Editor — Some time back this year the parents of a learner who had a beard against the rules of his school found themselves on the “wrong” side of the law as they lost their cases first in the magistrates court and upon appeal in the High Court.
Basically the courts supported the school’s stance simply because the applicant had signed up to a code of conduct.
The courts apparently did not bother to stand the code of conduct on its head for scrutiny to ensure that it was consistent with the Constitution of the country especially Chapter 4 in its entirety.
Both the two judgments, but more particularly the High Court as the superior court, did not bother to research and to me the judgments were executed perfunctorily, if I may employ the term.
I would have concluded that a code of conduct being a non-material contract between two (or even several) mutual consenting parties with each fully recognising the inherent fundamental rights of the other, the court would have taken full cognisance of the learner’s right to education as enshrined in the national constitution (section 75(2)).
Private and non-governmental schools are at the forefront of violating the Constitution, with impunity.
Section 27 of the Constitution is clear: “The State must take all practical measures to promote free and compulsory basic education for learners and higher and tertiary education.”
The courts concluded, apparently without qualms, that by merely appending his signature to the foot of the code of conduct the youngster had divested himself of all his fundamental human rights. That was the two tiers of justice ratio decidendi. They did not query as to the spirit and intent of the code of conduct or its constitutionality.
The courts were too rigid and seemed in this case to be irretrievably lost in the arid jungle of legalistic formalism. The problem in Zimbabwe is simply that society generally seems stiffy apprehensive to critique the judiciary and the courts.
I follow with keen interest the legal system in South Africa. It is interesting to note how progressive they go about interpreting the law. Those of us who have read former South African Chief Justice Pius Langa’s judgment on a case similar to this one will concur with me that we as a nation are too far behind. Our courts in particular render our freedom meaningless to say the least.
Our courts in this case trusted the gavel rather than an educated interpretation of the law in particular once again as enshrined in Section 56 of the Constitution. What is it that the particular school abhorred about the sporting of a nurtured beard within the school precincts to the extent of its prohibition by a code of conduct? As referred to above, Justice Pius Langa made a moving and profound expose of how and to what level and extent must majority rule and freedom be celebrated by South Africans.
You see a good many South African judges studied and qualified as lawyers while in prison or on Robben Island, hence they have a clear and unimpaired understanding of what freedom and human rights mean to all South Africans without exception.
The education system in Zimbabwe still has a residuum of racist schools even though they are run by blacks.
Martin Stobart, Lupane