CAPE TOWN – The legal battle between Police Minister Bheki Cele and the Social Justice Coalition (SJC) over the Khayelitsha community’s demand for more policing resources, could be a step a closer resolution.
This as the Constitutional Court on Thursday heard arguments for direct leave to appeal against the alleged constructive refusal by the Equality Court to grant a remedy to its declaratory order of December 2018.
The court in its declaratory order held that the system employed by the South African Police Service (SAPS) to allocate human resources in the Western Cape unfairly discriminated against black and poor people on the basis of race and poverty.
The Equality Court also found that the system used by SAPS to determine the allocation of resources was unfair discrimination against black and poor people in the province.
However, the court refused to grant the full extent of the national relief sought by the applicants on the grounds that the evidence before it was only sufficient to support the finding relative to the Western Cape.
There was an appeal and a cross appeal filed against the order of the Equality Court by the SAPS against the main order, and by the SJC and other applicants against the refusal to national relief.
The parties attempted to reach an agreement on the appropriate remedy without success and following ongoing delays, the matter led them to the apex court.
The SJC argued that the Equality Court’s “unreasonable delay” in hearing the remedy component of the application amounted to constructive refusal of the relief sought.
“The requirements for a constructive denial of a remedy have been satisfied in light of the delay of over five-and-a-half years since the Equality Court application was launched in March 2016, together with the further delay of almost three years since judgment was delivered on the merits.
“SAPS has not clearly articulated what relief they believe the Equality Court, or this court, should grant to cure the ongoing unfair discrimination against the residents of the Western Cape.
“For the very first time, when it answered this application, SAPS has put up evidence showing that it is, in fact, taking steps to remedy the unfair discrimination in the Western Cape and nationally,” lawyers for the SJC argued.
“But this is no reason for the court not to supervise SAPS’s implementation of the process on which it has engaged. The rights at stake and the vulnerability of the people affected by the racially discriminatory allocation of police resources demand a remedy that ensures that the ongoing discrimination is brought to an end.
“If supervisory relief is not granted, this court and the applicants will have no way of knowing how the process of revising the theoretical human resources requirement (THRR) will unfold, or even if the national commissioner will approve the proposed revisions.”
Lawyers for the minister and commissioner argued that there was no basis for a claim of direct access on the question of remedy where the merits have been determined by the Equality Court and the question of remedy is pending before that court.
“There has been no constructive refusal by the Equality Court to grant a remedy. The applicants inexplicably refused the SAPS’s invitation to make a joint approach to Judge President (John) Hlophe to allocate the matter for a hearing on remedy.
“The Equality Court is the appropriate forum to make a remedial order based on the new, material evidence concerning the ongoing revision and implementation of the THRR,” they argued.
“Given the expert evidence in response to SAPS’s previous THRR model and statistics, the current revised models and information will likely elicit similar scrutiny and disputes of an expert opinion nature. The Equality Court is best suited to evaluate that evidence and to resolve any disputes.
“SAPS will be severely prejudiced if this court were to grant a supervisory order based on outdated evidence from 2013/2014 and 2016/2017 that served before the Equality Court. The grant of a remedy in these circumstances is manifestly inconsistent with the constitutional threshold of justice and equity.”
Cape Times