In re Chikweche
|Publisher||Zimbabwe: Supreme Court|
|Publication Date||27 March 1995|
|Citation / Document Symbol||Case No CA 626/93|
|Reference||1995 (4) SA 284 (ZC)|
|Cite as||In re Chikweche, Case No CA 626/93, Zimbabwe: Supreme Court, 27 March 1995, available at: http://www.refworld.org/docid/3ae6b6914.html [accessed 28 July 2014]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
IN RE CHIKWECHE 1995 (4) SA 284 (ZC)
ZIMBABWE SUPREME COURT
GUBBAY CJ, McNALLY JA and EBRAHIM JA
1995 March 13, 27
Case No CA 626/93
Attorney - Admission and enrolment - Registration as legal practitioner in terms of Legal Practitioners Act 15 of 1981 (Z) and applicable regulations - Requirement of s 5(1)(f) of Act that applicant be 'a fit and proper person'- Applicant a Rastafarian and wearing his hair in 'dreadlocks' as part of his religious and philosophical world outlook - Judge of High Court considering applicant to be 'unkempt' and not properly 'dressed' and accordingly not permitting him to take oath of loyalty and office in terms of s 63 of Act - Rastafarianism a religion in wide and non-technical sense - Wearing of dreadlocks falling within protection of freedom of religion afforded by s 19(1) of Constitution of Zimbabwe - Would also fall within protection of freedom of conscience referred to in s 19(1) - If refusal of application for registration based on propriety of applicant's dress and appearance, such not something 'contained in' or done 'under the authority of a law as intended in s 19(5) of Constitution and limitation contained therein accordingly inapplicable - Possible that application refused on ground that wearing dreadlocks revealed that applicant not 'a fit and proper person' as required by s 5(1)(f) of Legal Practitioners Act - Such requirement, however, relating to applicant's personal qualities of honesty and reliability and not his appearance - Finding that applicant not 'a fit and proper person' factually incorrect - Section 5(1)(f) of Constitution not allowing refusal of applicant's application.
Constitutional law - Human rights - Right of freedom of religion in terms of s 19(1) in chap III of Constitution of Zimbabwe - Rastafarianism a religion in wide and non-technical sense, and practice thereof protected by s 19(1) - Applicant applying for registration as legal practitioner in terms of Legal Practitioners Act 15 of 1981 (Z) and applicable regulations Z- Requirement of s 5(1)(f) of Act that 1995  SA p285
applicant be 'a fit and proper person' - Applicant a Rastafarian and wearing his hair in 'dreadlocks' as part of his religious and philosophical world outlook - Judge of High Court considering applicant to be 'unkempt' and not properly 'dressed' and accordingly not permitting him to take oath of loyalty and office in terms of s 63 of Act - Wearing of dreadlocks falling within protection of freedom of religion afforded by s 19(1) of Constitution of Zimbabwe - Would also fall within protection of freedom of conscience referred to in s 19(1) - If refusal of application for registration based on propriety of applicant's dress and appearance, such not something 'contained in' or done 'under the authority of a law as intended in s 19(5) of Constitution and limitation contained therein accordingly inapplicable - Possible that application refused on ground that wearing dreadlocks revealed that applicant not 'a fit and proper person' as required by s 5(1)(f) of Legal Practitioners Act - Such requirement, however, relating to applicant's personal qualities of honesty and reliability and not his appearance - Finding that applicant not 'a fit and proper person' factually incorrect - Section 5(1)(f) of Constitution not allowing refusal of applicant's application.
The applicant had applied for his registration as a legal practitioner in terms of the Legal Practitioners Act 15 of 1981 (Z). It appeared that the applicant possessed all the necessary qualifications required by the appropriate regulations and that he had satisfied the additional requirements laid down in s 5(1) of the Act. When the applicant appeared in Court on the day of the application, the presiding Judge considered him to be 'unkempt' and not properly 'dressed' as the applicant, a Rastafarian, habitually wore his hair in the style known as 'dreadlocks'. The presiding Judge accordingly declined to permit the applicant to take the oath of loyalty and of office in terms of s 63 of the Act as a preliminary to registration. Flowing from such refusal, the applicant's counsel successfully sought the referral of the matter to the Supreme Court in terms of s 24(2) of the Constitution of Zimbabwe. In the proceedings before the Supreme Court the applicant deposed that the wearing of dreadlocks was a symbolic expression of his religious and philosophical world outlook which was inspired by Rastafarianism.
