Adv Nadene Badenhorst, Legal Counsel of FOR SA
The hijab – the head covering worn in public by some Muslim women – has made news headlines in two unrelated cases this month.
In the first case, a Muslim member of the South African National Defence Force (SANDF) has been charged with “disobeying a direct command” after refusing to remove her headscarf (which she wears under her military beret) while on duty. According to the SANDF, its dress code clearly states that no other clothing should be worn with the official uniform. The case has been set down for hearing on 7 August 2019 before a senior military judge. (See, for example, this article for more on the matter.)
In the second case, a Muslim woman was advised to lay a complaint for unfair treatment after she was asked, by security personnel at OR Tambo Airport, to remove her headscarf. According to Airport Company South Africa (ACSA), security process requires that if people are wearing headgear, wraps, scarves or any form of clothing the passenger must remove it or be searched by the officers. A passenger has a right however to be searched in privacy. (See, for example, this article for more on the matter.)
Cases such as these raise important questions around the wearing of religious clothing and accessories in public – what rights (if any) do religious people have, and can their rights ever be limited? The outcome may also be important not only for Muslims, but for people of all faiths. Should the military court, for example, find that their members may not wear headscarves as an expression of the Muslim faith, the same must – from an equality perspective – apply in respect of Christian members who want to wear a cross around their neck, or a purity ring, as an expression of their faith.
The right to religious freedom
The starting point is section 15 of the Constitution, which guarantees everyone the right to religious freedom. Our Constitutional Court has already repeatedly said that this fundamental right includes not only the right to believe internally whatever one wants to believe, but also the right to give outward expression – including therefore through one’s clothing – of one’s religious convictions and beliefs.
In the context of the SANDF, section 15(2) of the Constitution (which specifically protects the right to “religious observances” in State and State-aided institutions) may also be relevant. While “religious observances” are not defined in the Constitution, it is arguable that religious dress should be read as included therein.
Other fundamental rights, which may be relevant to the issue, include the right to equality and non-discrimination on grounds of religion and belief (section 9 of the Constitution), the right to human dignity (section 10 of the Constitution) and potentially also the right to freedom of expression (section 16 of the Constitution).
No fundamental right is absolute, however, and may be limited if it is “reasonable and justifiable in an open and democratic society” (section 36 of the Constitution).
In the case of MEC for Education, KwaZulu-Natal v Pillay (2008), the Constitutional Court considered the place of religious and cultural expression in public schools. In this instance, a public school requested a Hindu learner to remove the nose stud that she was wearing as an expression of her religious belief, because it violated the school’s uniform policy.
The learner’s mother took the case to court on behalf of her daughter, arguing that the school unfairly discriminated against her daughter on grounds of religion and culture. The school argued in turn that, if there was any discrimination, it was not unfair because: the uniform policy was compiled on the basis of prior consultations with all relevant parties; the learner’s mother had, in fact, agreed to the uniform policy; nose studs were popular outside of the learner’s culture; the importance of uniforms in maintaining discipline; the need to give deference to school authorities; and the fact that the ban on the wearing of a nose stud could only have a limited effect on the learner’s culture since she was at liberty to wear the nose stud when she was not at school.
In its judgment, the Constitutional Court referred to the principle of reasonable accommodation which requires that “sometimes the community, whether it is the State, an employer or a school, must take positive measures and possibly incur additional hardship or expense in order to allow all people to participate and enjoy all their rights equally.” Turning to the facts in the case, the Court found that there would not be undue hardship on the school if they had to accommodate the Hindu learner and that fairness in this instance required that they do so.
The Constitutional Court noted that “as a general rule, the more learners feel free to express their religions and cultures in school, the closer we will come to the society envisaged in the Constitution. The display of religion and culture in public is not a ‘parade of horribles’ but a pageant of diversity which will enrich our schools and in turn our country.”
Application of the Pillay case to present cases
On the back of the Pillay case, it is arguable that the SANDF’s (in the case of the Muslim employee) and ACSA’s (in the case of the Muslim passenger) conduct amount to discrimination (i.e. treating different people differently) on grounds of religion and belief. The question then is whether the discrimination is fair (which is legal), or unfair (which is illegal)?
In order to prove fairness, the SANDF (in the case of the Muslim employee) and ACSA (in the case of the Muslim passenger) respectively will have to prove – amongst other things – that there is a more important purpose (i.e. more important than protecting the right to religious freedom, including the right to outwardly express one’s religion through one’s clothing) in demanding that the hijab be removed. In other words, they would have to show that it is necessary, for example, for maintaining discipline or uniformity (in the case of the SANDF), or verifying the passenger’s identity for purposes of safety and security (in the case of ACSA), etc.
Even if there is a legitimate purpose for the removal of the hijab, the SANDF and ACSA respectively would have to show that there are no “less restrictive means” (s 36 of the Constitution) by which that purpose can be achieved. In other words, is it necessary that the hijab must be removed completely, or is the purpose achieved as long as it is under the military beret (in the case of the SANDF)? Must the hijab be removed in public, or can the same purpose be achieved (while also protecting the Muslim passenger’s religious rights and dignity) by having her remove same in a non-public area (in the case of ACSA)?
In light of these considerations, news that a determination is currently under consideration to allow female Muslim members of the SANDF to wear headscarves under their berets while the dress code policy is revisited, is encouraging. (See, for example, this article for more on the matter.) This will certainly bring us closer to the richly diverse society envisaged in our Constitution, as remarked by the Constitutional Court in Pillay.
 In various countries around the world, there have been calls for the banning of the burqa – i.e. the long, loose garment covering the whole body from head to feet, worn in public by women in many Muslim countries. One of the main arguments for the banning of the burqa is that criminals and terrorists can and do use face coverings to hide their identities. The arguments around the banning of the burqa are complex however, and are not the subject matter of this article.
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