THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 107/12

In the matter between:

DEPARTMENT OF CORRECTIONAL SERVICES First Appellant

AREA COMMISSIONER: POLLSMOOR              Second Appellant
MANAGEMENT AREA

and

POLICE AND PRISONS CIVIL RIGHTS               First Respondent
UNION (POPCRU)
EGANAMANG JAMES LEBATLANG
Second Respondent
THAMSANQA RUSSEL NGQULA
Third Respondent
LUCKY THAMSANQA KAMLANA                     Fourth Respondent
COHEN JACOBS                                                         Fifth Respondent
MDUDUZI KHUBHEKA                                            Sixth Respondent

Neutral citation: Department of Correctional Services & another v
POPCRU & others (107/12) [2013] ZASCA 40 (28
March 2013)
Coram:
NUGENT, MAYA, and PILLAY JJA, PLASKET and
MBHA AJJA
Heard:
19 FEBRUARY 2013
Delivered:
28 MARCH 2013

Summary:
Labour Relations Act 66 of 1995 – section 187(1)(f) –
departmental dress code prohibiting wearing of dreadlocks by
male correctional officers – whether dismissal of Rastafari and
Xhosa respondents for refusing to cut their dreadlocks worn in
observance of sincerely held religious and cultural beliefs
discriminatory and automatically unfair on grounds of religion,
culture and gender – meaning of s 187(2)(a).

_________________________________________________________

ORDER
___________________________________________________________

On appeal from: the Labour Appeal Court, Cape Town (Murphy AJA,
Waglay DJP and Davis JA sitting as court of appeal).

The appeal is dismissed with costs that include the costs of two counsel.
___________________________________________________________

JUDGMENT
___________________________________________________________

MAYA JA (NUGENT, PILLAY JJA, PLASKET AND MBHA AJJA
concurring)

[1] This is an appeal from a judgment of the Labour Appeal Court
(‘the LAC’, per Murphy AJA, Waglay DJP and Davis JA concurring),
with special leave of this court. The LAC upheld the decision of the
Labour Court (Cele J) that the dismissals of the second to sixth
respondents (the respondents) were automatically unfair as contemplated
in section 187(1)(f) of the Labour Relations Act 66 of 1995 (the LRA).
As a basis for its conclusion, the Labour Court had found that the
respondents were unlawfully subjected to gender discrimination. On
appeal, the LAC added two grounds of discrimination, religion and
culture, as further support for the finding.

[2] The facts are largely common cause. The respondents are male
former correctional officers of the first appellant (the department). All
were members of the first respondent, a trade union, and held various
positions at Pollsmoor Prison, Cape Town (Pollsmoor) at the time of their
dismissals in June 2007. They each had long service with the department
and were exemplary employees. A common feature among them was
their hairstyle. They all wore dreadlocks albeit for different reasons. It is
their refusal to cut their hair when ordered to do so under the
department’s Corporate Identity Dress Code (the dress code) that led to
their dismissals and these proceedings.

[3]   The dress code made provision, in clause 5, for ‘Personal
appearance’ relating to wearing of jewellery, make-up, moustaches and
beards and hairstyles. Clause 5.1 dealt pertinently with hairstyles and
read:
‘Hairstyles
The following guidelines are [laid] down for the hairstyles of all Departmental
officials. In judging whether a hairstyle is acceptable, neatness is of overriding
importance.
5.1.1 Hairstyles: Female officials
5.1.1.1 Hair must be clean, combed or brushed and neat at all times (taken good care
of). Unnatural hair colours and styles, such as punk, are disallowed.
5.1.2 Hairstyles: Male officials
5.1.2.1 Hair may not be longer than the collar of the shirt when folded down or cover
more than half of the ear. The fringe may not hang in the eyes.
5.1.2.2 Hair must always be clean, combed and neat at all times (taken good care of)
5.1.2.3 Hair may not be dyed in colours other than natural hair colours or cut in any
punk style, including a “Dreadlocks” hairstyle.
5.1.2.4 No decorations (e.g. beads, clips)
5.1.2.5. May be worn on the hair.’

It is the ‘Rasta man’ hairstyle prohibition in clause 5.1.2.3 that the
respondents contravened.

[4]   Until the appointment of the second appellant as area commissioner
of Pollsmoor on 15 January 2007, there does not appear to have been any
clear guide in the institution about the enforcement of the dress code and
other departmental policies pertaining to discipline and security. There
had been no objection whatsoever to the respondents’ hairstyle which was
also sported by a handful of women correctional officials.

