REPUBLIC OF SOUTH AFRICA COMBINED SECOND PERIODIC REPORT UNDER THE AFRICAN CHARTER ON HUMAN AND PEOPLE`S RIGHTS and INITIAL REPORT UNDER THE PROTOCOL TO THE AFRICAN CHARTER ON THE RIGHTS OF WOMEN IN AFRICA held that a school policy that forbids the wearing of a small nose stud, worn as a religious and cultural expression, is discriminatory and unconstitutional. The evidence before the Court showed that the wearing of a nose stud was a voluntary practice that formed part of the learner’s South Indian Tamil Hindu culture, which was part of her Hindu religion. The school and its policy had therefore interfered with her right to religion and culture. As that burden was not imposed on others, the school’s interference amounted to discrimination against her. 22. In Bhe v Magistrate, Khayelitsha11 the Constitutional Court declared unconstitutional and invalid the African customary rule of male primogeniture which only allows an oldest male descendant or relative to succeed the estate of a deceased man. Other cases of note include Minister of Finance v Van Heerden12 which dealt with discrimination within the area of pension fund benefits. The Court held that the Constitution recognises the incontrovertible fact that all are not equal in our country. If legal rules and policies deny this reality, it will simply lead to an entrenchment of existing inequalities: “The jurisprudence of this Court makes plain that the proper reach of the equality right must be determined by reference to our history and the underlying values of the Constitution.13 As we have seen a major constitutional object is the creation of a non-racial and non-sexist egalitarian society underpinned by human dignity, the rule of law, a democratic ethos and human rights.14 From there emerges a conception of equality that goes beyond mere formal equality and mere non-discrimination which requires identical treatment, whatever the starting point or impact”15 23. In the case of Bato Star Fishing (Pty) Ltd v The Minister of Environmental Affairs and Tourism16 Ngcobo J observed that: “In this fundamental way, our Constitution differs from other constitutions which assume that all are equal and in so doing simply entrench existing inequalities. Our Constitution recognises that decades of systematic racial discrimination entrenched by the apartheid legal order cannot be eliminated without positive action being taken to achieve that result. We are required to do more than that. The effects of discrimination may continue indefinitely unless there is a commitment to end it.”17 24. In Minister of Home Affairs v Fourie Sachs J held that “A democratic, universalistic, caring and aspirationally egalitarian society embraces everyone and accepts people for who they are. To penalise people for being who and what they are is profoundly disrespectful of the human personality and violatory of equality. Equality means 11 2005 (1) SA 563 (CC) 2004 (11) BCLR 1125 (CC) 13 Brink v Kitshoff NO 1996 (4) SA 197 (CC); 1996 (6) BCLR 752 (CC) at para 40; Hugo above n 26 at para 41; Prinsloo v Van der Linde and Another 1997 (3) SA 1012 (CC); 1997 (6) BCLR 759 (CC) at para 31; Pretoria City Council v Walker 1998 (2) SA 363 (CC); 1998 (3) BCLR 257 (CC) at para 26; Satchwell above n 26 at para 17. 12 14 See, for example, sections 1(a), 7(1) and 39(1)(a). Para 26. 16 2004 (7) BCLR 687 (CC). 17 Para 74 15 13