REPORTABLE ZLR (25)
Judgment No. SC 26/07
Civil Application No.
291/06
F.
DZVOVA v (1) MINISTER OF EDUCATION SPORTS
AND CULTURE (2) RUVHENEKO PRIMARY SCHOOL
(3)
F NYAHUYE
SUPREME COURT OF
ZIMBABWE
CHIDYAUSIKU CJ, SANDURA
JA, CHEDA JA, ZIYAMBI JA &
MALABA JA
HARARE, JANUARY 25 &
OCTOBER 10,2007
Z Chadambuka,
for the appellant
R Sweto, for the
respondents
CONSTITUTIONAL
APPLICATION IN TERMS OF SECTION 24(2) OF THE CONSTITUTION OF ZIMBABWE
CHEDA JA: The applicant is the father of a 6 year old child
F. B. Dzova, (hereinafter referred to as the child).
The first respondent
is the Government Minister responsible for Education, Sports and
Culture, under whose Ministry the second respondent
falls
(hereinafter referred to as the Minister).
The second respondent is the Primary School in which the child was
enrolled (hereinafter referred to as the school).
The third respondent
is the Headmaster of the school (hereinafter referred to as the
Headmaster).
At the beginning of
March 2005 the child was enrolled in grade (0) at the school in line
with the new education policy of the Ministry
of Education which
required that childrens pre-schools be attached to primary schools
so that the children would automatically
attend the primary schools
from pre-schools. The child graduated from the pre-school system and
was then enrolled in the primary
school system. The fees were paid
and all necessary books and stationery were purchased.
The childs father
said while in pre-school the childs hair was never cut and was
kept what is commonly known as dread locks
until the child graduated
from pre-school.
The childs father
was called to the school a few weeks into January 2006 to discuss the
issue of the childs hair with the
teacher-in-charge and asked to
write a letter to explain. By then the child was being detained and
was no longer going to the classroom
with other children. The father
sent a letter from his church.
On 27 January 2006,
one Brighton Zengeni brought a letter from the school addressed as
follows:
Ruvheneko Government Primary School
P.O Box GN8
Glen Norah
Harare
25 January 2006
Dear Parent
REF: F. B. D.S
HAIR
You are cordially advised that one of our regulations as a school, is
that hair has to be kept very short and well combed by all
pupils
attending Ruvheneko Government Primary School, regardless of sex,
age, race or religion:- You are therefore being asked to
abide by
this regulation, failure to which, you will be asked to withdraw or
transfer your child F. B. D. to any other school. This
is to be done
with immediate effect.
Yours Faithfully
F. Nyahuye
SCHOOL-HEAD
The applicant went and discussed the matter with the deputy
headmaster and the teacher-in-charge who maintained that they could
not accept the childs continued learning in the school so long as
his hair was not cut to a length acceptable by the school.
A further discussion
with the headmaster of the school and the Regional Education Officer
did not resolve the matter.
The applicant then
made an application to the High Court and obtained the following
provisional order:
TERMS OF ORDER MADE
That you show cause to this Honourable Court why a final order should
not be made in the following terms:
TERMS OF THE INTERIM RELIEF
BY CONSENT OF THE
PARTIES:
Pending
the resolution of this matter by the Supreme Court it is ordered
that:
The
respondents be and are hereby compelled to allow the minor F. B. D.
to enter upon the second respondent school for purposes
of
education until the Supreme Court determines the matter.
The
respondents are hereby interdicted from in any way negatively
interfering with the minor F. B. D.s education, more
particularly
in that the respondents be and are hereby barred from:
a) separating F. B. D.
from his classmates;
otherwise detaining F. B. D. in solitary or
in the sole company of adults;
in any other way discriminating against F. B.
D. on the basis of his hairstyle or his religious
beliefs pending the determination of the matter
by the Supreme Court.
2. The case is referred to the Supreme Court for the
determination of:
whether
the exclusion of the minor child F. B. D. was done
under the authority of a law as envisaged in s 19(5)
of the
Constitution and in the event the court finds it was done under
the authority of a law;
whether
such a law is reasonably justifiable in a democratic society.
In accordance with para 2 of the above order the application
has now been brought to this Court in terms s 24 of the Constitution
alleging that the childs right guaranteed by s 19(1) of the
constitution has been violated.
In his founding affidavit the applicant says he is a Rastafarian as
well as his wife and they were customarily married in 1991.