Held, on the facts (McNally JA dubitante), that the status of Rastafarianism as a religion in the wide and non-technical sense had to be accepted and the applicant's manifestation of his religion by the wearing of dreadlocks fell within the protection afforded by s 19(1) of the Constitution. (At 290G.)
Held, further, in any event, that the reference in s 19(1) of the Constitution to freedom of conscience was intended to encompass and protect systems of belief which were not centred on a deity or were not religiously motivated, but were founded on personal morality. (At 290H-1.)
Held, further, that, if it was correct that the refusal of the application was based on the rule of practice concerning the propriety of a practitioner's dress and appearance, then what was done was not 'contained in' or 'under the authority of' any law as intended in the limitation-provisions of s 19(5) of the Constitution, thereby making the expressed limitations (on the protection afforded by s 19(1)) inapplicable. (At 291 G.)
Held, further, however, accepting the possibility that the application was refused because the presiding Judge considered that the wearing of dreadlocks revealed that the applicant was not 'a fit and proper person' to be registered, as required by s 5(1)(f) of the Legal Practitioners Act, that the words 'a fit and proper person' alluded to the personal qualities of an applicant - that he was a person of honesty and reliability: the lawmaker did not intend by use of the phrase to embrace the physical characteristics of an applicant; for appearance bore no rational connection with the object of maintaining the integrity and honour of the profession. (At 291H.)
1995  SA p286
Held, further, that the finding of the presiding Judge that the applicant was not a fit and proper person was factually incorrect: it necessarily followed that the act of refusing to permit the applicant to take the requisite oaths could not be done under the authority of s 5(1)(f) of the Legal Practitioners Act; the authority of that provision was misconceived, and did not allow what had been done. (At 292C-D.)
Held, accordingly, that in terms of s 24(4) of the Constitution an order should be made in terms of s 63 of the Legal Practitioners Act directing the High Court to permit the applicant to take his oaths of loyalty and of office specified in Schedule I to the Constitution. (At 292E-F.)
The Court referred to the following decided cases in its judgment:
Ex parte Aarons (Law Society, Transvaal, Intervening) 1985 (3) SA 286 (T)
Crown Suppliers (Property Services Agency) v Dawkins  1 CR 517 (CA)
Dawkins v Crown Suppliers (Property Services Agency)  1 CR 5 83 (Emp AT)
Kaplan v Incorporated Law Society, Transvaal 1981 (2) SA 762 (T)
Law Society, Transvaal v Behrman 1981 (4) SA 538 (A)
Morgentaler and Others v R (19 8 3) 31 CRR I
People v Lewis 510 NYS 2d 73 (New York CA, 1986)
R v Big M Drug Mart Ltd (1985) 13 CRR 64 (SCC) ((1985) 18 DLR (4th) 321 (1985) 1 SCR 295; 18 CCC (3d) 385;  LRC (Const) 322)
Reed v Faulkner 842 F 2d 960 (7th Cir 1988)
S v Mkhise; S v Mosia; S v Jones; S v Le Roux 1988 (2) SA 868 (A)
Torasco v Watkins 367 US 488 (1961)
United States v Ballard 322 US 78 (1944).
Referral by the High Court of Zimbabwe to the Supreme Court of Zimbabwe of a constitutional question for determination in terms of s 24(2) of the Constitution of Zimbabwe. The nature of the question for determination and the facts appear from the judgment of Gubbay CJ.
T Biti for the applicant.
E T Binali for the Attomey-General.
Cur adv vult.
Postea (March 27).
