindicationthat she is no#eligiblefor marriage. :hilethisphsicallorientatedreasoningnolonger applies, the do still use the tradition to honour their daughters as responsible oung adults.;. After her si8teenth birthda, her grandmother #ill replace the current gold stud #ith a diamond stud.This #ill be done as part of a religious ritual to honour and bless her daughter.It is also a #a in #hich the elders of the household besto##orldl goods including other pieces of 5e#eller upon the oung #omen. This ser&es not onl to indicate that the &alue their daughters but is in 0eeping#ith Indian tradition,thattheir daughters are the !1% of the )outh African )chools Act >3 of 1((; !"the )chools Act$%.1+. TheMinisterofEducationmaintermsofsection>!4%ofthe )chools Act determine guidelines for the consideration of go&erning bodies in adopting a code of conduct for learners.1;. The 1uidelines for the consideration of go&erning bodies in adopting a code of conduct for learners #ere promulgated in 1o&ernment Botice ==; of 1((> 6 1o&ernment 1aCette 1>(* dated 1+th Ma 1((> !"the 1uidelines$%.Dasis of the decision of the Court belo#1=. ThereasoningoftheCourtbelo#isasfollo#s, Thego&erning ;bod #as obliged in terms of the )chools Act, to adopt a code of conduct for learners.The nose stud is, in terms of the definition in the )chool.s code of conduct, 5e#eller.The purpose of the code of conduct is, among other things, to promote discipline, uniformit and acceptable con&ention among the learners. Appellant,although fulla#are oftheschool.s codeof conduct, ignored it. "2a&ing regard to the nature of the school.s requirements contained in its code of conduct it is hardl feasible to e8pect the school to bend the rules to suit !Appellant.s daughter.s% personal choice pertaining to her culture or tradition.$ The school acted #ithin the ambit of the )chool.s Act.1>. It isapparent frompara1=abo&ethat theCourt belo#merel applied, literall, the)chool.scodeof conduct anddisregarded religious and cultural rights it found to ha&e been established b the e&idence.It failed to properl or sufficientl consider #hether the code of conduct is consistent #iththe Constitutionof the -epublic of )outh Africa Act 1*> of 1((; !Ethe Constitution$% and the Equalit Act or #hether it complies #ith the requirements of theempo#eringstatute, the)chools.Act and1uidelines. This Court must therefore come to its o#n conclusion based on all the e&idence.=1(. Aconspectusof thee&idenceat theenquirestablished, inm &ie#, that the #earing of the nose ring b 2indu #omen of )outh India is of cultural and religious significance.I am further satisfied that that is also the conclusion reached b the Court belo#.Contentions'*. Counsel for -espondents, #hilst not disputing the cultural significance of the nose stud, submitted that there is no suggestion in the complaint that the #earing of a nose stud has an religious significance. I disagree. That suggestion is made both in Appellant.s complaint !pleading% and in her e&idence. Appellant testifiedthat religionhistoricalle&ol&edfromculture@ that the nose stud is directl related to e&er female deit in 2indu mtholog@ that 2induism is not the onl religion that has the nose stud as more than a mere bod piercing or piece of 5e#eller@ that in the Dible it is said that -ebecca recei&ed a nose stud from Isaac as a betrothal gift. /urther the Court belo#held that Dr. -ambilass, the e8pert called b -espondents, conceded that 2indu religion can include 2indu culture@ that the #earing of a nose stud comes from the 2indu culture and that #hen it comes to 2induism it is difficult to distinguish bet#een religion and culture. )uch a >conclusion is borne out b the record of the e&idence.'1. In an e&ent it is irrele&ant, for purposes of this case, #hether the unfair discrimination complained of, is based on culture onl. In terms of section(of the Constitutionit is sufficient that the disad&antageousor harmful or pre5udicial treatment isprimaril based on one of the listed prohibited grounds.)ee Drin0 & Fitshoff B? 1((; !3% )A 1(= !CC% para 34 and section 14 of the Equalit Act.''. The follo#ing remar0s of ?.-egan J in Drin0 abo&e highlight the importance of the issue in this case."!31% )ection>!no#section(of theConstitution% #as adoptedthenin recognition that discrimination against people #ho are members of disfa&oured groups can lead to patterns of group disad&antage and harm.)uch discrimination is unfair,It builds and entrenches inequalit amongst different groupsinoursociet. Thedraftersrealisedthat it #asnecessarbothto proscribe such forms of discrimination and to permit positi&e steps to redress theeffects of suchdiscrimination. Theneedtoprohibit suchpatterns of discrimination and to remed their results are the primar purposes of s > and, in particular, ss !'