[5] The commissioner immediately set about bringing sweeping changes
to tighten controls and bring the prison to order. On 18 January 2007 he
convened a meeting with the prison personnel and managers. Various
issues relating to compliance with departmental policies, performance
management and human resource management were discussed. Chief on
the agenda were the commissioner’s concerns about security risks and the
flouting of the dress code and other policies in the institution. Following
the deliberations, he issued a written instruction on the next day directing
correctional officers to attend to their hair in compliance with the dress
code or advance reasons by 25 January 2007 why corrective action
should not be taken against them. Some of the officers abided the
instruction and some of those who wore dreadlocks promptly cut their
hair to meet the requirements set out in the dress code. The respondents
did not.

[6]   On 26 January 2007 the commissioner wrote to ask them to give
reasons why they should not be suspended for contravening the dress
code. Their responses were varied. Messrs Lebatlang, Jacobs and
Khubheka attributed their hairstyle to their Rastafarian religion. They said

their hairstyle, an outward manifestation of the religion, did not prejudice
the department’s interests. The instruction to cut their hair undermined
their freedom of religion, which was recognised and protected by the
Constitution, and constituted unfair discrimination on that basis.

[7]   Messrs Ngqula and Kamlana gave cultural reasons for their hairstyle.
Mr Ngqula said he wore his dreadlocks to obey his ancestors’ call, given
through dreams, to become a ‘sangoma’ or traditional healer in
accordance with his Xhosa culture. He requested permission to wear them
until December 2007 when he would shave his head as part of a cleansing
ritual to complete the process. Mr Kamlana said he was instructed to wear
his dreadlocks by his ancestors and did so to overcome ‘intwasa’, a
condition understood in African culture as an injunction from the
ancestors to become a traditional healer, from which he had suffered
since childhood. Both viewed the instruction to cut their hair as an
incursion on their fundamental right to practice their culture and
discrimination against them on the ground of culture.

[8]   On 2 February 2007 the respondents were suspended from duty. The
commissioner’s attitude was that ‘compliance with policy cannot be
negotiated at management area and notwithstanding any religion, beliefs
or otherwise, employees have to adapt to the employer’s policy and not
the other way round’. Thereafter, the respondents were charged with
breaching the Disciplinary Code and Procedure and the dress code by
wearing dreadlocks on duty, alternatively failing to carry out a lawful
order or routine instruction without just or reasonable cause by refusing
to keep their hair in accordance with the dress code while on duty.

[9]   The respondents refused to participate in the disciplinary hearing
conducted between 4 and 7 June 2007.  They believed that the
chairperson of the proceedings, who denied them legal representation
despite a previous undertaking to allow it and refused their consequent
request for his recusal, was biased. They were dismissed with immediate
effect.1 They lodged an internal appeal but it was disregarded after they
neglected to file the requisite grounds of appeal.2

[10]   The respondents referred the dispute to the Labour Court. Their
primary claim was for a declarator that their dismissals were
automatically unfair because the department had unfairly discriminated
against them directly or indirectly on the grounds of religion, conscience,
belief, culture and gender as envisaged by section 187(1)(f) of the LRA.
Section 187(1)(f) renders a dismissal ‘automatically unfair if the …
reason for the dismissal is … that the employer unfairly discriminated
against an employee, directly or indirectly, 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.’ In addition to further and alternative claims which became
redundant and need not be detailed here, the respondents sought ancillary
relief including damages, compensation and reinstatement to their posts.

1 The presiding officer, Mr SB Masemula, seems to have assumed a particularly hard line to the matter,
judging from the tone of his findings. For example, in respect of the fifth respondent he said ‘Mr
Jacobs is a married man with two dependents … and he should have th[ought] about his family but he
has a BA law degree and LLB in qualification that is why he display[s] this behavior so [it] is better for
him to look where they will accommodate him with that hairstyle but the relationship with the
Department is broken and I have no other option than to dismiss him with immediate effect to give him
a chance to wear his dreadlocks freely.’
2 Department of Correctional Services Resolution 1 of 2006 provides for the appeal procedure and
submission of grounds of appeal.

[11]   The respondents’ testimony expatiated on their reasons for wearing
the dreadlocks that they had advanced to the commissioner to repel
suspension. Its gist was that they were adherents of Rastafarianism and
Xhosa culture, respectively. They wore the impugned hairstyle as a ritual
in observance of their sincerely held religious and cultural beliefs. A
traditional healer, Mr Toyo Khandekana, was called as an expert witness
on behalf of Messrs Ngqula and Kamlana. He described dreadlocks or
‘ivitane’, as he said they are called in isiXhosa, as a symbol in the realm
of Xhosa spiritual healing that their wearer has heeded the call of his
ancestors to become a traditional healer. The hair is, however, kept only
temporarily. It is shaved off at a cleansing ceremony, a sacred, elaborate
affair which includes the use of dagga, conducted at completion of the
process to signify the initiate’s transition into a traditional healer.

