The prohibition of wearing headscarves for females at work and places of learning despite religious convictions and the Supreme Law of the Republic of South Africa – The Constitution.

What practical use is the fundamental right to freedom, when you are not free to be free? What practical use is the fundamental right to practice one’s universally recognised religion, but you are told not to do so by your employer or educator?  Is brilliant legislation and policies meticulously crafted, framed and inked with scented oils onto canvas, of any practical worth, if it merely serves as an apparent reference, but not to be rigorously enforced and revered?

This informative article has been undoubtedly inspired by the civil matter between Major Fatima Isaacs and the South African National Defence Force. Major Isaacs is facing possible dismissal for resolutely refusing to surreptitiously remove her hijab (headscarf) after being commanded to do so. What you will be reading does not deal with the latter case per se. However, in order to naturally keep it evergreen, it deals with the fundamental Constitutional principles at play.

Does the Constitution adequately protect one from religious oppression?

Is forcing someone to act directly contrary to his or her religious beliefs and moral convictions, not a grave form of oppression? Now, does the law, independent judiciary, and the modern state, actually adequately protect and rigorously enforce the civil rights of women to sufficiently cover their heads with a headscarf due to their religious tenants and convictions? May a female be forced to remove it, if such action would mean she is acting contrary to her religion and convictions, despite our Constitution?

Hence, what does our Constitution state? With Thursday passed being the 10th observed anniversary of Nelson Mandela International Day, we naturally thought it opportune to gently tap into the modest wealth of knowledge of Advocate Muhammad Abduroaf, an advocate of the High Court of South Africa. He holds a Master of Laws Degree (LL.M) in Constitutional Litigation and weathered with over a decade and a half of successful litigation experience. Read on and find out what he has to say on the constitutional issue raised and enjoy him journeying us through the past.

What does Advocate Muhammad Abduroaf have to say on religious rights?

Advocate Muhammad Abduroaf:

Sometimes, to adequately understand the present, one needs to sufficiently know the historic past. South Africa was plagued with racial discrimination in the dark challenging past. Its era formally began in the late 1940s when the National Party came into power. However, laws intentionally discriminating against non-whites were in existence prior to that. Laws were arrogantly created which directly afforded certain racial groups superiority and social dominance over others, in various facets of ordinary life. This can be illustrated by the following:

• Various population groups were created. You would be classified as white, black, Indian coloured, etc.;
• The use of public services and civic amenities was ethnically based on the distinctive colour of your skin. Hence certain beaches were reserved for fair-skinned people, and you could not sit (or stand) anywhere on a bus if you were of a darker shade;
• Depending on the colour of your skin, you could only work in a certain industry. Unmistakably, certain racial groups would be capable of better empowering themselves;
• If you were classified as being white, you would be lawfully entitled to the best of state provided education;
• Mixed marriages were prohibited as well as extramarital sex between white and black people;
• Your skin colour would instantly determine the private land you may rightfully own and where you may live;
• Pass laws were rigorously enforced; and
• Presidential elections were undoubtedly not free and fair.

The architects of Apartheid clearly knew what they were doing and meticulously executed their plan. One does not have to possess a doctoral degree in human rights to tacitly agree that the Apartheid laws were degrading, humiliating and a lasting disgrace to the very thread of humanity. Nonetheless, it was rigorously enforced by the courts of law, the police force, the military, and the navy, to mention a few. Naturally, the lasting legacy of apartheid still lives on in our local communities. When will this sadly end?

The birth of our Democratic Constitution and the right to freedom or religion

The demolishment of the fundamental pillars of apartheid on paper is intimately associated with the humble birth of our Constitution. We initially had the Interim Constitution of the Republic of South Africa Act 200 of 1993, which was assented to on 25 January 1994. And then we had the final Constitution of the Republic of South Africa Act 108 of 1996. Let us quote section 1 of the final Constitution:

 “1. Republic of South Africa

The Republic of South Africa is one, sovereign, democratic state founded on the following values:

1. Human dignity, the achievement of equality and the advancement of human rights and freedoms.

1. Non-racialism and non-sexism.

1. Supremacy of the constitution and the rule of law.

1. Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”

What a wonderful piece of necessary legislation. It starkly contradicts past apartheid laws, social policies, and practices. Now the fundamental question is precisely; how supreme is it? For this, we look earnestly at Chapter 2 of the Constitution which we quote next:

“2. Supremacy of Constitution

This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”

What do you make of this? It does not only pronounce that racially discriminatory laws are invalid but at the same time, unconstitutional conduct is invalid as well. The section further places an obligation on the State and the general public to adhere to the spirit and letter of the Constitution. Therefore, all the Apartheid laws and practices which violated human rights are automatically invalid. On paper at least.

