Adv Nadene Badenhorst, LegalCounsel of FOR SA
The hijab - the head covering worn in public by some Muslim women – has made news headlines in two unrelated cases this month.
In the first case, a Muslim member of the South African National Defence Force (SANDF) has been charged with “disobeying a direct command” after refusing to remove her headscarf (which she wears under her military beret) while on duty. According to the SANDF, its dress code clearly states that no other clothing should be worn with the official uniform. Why are these cases important? The case has been set down for hearing on 7 August 2019 before a senior military judge. (See, for example, this article for more on the matter.)
In the second case, a Muslim woman was advised to lay a complaint for unfair treatment after she was asked, by security personnel at OR Tambo Airport, to remove her headscarf. According to Airport Company South Africa (ACSA), security process requires that if people are wearing headgear, wraps, scarves or any form of clothing the passenger must remove it or be searched by the officers. A passenger has a right however to be searched in privacy. (See, for example, this article for more on the matter.)
Cases such asthese raise important questions around the wearing of religious clothing andaccessories in public – what rights (if any) do religious people have, and cantheir rights ever be limited? The outcome may also be important not only forMuslims, but for people of all faiths. Should the military court, for example,find that their members may not wear headscarves as an expression of the Muslimfaith, the same must – from an equality perspective - apply in respect of Christianmembers who want to wear a cross around their neck, or a purity ring, as anexpression of their faith.
The right to religious freedom
The startingpoint is section 15 of the Constitution, which guarantees everyone the right toreligious freedom. Our Constitutional Court has already repeatedly said thatthis fundamental right includes not only the right to believe internallywhatever one wants to believe, but also the right to give outward expression –including therefore through one’s clothing – of one’s religious convictions andbeliefs.
In the contextof the SANDF, section 15(2) of the Constitution (which specifically protectsthe right to “religious observances”in State and State-aided institutions) may also be relevant. While “religious observances” are not definedin the Constitution, it is arguable that religious dress should be read asincluded therein.
Otherfundamental rights, which may be relevant to the issue, include the right toequality and non-discrimination on grounds of religion and belief (section 9 ofthe Constitution), the right to human dignity (section 10 of the Constitution)and potentially also the right to freedom of expression (section 16 of theConstitution).
No fundamentalright is absolute, however, and may be limited if it is “reasonable and justifiable in an open and democratic society”(section 36 of the Constitution).
In the case of MECfor Education, KwaZulu-Natal v Pillay (2008), the Constitutional Court considered the place of religiousand cultural expression in public schools. In this instance, a public schoolrequested a Hindu learner to remove the nose stud that she was wearing as anexpression of her religious belief, because it violated the school’s uniformpolicy.
Thelearner’s mother took the case to court on behalf of her daughter, arguing thatthe school unfairly discriminated against her daughter on grounds of religionand culture. The school argued in turn that, if there was any discrimination,it was not unfair because: the uniform policy wascompiled on the basis of prior consultations with all relevant parties; thelearner’s mother had, in fact, agreed to the uniform policy; nose studs werepopular outside of the learner’s culture; the importance of uniforms inmaintaining discipline; the need to give deference to school authorities; andthe fact that the ban on the wearing of a nose stud could only have a limitedeffect on the learner’s culture since she was at liberty to wear the nose studwhen she was not at school.
In its judgment,the Constitutional Court referred to the principle of reasonable accommodation whichrequires that “sometimesthe community, whether it is the State, an employer or a school, must takepositive measures and possibly incur additional hardship or expense in order toallow all people to participate and enjoy all their rights equally.” Turning to thefacts in the case, the Court found that there would not be undue hardship onthe school if they had to accommodate the Hindu learner and that fairness inthis instance required that they do so.
The Constitutional Court noted that “as a general rule, the more learners feel free to express theirreligions and cultures in school, the closer we will come to the societyenvisaged in the Constitution. The display of religion and culture in public isnot a ‘parade of horribles’ but a pageant of diversity which will enrich ourschools and in turn our country.”
Application of the Pillay case to present cases
On the back ofthe Pillaycase, it is arguable that the SANDF’s (in the case of the Muslim employee) andACSA’s (in the case of the Muslim passenger) conduct amount to discrimination(i.e. treating different people differently) on grounds of religion and belief.The question then is whether the discrimination is fair (which is legal), orunfair (which is illegal)?
In order toprove fairness, the SANDF (in the case of the Muslim employee) and ACSA (in thecase of the Muslim passenger) respectively will have to prove – amongst otherthings - that there is a more important purpose (i.e. more important than protectingthe right to religious freedom, including the right to outwardly express one’sreligion through one’s clothing) in demanding that the hijab be removed. In other words, they would have to show that itis necessary, for example, for maintaining discipline or uniformity (in thecase of the SANDF), or verifying the passenger’s identity for purposes ofsafety and security (in the case of ACSA), etc.[1]
Even if there isa legitimate purpose for the removal of the hijab,the SANDF and ACSA respectively would have to show that there are no “less restrictive means” (s 36 of theConstitution) by which that purpose can be achieved. In other words, is itnecessary that the hijab must beremoved completely, or is the purpose achieved as long as it is under themilitary beret (in the case of the SANDF)? Must the hijab be removed in public, or can the same purpose be achieved(while also protecting the Muslim passenger’s religious rights and dignity) byhaving her remove same in a non-public area (in the case of ACSA)?
In light of these considerations, news that a determination is currently under consideration to allow female Muslim members of the SANDF to wear headscarves under their berets while the dress code policy is revisited, is encouraging. (See, for example, this article for more on the matter.) This will certainly bring us closer to the richly diverse society envisaged in our Constitution, as remarked by the Constitutional Court in Pillay.
[1] In various countries around the world, there have been calls for the banning of the burqa – i.e. the long, loose garment covering the whole body from head to feet, worn in public by women in many Muslim countries. One of the main arguments for the banning of the burqa is that criminals and terrorists can and do use face coverings to hide their identities. The arguments around the banning of the burqa are complex however, and are not the subject matter of this article.
[author] [author_image timthumb='on']https://forsa.org.za/wp-content/uploads/2014/04/nadene-badenhorst.jpg[/author_image] [author_info]Nadene is an Advocate, and practised as a member of the Cape Bar for a number of years. She holds both a BA LLB degree from the University of Stellenbosch and a LLM degree in International Human Rights Law (cum laude) from the University of Essex. She currently serves as a Next Generation Board Member on the Advocates Africa Board, representing Southern Africa.[/author_info] [/author]
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Freedom of Religion South Africa (FOR SA) is dedicated to protecting and preserving the freedoms and rights that the South African Constitution has granted to the faith community. If you have found this helpful, please consider supporting the work of FOR SA to protect our constitutional right to enjoy the freedom of religion by:
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