Gubbay CJ: The applicant is a citizen of Zimbabwe and a devout follower of the Rastafari movement, On 17 November 1992 he lodged an application in the High Court for registration as a legal practitioner, notary public and conveyancer. He possessed the necessary qualifications prescribed in the Legal Practitioners (General) Regulations, 1983 (Z), as read with the Legal Practitioners (Council for Legal Education) (Transitional Provisions) (No 2) Rules, 1992 (Z), and satisfied the additional requirements laid down in s 5(1) of the Legal Practitioners Act 15 of 1981 (Z). Accompanying the application was the affidavit of a Mr Joel Zowa, a registered legal practitioner and lecturer in the Faculty of Law at the University of Zimbabwe. It stated that the applicant was known personally to him and considered to be a fit and proper person to be registered. The Law Society also notified that it did not oppose the application. That body is recognised as the guardian of 'the prestige, status and dignity of the profession'. See Kaplan v Incorporated Law Society, Transvaal 1981 (2) SA 762 (T) at 781 C. On the face of it, there was no impediment to the applicant's admission as a legal practitioner, notary public and conveyancer.
However, when the applicant appeared in person before the High Court on 29 July 1993, the learned Judge presiding considered him to be unkempt' and not properly 'dressed'. The deep felt objection concerned the applicant's hair which, as a Rastafarian, he wore habitually in the style commonly known as 'dreadlocks'. In consequence the learned Judge declined to permit the applicant to take the oath of loyalty and of office, in terms of s 63 of the Legal Practitioners Act, as a preliminary to registration. It is not certain from the cursory judgment delivered whether such refusal was based on the failure of the applicant to show that he was 'a fit and proper person' as required by s 5 (1)(f) of the Legal Practitioners Act, or upon the long-standing rule of practice adopted and enforced by the Courts of this country that members of the legal profession who appear to present cases must be formally dressed, tidy and well groomed. It seems to me that it was this practice that the learned Judge had in mind, for no reference was made, as I would expect it to have been, to a non-acceptance of Mr Zowa's assessment of the applicant as a fit and proper person.
Dismayed at the attitude of the learned Judge, counsel who appeared immediately submitted that the refusal to grant the applicant registration, by reason only of his chosen hairstyle, infringed his right under the Constitution of Zimbabwe to:
(a)freedom of conscience (s 19(1));
(b)freedom of expression (s 20(1)); and
(c)protection from discriminatory treatment (s 23(1)(b)).
Thereupon, the learned Judge complied with the request that the matter be referred to the Supreme Court for determination in accordance with s 24(2) of the Constitution.
The applicant has deposed that the wearing of dreadlocks is a symbolic expression of his religious and philosophical world outlook which is inspired by Rastafarianism. His sincerity is beyond doubt. In order then to determine whether the action taken by the learned Judge infringed any of his constitutional rights, it is necessary to have regard to the history and tenets of Rastafarianism.
This Court was furnished with the affidavit of Professor Horace Campbell, a Rastafarian scholar and author of several books and articles on the Rastafari movement. One of his books, Rasta and Resistance: From Marcus Garvey to Walter Rodney, was also made available. It repays study.
Professor Campbell maintains that the wearing of dreadlocks is a symbolic expression of the Rastafari movement, which embraces the cultural, philosophical and religious aspirations of the African peoples in general and, in particular, the African peoples of the diaspora. He explains that the movement was an expression of resentment against British colonial overrule and the complicity of the Christian Church in the colonial enterprise. It emerged in the context of colonialism in Jamaica, where the African presence always had to find a new mode of expression and self-proclamation. The brutality of slavery and colonial racism led the African majority to seek cultural and religious outlets. When, in 1930, Haile Selassie was crowned Emperor of Ethiopia, the rural Jamaican African population accepted him as their king and later came to venerate him as God. Ethiopia, with its political and religious autonomy and independence in the period of colonialism, was seen as an expression of the freedom and redemption of the African continent and the African peoples.
According to Professor Campbell, the wearing of locks developed as an act of defiance to the colonial conception of beauty and good grooming. It commenced in the nineteen-fifties when the Rastafari saw pictures of the African freedom fighters from Kenya (Mau Mau), which ignited the feelings of solidarity among the Africans in Jamaica. The photographs of Dedan Kimathi, General China and Jomo Kenyatta were taken as positive symbols of African expression and the Rasta carried their hair in locks as a protest against the then current fashion of close-cut hair. The Biblical justification for locks came from the Book of Numbers, chap 6, verse 5. This holds that when the children of Israel became holy:
'All the time of his separation no razor shall pass over his head, until the day be fulfilled of his consecration to the Lord. He shall be holy, and shall let the hair of his head grow.'