%, !4% and !3%.$'4. It has also been contended b -espondents that Appellant chose to sendherdaughtertoDurban1irls2igh)choolandindoingso both Appellant and her daughter #ere a#are that the school had a codeof conduct #hichtheaccepted. Therele&anceof these contentions escape me as both counsel for the parties ha&e stated (that fundamental rights and freedoms cannot be #ai&ed. '3. The -espondents ha&e further submitted that the code of conduct #as adopted b the fourth -espondent after consultation #ith the learners, their parentsandtheeducatorsof theschool@ that the consultation also in&ol&ed people dra#n from e&er racial, religious and cultural group in )outh Africa. The issue, ho#e&er, is not onl #hether there #as e8tensi&e consultation on and support for the code of conduct but also #hether it accords #ith the Constitution, the)choolsActandthe1uidelines. Compare)& Ma0#anane and Another 1((+ !4% )A 4(1 !CC% at para '*;.'+. The further contention b -espondents, that it is important for the school to adopt an approach in #hich all girls are seen to be treated in the same #a, is also fla#ed. The Constitution prohibits both direct and indirect discrimination, that is, practices #hose purpose is to discriminate unfairl, or #hose effect or impact or outcome, irrespecti&e of the moti&e or intention, amounts to unfair discrimination.!'%)A4;4 !CC%,"!41% The inclusion of both direct and indirect discrimination, #ithin the ambit 1*of the prohibition imposed b s > !'%, e&inces a concern for the consequences rather than the form of conduct.It recognises that conduct #hich ma appear to be neutral and nonGdiscriminator ma nonetheless result in discrimination and, if it does, that it falls #ithin the pur&ie# of s > !'%.$ )ee also Equalit and BonGDiscrimination in )outh Africa b ). D. ?. 1utto p 1'=.';. The conception of equalit #hich insists on smmetrical treatment fails to recognise or repair or a&oid establishing or entrenching or intensifingdeeppatterns of historic groupdiscrimination and disad&antage #hich ine&itabl impair an indi&idual.s human dignit.)achs J e8pressed his &ie#s as follo#s, in this respect, in Bational Coalitionfor 1aand)ince the impugned pro&isionof the schools code of conduct reinforces#hat theempo#eringlegislationandtheConstitution require it to address and eliminate, indirect discrimination, it ser&es no legitimate purpose. :hennolegitimatepurpose isser&edthe discrimination is unfair and an assessment and #eighing up stage cannot be reached. ;*. -espondents ha&e alleged that a #earing of a nose stud, in contra&entionofthe schoolscodeofconduct,affects thesmooth running of the school. This suggests that the discrimination has a disciplinar purpose. -espondents ha&e ho#e&er pro&ided no e&idenceof ho#thesmoothrunningof theschool #as, at an stage, affectedbthe#earingof thenosestudbAppellant.s daughter.The e8istence of concerns relating to discipline must be unequi&ocall established and be sufficient for the infringement of a constitutional right or freedom to be 5ustified.2ere there is no or no compelling 5ustification.Compare Multani abo&e.Friegler J in ) & Ma0#anane and Another 1((+ !4% )A 4(1 !CC% at para '1* said in this regard,"At the &er least the reasonableness of a pro&ision #hich flies directl in the face of an entrenched right #ould ha&e to be cogentl established. . .$'(;1. Another point raised b -espondents is that learners are &er quic0 tonotice#hether other learnersaree8emptedfromcompliance #ith the code of conduct and this leads to discontent. The follo#ing response b Appellant to counsel for -espondents. question, during crossGe8amination at page '31 of the record, is to me, apposite."J Kou see I 5ust #ant to 0no# our response as a parent, and one of the people entitled to elect the go&erning bod, ho# ou e8pect the school to deal #ith those problems or is that irrele&ant to ouLA Absolutel not.I thin0 it is a &er simple matter to e8plain to an childthat legall!Appellant.s daughter% has aright tofollo#her religious and cultural tradition.