The Bill of Rights

Now we move to the social issue of civil Human rights as entrenched in our Constitution. Chapter 2 of our Constitution deals with the Bill of rights. Let us quote section 7 of the Bill:

“7. Rights

1. This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.”

This section is a radical change from what was the law and policy of South Africa during the Apartheid regime. Due to our Constitution, Apartheid is supposed to have vanished from our law books. Now let us unpack the Bill of Rights next. Chapter 2 deals with the following rights, and more:

• Equality
• Human Dignity
• Life
• Freedom and Security of the Person
• Slavery, Servitude and Forced Labour
• Privacy
• Freedom of Religion, Belief and Opinion
• Freedom of Expression
• Assembly, Demonstration, Picket and Petition
• Freedom of Association
• Political Rights
• Citizenship
• Freedom of Movement and Residence
• Freedom of Trade, Occupation and Profession
• Labour Relations
• Environment
• Property
• Housing
• Health Care, Food Water and Social Security
• Children
• Education
• Language and Culture
• Cultural, Religious and Linguistic Communities
• Access to Information

However, for the practical purpose of this article, we shall look keenly at the right to religion. This is entrenched in section 15 of our democratic Constitution, and it eloquently states the following:

15. Freedom of religion, belief and opinion
16. Everyone has the right to freedom of conscience, religion, thought, belief and opinion.

Clearly, considering the introductory sections of this article in relation to the Constitution, does this not mean, that you have a right to observe and practice your religion as you are required to if it does not harm anyone else?

Lastly, there is the limitation clause in our Constitution. It succinctly states the following:

“36. Limitation of rights

1. The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including ­

1. the nature of the right;

1. the importance of the purpose of the limitation;

1. the nature and extent of the limitation;

1. the relation between the limitation and its purpose; and

1. less restrictive means to achieve the purpose.

2. Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.”

After carefully considering the limitation clause, it is possible for an individual’s right to exercise his or her established religion to be limited. This is precisely where the crux of this article takes us. Is it possible for a specific employer, no matter the religious convictions of the longtime employee, to intentionally limit the proper exercise of the employee’s religious rights? Under the proper scenario, it is possible. However, one would have to be very creative and gently stretch one’s mind far to find a real-life example. One scenario could be consuming an intoxicating substance based on your religious convictions whilst on security duty at work.

Commanding an employee or student not to wear a headscarf due to her religious convictions and beliefs

Promptly returning to the controversial question posed earlier on; may an employer or educator direct a female to remove her headscarf where such removal would be tantamount to a fundamental violation of her religious beliefs? At first glance, one would answer no. It would be unpermitted. It would be in violation of the employee’s right to dignity and religious practice. Accordingly, the first necessary step is established which is correctly identifying a fundamental right which is protected under the Bill of Rights. This is the right to freedom of religion. However, remember, there is a limitation clause found in section 36(1) of our Constitution referred to above.

Properly applying section 36(1) of our democratic Constitution, it is comprehensible that a right to wear a headscarf is fundamental and may not be limited. The employer or educator must have very good grounds to justify the limitation of those rights. If it is due to its uniform policy, or tradition, then that is not enough. If it relates to potential life-threatening dangers that the employer, educator, employee or student and others may suffer if a headscarf is worn; then in that hypothetical scenario, limiting the right may be justified.

In conclusion

We doubt that when the Freedom Charter was adopted in 1955 and the interim constitution born, that the architects, thereof, envisioned a South Africa where a woman would be forced to remove her headscarf in violation of her religious convictions. We are certain, that should Nelson Mandela been breathing today, he would have wisely held the same convictions. To all those people who are being discriminated against due to their religion or religious beliefs and convictions in the workplace, places of learning and in public, remember, you have rights which are there to protect you. It is however up to you to make use of it.

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