NATIONAL SCHOOLS MOOT COURT COMPETITION

2015

INFORMATION PACK

The following should provide teams with a solid basis from which to build arguments for both

the applicant (Cara Williams) and the respondent (St Theresa’s Private School for Girls).

Learners are permitted to do further research and to utilise other sources but may not add

either facts or evidence to what is provided.

1. Statutes (Acts of Parliament)

1.1 The Constitution of the Republic of South Africa, 1996

Sections 2, 8, 9, 10, 15, 18, 28, 29, 31 and 36

Note: In South African law, the Constitution is the supreme law of the land. Any other law or policy that is incosistent with the Constitution must be declared invalid and may, amongst other remedies, be amended.

Section 2 of the Constitution - Supremacy of Constitution

This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is

invalid, and the obligations imposed by it must be fulfilled.

Section 8 of the Constitution - Application

(1) The Bill of Rights applies to all law, and binds the legislature, the executive, the

judiciary and all organs of state.

(2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent

that, it is applicable, taking into account the nature of the right and the nature of any

duty imposed by the right.”

Section 9: Equality

(1) Everyone is equal before the law and has the right to equal protection and benefit of

the law.

(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote

the achievement of equality, legislative and other measures designed to protect or

advance persons, or categories of persons, disadvantaged by unfair discrimination

may be taken.

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or

more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social

origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture,

language and birth.

(4) No person may unfairly discriminate directly or indirectly against anyone on one or

more grounds in terms of subsection (3). National legislation must be enacted to

prevent or prohibit unfair discrimination.

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it

is established that the discrimination is fair.

Section 10: Human dignity

Everyone has inherent dignity and the right to have their dignity respected and protected.

Section 15 of the Constitution - Freedom of religion, belief and opinion

(1) Everyone has the right to freedom of conscience, religion, thought, belief and

opinion.

(2) Religious observances may be conducted at state or state-aided institutions,

provided that –

(a) those observances follow rules made by the appropriate public

authorities;

(b) they are conducted on an equitable basis; and

(c) attendance at them is free and voluntary.

(3) (a) This section does not prevent legislation recognising -

(i) marriages concluded under any tradition, or a system of religious, personal

or family law; or

(ii) systems of personal and family law under any tradition, or adhered to by

persons professing a particular religion.

(b) Recognition in terms of paragraph (a) must be consistent with this section

and the other provisions of the Constitution.

Section 18:Freedom of association

Everyone has the right to freedom of association.

Section 28(2) and (3): Best interests

(2) A child’s best interests are of paramount importance in every matter concerning the

child.

(3) In this section “child” means a person under the age of 18 years.

Section 29(1): Right to Education

(1) Everyone has the right-

(a) to a basic education, including adult basic education; and

(b) to further education, which the state, through reasonable measures, must make

progressively available and accessible

Section 31 of the Constitution - Cultural, religious and linguistic communities

(1) Persons belonging to a cultural, religious or linguistic community may not be denied

the right, with other members of that community -

(a) to enjoy their culture, practise their religion and use their language;

and

(b) to form, join and maintain cultural, religious and linguistic associations

and other organs of civil society.

(2) The rights in subsection (1) may not be exercised in a manner inconsistent with any

provision of the Bill of Rights.

Section 36 Limitation of rights

Note: Section 36 is also known as the limitation clause. The limitation clause says that rights in the Bill of Rights maybe limited in certain circumstances.

(1) The rights in the Bill of Rights may be limited only in terms of law of general

application to the extent that the limitation is reasonable and justifiable in an open and

democratic society based on human dignity, equality and freedom, taking into account all

relevant factors, including –

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no

law may limit any right entrenched in the Bill of Rights.

1.2 The National Education Policy Act 27 of 1996:

The National Policy on Religion and Education: Paragraph 16

An overview: This policy gives expression to the right to religious freedom in the Constitution. It recognises that there is a diversity of religions and that everyone has the right to have their religions respected. It sets out broad guidelines to show how religion can play a role in education while ensuring that everyone’s fundamental rights are respected, including the right to religion, right to freedom of belief, and right against unfair discrimination.

