FXI Law Clinic Cases

The FXI has contributed to the body of knowledge on freedom of expression in South Africa through cases undertaken by the FXI Law Clinic. The FXI Law Clinic has intervened in over 200 freedom of expression related matters since its inception. 

Brief history of the FXI Law Clinic

The Media Defence Trust was established in 1989 in response to the wave of state action against the media, such as the closure of newspapers and detention of journalists. In its six years of establishment the Media Defence Trust was the sole supporter and defender of independent media and journalists. The Media Defence Trust was incorporated into the FXI in 1994, at the request of its administrators, and became the Defence Fund of the FXI. The Defence Fund was re-launched as the Freedom of Expression Defence Fund in 1997 to reflect the broadening of its role to include all cases involving freedom of expression and access to information. The Freedom of Expression Institute Law Clinic was established in 2005 and is accredited by the Law Society of South Africa.

MEC for Education: Kwazulu-Natal v. Pillay (CCT 51/06) [2007] ZACC 21 (5 Oct. 2007)
Sunali Pillay, a student at Durban Girls' High School and a practicing Hindu, wore a small nose stud to school. Her school concluded that she should not be allowed to wear the stud since it was allegedly disruptive and against the dress code. Thereafter, Pillay brought suit before the Equality Court, alleging unfair discrimination, which violated her cultural and religious rights.

The Equality Court disagreed with Pillay, finding that the school's conduct did not constitute unfair discrimination. On appeal, the High Court overturned the Equality Court's decision, holding that the prohibition on nose students in school was null-and-void as the rule was discriminatory to Hindu/Indian students. The MEC for Education appealed the decision to the Constitutional Court, which upheld the position of the High Court. The Court decided that the rule against nose studs comprised indirect discrimination because it "allowed certain groups of students to express their religion/culture freely while denying that same right to others."

Though the wearing of nose studs was voluntary in the Hindu religion/Tamil culture, both obligatory and voluntary practices qualified for protection under the Equality Act. Schools (and similar institutions) should foster and allow for diversity in this case by permitting nose studs to be worn. Such acceptance would not lead to unnecessary disruption in learning environments as contended by critics.
October 05 2007 By Freedom Of Expression Institute
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