Our panel of esteemed judges:
Justice Cameron - Retired Judge of the Constitutional Court
Justice Victor - Acting Judge of the Constitutional Court
Advocate JB Sibanyoni – Commissioner of the South African Human Rights Commission
Mrs Angie Makwetla – Commissioner of the South African Human Rights Commission
Advocate Aslam Bava SC
Ms Jacquie Cassette - Director and National Practice Head of Pro Bono and Human Rights at Cliffe Dekker Hofmeyr
Ms Abigail Noko – Regional Head of the United Nations Office of the High Commissioner for Human Rights in South Africa
Mr Hanif Vally - Deputy Director, of the Foundation for Human Rights
Participating learners, their educators, principals and family members
Member of the legal profession,
Representatives of the Department of Basic Education and the Department of Justice and Constitutional Development,
Distinguished guests, friends
It is always a humbling and deeply moving experience for all of us when we gather here at the Constitutional Court or any part of Constitution Hill.
As the Constitution Hill Trust has written, Constitutional Hill reminds all of us of South Africa’s journey to democracy. It bears testament to our turbulent past. It is a place of contrasts - of injustice and justice, of oppression and liberation.
I hope that in between all the preparations, you’ve had some time to take a tour of Constitutional Hill and also to look at some of its very striking and impressive art works.
Probably the most well-known piece of art that is housed here is the Blue Dress – or, as it’s known by its full title, “The Man Who Sang and the Woman Who Kept Silent”.
It was created by Judith Mason in 1998 and is considered the signature piece of the collection and represents the lives of two people executed by the apartheid security forces. Using mixed media and oil on canvas, Mason’s artwork tells the stories of Phila Ndwandwe and Harold Sefola.
Phila Ndwandwe was part of Umkhonto we Sizwe, operating from Swaziland. She was abducted in Swaziland, imprisoned, tortured and kept naked for 10 days by the security police on a farm outside Pietermaritzburg, as they hoped that she would turn into an informant. But when her captors realized that she wouldn’t be of use to them, she was shot in the head and buried in an unmarked grave.
When her body was exhumed by the TRC, the underwear she made for herself out of a thin blue plastic bag was found still wrapped around her body.
For the artwork, Mason collected discarded blue plastics bags and sewed them into the iconic dress depicted in the piece. The dress can be viewed alongside the painting.
A funeral was held for Phila after her body was found and President Nelson Mandela praised her fight against apartheid. She was awarded the Order of Mendi for Bravery in Silver in 2010.
Harold Sefola was electrocuted by security forces in a field outside Witbank. Waiting to die, he requested to sing Nkosi Sikelel’ iAfrika.
Sefola was the man who sang and Ndwandwe was the woman who kept silent – and both paid the ultimate price for the freedom and human rights we all enjoy today.
Human rights and constitutional education are a fundamental part of our democracy. People can only enforce their rights if they know their rights.
That’s why we are so pleased that this competition is going from strength to strength. The first annual National Schools Moot Court Competition took place here at the Constitutional Court on Human Rights Day in 2011. And it turned out to be a ground-breaking event.
The competition aims to create greater awareness in schools and communities in South Africa about the Constitution and the values that it embodies through active participation. The aim is also to encourage talented young people to consider pursuing a career in law.
This competition provides a unique opportunity for learners to develop their research, writing and oral advocacy skills as they endeavour to come to grips with some of the constitutional issues that are presently facing our country.
We’ve significantly expanded the project in this, its 9th year, as from this year all schools wrote the essay as part of the English language curriculum.
The aim is to continue to grow the Competition and to get all law faculties in the country to make available some of their capacity to support learners in preparing for the Competition. Further collaboration and support of the legal profession will also be sought to assist learners.
In your problem statements, we got to know about the case of Prince Tlou, a 15 year old Grade 10 learner enrolled in the Saint Thomas Christian School in the Eastern Cape. Prince and his family are Rastafarians, but Prince’s dreadlocks put him at odds with the school’s Code of Conduct.
Of course this case is a hypothetical one, but it’s definitely not far from reality or far from real life. In January 2016, a Khayelitsha mother, Mrs Stofile, fought an uphill battle to get her son into a high school from which he was excluded over his dreadlocks.
Mrs Stofile said there were no problems when she enrolled her son, Azania, for Grade 8 but that changed on his first day when his hair became an issue when the teacher told him that boys were not allowed to have long hair.
She tried to explain to the teacher that he had long hair for religious reasons as they were Rastafarians, but the teacher then apparently told her there had been cases in the past where pupils pretended to be Rastafarians and then sold dagga to other pupils.
His parents eventually spoke to the principal who asked them to write a letter to the school governing body asking for permission for Azania to keep his dreadlocks.
In response to the case featuring in the media, NGOs working in the education sector said they were aware that some schools were discriminating against certain pupils through the rigid enforcement of dress codes.
You would also have seen various similar cases and judgments in your preparation packs. These judgments are extremely important. As Prof Stuart Woolman wrote in a 2015 article, the Constitutional Court has –
“…achieved something rather remarkable in its education jurisprudence…. it has crafted a body of law that recognises the plurality of traditions to which our education law must speak. In so doing, it has identified a golden thread that ties all of its education judgments together: a commitment to pluralism that opens all school doors to all learners and attempts to start us down the long, arduous path of learning to live with one another.”