(16) Citizens do have the right, at their own expense, to establish independent schools,

including religious schools, as long as they avoid racial discrmination, register with

the state, and maintain standards that are not inferior to the standards of comparable

public educational institutions...the requirements for Religious Instruction and

Religious Observances would not be prescribed by this policy”.

Explanation of paragraph 16 of the National Policy on Religion and Education

Paragraph 16 allows private schools to establish or maintain religious schools as

long as they avoid racial discrimination, register with the state and maintain

standards that are comparable to public schools.

Paragraph 16 specifies that private schools must avoid racial discrimination in

particular and not other types of discrimination. However, the Bill of Rights applies to

the state, individuals as well as companies and organisations. This means that the

private school, as an organisation, must also comply with all the other rights listed in

the Bill of Rights, including other types of discrimination.

1.3 The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000:

Sections 1, 6, 13 and 14 of the Promotion of Equality and Prevention of Unfair Discrimination Act

Section 1: Definitions and Application of the Act

'discrimination' means any act or omission, including a policy, law, rule, practice, condition

or situation which directly or indirectly-

(a) imposes burdens, obligations or disadvantage on; or

(b) withholds benefits, opportunities or advantages from,

any person on one or more of the prohibited grounds

'prohibited grounds' are-

(a) race, gender, sex, pregnancy, marital status, ethnic or social origin, colour,

sexual orientation, age, disability, religion, conscience, belief, culture, language

and birth; or

(b) any other ground where discrimination based on that other ground-

(i) causes or perpetuates systemic disadvantage;

(ii) undermines human dignity; or

(iii) adversely affects the equal enjoyment of a person's rights and freedoms

in a serious manner that is comparable to discrimination on a ground in

paragraph (a);

Section 6: Prevention and general prohibition of unfair discrimination

Neither the State nor any person may unfairly discriminate against any person

Section 13: Burden of proof

(1) If the complainant makes out a prima facie case of discrimination-

(a) the respondent must prove, on the facts before the court, that the discrimination

did not take place as alleged; or

(b) the respondent must prove that the conduct is not based on one or more of the

prohibited grounds.

(2) If the discrimination did take place-

(a) on a ground in paragraph (a) of the definition of 'prohibited grounds', then it is

unfair, unless the respondent proves that the discrimination is fair;

(b) on a ground in paragraph (b) of the definition of 'prohibited grounds', then it is

unfair-

i. if one or more of the conditions set out in paragraph (b) of the definition of

'prohibited grounds' is established; and

ii. unless the respondent proves that the discrimination is fair

Section 14: Determination of fairness or unfairness

(1) It is not unfair discrimination to take measures designed to protect or advance persons or

categories of persons disadvantaged by unfair discrimination or the members of such

groups or categories of persons.

(2) In determining whether the respondent has proved that the discrimination is fair, the

following must be taken into account:

(a) The context;

(b) the factors referred to in subsection (3);

(c) whether the discrimination reasonably and justifiably differentiates between

persons according to objectively determinable criteria, intrinsic to the activity

concerned.

(3) The factors referred to in subsection (2) (b) include the following:

(a) Whether the discrimination impairs or is likely to impair human dignity;

(b) the impact or likely impact of the discrimination on the complainant;

(c) the position of the complainant in society and whether he or she suffers from patterns of disadvantage or belongs to a group that suffers from such patterns of disadvantage;

(d) the nature and extent of the discrimination;

(e) whether the discrimination is systemic in nature;

(f) whether the discrimination has a legitimate purpose;

(g) whether and to what extent the discrimination achieves its purpose;

(h) whether there are less restrictive and less disadvantageous means to achieve the purpose;

