CHEDA
AJ: The
applicant filed an urgent chamber application seeking a provisional order against
the respondents in the following terms.
“Terms of the final order sought
That you show
cause to this honourable court why a final order should not be made in the
following terms:
1.
There is no lawful basis for the respondent to interfere with the minor child's
right to education based on her dread locked hair that expresses her religious
beliefs.
2.
The verbal communication by 2nd and 3rd respondents
directing that minor's hair be cut is declared to be null and void and of no
legal effect.
3.
The respondents be and are hereby perpetually interdicted from interfering in
any way with the child's access to education on the basis of her dread locked
hair.
4.
2nd and 3rd respondents shall pay the cost of this
application on a legal practitioner and client scale, jointly and severally,
the one paying the other to be absolved.
Interim
relief granted
1.
2nd and 3rd respondents are directed and ordered to
immediately allow Anele Makhiwa to attend form one (1) classes at Bulawayo
Adventist Secondary School.
2.
That the respondents are hereby interdicted from in any way interfering and/or
harassing the minor child Anele Makhiwa for having dreadlocked hair.
I ordered that the application be served
on the respondents and that the parties appear in chambers for the matter to be
heard.
Miss Ncube, for the respondents advised that she had not had enough
time to prepare full opposing papers but wanted to raise a point in limine.
She pointed out that the applicant secured a place for the child in the 2nd
respondent's school fraudulently. Her admission to the school was based
on misinformation. She produced an application form which was used to
apply for a place at the 2nd respondent's school, the relevant part
of which reads as follows:-
“This is to
certify that the above named person is a regular member (attender) of the
Branch Davidson Seventh Day Adventist (Parklands).”
The above is written above a part of the form which says:
“I hereby
promise to obey all rules of Bulawayo Adventist High School and to co-operate
with ALL teachers and any person placed in authority by the School
Administration.”
Another part of the same form calls upon the parent or guardian to make the
following certificate.
“I certify that
to the best of my knowledge the information given on the application form is
correct.”
In his founding affidavit the applicant says he is a Rastafarian and his
daughter is a Rastafarian.
This declaration makes it clear that the application form has false information
about the child. His averment that the school offered her a place fully
aware that she is a Rastafarian is unfounded in view of the information on the
application form.
The applicant says he was advised that the school rules of the respondent do
not allow pupils to have locked hair.
The applicant was applying for a place for his child in a school which is a
Seventh Day Adventist and does not permit dread locked her. The
application form gives false information that the child is a member of the
Seventh Day Adventist Church. Clearly this information was intended to
deceive and mislead the 2nd respondent into accepting the child to
this school. The suggestion by Mr Tsvangirai (for the applicant)
that there was no intention to mislead is meaningless as the documents speak
for themselves.
The applicant was clearly aware that if he had shown on the application form
that the child was a Rastafarian and keeps dread locked hair the child would
not be offered a place at the school since this was not permitted.
Even if the issue of religion was not involved as long as it is shown that the
respondent had accepted the child on the basis of misinformation, of some
material fact, the 2nd respondent was entitled to cancel the child's
acceptance.
In Boudtich v Peel and Magill, 1921 AD, 561 (a case originating
from High Court of Southern Rhodesia) it was held that a person who has been
induced to contract by material and fraudulent misrepresentation of the other
part may either stand by the contract or claim rescission.
See also Glaston House (Pvt) Ltd v Inag (Pvt) Ltd, 1977 (2)
SA 846 and Cloete v Smithfield Hotel (Pvt) Ltd 1955 (2) SA
622 (O).
The applicant's child was declared to be a member of the Seventh Day Adventist
Church when in fact she is a Rastafarian. On that basis alone the
respondent would still be entitled to cancel the admission of the child to its
school.
The application for the provisional order cannot be granted.
I have no papers claiming costs from the respondent but they would have to apply
for costs if they so wish.
The application is dismissed with no order as to costs.
Dube-Tachiona & Tsvangirai,
applicant's legal practitioners
Lazarus & Sarif 2nd and 3rd respondents'
legal practitioners
