Resumo

CARNELLEY, Marita. The wearing of the Islamic hijab by South African National Defence Force members. Tydskr. geesteswet. [online]. 2021, vol.61, n.1, pp.71-86. ISSN 2224-7912.  http://dx.doi.org/10.17159/2224-7912/2021/v61n1a6.

This article is concerned with the proceedings against a female member of the South African Defence Force (SANDF), Major Isaacs, for wearing her hijab with her SANDF uniform whilst working as a clinical forensic pathologist at 2 Military Hospital in Wynberg, Cape Town. Major Isaacs argues that this is a religious imperative imposed by the Quran on those of the Islamic faith. The uniform regulations of the South African National Defence Force do not make provision for an exception based on the religious beliefs of members. As such, an Islamic member of the SANDF who feels that she is obliged to wear a hijab with her uniform, is currently breaking the prescribed regulations and can be disciplined or even dismissed. This article submits that the lack of a specific and limited religion-based exception to the dress code is unconstitutional in light of the rights of the individual to religious freedom, dignity and equality. The issue deals with the balancing of constitutional rights. On the one side stands the section 200(1) requirementfor a disciplined defence force, confirmed in Minister of Defence v Potsane; Legal Soldier (Pty) Ltd v Minster of Defence 2001 (2) SASV 632 (CC). On the other side stand the individual rights of SANDF members, specifically the right to religious freedom, dignity and equality as contained in the Bill of Rights. Using the limitation clause and the factors contained therein, it is argued that although both sets of rights are important, the nature and extent of the blanket limitation in the dress code is unnecessary as there is no clear link between the limitation and the aim thereof. An exception to the regulations will not impact negatively on the discipline within the SANDF. Inclusion of a limited exception to the uniform rules to include a hijab would be a less restrictive way of achieving the goals without impacting negatively on the rights of members. This discussion is informed by South African judicial precedent, specifically the Constitutional Court decision of MEC for Education: Kwazulu-Natal v Pillay 2008 (1) SA 474 (CC). In a constitutional democracy and a multireligious society, tolerance should be shown to those with a belief system different from the previous historical dominance of Protestant Christianity. The uniform regulations place believers in an unenviable position, namely to be forced to break the rules because of sincerely held religious beliefs. The court furthermore rejected the argument that an exception would lead to a so-called "parade of horribles" and that providing a procedure for considering exceptions would not place an unreasonable burden on the institution. It is further submitted that such an exception would be in line with the accommodation model applicable in the South African interpretation of the separation between church and state. The article further discusses the religious exceptions to military dress code in the US and Canada as possible examples of a more nuanced and rights-based approach. In both these jurisdictions the regulations make specific provision for the wearing of a hijab.

Palavras-chave : South African Defence Force; SANDF; uniform; Islam; hijab; discipline; freedom of religion; dignity; equality; Isaacs.

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