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[2018] ZAWCHC 181
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Social Justice Coalition and Others v Minister of Police and Others (EC03/2016) [2018] ZAWCHC 181; 2019 (4) SA 82 (WCC) (14 December 2018)
IN
THE EQUALITY COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: EC03/2016
In
the application of:
SOCIAL
JUSTICE
COALITION First
Applicant
EQUAL
EDUCATION Second
Applicant
NYANGA
COMMUNITY POLICING
FORUM Third
Applicant
and
MINISTER
OF
POLICE First
Respondent
NATIONAL
COMMISSIONER OF POLICE Second
Respondent
WESTERN
CAPE POLICE COMMISSIONER Third
Respondent
MINISTER
FOR COMMUNITY SAFETY, WESTERN CAPE Fourth
Respondent
and
WOMEN'S
LEGAL CENTRE
TRUST Amicus
Curiae
CORAM
:
DOI.AMO et BOQWANA JJ
JUDGMENT
DELIVERED ON 14 DECEMBER 2018
DOLAMO,
J
INTRODUCTION
[1]
Part of the Preamble to the Promotion of Equality and Prevention of
Unfair Discrimination Act
[1]
('the Act' or 'Equality Act') states that
'the
consolidation of democracy in our country requires the eradication of
social and economic inequalities, especially those that
are systemic
in nature which were generated in our history by colonialism,
apartheid and patriarchy, and which brought pain and
suffering to the
great majority
of
our
people.
'
[2]
[2]
The applicants, intent on using the provisions of this Act to bring
about social change in their community, brought this application
in
the Equality Court for an order in the following terms:
'Declaring
1.
Declaring that the allocation of police human resources in the
Western Cape unfairly discriminates against Black and poor people
on
the basis of race and poverty.
2.
Declaring that the system employed by the South African Police
Service to determine the a/location of police human resources
unfairly
discriminates against Black and poor people on the basis of
race and poverty.
3.
Declaring that
section 12(3)
of the
South African Police
Service Act No 68 of 1995
grants Provincial Commissioners the power
to determine the distribution of police resources between stations
within their province,
including the distribution of permanent posts
under the fixed establishment and not merely on a temporary basis.
Western
Cape Relief
4.
Compelling the Provincial Commissioner to:
4.1
Within three (3) months from the date of any order,
prepare a plan (Provincial 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; and
4.2
Submit the Provincial Plan to the court and advertise
it for public comment in accordance with the directions to be issued
by this
Court.
5.
The
applicants and any other interested person may, within (1) month of
the date on which the Provincial Plan is submitted, make
submissions
to the Court on the contents of the Provincial Plan.
6.
After hearing argument, the Court will either:
6.1
Approve the Provincial Plan;
6.2
Approve an amended version of the Plan;
or
6.3
Call for the Provincial Commissioner
to
file an amended
Plan and issue direction for the further conduct
of
the
matter.
7.
Once the Provincial Plan is approved by the Court, the
Provincial Commissioner shall:
7.1
Implement the Provincial Plan within six (6) months
of
the
date on which it is approved by the Court.
7.2
File monthly reports on the progress in implementing the
Provincial Plan.
8.
The
Court will retain supervision of the process described in paragraphs
4-7 until it is complete. It will have the power mero motu,
to call
for additional evidence, set the matter down for hearing, or alter
this order.
National
Relief
9.
Compelling the Minister and the National Commissioner to:
9.1
Re-evaluate the system that the South African Police Services
uses to allocate and distribute its human resources;
9.2
Report to the Court on their progress in complying with
paragraph 9.1 by:
9.2.1
Within three (3) months of the date of this order, submitting
a plan that will guide the re-evaluation process (National Plan); and
9.2.2
Submitting reports to the Court every four (4) months on the
progress they have made in implementing the National Plan.
9.3
Ensure that the re-evaluation process is open to public
scrutiny, and institutional oversight by, amongst other bodies, the
Civilian
Secretariat for the Police Service and the National
Assembly.