$Appellant.s repl, in fact, reminds the -espondents of their general dut to educate the learners about the pro&isions of the Constitution,the)choolsAct and the1uidelines,rele&ant tothe rights and freedoms of each learner. This is a less restricti&e and less disad&antageous means to achie&e discipline.;'. The -espondents attempts to let the unfair discrimination creep in, intheguiseofdiscipline, cannotthereforesucceed. E&enif#e assume that the impugned pro&ision has a legitimate schools disciplinar purpose there is a less restricti&e and less disad&antageous means to achie&e that purpose, as I ha&e mentioned abo&e. I repeat that if some learners consider it unfair 4*that Appellant.s daughter ma #ear her nose stud to school, it is incumbent on the school to discharge its obligation to instil in its learners the&alues of religious andcultural tolerance, inother #ords, to instil discipline in them.The -espondents #ould, at the same time, therebbeaffirmingAppellant.s daughter.s dignit #hich is at the foundation of our democrac.!i% :hether and to #hat to e8tent the -espondents ha&e ta0en such steps as being reasonable in the circumstances to,!i% address the disad&antage #hich arises fromor is related to one or more of the prohibited grounds@ or!ii% accommodate di&ersit;4.Thereisnoe&idenceindicatingthat -espondentsha&eta0en an steps, let alone reasonable steps, to address the disad&antage caused b the discrimination suffered b Appellant, her daughter andtheir groupor toaccommodate di&ersit. -espondents ha&ealsonot sho#nthat theha&e initiated an process to redress the inequalit and indirect discrimination #hich on the e&idence has occurred.;3. The factors !a% 6 !e% abo&e ob5ecti&el considered, either singl or 41cumulati&el, conclusi&el establish, in m &ie#, that -espondents ha&e failed to pro&e that the discrimination in this matter is fair.;+. Thefactors !f% 6!i% abo&eha&enot establishedthat theunfair discrimination has a legitimate purpose as it does not compl #ith #hat the empo#ering legislation, the 1uidelines and the Equalit Act require, to protect, promote and fulfil the rights identified in theDillof-ightsincludingrespect foroneanotherscon&ictions and cultural traditions. The also ha&e not established that -espondentsha&eta0enstepstoaddressthedisad&antage#hich has arisen or to accommodate di&ersit.)ection 13 !'% !c% #hether the discrimination reasonabl and 5ustifiabl differentiates or fails to differentiate bet#een persons according to ob5ecti&el determined criteria intrinsic to the acti&it concerned.;;. The impugned pro&ision of the code of conduct allo#s the #earing, inschool, of 5e#ellerinthe formof earrings 6plainround studs7sleepers, probablforfashionandadornment purposesbut forbids the #earing, in school, of a &er tin nose stud, for cultural and7or religious purposes. This differentiationis not rationall connectedtoalegitimateob5ecti&eandisarbitrar. TheCourt belo# found that the e&idence established that cultural and 4'religious rights are implicated in this case. The -espondents ac0no#ledgethat thee&idenceestablishedthat the#earingofa nosestudis, at least, of cultural significancetoAppellant, her daughter and their group.;=. Appellant describedthenosestud#ornbher daughter as an e8tremel small stud that can barel be noticed.The Court belo# describeditasa&ertingoldstud. Third-espondent realises that the nose stud is small. Appellant also asserted that the nose studdoesnot, inan#a, hindertheeducational sstemorthe smooth running of the school or her daughter.s performance as a learner.There is no e&idence to contradict these assertions. ;>. Theindirect discrimination, onthe e&idence, is not capableof ob5ecti&e substantiation in terms of criteria intrinsic to the educational sstem.It is not authorised b the empo#ering statute. It does not accommodate di&ersit.)uch indirect discrimination is, in m &ie#, arbitrar, unla#ful, unreasonable and un5ustifiable in an open and democratic societ based on human dignit, equalit and freedom. ;(. Inallthecircumstances, Ifindthatunfairdiscriminationagainst 44Appellant, her daughter and their group has ta0en place as alleged b Appellant.=*. I accordingl propose the follo#ing order,!a% The appeal is allo#ed.!b% The order of the Court belo# is replaced #ith the follo#ing,"Thedecision, prohibitingthe#earingof anosestud, in school, b 2indu7Indian learners, is declared null and &oid.$!c% Bo order is made in respect of costs.I agree.It is so ordered. MMMMMMMMMMMMMMMMMMMMTSHABALALA 1P431UDG(ENT RESERVED: 71ST APRIL 70081UDG(ENT HANDED DO-N: 5TH 1ULY 7008COUNSEL FOR APPELLANT: ADV9 S ( GOVENDER SC'2!ADV9 P NAIDUIn3%65"+ &:: P%"4%2$ L$' C*2n25FOR A(ICUS CURIAE: ADV9 L PILLAY SC'2!4+ADV9 D PILLAYIn3%65"+ &:: S R S2;2 P$!"% $4%n":3FOR 1ST AND 7ND RESPONDENTS: (R9 ( , GOVENDERS$" $4%n":FOR