Professor Campbell proceeds to recount that in time the wearing of locks gave rise to the idea of dreadlocks. This was an affirmation that the hair of the African was as good as any other hair. The concept of 'Natty Dread' became part of the vocabulary of resistance. He says:
'The symbol of dreadlocks became a lasting sign of black pride. It was a symbol which was to gain international significance after reggae artists took on the physical appearance of the Dreads and exposed the culture of the hills to the saloons of London, Frankfurt and Amsterdam, to the big musical centres of Los Angeles and New York, and ultimately to the Independence Celebration in Zimbabwe.'
And goes on:
'This explosion of the symbols of the Rastafari has met with opposition from the establishment all over the world. It requires a lot of confidence for African persons to wear their hair in locks because there is so much persecution of the Rastafari and dreadlocks, especially among the professional classes.'
What little judicial authority exists fully justifies the claim that the wearing of dreadlocks is a symbolic expression of the religious beliefs of the Rastafari.
The leading case in the United States of America is Reed v Faulkner 842 F 2d 960 (7th Cir 1988). Circuit Judge Posner, who delivered the unanimous opinion of the Court, entertained no doubt that Rastafarianism is a form of religion. After referring with commendation to an article in (1984) 72 Georgetown Law Journal 1605 entitled 'Soul Rebels: The Rastafarians and the Free Exercise Clause', the learned Judge said at 962:
'The Rastafarians are a religious sect that originated among black people in Jamaica but that has adherents among American blacks as well. Its tenets...., most of which are derived by interpretation of passages in the Bible, are that Haile Selassie, the deposed emperor of Ethiopia who died in 1975, is God and that Marcus Garvey (the Pan-African leader of Jamaican extraction) is his Prophet; that Ethiopia is heaven, and Jamaica hell; that the Rastafarians are the reincarnation of the ancient Israelites, and are the chosen people; that men should not shave, cut, or comb their hair (hence the 'dreadlocks', which apparently are the natural result of letting one's hair grow wild); that black people are superior to white people and are destined eventually to rule the earth; that marijuana is a holy herb; and that meat should not be eaten. This assemblage of beliefs will strike most Americans as bizarre, but then most Americans are not Rastafarians, and religious beliefs often strike the non-believer as bizarre. (Ambrose Bierce's aptly named Devil's Dictionary defines "impiety" as "your irreverence toward my deity".) The district Judge assumed that the Rastafarian faith is a bona fide religion for purposes of the First Amendment, and there is no reason to doubt that this is a proper assumption.'
In People v Lewis 5 10 NYS 2d 73 (Court of Appeals of New York, 1986) the plaintiff, a convicted felon, challenged as a violation of his rights under the Federal Constitution's First Amendment the application to him of a prison regulation. It required that male inmates receive an initial haircut and shave for reasons of health and sanitation, as well as to permit the taking of an identification photograph. As an avowed Rastafarian the plaintiff wore his hair in dreadlocks. It was not disputed that he did so because of his genuine religious beliefs. The Full Court held that the regulation infringed on the plaintiffs beliefs, and that the same result could be achieved if the plaintiff were to pull his hair back for the photograph instead of being compelled to cut off his dreadlocks,
The only reported case in England in which Rastafarianism has been debated is that of Crown Suppliers (Property Services Agency) v Dawkins  1 CR 517 (CA). The facts were that Dawkins responded to a newspaper advertisement placed by Crown Suppliers for an experienced driver. He was invited for an interview, in the course of which he was informed that all drivers were expected to have short hair. Dawkins, who was a Rastafarian, wore his hair in dreadlocks. He informed the interviewer that he was unwilling to cut his hair and hence the interview was concluded. Dawkins later appealed to the industrial tribunal for a determination as to whether he had been discriminated against contrary to the Race Relations Act, 1976. He succeeded before the tribunal but lost in a subsequent appeal to the Employment Appeal Tribunal (see  I CR 583). That decision was confirmed by the Court of Appeal on the ground that Rastafarians did not constitute a separate social group, defined by reference to their ethnic origins. It was held that Rastafarians are a religious sect and no more, having a strong cultural tradition and adopting a distinctive form of hairstyle by wearing dreadlocks.