His wife
Tambudzayi Chimedza is the mother of the child. They have been
practising Rastafarianism for almost a decade. They initially
attended Chaminuka Rastafarian House in St Marys, Chitungwiza
which is the Headquarters of the National Rastafarian Council.
He
said about four years ago in 2002 they opened a branch of the church
in Glen Norah for which he is Ilect of Priesthood.
Church services are
held every Sabbath day and in good weather they begin the preceding
Friday evening. He said it is an integral
part of the Rastafarian
faith that they take certain vows as part of their religion. The
vows include that they do not eat refined
food, but only eat food in
its natural state. Further to this, they do not drink alcohol. Also
central to this is the vow that they do not cut their hair (My
underlining). He said the vow not to take alcohol or eat refined
food and to shave their hair is the Nazarene vow which is biblically
present
in Numbers 6 verses 1-6.
He said their
children are born Nazarites. Thus F. B. D., in line with the
family religion, cannot cut his hair. (my underlining).
He said they let
their hair grow long and the twisting which eventually occurs is a
natural result of African hair which is let
to grow long. This is
one of the visible distinguishing factors between geniune Rastafarian
adherents and those who appear to have
as a their hairstyle for
fashion purposes actually twist it, which is forbidden by their
religion.
He said in accordance
with their religion, before, and during his days at pre-school, their
sons hair was never cut and it was
in the inevitable locks.
He then narrated the
events from March 2005 which led to the order that was later obtained
at the High Court.
Section 19(1) of the
Constitution provides as follows:
(1) Except with his own consent or by way of parental discipline,
no person shall be hindered in the enjoyment of his freedom
of
conscience, that is to say freedom to change his religion or belief,
and freedom, whether alone or in community with others, and
whether
in public or private, to manifest and propagate his religion or
belief through worship, teaching, practice and observance.
In order to determine whether this application falls within the ambit
of the above section, it is necessary to consider the following
question:
Is Rastafarianism a
religion?
The appellant submitted that Rastafarianism is a religion. He stated
in his founding affidavit the following:
About four years ago in 2002 we opened a branch of the church in
Glen Norah of which I am Ilect of priesthood, that is,
the
priest. This is at Jah Ruins in Glen Norah B, behind, In-fill
primary school. Church services are held every Sabbath day, that
is,
every Saturday. In good weather, they begin the preceding Friday
evening.
The above shows that the Rastafarian Organization conducts services
for worshipping purposes on week-ends. He further stated that
the
Rastafarian religion is based on the Bible which is a basis for many
other religions.
The New English
Dictionary on Historical Principles, VIII, gives the following
definition of religion:
1. A state of life bound monastic vows
.
A
particular monastic or religious order or rule
.
Action
or conduct indicating a belief in, reverence for, and desire to
please a divine ruling power, the exercise or practice of
rites or
observances implying this;
A
particular system of faith and worship;
Recognition
on the part of man of some higher or unseen power as having control
of his destiny, and as being entitled to obedience,
reverence and
worship. The general mental and moral, attitude resulting from this
belief, with reference to its effect upon the
individual or the
community; personal or general acceptance of the feeling as a
standard of spiritual and practical life.
Devotion
to some principle, strict fidelity or faithfulness,
conscientiousness; pious affection or attachment.
What the applicant said about Rastafarianism falls within these
descriptions, thus leaving no doubt that it is a religion.
The applicant also
referred to cases in other jurisdictions in which it was decided that
Rastafarianism is a religion.
These are: Reed v
Faulkner 842 f 2d 960 (7th Cir 1988); People v
Lewis 510 NYS 2 73 (Court of Appeals of New York, 1986); Crown
Suppliers (Property Svcs Agency) v Dawkins (1993) 1 CR 517 (CA).
These cases were also
referred to in a recent case that was before the Supreme Court, that
is In re Chikweche 1995 (1) (ZLR) 235 (S) in which it
was held that Rastafarianism is a religion.
The applicants
complaint is that the rules made by the respondent -
are unlawful and in contravention of my sons rights under s
19 of the Constitution which provision gives the right to protection
of freedom of conscience and religion.
The rules referred to, are under the following heading:
RUVHENEKO
GOVERNMENT PRIMARY SCHOOL JANUARY 2005
SCHOOL
RULES FOR ALL PUPILS
All
pupils to be in school uniform all the time at the school.
