Going bald can be a hair-raising experience!
By Jerome Veldsman
Attorney-General v Smith, a decision of the New Zealand Court of Appeal on 1 March 2018, dealt with the question whether a prisoner was entitled to wear a wig (hairpiece).
Smith amassed more than 20 convictions for offences including fraud, possession of a firearm, common assault, attempted arson, cultivating cannabis, making a false statement to police, and theft, before he was sentenced, in 1996, to life imprisonment (with a minimum non-parole period of 13 years) for murder, paedophile offending, aggravated burglary, and kidnapping.
Whilst in prison, he began to lose his hair, despite medical treatment for hair loss. He applied, with success, to the prison authority for permission to possess and wear a wig.
On 6 November 2014 he was temporarily released for three days in the custody of his sister, in anticipation of eventual reintegration into society. Smith used his opportunity, and fled to Rio de Janeiro (with his wig as part of his disguise). However, he was soon arrested and deported, and back in prison in New Zeeland on 29 November 2014.
The prison authority revoked his permission to wear a wig. The entirely bald Smith sued, mainly on the ground that his practice of wearing a wig was an act in exercise of his right to freedom of expression under the New Zealand Bill of Rights Act. That freedom of expression clause is substantially similar to that in the South Africa Constitution, and reads:
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
Smith succeeded in the Court of first instance, but not in the Court of Appeal. The latter Court confirmed freedom of expression includes symbolic (non-verbal) conduct as well as speech. However, not all conduct amounts to expression; it depends on the content and purpose of the conduct:
“It might be difficult to characterise certain day-to-day tasks, like parking a car, as having expressive content. To bring such activity within the protected sphere, the plaintiff would have to show that it was performed to convey a meaning. For example, an unmarried person might, as part of a public protest, park in a zone reserved for spouses of government employees in order to express dissatisfaction or outrage at the chosen method of allocating a limited resource.”
“… we do not consider Mr Smith’s desire to possess and wear a wig [as] conduct conveying or attempting to convey meaning. It is not enough that people may view him differently hirsute as opposed to bald. All activity in the presence of others may provoke a reaction. … A man grows his hair and a moustache over the summer holidays. His workmates notice this on their return to work. No meaningful idea or information is conveyed by these acts alone; no protected expression is involved.“
In a similar case in South Africa, a bald person is likely to succeed, under the freedom of expression clause and/or under the human dignity clause. The bald statement that a man growing his hair does not convey any meaningful idea or information is unconvincing to a South African who remembers the late 1960s.
On 7 May 2018, the Supreme Court of New Zealand (the apex Court) dismissed Smith’s application for leave to appeal.