Dress Code and Cultural Expression in Schools

Issue: Can schools use their dress code to deny learners from expressing and enjoying their culture through dress?

Here’s a question from Dali:

“My son recently finished his initiation, which made me very proud as a Xhosa father. We decided that he would wear his makrwala wear for five months to align with another ceremony dedicated to my late father. However, his school is not allowing him or other boys to wear their makrwala wear. It’s confusing to me because Muslim girls at the school are allowed to wear their hijabs, but my son is not allowed to wear his culturally important makrwala wear. The school’s refusal is making me think about taking legal action. Is this discrimination, and do I have legal grounds to challenge the school’s decision?”

From The Legal Desk:

This response may be a bit lengthy as I would like to begin by talking a little about the initiation process so as to contextualise this question for other readers who may not be familiar with the practice.

Thanks for your question, Dali. Firstly, congratulations on the initiation of your son. I am not of the Xhosa tribe myself, but I am acutely aware of the importance of this milestone to a Xhosa boy and his family. You, of course, know everything there is to know about the initiation process. However, I’ll share a brief explanation for other readers who may not be familiar with this tradition.

The AmaXhosa are one of the prominent tribes in South Africa, primarily concentrated in the Eastern Cape and Western Cape provinces. Their age-old initiation tradition, known as “ukoluka”, has been a rite of passage from boyhood to manhood for over a thousand years.¹ This tradition involves boys undergoing circumcision while in seclusion in the bush for weeks being taught about manhood. It is a fascinating and important part of Xhosa culture, which you can read about in more detail online.

After the initiation period, the initiates (amakrwala) receive new gifts, clothes, and sometimes a new name, symbolising a new life.² For up to six months post-initiation, the initiates wear what Dali calls amakrwala wear (pictured above), a stylish attire symbolising their transition to manhood. However, schools often prohibit wearing this attire during school hours. This brings us to Dali’s question: If the wearing of makrwala wear is central to Xhosa culture, and the practising of culture is constitutionally protected, can the school refuse initiates to dress in their makrwala wear at school? Let’s take a look at the legals…

Discrimination, in and of itself, is not unconstitutional. What is unconstitutional is unfair discrimination. Section 9(4) of The Constitution of the Republic of South Africa, 1996 (the Constitution) states that no person may unfairly discriminate directly or indirectly against anyone on one or more grounds listed in section 9(3), which includes culture. The Promotion of Equality and Prevention of Unfair Discrimination Act³ (PEPUDA) was enacted to prevent and prohibit unfair discrimination. Like the Constitution, it notes the prohibited grounds against which one can not be unfairly discriminated against. Culture is one of them.

Discrimination involves causing harm by imposing a burden or denying a positive benefit. It consists of three elements:
a) a direct or indirect act or omission,
b) resulting in harm by imposing a burden or withholding a benefit, and
c) based on a prohibited ground.

Once the complainant proves these three elements, discrimination is established. The burden then shifts to the respondent (in this case, your son’s school) to demonstrate that the discrimination was not unfair. It is unnecessary for you to prove an intention to discriminate; the emphasis lies on the effect or impact of the discriminatory behaviour.

In the context of schools, unintentional discrimination can occur through dress codes. For example, a dress code prohibiting all girls from wearing scarves or hats may inadvertently discriminate against Muslim students, violating their religious freedom. The legal approach in such cases requires the institution to reasonably accommodate the beliefs and practices of those affected. In your situation, reasonable accommodation means that your son’s school must take affirmative measures, possibly incurring additional hardship or expense, to enable him and other initiates to exercise their rights fully, including the right to freedom of belief and culture, equally. The Constitutional Court in MEC for Education, KwaZulu-Natal and Others v Pillay⁴ acknowledged that the community, whether it be the state or a school, must adopt positive measures and, consequently, bear expenses or even hardships to ensure everyone enjoys their rights equally.

As outlined in the Pillay case, determining whether your son’s school is obligated to reasonably accommodate initiates’ desire to wear their makrwala wear in the pursuit of their cultural rights involves two key considerations by the court. First, the court would assess the significance of the practice to the initiates. Second, it would evaluate the hardship that permitting them to wear their makrwala attire would cause the school.

