Why I have faith and belief in our Constitution

2013-03-28 16:02


As a lawyer and a votary of human rights,i have always never wavered in my faith and belief in our Constitution. I believe that we have an independent and impartial judiciary committed towards giving the human rights ethos a human and practical face.Here's one reason why.

Discrimination based on religion and culture has, since 1994 been challenged under the SA Constitution,most of  then successfully as we have one of the most living and practical constitutions in the world. Prior to 1994 unless one subscribed to the Judeo-Christian culture,people of Islamic,Hindu,African and Rastafarian religions often faced odious discriminatory practices in so far as practicing and manifesting their religion in the work place.

Accommodating diversity

In 2007 the Constitutional Court  enunciated the principle of accommodation  in MEC for Education: Kwazulu-Natal and Others v Pillay [2007] ZACC 21(the 'Sunali Pillay' judgment) In this writer's opinion and experience, in practice this principle meant that  in keeping with the spirit and the ethos inherent in the Constitution, every effort had to be made to accommodate all religious practices and cultures provided that they did not offend the foundational values underpinning our constitutional democracy.The Sunali Pillay judgment, was the very first seminal declaration of accommodation being indelibly woven into the fabric of our Constitution.

Discrimination in the workplace

Thus when members of the Department of the Correctional Supervision, who sincerely subscribed to the Rastarian religion were disciplined and dismissed for refusing to shave off their dreadlocks as instructed by their commanding officer, because it was not in accordance with regulation,the Supreme Court of Appeal concluded on 28th March 2013 that they had been unfairly discriminated against and that, in the circumstances,their dismissal had been discriminatory and automatically unfair on the grounds of religion,culture and gender within the meaning of section 187(2)(a) of the Labour Relations Act No 66 of 1995,This was in the case of ?Department of Correctional Services & another v POPCRU & others [2013] ZASCA 40 (the 'Popcru'judgment).

In the Popcru judgment it was  contended that the department’s real problem lay not with the hairstyle worn by Rastafari and ‘intwasa’ initiates as such 'but their faiths which require the use of dagga, an illegal and harmful drug, as an integral ritual in their observance.'(at para 19).South Africa, it was argued by the Department of Correctional Supervision, expends a huge effort in the discharge of its international obligation to combat the drug war to which the use of dagga is central. The risk posed by dreadlocks (sic)  is that Rastafarian  officials  became conspicuous and susceptible to manipulation by Rastafari and other inmates 'to smuggle dagga into correctional centres.' This,so the argument went would negatively affect discipline and the rehabilitation of inmates. The dress code therefore served an important and legitimate government purpose because Rastafari officials would not be easily identifiable if they did not wear dreadlocks.

Without question, the Supreme Court of Appeal held that any policy that effectively punishes the practice of a religion and culture 'degrades and devalues the followers of that religion and culture in society' and that it was 'a palpable invasion of their dignity which says their religion or culture is not worthy of protection and the impact of the limitation (therefore ) is profound.' That impact was  devastating because the respondents’ refusal to yield to an instruction at odds with their sincerely held beliefs cost them their employment.


This judgment reinforces my faith and belief in our Constitution.  I submit, that is a resounding victory as well as an affirmation that ours is a living,amorphous and expandable, as opposed to a rigid,Constitution that permits every every religion , culture or creed space and freedom to be practiced and expressed mindful of the fact that no freedom is unlimited and it can be limited by a law of general application provided that such limitation was necessary and justifiable in an open and democratic society based on freedom,equality and human dignity.


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