9.4
Complete the development and implementation
of
a new
system for a/locating and distributing police human resources within
four (4) years.
10.
The applicants and any other interested person may make
submissions
to
the Court about the National Plan, or the
National Commissioner and the Minister's compliance with that Plan,
including asking Court
to conduct further hearings, call for further
evidence, or make additional orders.'
THE
PARTIES
[3]
The first applicant is the Social Justice Coalition ('SJC'), a
non-governmental organisation ('NGO') based in Khayelitsha which
is a
public benefit movement whose majority membership is alleged to be
working class and poor individuals, mostly Jiving in the
informal
settlements of Khayelitsha, Cape Town in the Western Cape. It is a
non profit organisation registered with the Department
of Social
Development and authorised by its constitution to initiate litigation
to promote its objectives.
[4]
The second applicant is Equal Education ('EE'), an NGO, which is a
membership based social movement of learners, parents, teachers
and
community leaders working for quality and equal education in South
Africa. It strives to achieve this through analysis and
activism.
[5]
The third applicant is Nyanga Community Policing Forum(' Nyanga
CPF'), which was established by the Minister for Safety and
Security,
Western Cape in terms of the South African Police Act 68 of 1995
('SAPS Act'). Its objectives include establishment and
maintenance of
partnership between the community of Nyanga and the South African
Police Service ('SAPS') and to improve services
rendered to the
Nyanga community.
[6]
The first respondent is the Minister of Police who is cited herein in
his official capacity as the person responsible for policing
in South
Africa in terms of sections 205 and 206 of the Constitution of the
Republic of South Africa
[3]
(the
'Constitution').
[7]
The
second respondent is the National Commissioner of Police cited in his
official capacity as the person responsible for controlling
and
managing the police service in terms of section 207 of the
Constitution as well as
sections 6(1)
and
11
of the
South African
Police Service Act
[4
]
("SAPS" Act).
[8]
The third respondent is the Provincial Commissioner: Western Cape,
who is cited in his official capacity in so far as he is
the person
responsible for policing in the Western Cape in terms of section
207(4) of the Constitution and sections 6(2) and 12
of the SAPS Act.
[9]
The fourth respondent, against whom the applicants seek no relief, is
the Provincial Minister who is said to be cited because
of his role
of providing oversight of SAPS in terms of section 206 of the
Constitution.
[10]
The Women Legal Centre Trust ('WLC') was joined as amicus curiae by
agreement between the parties. The WLC is a non-profit
law centre
that seeks to achieve equality for women, particularly Black women
through, amongst others, impact based litigation
and provision of
free legal advice.
[11]
It was agreed with the parties that the Court was to first determine
the issue of unfair discrimination and give judgment on
that aspect.
The parties would then converge again, on a date to be determined for
a hearing on the appropriate remedy, should
the Court find in the
favour of the applicants.
BACKGROUND
[12]
It
was as a result of the complaints
[5]
by the applicants, and other like-minded non-governmental
organisations, that led to the Premier of the Western Cape, acting in
terms of section 206(5) of the Constitution, to appoint the
Khayelitsha Commission of Inquiry in August 2012 to investigate
allegations
of police inefficiency and the breakdown of relations
between the community and the police.
[13]
The Police Service, the object of which is to prevent, combat and
investigate crime, to maintain public order, to protect and
secure
the inhabitants of the Republic and their property and to uphold and
enforce the law, is a competency of the National Government.
In terms
of section 205(1) of the Constitution, the National Police Service
must be structured to function in the national, provincial
and where
appropriate, local spheres of government. Section 205(2) provides
that National legislation must enable the police service
to discharge
its responsibility effectively, taking into account the requirements
of the province. The Minister responsible for
policing must determine
national policing policy after consulting the provincial governments
and taking into account the policing
needs and priorities of the
provinces as determined by the provincial executives.
