TO EXEMPT OR NOT TO EXEMPT – SOME LESSONS FOR EDUCATORS AND ADMINISTRATORS

Abstract

Schools are required to reasonably accommodate the cultural and religious rights of their learners. They can depart from these responsibilities if to do so would impose an undue burden on their core activity which is to provide effective education. These
norms require the schools to exercise what can be described as a judicial discretion. This article, by drawing on the judgment of MEC for Education: Kwazulu-Natal v Naveneethum Pillay, seeks to assist schools in the discharge of these responsibilities and ensure that the decisions made by the educators are consistent with the Constitution of South Africa Act 108 of 1996. The law now imposes a wide and demanding discretion upon educators and we suggest guidelines that we hope will assist and structure the exercise of this discretion. We also suggest a draft set of rules which incorporates an exemption process which school governing bodies can adopt to proactively bring their Codes of Conduct in line with the demands of the law.