Patson Makhiwa v Minister of Education, Sport & Culture and Others

The applicant, a Rastafarian, sought to enroll his daughter Anele Makhiwa in Form 1 at Bulawayo Adventist Secondary School. The child wore dreadlocked hair as an expression of her Rastafarian religious beliefs. The 2nd and 3rd respondents directed that the child's hair be cut, threatening to interfere with her access to education. The applicant secured a provisional order allowing the child to attend classes. However, the school admission form certified that the child was "a regular member (attender) of the Branch Davidson Seventh Day Adventist (Parklands)" church. In reality, both the applicant and his daughter were Rastafarians, not Seventh Day Adventists. The applicant was aware that the school rules did not permit dreadlocked hair. The respondents raised a point in limine arguing that admission was obtained through fraudulent misrepresentation on a material fact.

• Whether the applicant was entitled to interim relief requiring the school to admit his child despite her dreadlocked hair
• Whether the child's admission to the school was obtained through fraudulent misrepresentation
• Whether misrepresentation on the application form regarding religious affiliation entitled the school to rescind the admission
• Whether the school's refusal to admit a child with dreadlocked hair violated the child's right to education and freedom of religious expression

The application was dismissed with no order as to costs.

A person who obtains admission to a school through material and fraudulent misrepresentation on an application form cannot enforce rights arising from that admission. Where an applicant misrepresents a material fact (such as religious affiliation) on a school application form, the school is entitled to rescind the admission based on the principle established in Boudtich v Peel and Magill 1921 AD 561 that a contract induced by material and fraudulent misrepresentation may be rescinded. The court will not grant relief to enforce rights obtained through deception, even where constitutional rights such as the right to education and religious freedom are invoked.

The court observed that the applicant's suggestion that there was no intention to mislead was "meaningless as the documents speak for themselves." The court also noted that the applicant was clearly aware that disclosure of the child's Rastafarian faith and dreadlocked hair would have resulted in refusal of admission, suggesting knowledge of the deceptive nature of the application. While the court focused on the misrepresentation issue, it implicitly recognized that religious schools may have legitimate policies regarding appearance and religious affiliation, without directly addressing whether such policies might otherwise violate constitutional rights to education and religious freedom in the absence of misrepresentation.

This case illustrates the limits of constitutional rights to education and religious freedom when an applicant seeks to enforce such rights through misrepresentation. It confirms that private schools (particularly religious schools) may enforce admission criteria and that fraudulent misrepresentation on material facts in an application form entitles the institution to rescind admission. The case demonstrates that constitutional rights cannot be enforced through deception, and that the principle of good faith in contractual relations applies to school admission processes. It also highlights the tension between religious freedom and institutional autonomy in the context of faith-based educational institutions in Zimbabwe.