POTENTIALLY DANGEROUS CASE FOR FAITH-BASED INDEPENDENT SCHOOLS

By Adv Nadene Badenhorst, FOR SA Legal Counsel

A potentially dangerous case that could have major ramifications for all faith-based independent schools (whether Christian, Jewish, Muslim, etc.) has been instituted in the Equality Court of the Johannesburg High Court.

The case concerns Christian Life Private School, an independent school subscribing to Christian beliefs and values in Johannesburg. The school recently refused – on grounds of its Christian ethos and beliefs - to allow a nine-year old Zulu boy to wear an isiphandla at school, and (temporarily) sent him home with his learning material.  The isiphandla is a bracelet made from goat skin, traditionally worn by (some) African people following a traditional ceremony and as a connection with their ancestors. It cannot be removed but, in terms of African tradition, must be worn until it falls off naturally.

As a result, the boy’s parents have now opened up a case of unfair discrimination on grounds of culture against the school, claiming – amongst other things – R300,000 in damages for the impairment of their and their son’s dignity, and emotional and psychological suffering.

If the Court decides against the school, it could set a dangerous precedent for all faith-based independent schools (of whatever faith), who may be forced to act against the religious convictions and beliefs of the school.  This in turn would negatively impact the parents, students and staff who have chosen to associate with a faith-based school precisely because they support its religious beliefs and want their child/ren to be educated within this ethos. Both the school and those who have voluntarily associated with it, may then be forced to accommodate beliefs and practices that go directly against their own religious beliefs and practices. This would completely undermine and defeat the raison d’etre and objective of independent faith-based schools.  It also goes directly against the constitutional right to establish and maintain independent faith-based schools (section 29(3) read with sections 15, 16 and 31 of the Constitution).

For this reason, it is critically important that independent school associations join the case to protect their interests and the interest of the independent schools under their banner, which stand to be directly affected by the case.  Because of the clear threat to the religious rights of independent schools, Freedom of Religion South Africa (FOR SA) will likely get involved as an amicus curiae to protect the constitutional rights of faith-based independent schools.

Facts of the case

A material fact in this case is that the school has a Uniform Policy which does not permit learners to wear any jewellery – for religious, cultural, fashion or any other purpose.  This is a neutral rule which treats everyone the same, applies equally to all learners and therefore does not unfairly discriminate against anyone. The parents agreed to this Policy (as part of the school’s Code of Conduct) when they enrolled their child at the school. A strong argument can be made, therefore, that there has been no unfair discrimination against the child in this instance. In fact, it is the parents who have breached the contractual agreement with the school by failing to adhere the school’s Policy.

Another fact that makes this case particularly interesting, is the parents’ claim that they themselves hold to Christian beliefs and values. However, as a Zulu family, they also hold to the cultural practice of isiphandla, which they allege “is in no way a sign of worshipping or praising ancestors but a rite of passage and symbol of acknowledgment of our ancestors”. As such, the parents argue that the school could (and should) have accommodated the wearing of the isiphandla. They argue that this would not have imposed an undue burden on the school, and therefore the school’s refusal to allow the isiphandla to be worn amounts to unfair discrimination on grounds of culture.

The school, however, argues that even though the parents purport to make out isiphandla to be a “cultural” practice, the roots and foundation of isiphandla are in fact religious. In their papers, the school alleges that “the cultural / religious intermingled belief in ancestors and any form of sacrifice to, communication with, appeasement of or protection by the ancestors, (the dead), is diametrically opposed to the Scriptures as contained in the Christian Bible, and is in fact strictly forbidden by the Bible”. As such, the school cannot accommodate a practice that goes directly against its own beliefs – in the same way that, for example, “an independent Muslim school would never allow any regalia, adornment or relic, that is in conflict with or goes against the Islam religion”.

Legal issues for decision

The case presents some interesting, and important, legal issues for decision.

It will be interesting to see how the Court views the parents’ alleged breach of the Parent Contract.  This includes the extent to which they will be bound to adhere to the terms of the initial Contract, in which they agree to abide by the school’s Code of Conduct and its Uniform Policy.  This, in turn, raises the question of the constitutional validity of certain provisions of the Parent Contract, including particularly the prohibition on bracelets – to the extent that this prohibition limits the child’s constitutional rights to practise his/her culture.

In this regard also, it will be interesting to see how the Court deals with the parents’ claim that isiphandla is a cultural practice, as opposed to the school’s claim that it is essentially religious (or both cultural and religious). This is important because if it is (solely) a cultural practice, then it may be more difficult for the school to show why the practice cannot (or should not) be accommodated.  If, however, it is held to be a religious practice and the school can show that the practice is contradictory to its own religious beliefs (which are indispensable to the school’s identity and the reason for existence in the first place), it will be easier for the school to defend its decision not to accommodate the wearing of the isiphandla.

Ultimately, the question is whether there was a legal duty on the school to accommodate the practice. The parents allege that there was – and presumably, will want to rely on the well-known case of MEC for Education:  KwaZulu-Natal v Pillay (2007) in support of their position. In that case, the Constitutional Court held that the school had a duty to reasonably accommodate a learner’s wearing of a nose ring (whether as a cultural, or religious practice) as an expression of her Hindu beliefs.

However, the school in the Pillay case was a public school, whereas the school in the present instance is an independent school, to which different legal rules and principles apply. As stated by the Johannesburg High Court in the OGOD case (2017), “public schools are public assets which serve the interests of society as a whole”. In contrast, independent faith-based schools are established and maintained with a view to serving the interests of a specific group (rather than society as a whole), namely persons (staff, students and their parents) who hold to the same religious beliefs and values. In this regard, it is trite law that – in order to protect its associational identity – an independent school may set certain conditions for membership of the school and may also exclude learners who no longer meet those conditions.

This, of course, does not mean that independent schools are not subject to the Bill of Rights, or are immune from constitutional obligations.  However, in the recent case of AB v Pridwin Preparatory School (2020), the Constitutional Court made it clear that the constitutional obligations of independent schools are distinct from those borne by public schools and that the Bill of Rights does not apply “in the same manner and to the same extent” as it does to public schools.

Conclusion

If the Court in this case were to find in favour of the parents in this case, and decide that the school has to accommodate the beliefs of the 1% even (if it violates the beliefs of the 99%), that would completely defeat the purpose of having independent faith-based schools. 

The outcome of the case, as explained above, could potentially set a precedent with major ramifications for ALL independent schools in South Africa.  It is therefore important that their views are properly represented in the case – hence FOR SA’s probable involvement as an amicus curiae to assist the court in how it should interpret and apply the law in this case.

For more information about the case, contact FOR SA at legal@forsa.org.za