[6]
[14]
Each province is entitled to monitor police conduct to oversee the
effectiveness and efficiency of the police service; to promote
good
relations between the police and the community, to assess the
effectiveness of visible policing and to liaise with the Minister
with respect to crime and policing in the province.
[7]
To this end the province may investigate, or appoint a commission of
inquiry into any complaints of police inefficiency or a breakdown
in
relations between the police and any community.
[8]
The Khayelitsha Commission was established pursuant to this provision
of the Constitution. The terms of reference of this commission
confined it to the Khayelitsha area and community.
[15]
The National Legislation which was envisaged in section 205(2) of the
Constitution is the SAPS Act. This Act provides for the
establishment, organisation, regulation and control of the SAPS. At
the helm of the SAPS is the National Commissioner, who exercises
control over and manages the police service in accordance with
section 207(2) of the Constitution. The National Commissioner, in
particular, develops a plan before the end of each financial year,
setting out the priorities and objectives of policing for the
following financial year; determines the fixed establishment of the
Police Service and the number and grading of posts; determines
the
distribution of the numerical strength of the Service after
consultation with the Board of Commissioners, established in terms
of
section 1O of the SAPS Act; organises or reorganises the service at
national level into various components, units or groups;
establishes
and maintains training institutions, bureaus, depots, quarters,
workshops or any other institution of any nature whatsoever
which may
be expedient for the general management control and maintenance of
the Service; and shall perform any legal act in any
capacity on
behalf of the Service.
[9]
[16]
The
National Commissioner, in turn, appoints a Provincial Commissioner
for each province. The latter shall have command of and control
over
the service under his or her jurisdiction and shall perform the
duties and functions necessary to give effect to section 219
of the
Constitution.
[10]
The Provincial Commissioner may delimit any area in the province and
determine the boundaries thereof; establish and maintain police
stations and units in the provinces.
[11]
The Provincial Commissioner must also report annually to the
provincial legislature on policing in the province, and copy the
National Commissioner. The Provincial Commission has furthermore the
power and authority to determine the distribution of the strength
of
the service under his or her jurisdiction in the province amongst the
different station areas, office and units. In this respect
section
12(3), which is implicated in this proceedings, provides that:
'A
Provincial Commissioner shall determine
the distribution of the strength of the Service under his or her
jurisdiction in the province
among the different areas, station
areas, offices and units.'
[17]
The applicants alleged that there is tension between the provisions
of sections 11 and 12(3) of the SAPS Act in that section
11 seems to
afford the National Commissioner the primary role in determining the
human resources allocation, while section 12(3)
allocates a similar
vital role to the Provincial Commissioner. In my view, this tension
is imaginary rather than real. Section
11(2)(c), in so far as the
distribution of human resources is concerned, gives the National
Commissioner the power to determine
the distribution of the numerical
strength and the number and grading of posts. This he does at
National level. Section 12(3),
on the other hand, gives the
Provincial Commissioner the power to do the same but only with the
strength of the Service in the
province under his or her jurisdiction
and amongst the different policing areas. Whereas the National
Commissioner, after consultation
with the Board, determines the
allocation of human resources to all the nine provinces, a Provincial
Commissioner can only determine
the distribution of the human
resources as has been allocated to his or her province. There is no
overlapping of the powers of
the National with that of the Provincial
Commissioner and this can hardly be said to be part of the reason for
the current allocation
disparities.
[18]
To discharge its mandate, as set out in the Constitution and the SAPS
Act, SAPS relies, for its crime statistics, on data stored
on a
system called
'Crime Administration System'
('CAS'). This is a
computer programme which is used to register, manage, control and
keep record of every case docket. The process
starts when a docket is
opened and its information is recorded on CAS. This process includes
the allocation of codes for each category
of crime. Once opened and
registered the management of these dockets then progresses according
to prescribed procedures, details
of which are not apposite for
purposes of this judgment.
