Can an independent school refuse admission of a learner on the basis of race, gender, culture or religion?

The Constitution prohibits unfair discrimination. In clause 29(3) of the Constitution, it is clear that the only limitation on an independent school’s admissions policy is that no racial discrimination is allowed. This would also include admissions policies that may be judged to be a ‘cover-up’ for racial exclusion. This is drawn from section 9 (3) and (4) of the Bill of Rights on Equality which states that neither the state nor any person may: 

unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or  social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. 

In line with their distinctive mission, many independent schools do practise fair discrimination: e.g. a girls’ only school does not admit boys; the Drakensberg Boys Choir School only admits boys with good singing voices and musical ability. Such distinctions between learners for admission are legitimate.

Unfair discrimination would result if distinctions between learners were being made by a school on grounds that were not fair: e.g. refusing to admit gay and lesbian learners, learners of certain religions into a secular school, or a pregnant girl. If a school is accused of unfair discrimination, the onus is on the school to prove that it is not guilty of unfair discrimination on any of the listed grounds above.