What happens when these collide?
Recently, Tuckers Attorneys was instructed in a matter involving a High School Principal who was summoned to appear before the Commission for the Promotion and Protection of the rights of Cultural, Religious and Linguistic Communities (CRL Commission), having been accused by a learner, who had undergone training and initiation to become a traditional healer or Sangoma of conducting discriminatory practices against the learner and degrading and mocking the learner and her practice, as demonic.
The complaint arose from the following facts: In 2017 the learner appeared to be having an epileptic fit or seizure. The principal’s first reaction was to telephone for emergency services to provide emergency medical treatment to the learner. A subsequent call to the learner’s mother revealed that the cause of the seizure was spiritual rather than medical.
Certain Christian staff members took it upon themselves to use “holy water/oil” to “exorcise” what they, from a Christian perspective, thought may be demonic in origin and which had possessed the learner.
In 2018, the learner having had a calling from her ancestors to become a traditional healer or “Sangoma” was taken out of school to undergo full-time Sangoma training.
In January 2019 she returned to the school as a learner while wearing traditional bead and animal skin bracelets, in contravention of the dress code of the school. The beads and bracelets were categorised as jewellery and accordingly she was requested to remove the jewellery. Once the bracelets were identified as being those of an initiated Sangoma, she was requested to cover the bracelets to avoid any victimisation from fellow learners or staff, who did not subscribe to her beliefs.
The recommendations of the CRL are expected to be given shortly.
Section 15 of the Constitution of the Republic of South Africa 1996 protects one’s rights to religion, belief and opinion, while section 31 allows the freedom to practice ones culture and religion without being discriminated against or victimised.
A school code of conduct and dress code regulates the conduct and dress code expected of learners and other role players in that school. The school codes are usually compiled by the Governing Body, after having regard to the relevant provisions in the South African Schools Act as well as the policies and directives set out by the National and provincial departments of education. What is now apparent is that these codes must take account of the fundamental rights protected by the Constitution or run the risk of being declared unconstitutional.
The Constitution is the supreme law of the land and sections 15 and 31 are particularly relevant to the above mentioned case. The rights protected in these sections are however limited by section 36 of the Constitution and are not necessarily absolute, but the rights in terms of the Constitution must normally supersede those contained in the South African Schools Act or any Code of dress or Conduct in a school.
The Sangoma learner, notwithstanding the rule in the school’s code of dress, forbidding the wearing of jewellery, has every right, in terms of the Constitution, to wear her Sangoma bracelets conspicuously. A Muslim learner has every right to wear her burqa with her uniform.
By way of contrast and example, a traditional Zionist Christian Church (ZCC) member who wears his traditional khaki uniform and tyre soled white shoes to school would be in contravention of the school’s code of dress and could not claim that his right is constitutionally protected.
The difference between the two above mentioned examples is that a Sangoma is always required, after their initiation, to wear their bracelets at the risk of misfortune befalling them, should they be removed. This is not unlike a Muslim lady who is required to wear a burqa.
The ZCC member on the other hand is required to wear his traditional khaki uniform only while attending church services. There is no requirement that it be worn permanently.
The actions taken by staff in the use of the “holy water/oil” would be considered unconstitutional as it would be enforcing their beliefs on another, who is not so persuaded.
In light of the diversity of religion, culture and opinions of learners and community and other role players within a school environment, School Governing Bodies would do well to revisit and take legal advice on the constitutionality of their Codes of Conduct, dress codes and particularly when dealing with situations involving the clash between culture and religious beliefs and the schools Codes.
Article contributed by Kevin McCallum of Tuckers Inc.