All
pupils to have short brush hair regardless of sex, age, religion or
race.
.
The protection of the rights of an individual rules bear the
signature of the School Head. The applicant referred the Court to
a
number of cases from other jurisdictions which dealt with an issue
similar to the one complained of in this case.
The protection of the
rights of the individual against discrimination on religious grounds
are in s 19 of the Constitution of
Zimbabwe.
There have been
several decisions on the nature and content of the rights. They
include the following -
In re Munhumeso & Ors 1994(1) ZLR 49 where it
was confirmed that every person in Zimbabwe is entitled to
the fundamental rights and freedoms
of the individual which
are stipulated in the Constitution subject to certain
limitations.
In Christian Education South Africa v Minister of Education
2000 (4) SA 757 (CC) it was held that:
religion provides support and nurture and a framework for
individual and social stability and growth. Religious belief has
the
capacity to awake concepts of self-worth and human dignity which form
the cornerstone of human rights.
In the English case of The Queen on application of SB,
the Claimant/Appellant and Head teacher and Governors of
Denbigh High School, Defendants/Respondents, the Supreme Court
of Judicature, Court of Appeal (Civil Division) 2004 EWHC 1389 LORD
JUSTICE SCOTT BAKER stated that:
Every shade of religious belief, if genuinely held, is entitled to
due consideration under Article 9. What went wrong in this
case was
that the school failed to appreciate that by its action it was
infringing the claimants Article 9 right to manifest her
religion.
This case shows that it is important to respect ones genuine
religious beliefs.
The applicant referred
to several useful international authorities based on similar
provisions of the Human Rights Charter.
The distinction between
the authorities and referred to in this case is that they
inquired into the validity of regulations. This case deals with
rules made by a school headmaster. The question is,
on what
authority did he make them. I now proceed to deal with this
question.
As indicated earlier,
the rules were issued and signed by the head master of the school.
Section 19(5) of the
Constitution of Zimbabwe provides as follows:
Nothing contained in or done under the authority of a law shall be
held to be in contravention of subsection (1) or (3) to the
extent
that the law in question makes provision:
.
The question is - Was the rule on the basis of which the applicant
was barred from attending at the school made under the authority
of a
law? If it was, it would have been necessary to consider any
derogations or justification provided in the Act. In this case
it
seems this was not done under a law since no law authorized such
action.
Section 4 of the
Education Act [Cap. 25:04] provides as follows:
4.
Childrens fundamental right to education in Zimbabwe.
Notwithstanding
anything to the contrary contained in any other enactment, but
subject to this Act, every child in Zimbabwe
shall have
the right to school education.
(2) Subject to ss (5), no child in Zimbabwe shall
-
be
refused admission to any school; or
be
discriminated against by the imposition of onerous terms and
conditions in regard to his admission to any school;
on the grounds of his race, tribe, place of origin, national or
ethnic origin, political opinions, colour, creed or gender.
It follows that the attempt by the school to bar the child from the
school contravenes not only the Constitution, but the above provision
of the Education Act as well.
Section 69 of the
Education Act provides as follows:
1. The Minister may make regulations providing for all matters
which by this Act are required or permitted to be prescribed or
which, in his opinion, are necessary or convenient to be prescribed
for carrying out or giving effect to the Act.
2. Regulations made in terms of ss (1) may provide for
discipline
in schools and the exercise of disciplinary powers over pupils
attending schools, including the administration of corporal
punishment and the suspension and expulsion of such pupils in
respect of their attendance and conduct in schools, and in public
places when not accompanied by their parents or by adult persons
into whose custody they have been entrusted by their parents.
There is nothing in the Act which confers similar powers on the
headmaster of a school to make similar rules or regulations.
The respondents
submitted that the Minister made regulations (Education (Disciplinary
Powers) Regulations, 1998 S.I 362 if 1998).
These regulations
provide as follows:
2. Every pupil who enrols in a Government or non-Government
school shall conform to the standard of discipline enforced at that
school, and shall render prompt obedience to the school staff.
The respondents concede that the school rules are not laws, but argue
that they were made under the authority of a law.
The provisions of SI
362 of 1998 deal with discipline in the school and obedience to the
school staff. It has not been suggested,
nor can it be argued, that
having long hair at the school is indiscipline or disobedience to the
school staff.
It is only a
manifestation of a religious belief and is not related to the childs
conduct at school.