[19]
While
acknowledging that crime is a social phenomenon and that it is
challenging to forecast it with accuracy, the SAPS nevertheless
use
the crime statistics to formulate policy and for the allocation of
resources.
[12]
Since 2011 SAPS has been working in collaboration with Stats SA
[13]
to improve the quality of their processes used to record data for
crime statistics purposes. To ensure statistical accuracy SAPS
uses
official statistics, such as the population of a particular area and
only counts recorded crimes,
[14]
i.e. either crimes which have been reported to SAPS or detected by
SAPS.
[20]
The Statistics used by SAPS are based on what it calls
'Counting
Rules on Crime of the South African Police Service'
which
represents the number of crime charges or crime counts, and not the
number of registered dockets. This means that where, for
example,
multiple offences were committed during a single crime incident, each
offence would be recorded, in addition to the primary
offence. These
additional counts would form part of the crime statistics. These
statistics, which would be stored on the CAS system
and accessible at
national and provincial level, would normally be used for operational
and special intervention purposes. In particular,
they would be used
for theoretical and actual allocation of SAPS members and resources
to provinces. I now turn attention to look
at the policy and process
of the allocation of human resources, developed by the SAPS, and
which policy is at the centre of the
dispute in this matter.
[21]
SAPS submitted that it has developed and maintained a procedure to
calculate its human resource requirements. The allocation
process is
governed by a policy called 'THRR', short for 'the theoretical human
resource requirement'. At its simplest the system
is said to have
been developed to calculate the number of posts per level required to
perform the duties associated with police
stations. It presents the
ideal number of employees to be placed at a specific police station.
The THRR is projected as dynamic
and evolving as well as being
multi-faceted. In terms of the THRR provision has to be made for: (a)
community service centres;
(b) crime prevention/sector teams; (c)
custody management; (d) additional service points; (e) operational
support, which includes
court services, exhibit management and
general enquiries such as firearms (licence enquiries); and second
hand goods and firearms;
liquor and second hand goods ('FLASH'); (f)
investigation of crime; and (g) support services, including general
administration,
financial
I
human
and supply chain management.
[22]
With regard to crime prevention and crime investigation, the SAPS
submitted that they operated on the basis that:
22.1 The
allocation is first done on the basis of a theoretical requirement;
i.e. an ideal requirement as if there were no budgetary
constraints.
For this reason every year, from January to March, information on all
1143 police stations across South Africa is
gathered. The information
gathered includes a wide range of determinants, such as an analysis
of all reported crime over a period
of four years at a particular
station (averaged, with the most recent carrying the highest
weighting). Thereafter, a ratio is applied
to determine the
theoretical crime prevention requirements (i.e. the number of police
officer requirements);
22.2 As far as
crime prevention (i.e. sector teams is concerned), one post is
allocated for 20 (on average per month) contact crimes
(i.e. crimes
against a person) which have been reported; 25 crimes against
property (i.e. property related crime); 30 for contact
related
crimes; 35 for other serious crimes; and 50 for less serious crime;
22.3
The
result of these calculations is that a baseline figure is determined.
This figure is then factored into a demographic analysis.
SAPS uses
79 demographic determinants. These are factors which have an impact
on crime prevention.
[15]
22.4 Each of the
demographic determinants is weighted, with the higher weighting being
given to under-developed areas, and correlatively
lower weighting
being given to relatively developed/advantaged areas. SAPS submitted
that the higher weighting was ultimately geared
to ensure higher
policing numbers for crime prevention in under-developed areas.
22.5 The
following are amongst the demographic determinants used by SARS:
22.5.1
Registered facilities which include: (a) population size that is
serviced by a particular police station (This information
would be
obtained from Stats SA); (b) the size of the area to be policed; (c)
the unemployment rate in the area; (d) the percentage
of informal
population; (e} the daily influx of commuters (i.e. people who do not
live in the area but come in every day, for example
for work purposes
as obtained from the local municipality); (f) the facilities and
venues that host sporting, festival and religious
events and the
frequency of these events per year; (g) seasonal influx, such as
holiday makers, who migrate to a particular holiday
spot; (h) the
topography, such as mountains, rivers or dams of an area which may
have a bearing on police's accessibility and therefore
reaction time.
