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FXI welcomes Constitutional Court judgment in "nose stud" case

(FXI/IFEX) - The following is an FXI press statement:

RE: FXI welcomes CC judgment in "nose stud" case

The Freedom of Expression Institute (FXI) welcomes today's Constitutional Court (CC) judgment in the "nose-stud" case, as a vindication of school pupil Sunali Pillay's cultural and religious rights, as well as her right to freedom of expression. This case turns on whether Pillay had the right to wear a nose stud, as an expression of her religious and cultural beliefs, to school (the Durban Girl's High School) in spite of the fact that the school's Uniform Code forbade the wearing of jewelry.

In February this year, the CC heard arguments on the appeal by the Kwa-Zulu Natal provincial Minister of Education (and others) against a High Court decision in favour of school pupil Pillay's right to wear the nose-stud to school. The FXI was admitted as amicus curiae and presented written and oral argument arguing that the matter was also one of freedom of expression.

In 2005, Pillay's mother, Navaneethum Pillay, took the school to the Equality Court for its decision that her daughter was not allowed to wear the nose stud because it violated school rules. Pillay lost the case. The case subsequently was heard in the KwaZulu/ Natal High Court, which ruled in Sunali Pillay's favour. The school and the provincial Minister of Education then appealed the case in the Constitutional Court.

The FXI is delighted that the Court accepted the argument that her right to wear a nose stud was an expression of her religious and cultural beliefs. This meant that the School not only interfered with her cultural and religious rights, but her right to freedom of expression as well. The judgment should ensure that the right to freedom of expression of school pupils is not trampled upon in future, using the need for discipline as the excuse.

What is particularly encouraging about the judgment is that the Court recognised that the uniform Code of the school was not neutral. The Court argued correctly that the Code ". . . enforces mainstream and historically privileged forms of adornment (such as ear studs) at the extent of minority and historically excluded forms. It thus places a burden on learners who are unable to express themselves fully and must attend school in an environment that does not completely accept them".

In making this argument, the Court strongly suggests that public schools still carry a legacy from the apartheid era of treating forms of expression germane to white, Western, Christian culture as the norm, and everything else as a deviation from the norm. This stigmatisation of the diversity of cultural and religious expressions has no place in the new South Africa.

If schools are to serve as places for education of the next generation of critically engaged citizens, they need to make pupils of all cultural and religious persuasions feel valued.

The Court also rightly rejected the School's argument that the practice of wearing a nose stud as an expression of religious and cultural beliefs should not be exempted from the Code, as the practice is voluntary. Those who practice the Hindu religion may or may not choose to wear the nose stud and, in fact, many choose not to do so. Such practices are still part of a person's identity, even if they are chosen rather than obligatory. In fact, forms of religious or cultural expression that are embraced voluntarily, may be even more central to one's identity than obligatory ones, as they may mean more if they are embraced out of choice, rather than out of obligation.

The FXI also welcomes the inference in the judgment that the Equality Court will have to take freedom of expression into account in deciding on future cases, as it will be a factor in determining whether discrimination was fair or not.

The Court has made a judgment of international importance, given the controversies raging internationally about the wearing of culturally or religiously significant clothing in schools, such as the hijab. It will hopefully be cited in similar cases in other countries, where similar problems have arisen.

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