I therefore do not
agree that these regulations are relevant to the matter complained of
by the applicant.
In s 3 of the Interpretation Act [Cap.1:0], law means
any enactment and the common law of Zimbabwe. Regulation,
rule, by-law, order, or notice,
means
respectively a regulation, rule, by-law, order or notice in force
under the enactment under which it was made. There is nothing
to
link the school rules with any enactment. The rules were not made
under any enactment.
Section 26 of the
Interpretation Act states as follows:
Holders of Offices
Where any enactment
confers a power, jurisdiction or right, or imposes a duty, on the
holder of an office as such, then the power,
jurisdiction or right
may be exercised and the duty shall be performed, from time to time,
by the holder for the time being of the
office or the person lawfully
acting in the capacity of such holder.
The question that follows then is: Was the head master authorized by
the enactment to make rules?
Section 69 of the
Education Act confers powers to make regulations on the Minister
regarding discipline in schools and other related
matters. It does
not confer any powers to make regulations on the head master. It
does not authorize the Minister to delegate to
the headmaster the
power to make regulations regarding the conditions of the admission
of a child to a school.
The regulations clearly
specify the powers the headmaster can exercise over a pupil in cases
of serious acts of misconduct only.
The Minister made the
Education (Disciplinary Powers) Regulations, 1998, SI 362/98 (the
Regulations).
Section 2 of the
Regulations provide as follows:
Standard of discipline
2. Every pupil who enrols in a Government or non Government school
shall conform to the standard of discipline enforced at that
school,
and shall render prompt obedience to the school staff.
I understand this to refer to the conduct or behaviour of
pupils and obedience to the school staff generally. I do not
consider
that asking pupils to conform to a standard of discipline
would include an aspect that infringes on a pupils manifestation
of
his religion. There is no suggestion by the respondents that
keeping dreadlocks is an act of indiscipline or misconduct.
If the head master
believed that he had authority to make such rules then he was wrong.
The Minister did not
make regulations concerning the type of hair to be kept by the
pupils. Neither did he delegate the making
of regulations on that
subject matter to the head master.
Further to that, s 26
of the Interpretation Act provides as follows:
26 Where any
enactment confers a power, jurisdiction or right, or imposes a duty,
on the holder of an office as such, then the
power, jurisdiction or
right may be exercised and the duty shall be performed, from time to
time, by the holder for the time being
of the office or the person
lawfully acting in the capacity of such holder.
Section 27 provides as follows:
27 An appointment made under an enactment may be made either by
name or by reference to the holder of an office or post.
It is clear that the enactment appointed only the Minister, and not
the headmaster, to make regulations.
It is also clear that the headmaster of the school was never
appointed to the office held by the Minister, and he did not act in
that post at all.
The Minister allowed the school to maintain certain standards at
the school, but never authorized the school to make any regulations.
It follows that the
submission by the respondent that the rules were made under the
authority of a law cannot be correct.
The head teacher
cannot make rules which constitute a derogation from the
constitutional rights of the pupils. He exceeded his powers
which are
stipulated in the SI 362 of 1998 and used powers which he did
not have.
In so doing he was
wrong as such powers were never, and could never have been, lawfully
delegated to him.
Having concluded that
the rules by the school were not made under a law, it is not
necessary to consider the issue of justification
raised by the
respondents.
In conclusion, the
following order is made -
The respondents be and are hereby compelled to allow the minor F. B.
D. to enter upon the second respondent school for purposes
of
education.
(b) The respondents are hereby interdicted from in
any way negatively interfering
with the minor F. B. D.s education, more
particularly
in that the respondents be and are hereby barred from:
separating F. B. D. from his classmates;
otherwise detaining F. B. D. in solitary or in the sole company of
adults;
in any other way discriminating against F. B. D. on the basis of
his hairstyle or his religious beliefs.
(c)
It is hereby declared that expulsion of a Rastafarian from
school on the basis
of his expression of his religious belief through his hairstyle
is a contravention
of ss 19 and 23 of the Constitution of Zimbabwe.
(d) The respondents shall pay the costs of
this application.
CHIDYAUSIKU CJ: I agree.
SANDURA JA: I
agree.
ZIYAMBI JA: I
agree.
MALABA JA: I
agree.
Zimbabwe Lawyers for
Human Rights, applicants legal practitioners
Civil Division of
the Attorney Generals Office, respondents legal
practitioners