Regarding the importance of the makrwala wear to the initiates, there is unquestionably a vital connection to Xhosa culture. It could be argued that prohibiting initiates from wearing their makrwala wear for extended periods during the school day would undermine the practice, constituting a substantial infringement of their cultural identity.

Concerning the impact on the school of allowing initiates to wear their makwrala wear, the court could find that accommodating the practice would place an undue burden on the school. While I am personally aware of some potential issues that allowing makwrala wear in schools would cause, as a non-Xhosa native, it would be advisable for me to support my opinion with research.

Ngcobo⁵ conducted a study examining the role of the traditional initiation event in shaping masculinities and the educational experiences of initiated Xhosa young men within schools. His study utilised the masculinities theoretical framework. According to his findings, culturally, it is believed that after initiation, Xhosa boys transition into young men and are expected to “behave like men.” Likewise, these young men expect to be “treated like men” and naturally bring these communal and social characteristics and expectations to school.

As a result, a distinct classification of masculinity quickly emerges because initiation confers authority upon young men over other groups (women, uninitiated men, and men who underwent initiation (read: circumcision) in hospitals). This results in a scenario where initiates acquire a dominant status, fostering an “Us vs Them” dynamic between initiates and boys who have not experienced the initiation process. Suddenly, a previously cohesive group of male learners is divided into “men vs boys,” with the “men” refraining from socialising with the boys.

According to Mhlahlo,⁶ Xhosa society acknowledges the following hierarchy of manhood: The graduates (‘amakrwala’) – Young men (‘isifana’) – Middle-aged men (‘udodana’) – Elderly men (‘amaxhego’). Entry into this hierarchy occurs through ulwaluko (initiation). Without initiation, even a man in his 60s is not recognised as a “real man” and is consequently not allowed to associate with older men of his age because he is still perceived as a boy.

By going through the initiation process, young Xhosa men have essentially undergone a noticeable transition from the status of being children to that of being adults. Consequently, the initiated tend to interact with their uninitiated peers as adults do with minors, contributing to instances of initiated individuals bullying their uninitiated counterparts. According to Mhlahlo,⁷ bullying manifests in various forms, including teasing, mocking, pinching, exclusion, tripping up in the corridors, and physical aggression, among other oppressive behaviours.

Lastly, and significantly for young men, as Mhlahlo⁸ elucidates, women often play a substantial role in pressuring young men to undergo initiation by rejecting the idea of forming relationships with uncircumcised boys. Consequently, some young, impressionable school girls become enticed by the appeal of relationships with “real men” and may choose initiates over “boys”. This potentially results in another adversarial ecosystem within the school.

These are but a few of the issues that a school may suddenly have to address to prevent potential disruptions in the learning environment. To mitigate these challenges, schools often choose not to allow newly initiated young men to wear their makrwala wear. Instead, schools strive to maintain a uniform appearance to prevent the formation of exclusive groups. Therefore Dali, in taking this matter to court, you must be mindful of the likelihood that the court would consider weighing the school’s need for order and a uniform environment against the cultural significance of the makrwala wear. In my opinion, it is likely they would rule in the school’s favour. Ultimately, determining the fairness or unfairness of discrimination involves balancing the various interests at stake and making a value judgment. Section 14 of PEPUDA details various factors that can guide this decision-making process.

Consider discussing a comprise with the school. Perhaps the boys could wear only the hats/caps while at school?

Written by Theo Tembo

Mtumane Kungathintelwa njani Ukufa Kwabakhwetha? (2004) Alice: Lovedale Press. ↩︎
Ntombana “Xhosa male initiation and teaching of moral values: An exploration of the role of traditional guardians in teaching the initiates: IKS in other contexts” 2009 Indilinga African Journal of Indigenous Knowledge Systems 8(1) 73-84. ↩︎
4 of 2000. ↩︎
2008 (1) SA 474 (CC). ↩︎
Ngcobo Exploring the schooling experiences of initiated Xhosa young men in a secondary school at Umzimkhulu (Doctoral dissertation, University of KwaZulu-Natal) 2013. ↩︎
Mhlahlo What is manhood?: the significance of traditional circumcision in the Xhosa intitiation ritual (Unpublished masters thesis, University of Stellenbosch) 2009. ↩︎
Ibid. ↩︎
Ibid. ↩︎