Despite the Constitution being very clear about freedom of religion and expression, there have been instances where controversial bans and restrictions were implemented in South Africa.
We start with what has been a bone of contention for years: hijab.
In the most recent case, the health department said it was reviewing its proposed dress code policy for Muslim nurses, following the backlash that it received from Muslim nurses.
The changes to the controversial policy were first communicated to provincial heads of departments in July. One of those controversial changes is the banning of hijabs for nurses while on duty.
In 2021, the South African Defence Force (SANDF) made the groundbreaking decision to amend its military religious dress policy to accommodate the wearing of a headscarf with military uniform.
This came after the three-year battle of Major Fatima Isaacs, a Muslim woman who wore a headscarf covering her hair and head under her military beret in accordance with her religious beliefs since she officially joined the force in February 2010.
In June 2018, she was instructed that the wearing of the headscarf was contrary to the SANDF dress policy instruction amendment number 5: Wearing of Religious and Medical Adornments by SANDF Members in Uniform (2002) (Religious Dress Policy).
Staying on the topic of hair and heads is dreadlocks. The law is very clear about this, but it is still found that institutions take unfair action.
Last month, policies about dreadlocks and hair at schools made the headlines again after a 13-year-old learner was removed from class because of her dreadlocks.
This is similar to previous incidents where learners were either faced with expulsion or were suspended or expelled over their hair.
While not cultural or religious, in 2022, a mining company was ordered to reinstate its former human resources co-ordinator after it fired her for wearing high heels at its offices.
Tharisa Minerals has been ordered by Labour Court Judge Graham Moshoana to give Litshani Mofokeng her job back, after she was dismissed in 2017 for objecting to the company’s decision to ban high heels from its mine in Rustenburg, North West.
The presiding judge found there seemed to have been no justification for why high heels were not allowed and said her dismissal sounded, on the face of it, invalid and unreasonable.
What the Constitution says
Section 15 of the Constitution states: "Everyone has the right to freedom of conscience, religion, thought, belief and opinion".
The Section expands on the right to freedom of religion by stating: "Religious observances may be conducted at state or state-aided institutions, provided that those observances follow rules made by the appropriate public authorities; they are conducted on an equitable basis; and attendance at them is free and voluntary".
In previous court cases, the judge or magistrate would find that expelling or suspending learners over hairstyles or dreadlocks was discriminatory.
This same principle applies to the workplace. Section 187(1)(f) of the Labour Relations Act, No 66 of 1995 (LRA) renders a dismissal ‘automatically unfair’ if the reason for that dismissal is that the employer unfairly discriminated against an employee on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status, or family responsibility.
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