On 3 February 2022, the Constitutional Court will hear its first case of the year, Social Justice Coalition and Others v Minister of Police and Others CCT 121/21.
The applicants in this matter seek direct leave to appeal to the Constitutional Court against the alleged constructive refusal by the Western Cape High Court sitting as the Equality Court to grant them a remedy under section 21 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (“the Equality Act”). This follows the decision of the Equality Court on 14 December 2018. In its decision the Equality Court declared that the allocation of police human resources in the Western Cape unfairly discriminates against back and poor people based on race and poverty.
Furthermore, the court held that the system/formula employed by the South African Police Service (Saps) to determine the allocation of police human resources, insofar as it had been shown in the Western Cape Province, unfairly discriminates against black and poor people based on race and poverty. The Equality Court did not provide a remedy to its finding of discrimination.
In the Constitutional Court, the applicants are seeking an order that replaces the Equality Court order with one that declares the system employed by the Saps to allocate human resources as unfairly discriminatory against black and poor people based on race and poverty nationally, and not only in the Western Cape Province.
The applicants are seeking the Constitutional Court to compel the minister of police and the national commissioner of police to address this discrimination by reviewing the allocation system within a year of the date of the order with specific considerations provided to be taken into account. Provincially, the applicants are seeking to have the Court compel the provincial commissioner to, within three (3) months from the date of any order, prepare a plan for the reallocation of resources within the Western Cape to address the most serious disparities in the allocation of police human resources in the province.
The Women’s Legal Centre Trust (WLC Trust) joined the matter as an amicus curiae (friend of the court) in the Equality Court and will participate in the Constitutional Court as the fifth respondent when the matter is heard on 3 February 2022. Generally, the WLC’s submissions will seek to provide an overview of how the rights of, and discrimination experienced by, women must play a role in the Court’s determination of the issues.
The WLC Trust’s intervention will support the relief sought by the applicants as well as present the Court – and the State – with an opportunity to be more efficient and more inclusive in addressing the allocation of police resources in areas where women’s safety is constantly at high risk. The South African government has committed itself to addressing violence against women, providing services, and to allocating resources to achieve these commitments through a variety of international obligations, domestic legislation, and government policies and programs.
The WLC Trust will also propose an additional consideration that brings the prevalence of violent crimes committed against women to the forefront of the inquiry, which is, whether sufficient weight is given to the high levels of violent crimes against women in the system used by Saps to determine the allocation of police resources. Most importantly, the WLC Trust hopes to illustrate that in order to achieve transformative and substantive equality in the allocation of police human resources, discrimination on the grounds of race and poverty inextricably includes discrimination on the grounds of gender.
In addition to supporting the relief of the applicants, the WLC Trust will urge the Constitutional Court to include the experiences of women in its consideration of the matter and relief sought. Specifically, the WLC Trust seeks to make submissions on the gendered impact of the inadequate allocation of police human resources and the resultant inefficient policing and rights violations of the constitutionally guaranteed rights of women to be free from violence.
In supporting its submissions, the WLC Trust will seek to adduce additional evidence before the Constitutional Court on the intricate connection between the allocation of human resources by the police, violence against women, and the obligation of the state to protect, promote and respect women’s rights within the context of violence and safety.
The WLC Trust will also aim to challenge the finding of the Western Cape Equality Court not to consider any gender related issues of the case, citing that the unfair discrimination challenged in the proceeding was on the basis of race and poverty, and not gender. In arguing against the finding of the Equality Court, the WLC Trust will submit that this is an incorrect conclusion and will accordingly address the Court on the interconnection between race, poverty, crime and gender in South Africa and the implications of this relationship, resulting in unfair discrimination against women.
The WLC Trust’s intervention emphasises that the Saps and the government of South Africa have committed to prioritising violence against women in its response to ensuring that women’s rights are realised, that women are safe, and that they are not subjected to the levels of violence currently experienced by them in this country. Given this commitment and the constitutional, regional and international obligations on the state, the WLC Trust hopes that the Constitutional Court will acknowledge and reiterate these commitments and include remedial orders to ensure that those commitments are realised.
The matter has been set down for hearing in the Constitutional Court on 3 February 2022.
The WLC papers can be found here:
• Women’s Legal Centre Trust Application CCT121.21 SJC v Min of Police
• WLC SJC Written submissions, List of Authorities, Practice Note 09 12 2021
The Women’s Legal Centre is an African feminist legal centre that advances womxn’s rights and equality using tools such as litigation, advocacy, education, advice, research and training.