CAPE TOWN: 20 July 2022

On 19 July 2022, the Constitutional Court handed down judgment in an application brought by the Social Justice Coalition and others, represented by the Legal Resources Centre, for leave to appeal and direct access to this Court seeking a declaratory order that the Equality Court of South Africa, Western Cape Division, Cape Town (‘Equality Court’) had constructively refused to grant the Social Justice Coalition a remedy after its finding that the formula used by SAPS in the allocation of police services was discriminatory against Black and poor people on the grounds of race and poverty.

The Women’s Legal Centre Trust (WLC Trust) participated in the matter as the Fifth Respondent in the Constitutional Court, after being admitted as amicus curiae in the Equality Court, Western Cape Division. The Equality Court had found in December 2018 that the allocation of police human resources in the Western Cape unfairly discriminates against Black and poor people based on race and poverty. Furthermore, the Equality Court held that the system/formula employed by the South African Police Services, referred to as the “THRR” (Theoretical Human Resource Requirement) 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 following its finding of discrimination. Despite numerous attempts on the part of the Applicants to get the Equality Court to set a date for a hearing to determine remedy, the Equality Court failed to do so. The Applicants therefore approached the Constitutional Court for relief.

Before the Constitutional Court, the WLC Trust made submissions as to why the THRR must consider and give sufficient weight to the nature and extent of violent crimes committed against women in the allocation of equitable police resources. As a feminist organisation it was imperative for us to ensure that a gendered lens is applied to the process of resource allocation because women are the most affected by violence and crime in Black poor and working-class communities.

The WLC Trust sought broader relief that would direct state Respondents, when revising the THRR, to take into consideration the specific resources required by police to address crimes including sexual offences, domestic violence, intimate partner violence and femicide. To address discrimination only based on poverty and race undermines and disregards the pursuit of substantive equality if it ignores gender as an additional ground of discrimination.

Whilst the Constitutional Court in its minority judgment acknowledged that “ending unfair discrimination against communities that have faced the brunt of apartheid inequality for centuries cannot ever be anything but urgent” the WLC Trust had hoped that the apex court would bring the years of continued discrimination and prejudice of these communities, especially women who bare the disproportionate burden of poverty, to an end.

However, the Constitutional Court majority judgment concluded that the Constitutional Court did not have jurisdiction to hear the appeal, and as such did not have the power to enforce the duties of the Equality Court. The Applicants’ appeal and access to the Constitutional Court was denied.

The WLC Trust will continue to support the strategic litigation directions and relief that the Applicants will undertake – with an opportunity to be more efficient and more inclusive in addressing the allocation of equitable 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 continue to 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 system used by the South African Police Services 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.

The WLC Trust remains committed to substantive equality and advancing the rights of women to live in a society that is free from violence.

Please find final judgment here.

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.

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