(i) whether and to what extent the respondent has taken such steps as being reasonable in the circumstances to-

i. address the disadvantage which arises from or is related to one or more of the prohibited grounds; or

ii. accommodate diversity

2. Case Law (Judgments handed down by courts):

Note: the principles expressed in the following cases have a direct bearing on how the law set out above ought to be applied and interpreted. Once a case is decided by the Constitutional Court (as the following cases have been), those judgments have to be followed by all other South African courts. This means that the principles contained in these judgments can be used in order to argue other cases, even if the facts of the cases are not the same. If, in the course of your preparation, you decide that you wish to utilise additional case law, judgments containing relevant and comparable legal principles can be found online at websites such as:

www.centreforchildlaw.com

www.communitylawcentre.org.za

www.constitutionalcourt.org.za

www.saflii.org

The following extracts are drawn from landmark child rights judgments and can be applied to the facts at hand:

2.1 Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC)

The applicants were Ms Marié Adriaana Fourie and Ms Cecelia Johanna Bonthuys, a lesbian

couple that wished to marry. Prior to the hearing, applications were made by Doctors For

Life International and its legal representative Mr John Smyth, to be admitted as amici curiae

(friend of the court- to assist the court in understanding the situation it is facing). Application

to be admitted as amicus curiae was also made by the Marriage Alliance of South Africa.

The nine judges hearing the case agreed unanimously that same-sex couples were entitled

to marry, accordingly declared the common-law definition of marriage to be inconsistent with

the Constitution and invalid to the extent that it did not permit same-sex couples to enjoy the

status and the benefits coupled with responsibilities it accorded to heterosexual couples.

They disagreed as to the remedy. The majority suspended the declaration of invalidity for a

period of a year to allow Parliament time to correct the defect. It also declared the omission

from section 30(1) of the Marriage Act after the words "or husband" of the words "or spouse"

to be inconsistent with the Constitution, and invalid to the extent of the inconsistency. Again,

the declaration of invalidity was suspended for a year to allow Parliament time to correct the

defect. Justice Kate O'Regan, the lone dissenter in part, thought the statute should be

altered immediately.

The court's finding was based on section 9 of the Constitution of South Africa, particularly on

the right to equal protection and benefit of the law in section 9(1) and the explicit prohibition

on discrimination, including on the basis of sexual orientation, in section 9(3). The common

law and section 30(1) of the Marriage Act denied same-sex couples equal protection and

benefit of the law, in conflict with section 9(1) of the Constitution, and taken together resulted

in same-sex couples being subjected to unfair discrimination by the State, in conflict with

section 9(3) of the Constitution. When evaluated in the context of the legal regime as a

whole, the common-law definition of marriage and section 30(1) of the Marriage Act were

under-inclusive, Sachs found, and unconstitutional to the extent that they made no

appropriate provision for gay and lesbian people to celebrate their unions in the same way

that they enabled heterosexual couples to do. This violation of the equality and dignity rights

of same-sex couples was not justified as contemplated in section 36 of the Constitution.

2.2 MEC for Education, KwaZulu-Natal and Others v Pillay 2008 (1) SA 474 (CC)

This case deals with religious and cultural expressions in public schools. In accordance with

her culture, a learner who came from a South Indian family wore a nose stud to school; this

was done to uphold a time-honoured family tradition. At the time the learner was first

enrolled at the school her mother had signed the school’s code of conduct which did not

allow nose studs to be worn at the school.

When the learner first started wearing the nose stud the school informed her mother that it

was unacceptable for learners to wear jewellery such as nose studs, and told the learner to

remove the nose stud.The learner’s mother approached the courts for assistance and the

matter continued all the way to the Constitutional Court.

The Constitution Court observed that the school had not taken meaningful steps to

accommodate diversity, and that although uniform and school rules served an important

purpose in education, it did not follow that an exemption would lead to poor discipline:

“rules are important to education. Not only do they promote an important sense of discipline

in children, they prepare them for the real world which contains even more rules than the

schoolyard. Schools belong to the communities they serve and that ownership implies a

responsibility not only to make rules that fit the cmmunity, but also to abide by the rules.

Nothing in this judgment should be interpreted as encouraging or condoning the breaking of

school rules.”

Accordingly, the Constitutional Court concluded that the school’s discrimination against [the

learner] was unfair and that an exemption should be granted in favour of the learner.

2.3 Western Cape Residents’ Association obo Williams and Another v Parow High School 2006 (3) SA 542 (C)

In this case the school had informed all the grade 12 learners at the beginning of the year,

that attendance of the matric farewell function was a privilege and would be accorded only to

those learners whose conduct, both academic and otherwise, merited it. The school then did

not invite a learner to this function. The school decided that because of her disciplinary

problems and lack of respect for authority, she had forfeited her right to attend the function.

The court held that:

“the granting of privilege as a reward for good behaviour was one of the tools that

could be used to teach learners discipline and respect for authority. Withholding

privilege was not an infringement of the learner’s rights to equality and dignity. In fact,

granting a privilege to a learner who had not earned it might constitute an

infringement of the rights to equality and dignity of those learners who had earned it.”

2.4 National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC)

This case dealt with the offence of sodomy in the common-law (that general body of law that

isn't contained in statutes but is based on judicial (court) decisions and custom). The crux of

this matter was that the law prohibited sodomy between two consenting adult men.

The Constitutional Court had to confirm an order that the existence of this common-law

offence was unconstitutional and invalid.

Accordingly the Court found that the existence of these offences violated the right to

equality. Sodomy laws criminalised the intimate relationships of a vulnerable minority group -

gay men. This degrading treatment constituted a violation of the rights to dignity and privacy.

These offences - which did not constitute reasonable or justifiable limitations on the rights of

gay men to equality, dignity and privacy - were unconstitutional and invalid.

2.5 Barkhuizen v Napier

“All law, including the common law of contract, is now subject to constitutional control. The

validity of all law depends on their consistency with the provisions of the Constitution and the

values that underlie our Constitution. The application of the principle pacta sunt servanda is,

therefore, subject to constitutional control.”

Source: Paragraph 15 of this case

2.6 Harksen v Lane NO 1998 (CC)

In this case, the Constitutional Court said that if there is unfair discrimination, as described in

section 9(3) of the Constitution, then you must apply section 36. This means that you must

look at all the different factors listed under section 36 and apply them to the particular issue.

Then you must come to a conclusion, based on those factors, as to whether that right can be

limited or not.

Source: The Bill of Rights Handbook, page 216

2.7 Prince v President of the Law Society, Cape of Good Hope 1998 (C)

This is a case where a fundamental right was limited and it was found to be justified by the

Constitutional Court.

In this case, the Law Society had refused to register Mr Prince’s contract of articles which he

would have completed in order to become an attorney. The reason for this is because Mr

Prince practiced Rastafarianism and had “two previous convictions for possession of dagga

and made it clear that he intended to continue using the drug in the future”. Mr Prince

“argued that his use and possession was constitutionally protected as an exercise of his

freedom of religion”.

“On appeal, the Constitutional Court unanimously held that the general statutory prohibition

of possession of dagga (with the only exception being one for medical use of the drug) was a

violation of the right to freedom of religion. Rastafarianism is a religion, and the use and

consumption of dagga is of great importance to the religion.”

However, the Constitutional Court said that the limitation on Mr Prince’s freedom of religion

could be justified. The court decided that “an exception” to the general prohibition of dagga

possession “was not feasible because it would be difficult to police and would undermine the

general prohibition”.

In the words of the Constitutional Court:

“the exemption sought will be impossible to enforce because of the difficulty

attendant on attempting to establish whether a person found in possession of

cannabis is a Rastafari follower”.

Source: Prince v President of the Law Society, Cape of Good Hope 2001 (CC) –

paragraph 29

3. Secondary Sources

While legislation and case law can be said to be binding on the courts, other sources such as textbooks, journal articles and other publications are merely persuasive. This means that while they can be used to bolster an argument or suggest a possible way in which the law may be interpreted, the courts are not compelled to take them into account. Despite this, they extremely useful for providing context and insight into how the law is practically applied.

3.1 The Bill of Rights Handbook, Ian Currie & Johan De Waal

Chapter 9: Equality

Explanation of section 8 of the Constitution

“…traditionally, a bill of rights confines itself to regulating the ‘vertical’ relationship between

the individual and the state. This is not a relationship of equality. The state is far more

powerful than the individual. It has a monopoly on the legitimate use of force within its

territory…If not protected by a bill of rights against abuse by the state’s powers, the

individual would be in an extremely vulnerable position. The 1997 Bill of Rights performs this

traditional task or protecting individuals against the state by imposing a duty on all branches

of the state to respect its provisions.”

“…the Bill of Rights…recognises that private abuse of human rights may be as pernicious as

violations perpetrated by the state…In certain circumstances the Bill of Rights directly

protects individuals against abuses of their rights by other individuals by providing for the

direct horizontal application of the Bill of Rights.”

This means that the state, ordinary people as well as companies and organisations must

comply with the Bill of Rights and not violate those fundamental rights.

Explanation of “law of general application” in section 36 of the Constitution:

To be a law of general application, it is required that the rule “has the character of law, that it

derives from a source with lawful authority to issue the rule, and a formal requirement that

the law is clear, accessible and precise…”

“…the rule must also apply generally in the sense of not being unequal or arbitrary in its

application. Equal application means that the rule must not apply solely to an individual case,

or must not restrict the rights only of a particular individual or group of individuals.”

Explanation of the limitation clause (section 36 of the Constitution)

“Once it is established that a law of general application infringes a right protected by the Bill

of Rights, the State or the person relying on the law may argue that the infringement

constitutes a legitimate limitation of the right. Rights are not absolute. They may be infringed,

but only when the infringement is for a compellingly good reason.

A compellingly good reason is that the infringement serves a purpose that is considered

legitimate by all reasonable citizens in a constitutional democracy that values human dignity,

equality and freedom above all other considerations. The infringement must however not

impose costs that are disproportionate to the benefits that it obtains. This will be the case

where the law infringes rights that are of great importance in the constitutional scheme in the

name of achieving benefits that are of comparatively less importance. It will also be the case

where the law does unnecessary damage to fundamental rights, damage which could be

avoided or minimised by using other means to achieve the same purpose.”

Evidence required to determine if the limitation of the right is is reasonable and justifiable in

an open and democratic society based on human dignity, equality and freedom

“The question whether an infringement of a right is a legitimate limitation of that right

frequently involves a far more factual enquiry than the question of interpretation. Appropriate

evidence must often be led to justify a limitation of a right in accordance with the criteria laid

down in s 36. A court cannot determine in the abstract whether the limitation of a right is

‘reasonable’ or ‘justifiable in an open and democratic society based on human dignity,

equality and freedom’. This determination often requires evidence, such as sociological or

statistical data, on the impact that the legislative restriction has on society. Where

justification rests on factual and/or policy considerations the respondent must put such

material before the court.”

Explanation of unfair discrimination:

“Unfair discrimination ‘principally means treating people differently in a way which impairs

their fundamental dignity as human beings, who are inherently equal in dignity’.”

9.4 Discrimination

(a) Discrimination defined

Discrimination is a particular form of differentiation. Unlike ‘mere differentiation’,

discrimination is differentiation on illegitimate grounds.

What makes discrimination unfair? The determining factor is the impact of the discriminating

of its victims. Unfair discrimination ‘principally means treating people differently in a way

which impairs their fundamental dignity as human beings, who are inherently equal in

dignity.

Unfair discrimination is differential treatment that is hurtful or demeaning. It occurs when law

or conduct, for no good reason, treats some people as inferior or incapable or less deserving

of respect than others.

3.2 Child Law in South Africa, Trynie Boezaart (ed)

Chapter 18: The Impact of Constitutional Rights on Education

“Section 9(1) of the Constitution provides that everyone is equal before the law and has the

right to equal protection and benefit of the law. Section 9(3) emphasises that the state may

not discriminate unfairly against anyone on one or more grounds, including race, gender,

sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age,

disability, religion, conscience, belief, culture, language or birth. Section 9 is known as the

equality principle, a key provision of the Bill of Rights. The equality principle underpins other

rights in that it guarantees their full and equal enjoyment, and its protective ambit therefore

overlaps with those of other rights, in other words, when someone is denied the enjoyment

of a particular right, it could also amount to an infringement of the equality principle. The right

to equality protects the equal worth of people and any law or conduct that violates the equal

worth of people is prohibited by section 9. The provision recognises that people may be

treated differently for valid reasons and therefore does not prohibit all discrimination, only

unfair discrimination. Unfair discrimination has been defined by the Constitutional Court as

unequal treatment that impairs human dignity, or affects a person in a comparably serious

manner.”

In MEC for Education, Kwazulu-Natal v Pillay a claim of unequal treatment by a school on

the grounds of religion and culture was upheld. The case is important for several reasons,

but also for the fact that it was the first case decided on the basis of the Promotion of

Equality and Prevention of Unfair Discrimination Act.”

“The right guaranteed by section 10 to have one’s inherent dignity as a human being

respected and protected is another fundamental right which underlies many if not all other

rights. The exercise of other rights comprises various manifestations of human dignity and

as such human dignity is the cornerstone for the protection of such other rights. Often, when

another right is violated, the violation also constitutes an infringement of human dignity.

Moreover, the Constitutional Court has defined unfair discrimination for the purposes of the

application of the equality principle inter alia as the unequal treatment of a person that

impairs that person’s human dignity.”

“Human dignity is nevertheless a critical and extremely fragile component of the multifarious

sensitive relationships obtaining in the educational environment, especially because so

many vulnerable and defenceless minors are involved. Human dignity may be violated in the

daily interactions between educators and learners, which is by definition an unequal

relationship, initiation programmes or ceremonies for newcomers to an institution,

disciplinary measures, informal interactions on the playground where bullying and violence is

a real and imminent threat nowadays, and any other relationship in which the degrading

treatment of people is a constant temptation.”

Chapter 21: School Discipline

21.3.1 The Constitution of the Republic of South Africa,1996

(7) Children’s rights (s 28):

Section 28(2) provides that a child’s best interest is of paramount importance in every matter

concerning the child, which obviously goes beyond family issues. Every educational

authority and every individual educator should be able to show that any decision affecting a

child has been taken with this purpose in mind.

(9) The limitation clause (s 36):

A right may be limited only in terms of the law of general application: for example, there must

be a legal rule that provides that a right may limited. This means, the school principal may

not by herself decide that a learner cannot attend a matric farewell without a valid reason (an

act which may limit the right to human dignity), but that a legal rule must authorise such an

act. There must be an appropriate balance between the limitation of the right and the

purpose for which the right is being limited.

21.5.2 Rules of conduct

Rules are standards of behaviour indicating what may or may not be done. Rules are

specific, prscriptive and enforceable. Therefore rules must be clear, fair and reasonable.

Rules are drawn up in order to realize the values contained in the code.

The purpose of rules is to create and maintain a positive learning environment; define

acceptable and unacceptable behavior; and promote educational goals.

It is important that rules must be effective and purposeful and therefore the following

requirements are essential:

a) The reason behind the rules should be clear;

b) Rules should be clearly stated and definable;

c) As far as possible, rules should be stated positively;

d) A few pertinent rules are more effective than a long list of restrictions;

e) Rules must not inflict an injustice;

f) Unnecessary and petty rules should be avoided; and

g) Rules should reflect the social reality of learners.

Good luck!