Furthermore, it is of some significance that in British prisons Rastafarians are respected as a religious sect and are permitted to keep their dreadlocks. See Home Office Circular Instruction No 2 of 1983; and, generally, Directory and Guide on Religious Practices in Her Majesty's Prison Service, 1988; Discrimination: The Limits of Law edited by Hepple and Szyszczak at 183.
I should also mention that the Attorney-General's representative, who was entitled to be heard in these proceedings in terms of s 24(6) of the Constitution, readily accepted that 'the applicant's appearance is an expression of his religious tenets'.
This Court is not concerned with the validity or attraction of the Rastafarian faith or beliefs; only with their sincerity. In the words of Justice Douglas in United States v Ballard 322 US 78 (1944) at 86-7:
'Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they be beyond the ken of mortals does not mean that they can be made suspect before the law.'
Much the same definition of freedom of religion was expressed by Dickson CJ in the Canadian case of R v Big M Drug Mart Ltd (1985) 13 CRR 64 (SCC at 97 ((1985) 18 DLR (4th) 321; (1985) 1 SCR 295; 18 CCC (3d) 385;  LRC (Const) 322):
'The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal....'
And at 105:
' (E)very individual (is) free to hold whatever religious beliefs his or her conscience dictates, provided, inter alia, only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own.'
In an examination of the effect of art 25(1) of the Constitution of India, which guarantees the freedom of conscience and religion, Dr J N Pandey, in his work Constitutional Law of India, comments at 197:
'Religion is a matter of faith with individuals or communities and it is not necessarily theistic. A religion has its basis in "a system of beliefs or doctrines which are regarded by those who profess that religion as conclusive to their spiritual well being"; but it will not be correct to say that religion is nothing else but a doctrine of belief. A religion may only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and those forms and observances might extend even to matters of food and dress. Religion is thus essentially a matter of personal faith and belief. Every person has the right not only to entertain such religious belief and ideas as may be approved by his judgment or conscience but also to exhibit his belief and ideas by such overt acts which are sanctioned by his religion.'
Accepting the status of Rastafarianism as a religion in the wide and non-technical sense referred to, I am satisfied that the applicant's manifestation of his religion by the wearing of dreadlocks falls within the protection afforded by s 19(1) of the Constitution which, in material part, reads:
' (N)o person shall be hindered in the enjoyment of his freedom of conscience, that is to say, freedom of thought and of religion... and... to manifest and propagate his religion or belief through worship, teaching, practice and observance.'
In any event, I am of the view that the reference in s 19(1) to freedom of conscience is intended to encompass and protect systems of belief which are not centred on a deity or religiously motivated, but are founded on personal morality. The point was made forcefully by Wilson J in the Canadian case of Morgentaler and Others v R (1988) 31 CRR I at 91, in these terms:
'It seems to me, therefore, that in a free and democratic society "freedom of conscience and religion" should be broadly construed to extend to conscientiously-held beliefs, whether grounded in religion or secular morality. Indeed, as a matter of statutory interpretation, "conscience" and "religion" should not be treated as tautologous if capable of independent, although related, meaning.'
See also Hogg Constitutional Law of Canada 3rd ed at 947.
It is obvious to me that the refusal by the learned Judge to entertain the application placed the applicant in a dilemma. Its effect was to force him to choose between adhering to the precepts of his religion and thereby foregoing the right to practise his profession and appear before the courts of this country, or sacrifice an important edict of his religion in order to achieve that end. A somewhat analogous situation came before the United States Supreme Court in Torcaso v Watkins 367 US 488 (1961). A notary public in Maryland was denied a commission to serve because he would not declare his belief in God as required by a provision of the Constitution of the State of Maryland. The Court held that the provision imposed an invalid test for public office which was violative of freedom of belief and religion.