Dress codes, hair regulations and Codes of Conduct in our schools have caused a lot of controversy over the years. Many of us recall the issue of the hair policy at Pretoria High School for Girls in 2016 and as recent as last month, it was reported in the media that pupils at a school in the Western Cape were allegedly ordered to plait their "untidy" hair or face suspension for violating the school's hair policy.
In terms of the South African Schools Act, school governing bodies are responsible for drafting codes of conduct for their schools, so they often have to decide on dress codes as part of that code of conduct.
This is why the Department of Basic Education has published guidelines to assist school governing bodies on drafting codes of conduct, dress codes and disciplinary procedures, in line with constitutional values and the law.
As an aside, it was quite interesting to note that in a media article earlier this year, a journalist looked at hair and dress regulations at different schools and she found that some schools still aren’t accepting of everyone’s natural hair, and that dreadlocks, braids, extensions and afros still aren’t allowed in certain schools.
Other schools were more progressive, by transforming their uniform policies for boys and girls, with one school allowing boys to wear their hair tied in ponytails or buns, as long as it looks neat and tidy. Many have praised the school for their progressive way of thinking.
We live in a country where our Constitution proudly proclaims that South Africa belongs to all who live in it, united in our diversity.
We recently celebrated Heritage Day. Some of you may have seen the South African Human Rights Commission’s calls to urge South Africans to use Heritage Day as an opportunity to unite in their diversity, instead of using it to divide and to celebrate our diverse backgrounds whilst accepting backgrounds which are different to our own.
The Commission noted that violations based on the right to equality still persist in the country and that diversity had, in some instances, become the source of division and conflict.
According to the Commission’s Annual Trend Analysis Report, which records complaints received by the Commission, the highest number of violations it dealt with involved the right to equality. This was in light of complaints of hate speech, particularly on social media.
The Commission reiterated that instances of hate speech and violations of the right to equality fly in the face of the constitutional democracy we need to foster and a society based on the foundations of equality, freedom and dignity for all.
I do believe that for us to live up to the ideals of our Constitution we must accept and celebrate diversity and difference – but it’s more than merely accepting it, we must truly embrace and celebrate the diversity of those around us.
I think Judge Albie Sachs articulated it beautifully in the Fourie judgment when he said:
“South Africans come in all shapes and sizes. The development of an active rather than a purely formal sense of enjoying a common citizenship depends on recognising and accepting people with all their differences, as they are. The Constitution thus acknowledges the variability of human beings …., affirms the right to be different, and celebrates the diversity of the nation.”
Ladies and gentlemen, learners,
I want to sincerely congratulate everyone who has participated in this year’s competition. We know and appreciate the hours and hours of preparations and the hard work by the learners, their educators and their parents who support them.
To the learners, I hope to see many of you in a few years’ time in the legal profession, in our courts as prosecutors, as legal researchers and academics and, in a few more years after that, on the bench – perhaps even this bench, here in the Constitutional Court - as you have shown that you have the talent and with passion and hard work there is nothing that can hold you back.
I’ve been informed that after Friday’s semi-finals, there are four teams who are proceeding to today’s final round. And I see it’s a battle between the Eastern Cape and KZN.
The teams who will be in today’s final are:
I wish you all the very best of luck and you can be extremely proud of what you have achieved thus far and by earning a place in the finals.
To conclude, President Ramaphosa recently remarked that our greatest legacy of all is our freedom. Some 25 years ago, millions of South Africans stood in queues around the country to vote for the first time and their actions helped give birth to a new country rooted in equality, non-sexism, non-racialism, respect for human rights and tolerance of differences.
He also said that the young men and women of South Africa – in other words, you, the learners participating here today - are the inheritors of this political heritage.
Always remember the sacrifices that were made so that we can live in freedom, and wear with pride the honour that comes with being a South African.
I want to close with a few lines from a poem by Khotso Dineo Mashile, who is a social work student at the University of the Free State. It reads -
“I walk on the dust roads of the Karoo and drive on the Cape mountains with total freedom of movement.
I find beauty in the dry lands of the Karoo, the waterfalls in Cape Town, the mountains of the Free State, the nature of the Kruger National Park in Mpumalanga, and the fruitfulness of Limpopo.
I eat fruits and vegetables grown in my own back yard; I feed my neighbours from both close and faraway places. My house is a place of refuge for people from all corners of the earth.
I am dressed in a xibhelana, the beautiful patterns of the Nguni tribe, the Jeremani of the Sotho people, and a tailor made formal suit with a beaded necklace; I walk tall and with pride whether my outfit is made of animal skin or leopard print fabric.
I am black, coloured, white, Indian, and Asian. I speak eleven languages with fluency and pride. I speak wise words, ones with ambiguity and cross-cultural definitions.
My wealth is not defined by the gold mines in Gauteng, the coal mines in Mpumalanga, the vegetation in Limpopo, the minerals and oil in the Cape, or the diamond mines in Kimberley.
Actually, my wealth is defined by the many cultures that define me: the traditions of the Zulu people, the pride of Xhosa initiates, the beautiful patterns of the Ndebele people, the respect and humility of the Venda and Tsonga people, the delicious traditional meals made from organic vegetables, the beautiful traditional attires of my people, and the beauty and warmth of sunshine during winter.”
Thank you, ladies and gentlemen.