[12]   None of the respondents’ evidence was disputed. The appellants
merely sought to establish that there had been no motive to discriminate
against them and that they were dismissed, not for their religion, culture
or gender, but for their failure to comply with a neutral policy and a
lawful instruction to cut their hair.

[13]   The commissioner testified about the large scale non-compliance
with departmental policies in numerous areas including security, human
resource issues, corporate dress and prison management that he found
when he commenced duties at Pollsmoor. He told of serious problems
with discipline and security and the flouting of the dress code and human
resource policies which resulted in high levels of absenteeism, assaults
among inmates and correctional officers, escapes by inmates, corruption
and misuse of official vehicles and finances and many other issues. His
interventions through the enforcement of the department’s policies,

including the dress code, yielded positive results as service delivery,
discipline, team work and security improved dramatically in the
institution.

[14]   According to the commissioner, supported by the expert witness
called on the appellants’ behalf, Mr Ndebele, the uniformity of dress and
appearance provided by the dress code is intertwined with and critical for
the enforcement and maintenance of discipline and security in a prison
environment. Any deviations from uniformity to accommodate diversity
would open the floodgates for exemption requests to the department’s
detriment. Dreadlocks also posed a particular risk because they could
easily be grabbed by an inmate to disarm an official.

[15]   The Labour Court accepted that the respondents were dismissed
because they wore dreadlocks and disobeyed the commissioner’s
instruction to cut them; that they wore the dreadlocks in pursuance of
sincerely held religious or cultural beliefs and that their female
counterparts were not prohibited from wearing dreadlocks. In the court’s
view, it was ‘beyond doubt that the impact of the instruction would have
a devastating impact on their beliefs’ and faith. However, the court found
that they failed to draw their beliefs to the commissioner’s attention and
to assert their right to their faith. Thus, they failed to establish a ‘causal
link … between the prohibited reasons for dismissal and the
circumstances of the dismissal’ and ‘factual causation, that is a belief in
religious and cultural practices had not been proved to have been the sine
qua non or prerequisite reason for the dismissal’.

[16] The court therefore found no direct or indirect discrimination against
the respondents on the grounds of religion, belief or culture. Instead, it

held that the respondents had established discrimination against
themselves on the basis of gender as the appellants did not show ‘why the
biological differences between men and women had to justify
discriminating between them … when it came to dreadlocks’. The court
concluded that the appellants had failed to rebut the presumption of
unfairness of the commissioner’s instruction and that the dismissals were
automatically unfair.  It ordered reinstatement of those the respondents
who sought it and compensation for those who no longer wanted their
jobs.

[17]   The appellants did not accept the judgment and took the matter to
the LAC. Without first applying for leave, the respondents also noted a
cross-appeal against the Labour Court’s failure to find unfair
discrimination also on the grounds of religion, belief or culture. As
indicated, the LAC dismissed the appeal and held the dismissals
automatically unfair on the bases of religion, culture and gender. The
court found the cross-appeal, which it said required no leave to be
instituted as the rules of court made no provision therefor, unnecessary
because the respondents accepted the order of the Labour Court but
merely sought to have its judgment confirmed on additional grounds. The
court made no order in respect of the cross-appeal and ordered each party
to bear its own costs.

[18]   On further appeal to this court, the appellants raised a number of
grounds which were duly motivated in their heads of argument. However,
the issues trimmed down significantly in argument before us. The
appellants’ counsel conceded most of the issues previously raised by his
predecessor. These included a concession that the dress code operated
disparately among correctional officers and was directly discriminatory

on all three proscribed grounds, namely religion, culture and gender. The
concession was well made. Indeed, but for their religious and cultural
beliefs, the respondents would not have worn dreadlocks. And but for that
fact and their male gender, they would not have been dismissed. The
disparate treatment constituted discrimination and the appellants’ motives
and objectives of the dress code are entirely irrelevant for this finding.3

[19]   In the event, the appellants’ case distilled to simply that the
discrimination was justifiable because it sought to eliminate the risk and
anomaly posed by placing officers who subscribe to a religion or culture
that promotes criminality – in the form of the use dagga – in control of a
high regulation, quasi-military institution such as a prison. It was
contended that the department’s real problem lay not with the hairstyle
worn by Rastafari and ‘intwasa’ initiates as such but their faiths which
require the use of dagga, an illegal and harmful drug, as an integral ritual
in their observance.

[20]   The appellants’ counsel pointed out that South Africa expends a
huge effort in the discharge of its international obligation to combat the
drug war to which the use of dagga is central. The risk posed by
dreadlocks, it was argued, is that they render Rastafari officials
conspicuous and susceptible to manipulation by Rastafari and other
inmates to smuggle dagga into correctional centres. This would
negatively affect discipline and the rehabilitation of inmates. It was also
submitted that the department was not particularly concerned with female
officials who wore dreadlocks. This was so because the risk in females
was significantly reduced as it is not unusual for them to wear long hair.

