This case arose after EE and the EELC had already mediated and resolved five different incidents in the Western Cape where Rastafarian learners had been discriminated against because the wearing of dreadlocks as a hairstyle was prohibited by their school. (Further details of these matters can be supplied if needed)
There were four applicants in this matter: affected learner, her father and mother and EE.
In April of this year Mr Radebe, the father of Lerato Radebe, sent an e-mail to EE seeking assistance because his 13 year old daughter had been prevented from attending classes at her school, Leseding High, in Thabang Welkom. She had been taken from her class every day and made to sit in the staffroom because she refused to cut her dreadlocks. The school’s code of conduct prohibited the wearing of dreadlocks. The family are followers of the Rastafarian faith and Lerato wears her hair in this manner because it is a practise associated with her faith. Mr Radebe had relentlessly and repeatedly sought the assistance of district officials, officials in the MEC’s office, the Minister’s office, two chapter nine institutions and even the local media in an attempt to protect his daughter’s rights to freedom of religion and to receive a basic education. Eventually a fellow Rastafarian suggested he contact EE.
EELC first addressed a letter to the Principal of the School and the Chairperson of the Governing Body which was copied to the HOD of the Free State Basic Education Department and the MEC for Basic Education. The letter spelt out the relevant legal and policy framework and demanded that Lerato be allowed to attend classes immediately, a remedial plan be devised and implemented so that Lerato could catch up on lessons missed, that provision be made for her to take any formal assessments which she had been prevented from taking and that the school issue a formal written apology to Lerato and her family for violating Lerato’s rights.
We received a response from the HOD which stated the Lerato was no longer registered at Leseding High and which also stated that the parents of the school had decided in a meeting that the school’s code of conduct could not be changed to accommodate one learner. The letter pointed out that in terms of the South African Schools Act the power to adopt a code of conduct vests with the SGB and not with the Free State HOD. The letter also questioned the authenticity of Lerato’s adherence to the Rastafarian faith and claimed that her belief was not “sincerely held” and therefore the Pillay pronouncement by the Constitutional Court on religious exemptions was inapplicable.
We filed an urgent application in the Free State High Court. Acting Judge Phalatsi granted a final order which included declarations that the principal and SGB chairperson’s conduct in banishing Lerato from her class during school hours constitutes a suspension which is unlawful and discriminatory and that the principal, SGB chairperson, District Director, Head of Department, MEC and Minister’s conduct in the matter violated Lerato’s rights to equality, dignity, freedom of religion, expression, association and a basic education. The Judge interdicted the principal and SGB chairperson from harassing, disadvantaging, victimising or discriminating against Lerato. He also ordered the principal, SGB chairperson and district director to meet with Lerato and her parents within 5 school days of the date of the court order concerning the drafting of an educational remedial plan for Lerato which must be implemented and completed by 16 July.
During the course of preparing our papers we debated the desirability of citing the South African Human Rights Commission as a respondent in the matter or inviting them to join as an additional applicant in the matter or suggesting that they intervene as an amicus. Mr Radebe had turned, unsuccessfully, to the Commission for assistance before approaching EE. We decided to invite the Commission to join as either an applicant or to file an amicus application. The SAHRC, however, was reluctant to join as an applicant or amicus in the matter and instead agreed to file a supporting affidavit endorsing the relief that we were seeking. One of the forms of relief that we sought from the Court was an order requiring the Principal, Chairperson of the SGB and District Director to ensure that the majority of officials or employees under their direction “participate wholeheartedly in an education and relationship building workshop to be provided by the Human Rights Commission”. Whilst we realised that the likelihood of obtaining an order along these lines were quite slim the idea was to plant the workshop seed for purposes of discourse around the litigation. The Chairperson of the Human Rights Commission, Mr Mushwana, in his supporting affidavit indicated that “the SAHRC is ready, willing and able to carry out such educational or awareness training as the Court may order”
Whilst Acting Judge Phalatsi ultimately did not order relief on the workshop front the Judge nevertheless stated in his judgment that he would “appeal to the respondents and the powers that be, to educate and make our people aware of the important and advantages of accepting our religious diversity”.
In the immediate aftermath of the judgment we were informed of disruptions at the school including the principal and chairperson of the SGB removing all learners from the class and insisting that no learning would take place whilst special exceptions were being made for a specific learner (Lerato subsequently confirmed this with us). We were also told about a protest at the school by a group of parents who wanted Lerato to be removed from the school. After we sent a letter to the State Attorney threatening contempt of court proceedings we received an invitation from the MEC to meet with him at his offices to discuss the judgment, the Free State Education Department’s intention to ensure that it was respected and implemented and a constructive way forward to prevent a repetition of the Lerato scenario in other Free State schools. Shortly thereafter we were advised that the disruptions at Leseding High had come to a halt.
At our meeting in Bloemfontein the MEC made an unequivocal undertaking to respond to the problems highlighted by the Radebe judgment by conducting educational awareness workshops with all education districts within the Free State Province. District management and school principals will participate in these workshops which will teach participants about the latest legal and policy developments regarding learners’ rights, including the Radebe decision. These educational training sessions will highlight as unacceptable any form of racial discrimination, or gender discrimination such as discrimination against pregnant learners in schools.
We have drafted a letter to the SAHRC encouraging them to touch base with the Department about possible collaboration on this project. EELC has also indicated to the MEC that we are happy to provide input in shaping the content of the workshop program.
All the court documents are available online: