lodge complaint button
commissioners button
programmes button
provinces button
publications button
calendar button
fraud hotline button

Media Advisory: Speech by Commissioner Andre Gaum delivered at SAOU Principals Simposium in Gqeberha on 6 September 2022

Attention: Editors and Reporters

08 September 2022


Since the first democratic elections in South Africa held in 1994, the door towards accessing public schools has been unlocked for all learners in accordance with non-discriminatory principles. The provision of education progressed from serving the interests of a white minority to serving the interests of all South Africans. The rights of learners to equal, non-discriminatory schooling were enshrined in the Constitution of the Republic of South Africa and the South African Schools Act.  

The human rights-based policy of opening admissions to all learners regardless of race, creed, or colour inherently meant a purposeful shift from an environment that was designed to only serve a homogenous portion of the South African demographic, to a proverbial playground of inclusion.

In moving towards this aim, schools have had to become more diverse, encompassing racial, class, gender, religious, linguistic, and physical differences.
Even though ample laws have been developed that protect learners and other role-players from exclusion, marginalisation, and discrimination in schools, litigation, complaints to our office and research have shown that basic education departments, school governing bodies (SGBs), the school leadership, and also learners struggle to build and maintain inclusive educational spaces. This creates sensitivities, which require careful albeit steadfast navigation.

The Commission

The Commission is a state institution established in terms of Chapter 9 of the Constitution of the Republic of South Africa, 1996 (the Constitution) to support constitutional democracy.  It is mandated in terms of section 184 of the Constitution to promote the protection, development, and attainment of human rights, including the rights of children and the right to equality and to monitor and assess the observance of such rights within the Republic of South Africa.

Matters relating to the right to education remain one of the top 3 complaints received by the Commission here within the Eastern Cape Province, and one of the top 6 complaints received nationwide. Complaints relating to Equality, however, continue to constitute the most prominent concern reaching the offices of the Commission. Due to the indivisibility of rights contained in Chapter 2 of the Constitution, complaints relating to the right to education are often linked to the right to equality.

In responding to this prevalence, the Constitution guarantees that 'everyone is equal before the law and has the right to equal protection and benefit of the law.'  Equality, as envisaged by the Constitution, includes the full and equal enjoyment of all rights and freedoms. This is supplemented by the Promotion of Equality and Prevention of

Unfair Discrimination Act, 2000 which prohibits:
•    discrimination that causes or perpetuates systemic disadvantage;
•    undermines human dignity;
•    or adversely affects the equal enjoyment of a person's rights and freedoms in a serious manner.  

Schools are not exempted from the applicability of these principles and laws. Schools are the primary institutions for the realization of the right to education for most learners, and a space where learners are provided to, in fact, fulfil and enjoy most of their human rights and freedoms.  Schools provide a place of learning, social development, and social encounter for children from various ethnicities, religions, and backgrounds.  Simultaneously, schools are correspondingly places where the exercise of authority may render certain individuals vulnerable. In this regard, the principles of basic human rights, especially the right to dignity and the best interests of the child, should be of paramount importance to all schools, teachers, principals, administrators, and school governing bodies.

Many schools, to this day, nevertheless struggle to shake their homogenous DNA and have rather undertaken the approach of assimilation. How would assimilation manifest in a modern South African school in 2022, one might ask? Well, it plays out in expecting that learners who may identify as part of a less dominant or 'minority group,' as the ones who need to change and adapt to "fit in" and access the school. The assimilation approach means that a school does not see itself in need of change to adapt to its diverse and demographically evolving school population. While 'tolerance' is sometimes championed, little effort is made to accommodate the differences of new learners, nor the issues around potential and perhaps anticipated prejudice.

Accommodation of difference & tolerance

In 1998, Justice Albie Sachs, in Prince v President of the Law Society of the Cape of Good Hope, pointed out that the test for tolerance as envisaged by the Bill of Rights "comes not in accepting what is familiar and easily accommodated, but in giving reasonable space to what is 'unusual, bizarre or even threatening". In a 2008 judgment, the Constitutional Court further found that our Constitution requires the community to affirm and reasonably accommodate difference, not merely tolerate it as a last resort.  The Court further noted that: "our Constitution does not tolerate diversity as a necessary evil, but affirms it as one of the primary treasures of our nation." In this judgmett, the late Chief Justice Langa observed that children and South Africans, in general, should be proud of their religion, culture, and heritage.  Justice Langa further noted that conduct by persons in authority over a learner, which causes the child to feel guilty or embarrassed in respect of their religion, not only affects the child's dignity but may also create intolerance within the child for religions different from their own.  Such fears and prejudices become embedded and deep-seated and may affect such a child negatively in the long term.
Justice Langa, therefore, underscored the need to address sensitivities head on, and promote a conducive and diverse learning environment, with the tools already at the disposal of the schools

Obligations of schools

The Commission is of the view that schools consequently have a clear obligation to adopt reasonable measures to avoid painful psychological and sometimes traumatic impacts on minor learners.  In an open and democratic society based on human dignity, equality, and freedom, special pains must be taken by all role-players in the education sector to guarantee these values and rights are protected. It is thus incumbent on principals, educators, School Governing Bodies, and parents to provide leadership in developing a culture of respect for basic rights and values at schools.

In this regard, School Codes of Conduct are important mechanisms through which such a learning environment consonant with constitutional values can be created, and should cater for reasonable accommodations of deviations on, for instance, religious or cultural grounds.  Preferably, in a democratic and open society, School Codes of Conduct should enable the exercise of diversity to the greatest possible extent.  School Codes of Conduct should preferably include provisions that recognize our diverse religious and cultural beliefs and allow for the exercise of all religions, expressions, and cultures. This is because globally religious and cultural intolerance results in widespread violations of basic rights, manifesting in conflict and loss of life.  Unfortunately, children are too often the victims of such conflict. South African schools are microcosms of our broader society. All the unresolved social problems, which plague our society as a whole, appear in our schools. These issues can culminate in explosive confrontations, but they more often manifest in the culture and inherent functioning of our schools.

The Commission considers it most urgent and necessary therefore that tolerance and advancement towards diversity be actively promoted and encouraged in children from a very young age. This can be realized by not only adopting what the Commission endeavors to be diversity and sensitivity programmes for learners, student leaders, parents, and teachers but also through the adoption of best practice and human rights responsive Codes of Conduct.

Van Vuuren et al opines in a 2016 article that one of the most crucial elements in addressing the challenges in countering a default assimilation approach (as I've referred to earlier), is the leadership and management approach of the schools. Leading and managing schools, by those who are present here today, are crucial tasks in schools that are not homogenous but consist of learners presenting individual, as well as group-based differences.

This task might seem challenging at first, however, your leadership in steering a school where diversity is openly acknowledged as something to be cherished and accommodated will not go unrewarded. In promoting inclusivity and diversity, your school may even improve on its outputs. A 2016 study in the US confirmed that diversity in the classroom doesn't only improve learners' social skills, it can also have an impact on academic results as it expands critical thinking skills and encourages academic confidence.  Studies have also shown that the learners from your school may learn better how to navigate adulthood in an increasingly diverse society—a skill that employers value and will benefit them in a multi-racial and cultural environment such as South Africa.

Steven Covey, the author of "Seven Habits of Highly Effective People" also shares that strength is found in our differences, not our similarities. However, we must be able to give practical expression to this output. Schools must be able to move from the theoretical, constitutional, and contextual interpretation, and recognize that research, our courts, as well as our "gut", tell us that diversity in schools is important and required for our learners to excel. How do we navigate and manage this sensitivity practically?

Allow me to provide a few examples:

Does your school allow for gender-neutral clothing, or does it still ascribe to a strictly binary approach to school uniform allowances? In this regard, it is important to accommodate learners of all gender identities, and not merely those you feel comfortable conforming to gender stereotypes. Examples would be not allowing girls to wear short pants, or disallowing students who identify as female, to wear dresses.

Furthermore, does your school police the length of hair of only male students? Or do you police and request that female students also cut their hair to not reach their collar? As you can imagine, it would be archaic to request female learners to not grow their hair. Why does your school then still request the male learners to cut theirs? It is the position of the Commission, which position will be formally shared in an Inquiry Report forthwith, that gender equality means that male learners should not be subjected to arbitrary invasion of their bodily autonomy. By this, the Commission is of the view that if female learners are allowed to grow their hair, then so should the boys
Speaking of the growth of hair, just yesterday it was reported that a Greytown grade 11 learner was threatened with the suspension should he not shave his beard. The learner, who is Muslim and grew his beard for religious reasons, was approached by the principal who explained to the student that if the school allowed him to keep his beard, they would have to allow other religions to follow their traditions as well. This followed a Tribunal Disciplinary Hearing in which the student now faces a seven-day suspension or expulsion should he not shave his beard. The Commission is of the view that this is the exact example Justice Langa referred to: that diversity should not be feared, but rather celebrated. It is inconceivable that a school would venture into violating the basic education rights of a learner, simply because they do not like the length of the natural hair growing from his chin through no provocation of his own. Are we that insecure as educators that a beard can disrupt our teaching? Are we so indoctrinated by militaristic conformity that we fail to see the absurdity behind it all?

Lastly, are your educators intimidated by the Afro hairstyle? Are you of the view that the natural state of African hair may affect your manner of teaching and disrupt the classroom? This is a Eurocentric, racist and outdated position and the Commission invites you to decolonize your position on this, whilst there is still time. You owe it to the growth of the African learners in your school and our democracy to reject this attempt at forced assimilation for negligible reasoning.

So make sure your school's Code of Conduct and facilities comply with basic human rights principles. Does your registration or official forms still ask for "Christian names", or do they only allow for binary categories of guardians and primary care providers? Furthermore, and as Jansen points out, does your school staff reflect a multiracial, cultural and representative group of teachers, with whom learners can see and identify themselves? These are examples and points for actual closer examination when the leadership within a school assesses and navigates sensitivities such as inclusiveness within the boundaries of the school grounds


The Commission values the central role of education in building a democratic, equitable, and just society – a society that is cohesive and diverse. The Commission will however not hesitate to address inconsistencies presented by schools through the powers afforded to it by our mandating legislation. The growing diversity in school populations necessitates readiness on the part of educators in employing diversity-sensitive management strategies in dealing with students. As Jansen also offers, "policy is not practice, and while an impressive architecture exists for democratic education, South Africa has a very long way to go to make ideals concrete and achievable within educational institutions".

In closing, recognize that your school is already full of students and staff with diverse and remarkable backgrounds, abilities, and skills. In leading your schools, therefore, you have to start highlighting and promoting these differences within the parameters of our constitutional democracy.
Your school and your learners will be rewarded for it.

Thank you

Wisani Baloyi – Acting Communications Coordinator Tel: 081 016 8308 This email address is being protected from spambots. You need JavaScript enabled to view it. or Alucia Sekgathume – Media and External Communications Tel: 082 689 2364 This email address is being protected from spambots. You need JavaScript enabled to view it.

About us

Understanding PAIA

The Human Rights Commission is the national institution established to support constitutional democracy. It is committed to promote respect for, observance of and protection of human rights for everyone without fear or favour.

27 Stiemens Street, Braamfontein

011 877 3600 (Switchboard)