3 Pretoria City Council v Walker 1998 (2) SA 363 (CC) para 44; R v Birmingham City Council Ex
parte  Equal Opportunities Commission [1989] AC 1155 at 1194A-D.

Further, it is notorious and was accepted as true by the Constitutional
Court in Prince v President, Cape Law Society,4 that women and children
are not involved in the use of dagga in Rastafarianism. The dress code
therefore served an important and legitimate government purpose because
Rastafari officials would not be easily identifiable if they did not wear
dreadlocks.

[21]   Once discrimination has been established on a listed ground,
unfairness is presumed, and the employer must prove the contrary.5
Relevant considerations in this regard include the position of the victim
of the discrimination in society, the purpose sought to be achieved by the
discrimination, the extent to which rights or interests of the victim of the
discrimination have been affected, whether the discrimination has
impaired the human dignity of the victim,6 and whether less restrictive
means are available to achieve the purpose of the discrimination.7

[22]   Without question, a policy that effectively punishes the practice of
a religion and culture degrades and devalues the followers of that religion
and culture in society; it is a palpable invasion of their dignity which says
their religion or culture is not worthy of protection and the impact of the
limitation is profound.8  That impact here was devastating because the
respondents’ refusal to yield to an instruction at odds with their sincerely
held beliefs cost them their employment.

4 Prince v President, Cape Law Society 2002 (2) SA 794 (CC).
5 Harksen v Lane NO 1998 (1) SA 300 (CC) para 48.
6 Hoffman v South African Airways [2000] 12 BLLR 1365 (CC) para 27; Harksen v Lane NO 1998 (1)
SA 300 (CC) para 51.
7 Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) para 31.
8 Prince v President, Cape Law Society 2002 (2) SA 794 (CC) para 51.

[23]   Whether the discriminatory impact of the dress code was justifiable
stands to be decided under the provisions of s 187(2)(a) of the LRA as the
constitutionality of the policy was not challenged.9 According to the
section ‘a dismissal may be fair if the reason for dismissal is based on an
inherent requirement of the particular job’. An inherent requirement of a
job has been interpreted to mean ‘a permanent attribute or quality
forming an … essential element … and an indispensable attribute which
must relate in an inescapable way to the performing of a job’.10

[24]   The appellants face an insurmountable hurdle. The case they
advanced in evidence was that the rationale for the dress code was to
entrench uniformity and neatness in the dress and appearance of
correctional officials which would engender discipline and enhance
security in the prison facility. The about turn during argument in this
appeal did their cause no good. The dress code was not shown to be
concerned with the use of dagga, the prevention of which it is now touted
to have targeted. The appellants laid no foundation for their belated
argument, as their counsel properly acknowledged.

[25]   Even assuming otherwise, no evidence was adduced to prove that
the respondents’ hair, worn over many years before they were ordered to
shave it, detracted in any way from the performance of their duties or
rendered them vulnerable to manipulation and corruption. Therefore, it
was not established that short hair, not worn in dreadlocks, was an
inherent requirement of their jobs. A policy is not justified if it restricts a
practice of religious belief – and by necessary extension, a cultural belief

9 Minister of Health v New Clicks South Africa (Pty) Ltd (Treatment Action Campaign and another as
Amici Curiae) 2006 (2) SA 311 (CC) (2006 (1) BCLR 1) paras 96, 434-437; MEC for Education,
KwaZulu-Natal v Pillay 2008 (1) SA 474 (CC) para 40.
10 Dlamini v Green Four Security [2006] 11 BLLR 1074 (LC) para 40; Cooper, Carole ‘The
Boundaries of Equality in Labour Law’ (2004) 25 ILJ 813.

– that does not affect an employee’s ability to perform his duties, nor
jeopardise the safety of the public or other employees, nor cause undue
hardship to the employer in a practical sense.11 No rational connection
was established between purported purpose of the discrimination and the
measure taken. Neither was it shown that the department would suffer an
unreasonable burden if it had exempted the respondents. The appeal must,
therefore, fail.

[26] In the result the following order is made.
The appeal is dismissed with costs that include the costs of two counsel.

___________________
MML MAYA
JUDGE OF APPEAL

11 Bhinder v Canadian National Railway Co [1985] 2 SCR 651 para 29.

APPEARANCES:

For appellants:
N Arendse SC (with S O’Brien)

Instructed by:

State Attorney, Cape Town

State Attorney, Bloemfontein

For respondents:
M L Sher

G A Leslie

Instructed by:

Parker & Khan Inc, Cape Town

EG Cooper Majiedt Inc, Bloemfontein