On 13 March 2013, Sikhokele Diniso, a grade 10 learner from Siphamandla High School in Khayelitsha, was instructed to leave school and not to return until he had cut his hair. Diniso is a Rastafarian and growing his hair is a part of his faith. Equal Education (EE) and the Equal Education Law Centre (EELC) have been in contact with the school and the Western Cape Education Department (WCED) to ensure his return to school. However, neither the school nor the WCED have attempted to facilitate Diniso’s return.
Unlawful and unconstitutional exclusion
The principal of Siphamandla High unlawfully suspended Diniso from school on 13 March despite the fact that he was scheduled to write tests for History on 14 March, Mathematics on 15 March and Life Sciences on 18 March. He has been unable to write these tests and has fallen behind in the curriculum due to his suspension. On 20 March, the EELC, acting on behalf of EE and the learner concerned, wrote to the WCED requesting that the learner urgently be re-admitted to his school [PDF].
Schools cannot use learner dress codes as the basis for unlawful exclusions that violate constitutional rights as well as the South African Schools Act (SASA). School Governing Bodies are supposed to consider the National Guidelines on School Uniforms when adopting a code of conduct for a school. Section 29 of the guidelines state: “A school uniform policy or dress code should take into account religious and cultural diversity within the community served by the school. Measures should be included to accommodate learners whose religious beliefs are compromised by a uniform requirement.”
The principal’s actions violated Diniso’s constitutional rights to dignity; freedom of religion; and basic education. His exclusion is also a violation of section 9(3) of the Constitution which prohibits unfair discrimination on the basis of religion, conscience, belief or culture.
The principal’s conduct is unlawful as it violates section 5(1) of the SASA which requires a “public school to admit learners and serve their educational needs without unfairly discriminating in any way”.
His action disregards a Constitutional Court ruling (MEC for Education: KwaZulu-Natal and Others v Pillay) that stated that schools must, where possible, accommodate learners’ sincerely held religious and cultural beliefs and practices.
A widespread problem
This is not the first time EE has had to contact the WCED on behalf of Rastafarian learners who have been unlawfully suspended from, or denied admission to, school because of their religious beliefs [LINK]. On two previous occasions this year and during the course of last year the EELC, acting on behalf of EE had cause to contact the WCED when Bulumko High, also in Khayelitsha, unlawfully suspended learners on this basis [PDF].
These cases underscore the reoccurring nature of this problem in Khayelitsha schools and elsewhere in the Western Cape (as in the recent case of the Muslim learners in Kuilsriver). The WCED must intervene in these cases, as learners are not only being denied access and admission to school, but are also being deprived of valuable schooling time.
EE has requested that the WCED consider adopting a broader approach by issuing a circular to schools to provide clarity on the legal position concerning schools codes of conduct and learners’ religious and cultural beliefs and practices. To our knowledge, this has not occurred.
For comment please contact
Yoliswa Dwane (EE Chairperson) on 072 342 7747/ 021 387 0022
Lisa Draga (EE Law Centre Attorney) on 072 650 0214/ 021 461 6582
Kate Wilkinson (EE Media Officer) on 082 326 5353