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Section 9(3) of the Constitution prohibits unfair discrimination against anyone. This article aims to unpack the most recent judgment handed down by the Constitutional Court (CC) on 19 July 2022 relating to unfair allocation of policing resources in South Africa (SA), thus resulting in unfair discrimination. The article further aims to show that systematic discrimination has seen less allocation of police resources among poorer communities in the settlement of Khayelitsha in Cape Town. Generally, SA is ranked as one of the most violent societies. Murder, robbery, rape, femicide, and domestic violence occurs at alarming levels. Cities such as Cape Town rank among the 50 most violent cities in the world with the likes of some Latin and Central American cities being countries that are not in any form of civil war or civil unrest (Nicole McCain ‘Cape Town ranks top in SA as one of 50 most violent cities in the world’ (www.news24.com, accessed 5-12-2022)). Although the application brought before the courts focussed on lack of policing resources in Cape Town, it is worth pointing out that this judgment also fits into the reality of the situation across SA. The case discussed is Social Justice Coalition and Others v Minister of Police and Others 2022 (10) BCLR 1267 (CC).
The build-up to the case emanated from the Safety and Justice Campaign launched in 2003 by the Treatment Action Campaign (TAC) to end the rise in violent crime around the townships in Cape Town. This campaign was also motivated by the rise in murders of TAC activists, which resulted in poor investigation and prosecution. The TAC, Social Justice Coalition (SJC) and Equal Education (EE) launched numerous demonstrations against the continuous failures by the Khayelitsha police to launch effective investigations. As a result, a formal complaint was lodged in 2011 with the Premier of the Western Cape Province by both the SJC and EE. This resulted in the launch of the Khayelitsha Commission of Inquiry. The Commission of Inquiry spent 37 days receiving testimonies from members of the community deeply affected by crime, members of the South African Police Service (SAPS), and people with expertise on policing. Expert evidence from the report showed that crime was under-reported in Khayelitsha and three areas in Khayelitsha had high levels of murder. This investigation was based on analysing the allocation of police resources in reference to the population and crime. The commission released its findings in 2014 indicating that SAPS allocation of police resources was ‘systematically biased against poor, black communities, resulting in the under staffing of police stations which serve the poorest areas in Cape Town’.
After releasing these findings, the SJC and EE sought to engage with SAPS, the Minister of Police, and the national commissioner on the way forward in implementing the recommendations of the Commission of Inquiry. But this engagement fell on deaf ears, as SAPS and the Minister of Police appeared disinterested.
It was for this reason that the applicants approached the Equality Court to seek a declaration in 2016 that the allocation of police resources in the Western Cape unfairly discriminated against black and poor people. The equality court, using the Commission’s report and findings and the experts’ evidence, confirmed ‘that the unequal distribution of resources led to the insufficient allocation of resources to Khayelitsha Police Stations’. The equality court further emphasised that crimes in Khayelitsha were under-reported. The high incidence of poverty in Khayelitsha fell within the meaning of poverty, as such the following elements were listed to:
‘(a) cause or perpetuate systemic disadvantage;
(b) undermine human dignity;
(c) adversely affect the equal enjoyments of a person’s rights and freedoms in a serious manner that is comparable to discrimination on any of the prohibited grounds.’
The Equality Court concluded that affluent residential areas, which white people dominate had a higher police station ration compared to the poorer areas were black people mostly resided. But the Equality Court declined to grant any declaratory order for allocation of resources on the grounds that the unfair discrimination challenged was based on race and poverty and not gender. In other words, the equality court, postponed on the remedy and as result of such postponement the applicants were forced to approach the CC in April 2021 after refusal or delay by the Equality Court to grant this remedy.
The applicants sought a declaratory order which the Equality Court refused to grant a remedy in the CC. Two of the issues dealt with by the CC of relevance to this case are –
On the first issue, the court considered that there had been a ‘constructive’ refusal by the Equality Court to grant a remedy. Therefore, this was the appropriate means of ensuring that the CC gave an order. The court relied heavily on the decision of Minister of Health and Another v New Clicks SA (Pty) Ltd and Others (Treatment Action Campaign and Innovative Medicines SA as Amici Curiae) 2006 (1) BCLR 1 (CC) a point of reference on the basis that applicants, in this case, had been refused an order in the High Court and, therefore, sought an order in the Constitutional Court. In this instance, the court held that: ‘An unreasonable delay in dealing with an application for leave to appeal interferes with a litigant’s constitutional right to have access to court.’
