By Anees Teladia

With Major Fatima Isaacs due to appear in Military Court today for the purposes of establishing a trial date, it is necessary to highlight the legality of the case against Major Isaacs and the impossible choice she has been commanded to make by the South African National Defence Force (SANDF). Major Isaacs is facing charges for disobeying a lawful command from a superior officer after the said officer instructed her to remove the under-scarf she wears with her uniform. Major Isaacs is a Muslim woman, and as such, believes that her scarf is obligatory upon her.

The case is equally important considering the significance of this month as Women’s Month. Annually, during the month of August in South Africa, women’s rights campaigns are to be intensified and highlighted. With a South African woman now fighting for her constitutional rights to be recognised – by an organ of the state, no less – it is imperative that South African society rallies behind her and all other women facing similar situations.

Lecturer in the Department of Private Law at the University of Cape Town, Fatima Osman spoke to VOC on the legalities in this particular case between the SANDF and Major Isaacs. Osman’s masters thesis, entitled ‘Freedom of Religion and the Headscarf: A Perspective From International and Comparative Constitutional Law’, analysed whether legislative bans on the wearing of a headscarf breach the right to freedom of religion – as that right is universally understood.

“On the face of it, she’s defied the command of a commanding officer – which is problematic from a disciplinary point of view. But if there has been engagement on the matter and it hasn’t been successful, then there’s the issue of a breach of her constitutional rights and it’s unfair discrimination,” said Osman.

“Regardless of what happens in this particular case, the dress code is problematic and the failure to accommodate the rights of Muslim women to wear a headscarf infringes on their religious freedom. ..The South African constitution applies to all organs of the state – including the military.”

Osman says that given the significance of the hijab in Islam, it will be protected under the right to freedom of religion.

She further explained that although the headscarf, or the hijab in its entirety, will enjoy protection from the South African constitution under the right to freedom of religion, the classifying of the practice under cultural freedom would not have weakened the case in any significant manner.

While the two rights afforded to South African citizens – freedom of religion and freedom of culture – are distinct, they have had their overlap with one another acknowledged by the South African Constitutional Court.

Addressing the statement released by the SANDF regarding Major Isaacs case and what the SANDF referred to as “

Osman has questioned the SANDF’s definition of “military culture”. In a statement shortly after the dispute arose in June, the SANDF said while it respects the Constitution of the country, it is bound by a military culture 

“In the SANDF, there are many other religious groups, who practise their religion within the confines of the military culture, observing its dictates. As the defence force, we have one culture, which is a military culture. So all members are expected to adhere to the military culture and code,” read the statement.

Osman was puzzled at how a headscarf would be contrary to any such a culture – presuming the focus would be on uniformity and discipline.

“Culture is such a vague and ambiguous notion. There’s no set parameter to what a culture is – we often just define it as a group of people who have shared characteristics, such as: a shared language, religion, values and beliefs…But what is military culture? I haven’t seen any definition from the SANDF as to that culture. Is it a belief in service to your country? Is it loyalty? Is it patriotism? Is it a love for your country? There has been no set definition by the SANDF and it’s really not apparent how the headscarf is incompatible with that culture,” said Osman.

“If you define culture with reference to Judeo-Christian beliefs, then the headscarf is incompatible with the [military] culture – and that’s what it looks like the SANDF is doing.”

“In a society like South Africa’s, you’d assume that the military culture would reflect the beliefs and values of all citizens – including Muslims. There’s nothing clear that makes a headscarf incompatible with military culture, especially if that culture is not defined.”

“The South African military might believe that if they allow the headscarf it will undermine uniformity and discipline – which is a common argument. It’s undoubtedly a legitimate goal [to have uniformity and discipline]. However, if this is the case, they haven’t been appropriately advised that the headscarf doesn’t undermine discipline and uniformity. It could easily be issued and have the manner in which it is worn, prescribed…You’ve then still achieved the goal.

It’s been really surprising that the SANDF has dug its heels in here and that they’ve refused to compromise, seeking to rigidly enforce a law that blatantly excludes such a significant portion of our population.”

Furthermore, the common arguments seen in mainstream and on social media objecting to the hijab in the military, were addressed by Osman.

“The common argument you see in the media all the time is that if you allow the headscarf it’s the start of a slippery slope – everyone will claim an exemption on a religious belief and it’ll be open to abuse.

The problem is that the Constitutional Court has addressed this ‘slippery slope’ argument in the Pillay case. The court said that the fear of abuse doesn’t undermine the rights of individuals who have sincere beliefs…The South African Constitutional Court addressed the argument, ‘if we allow this we have to allow everything’ by saying that if we allow a practice and that encourages others to celebrate their religions, that should then be celebrated and not feared.”

“Allowing one practice doesn’t bind you to allow every practice going forward,” said Osman.

The impact the entire case has on Muslim women in South African society cannot be underestimated. The SANDF has essentially demanded that Major Isaacs choose between her religion and her job.

“What has to be considered is the impact these bans have on Muslim women. If you believe the headscarf is a mandatory requirement, then you have to choose between adhering to your religious beliefs and losing your job, or forsaking your religious beliefs and keeping your job,” said Osman.

“Religion is central to your identity – it’s an impossible burden [to be forced to choose between religious beliefs and maintaining your employment] and the state generally steers away from these burdens.”

“I can’t see any court upholding a headscarf ban – not when you can very easily prescribe the manner in which it is worn and thereby ensure uniformity. I similarly cannot find any justification they could offer for the dress code that could withstand constitutional scrutiny…it makes no sense that an organ of the state, especially the South African state that has been good about accommodating religious practices, has refused to do so in this case.”

Osman added that she is puzzled by the SANDF’s delay in issuing the “interim relief” measure which was announced at a joint press conference with the Muslim Judicial Council of South Africa and Major Isaacs’ advisory team. The “interim relief” is to allow Muslim women serving in the military to wear an underscarf, as Major Isaacs currently does, until formal amendments to the dress code and policy are made.

“When someone considers something mandatory, and you force them to choose between their beliefs and their jobs, you place them in an impossible situation. It’s not what the South African constitution envisages and it’s not what the Constitutional Court says our society should look like,” said Osman.

“This exemplifies the difficulties Muslim women face in having their practices accommodated.”

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