DZVOVA v MINISTER OF EDUCATION & ORS 2007 (2) ZLR 195 (S)

Flynote

Constitutional law — Constitution of Zimbabwe 1980 — Declaration of Rights — s 19 — protection of freedom of religion — what constitutes a religion — Rastafarianism — whether a religion — child ordered to cut his hair so as to attend school — child required to have long hair in accordance with his religious beliefs — act done which infringed constitutional right — act done in terms of rules of a school — such rules not constituting a "law" — school having no right to make rules which derogated from child's constitutional right to freedom of religion

Education — Education Act [Chapter 25:04] — s 69 — power of Minister of Education to make regulations — power cannot be exercised by headmasters — s 4 — fundamental right to an education

Education — Education (Disciplinary Powers) Regulations 1998 (SI 362 of 1998) — s 2 — conduct and behaviour of pupils — section not extending to asking pupils to conform to a standard of discipline which infringes on pupil's manifestation of his religion

Education — school rules — legal status of — whether they constitute a "law" for purposes of Constitution

Headnote

The applicant was the father of a 6 year old child who attended a primary school operated by the Ministry of Education. He and his family belong to a faith group known as the Rastafarian faith. Its adherents all took a vow not to cut their hair. For this reason, the child wore his hair in a fashion commonly described as dreadlocks. This conflicted with a rule of the primary school at which the child attended. The applicant's attention was drawn to this by a letter from the headmaster which pointed out that all pupils were required, in terms of the rule, to keep their hair very short and combed. Subsequent discussions between the headmaster and the applicant, and also involving the Ministry Regional Education Officer, failed to resolve matters. The applicant was told that unless his child's hair was cut to an acceptable length, he could not continue as a pupil at the school. The applicant thereupon brought an application before the Supreme Court, in terms of s 24(1) of the Constitution of Zimbabwe, alleging that, in seeking to exclude his child from the school, his right to freedom of religion, guaranteed by s 19(1) of the Constitution had been violated.

While it was clear that the Rastafarian faith fell within the dictionary definition of a religion, it was also necessary to decide whether the facts of the case fell within the exclusion set out in s 19(5) of the Constitution. This provided that s 19(1) should have no application in respect of anything "... done under the authority of any law..." made for certain stated purposes. The question to be determined was whether the rules formulated by the headmaster could be considered a "law".

The respondents referred to s 2 of the Education (Disciplinary Powers) Regulations, 1998 which required pupils to conform to the standard of discipline enforced at "...the school and to ..." render prompt obedience to the school staff. Reference was also made to s 4 of the Education Act [Chapter 25:04] which provided that children had a fundamental right to an education free from discrimination.

Held, 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. Religion provides support and nurture and a framework for individual and social stability and growth. Religious belief has the capacity to awaken concepts of self-worth and human dignity which form the cornerstone of human rights. Every shade of religious belief, if genuinely held, is entitled to due protection.

Held, that s 2 of the Regulations did not assist the respondents. The section referred to the conduct and behaviour of pupils and obedience to the staff generally. It could not be argued that having long hair at the school was indiscipline or disobedience to the school staff; it was only a manifestation of a religious belief, unrelated to the child's conduct at school. Asking pupils to conform to a standard of discipline did not include an aspect which infringed on a pupil's manifestation of his religion.

Held, further, that in terms of s 69 of the Education Act [Chapter 25:04], only the Minister of Education, and not a headmaster, was empowered to make regulations and, having regard to s 4 of the Act, any attempt to bar the child from school contravened his fundamental right to receive an education.

Held, further, that in any event, the headmaster could not make rules, which constituted a derogation from the constitutional rights of pupils, as set out in s 19(1) of the Constitution of Zimbabwe, 1980. The rules of the school could not be considered a law for the purposes of s 19(5) thereof.