The bulk of the address by the court dealt with the right of access to court, fair hearing and how such right must be protected without any undue delay. This also includes the constitutional obligation to deliver judgment without undue delay, in terms of ss 8(1) and 237 of the Constitution. Interpreting s 39(2) in the Bill of Rights is important because it must be done in an open and democratic society based on human dignity. This ensures that a matter is dealt with impartiality. The court also confirmed the case of S v Basson 2005 (1) SA 171 (CC), where the court refused the right to grant an appeal because the law did not provide for it. Furthermore, the court referred to the case of Oosthuizen v Road Accident Fund 2011 (6) SA 31 (SCA) where it was held that the inherent power to grant an order was only possible where the court had jurisdiction, but is faced with procedures, which do not have solutions to deal with the problem at hand. Despite this importance emphasised by the court that it would be unjust to have a delay over the outcome in the Equality Court being enforced by the CC, it had no power to make such a declaratory order. The courts justification for such refusal to grant this declaratory order was based on the fact that this would jeopardise the relationship between the courts because in this instance there was no indication that integrity and independence of the judiciary were being compromised.
Moving on to the remedy of case, the court emphasised that deciding on a suitable remedy was the outstanding issue in this litigation. Such remedy had to be done in an expeditious manner. The court considered that when the matter was before the Equality Court, it was required that the respondent came up with a remedial plan, such remedial plan should have dealt with unfair discrimination that the Equality Court found. Furthermore, such a remedy must have acknowledged the inputs of the expert. This remedy required deliberation, such as an equitable outcome that it be referred to the Equality Court for determination. The court gave the Equality Court 90 days to come up with a remedy considering the experts’ written submissions.
This case before the CC presents a missed opportunity to investigate the reality of the ever-increasing crime statistics as a serious cause of concern in Khayelitsha. As can be seen from the above discussion, it is felt the court dwelt too much on justifying why it was not the responsible forum to give a declaratory order. One of the reasons as can be seen repeatedly from the judgment was the judicial independence was not any form of compromise and, as such, the law did not provide any authority in the circumstance for the CC to provide any declaratory order. In the year 2022 alone, people having died mysteriously from shootings, among other members of the community. There is a growing culture of not reporting crimes because of the fear of being targeted by criminals. Judging from their previous experiences of the current police handling their cases, the community knows that the cases may not go anywhere. Like in many urban areas across SA, it is not so uncommon that in places, such as Khayelitsha, people in the community have resorted to vigilantism despite knowing it is wrong to take the law into their own hands. The national government confirms that between March 2022 and 8 June 2022, reported murders resulting from mass shooting are said to total 26. Exactly two days before the CC delivered its judgment, the Western Cape police reported two incidents of triple and double murders in unknown circumstances that occurred in different parts of Khayelitsha on 17 July 2022. The national government confirms that since September 2020, fatal shootings have amounted to 51 murdered people. The number could be much higher if unreported murder incidents are considered because residents in Khayelitsha have no confidence in the policing system. The recent judgment did not consider the rise in people forming groups that end up fighting among themselves over who is entitled to protecting foreign tuck shops from common robberies. One such incident resulted in the death of six people, which is believed to be an argument among two extortionist gangs fighting over territory.
A failure on the part of the national government to adequately provide police stations 28 years into democracy amounts to unfair discrimination as seen in s 9(3) of the Constitution. It is rather to the prejudice of the residents in parts of Khayelitsha, which are distant to police stations, the court clearly acknowledged the problem but refused to take the stance of making an order. The judgment does not also take into consideration the rise in people living in informal settlements. Police are generally reluctant to come to these places because of poor lighting and narrow roads, fearing risk of their own lives. The only glimmer of hope is the awaited outcome for remedy to be decided and confirmed in the Equality Court as per the CC ruling during this 90-day period, which may also be affected by postponements as is quite common in the justice system. Besides awaiting the outcome of the current remedial order from the Equality Court, the local authorities are responsible for ensuring that the ‘right to the city’ concept is implemented to augment the national sphere of government in promoting and implementing public safety. This could be seen by ensuring that neighbourhood watch committees are fully supported, street lighting is adequately provided, and informal settlements are regularised and upgraded in permanent places. This will reduce the systemic inequalities arising from the past as confirmed by both the inequality court and constitutional courts.
Considering this significant judgment, only time will tell if the respondents come up with a remedial plan that the Equality Court will have to confirm before the end of the 90 days. Only hope can be anticipated in the circumstances where shockingly high crime levels go unreported and poorly investigated because of overburdened stations in Khayelitsha. This article has aimed to show that the problem needs an urgent solution to make public safety a guaranteed reality in line with the prevention of unfair discrimination as per s 9(3) of the Constitution.
Hoitsimolimo Mutlokwa LLB (NWU) LLM (NWU) is a PhD candidate at the Graduate School of Social Sciences, School of Law, Koç University in Istanbul, Turkey.
This article was first published in De Rebus in 2023 (Jan/Feb) DR 21.