The conclusion I have reached makes it unnecessary for me to deal with the submissions relating to potential breaches of ss 20(1) and 23(1)(a) of the Declaration of Rights.
The question that remains is whether the ruling of the learned Judge is saved from being held to be a contravention of s 19(1) by the provisions of s 19(5), which reads:
'19(5) Nothing contained in or done under the authority of any law shall be held to be in contravention of ss (1) or (3) to the extent that the law in question makes provision-
(a) in the interests of defence, public safety, public order, public morality or public health;
(b) for the purposes of protecting the rights and freedoms of other persons, including the right to observe and practise any religion or belief without the unsolicited intervention of persons professing any other religion or belief, or
(c) with respect to standards or qualifications to be required in relation to places of education, including any instruction not being religious instruction, given at such places;
except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.'
I have mentioned my impression that the refusal of the application was based on the rule of practice concerning the propriety of a practitioner's dress and appearance. If I am correct in so inferring, then what was done was not 'contained in' or 'under the authority of any law, thereby making the expressed limitations inapplicable.
I am prepared to accept the possibility, however, that the learned Judge considered that the wearing of dreadlocks revealed that the applicant was not 'a fit and proper person' to be registered, as required by s 5(1)(f) of the Legal Practitioners Act.
Construed in context, the words 'a fit and proper person' allude, in my view, to the personal qualities of an applicant - that he is a person of honesty and reliability. See S v Mkhise; S v Mosia; S v Jones; S v Le Roux 1988 (2) SA 868 (A) at 875D. I am not persuaded that the lawmaker intended by use of the phrase to embrace the physical characteristics of an applicant. For appearance bears no rational connection with the object of maintaining the integrity and honour of the profession.
The Appellate Division of South Africa has held that whether an applicant is 'a fit and proper person' for admission as an attorney is a question of fact and is not left to the discretion of the Court hearing the application. See Law Society, Transvaal v Behrman 1981 (4) SA 538 (A) at 555E-557A (overruling, on the point, Kaplan v Incorporated Law Society, Transvaal (supra)); Ex parte Aarons (Law Society, Transvaal, Intervening) 1985 (3) SA 286 (T) at 290A-D. As s 15(1)(a) of the South African Attorneys Act 53 of 1979 (prior to the 1984 amendment) was worded identically to s 5(1)(f) of the Legal Practitioners Act, there is no reason, to my mind, to depart from the interpretation given the provision in the cases cited.
In the light of this judgment, the finding of the learned Judge, that the applicant was not a fit and proper person, was factually incorrect. It necessarily follows that the act of refusing to permit the applicant to take the requisite oaths could not be done under the authority of s 5(1)(f) of the Legal Practitioners Act. The authority of that provision was misconceived. It did not allow of what was done.
Even if it could be contended that the ruling was validly made under the authority of s 5(1)(f), it is clear beyond question that neither the subsection nor the Act as a whole makes provision for any of the matters specified in paras (a), (b) or (c) to s 19(5) of the Constitution.
In the result, and by virtue of the powers vested in the Supreme Court by s 24(4) of the Constitution, I would order as follows:
'In terms of s 63 of the Legal Practitioners Act 15 of 198 1, the High Court is directed to permit Enock Munyaradzi Chikweche to take the oaths of loyalty and of office specified in Schedule I to the Constitution.'
McNally JA and Ebrahim JA McNally JA: I agree, and would add only this: I have reservations about the classification of Rastafarianism as a religion. But I have no doubt that it is a genuine philosophical and cultural belief, and as such falls under the protection of s 19(1) of the Constitution.
Ebrahim JA: I agree with the views expressed by the learned Chief Justice. There is ample authority which has been cited by him in his judgment in support of the view that Rastafarianism is a religion, and I see no sound reason to hold otherwise. In the result, I agree with the judgment of the Chief Justice in toto.
Applicant's Legal Practitioners: Honey & Blanckenberg. Attorney-General's Legal Practitioners: Civil Division of the Attorney-General's Office.