22.5.2
Socio-economic factors which include: (a) lack of street lights; (b)
lack of roads; (c) social degradation; (d) lack of
telecommunications; (e) whether or not there is formal or informal
housing and if there is no formal housing, whether access routes,
lack of street names, lack of house numbers are present or absent,
all of which affects accessibility and; (f) the number of identified
gangs in the precinct.
22.5.3
Areas where people converge. These will include (a) all transport
hubs and routes, for example, airports, bus terminals,
train
stations; (b) overnight accommodation; (c) number of shopping malls.
(the bigger the shopping malls the greater the number
of people); (d)
places where people consume and buy liquor, whether registered or
unregistered outlets; (e) all educational facilities
(such as
schools, universities and colleges); (f) firearm sales (requires a
specific designated firearm official).
22.5.4
Places that SAPS bears particular statutory obligations to police and
which includes: national key points; feed lots; abattoirs;
pounds;
smallholdings; and farms.
22.6 Factored
into all of the above would be crime investigation analysis. SAPS
allege that it is impossible to determine the precise
times (standard
time) associated with investigating different types of crime and
therefore engages experts to provide opinion on
how many
investigations of a specific crime (for example murder) one detective
would be able to deal with on a monthly basis.
22.7 Thereafter,
crime specific ratios are applied to determine the theoretical
detective requirement. By way of example, for murder
there is a ratio
of 1:4 (one investigator allocated for an average of every four
murder charges per month); for attempted murder
there is a ratio of
1:5; for common robbery there is a ratio of 1:10.
22.8 SAPS
further stated that the demographic determinants at this stage of the
process will again be weighted in favour of under
developed areas.
These will include primarily the distances that police need to travel
to entities involved in the investigation
process, for example,
correctional services, Department of Health and forensic service
laboratories.
22.9 Thereafter,
the contingency allowance would be applied to cater for unavoidable
contingencies for the daily working routine
of every member
I
official. Examples of these contingencies will include reporting
for and off duty, station lectures, meetings, reading/studying
governance, instructions and policies, hygiene needs, procurement,
interaction with other officers etc. These contingencies relate
to
the human resources located at police stations. So too, these
contingencies may also apply to the police operational support
services such as the flying squad, the canine unit, the sexual
offences unit etc. The contingency allowance also takes into account
the personal needs and recovery from fatigue of members. Another item
is compulsory vacation leave.
22.10 The result
of the aforegoing analysis is a theoretical or ideal allocation; i.e.
the allocation that would be made to each
police station in an ideal
world with no budgetary constraints.
[23]
It is common cause that the second stage of allocation involves the
actual assessment and related to the allocation of posts.
This is
budget motivated, for if budgetary provision was not made, the ideal
will be unachievable. The third stage of the human
allocation process
is the placement at police stations. Once a station has been
determined as being disadvantaged, in light of
the factors enumerated
supra ,
it would receive one post for every 2500 members of
the community instead of one post for every 5000 members of the
community in
non-disadvantaged areas. The respondents submitted that
this weighting has been specifically determined so as to ensure that
police
stations in lower economically resourced areas have a higher
ratio of police officers to serve them. According to the respondents
the weighting runs contrary to the Applicants' allegations that poor
areas were disadvantaged by the THRR policy of allocation.
[24]
Once the national allocation has been done, provinces would have the
responsibility of distributing the allocated funded posts.
The
distribution of police resources within police stations would be done
by the Provincial Commissioner in terms of section 12(3)
of the SAPS
Act, with due consideration to the THRR and other important
considerations such as crime trends and patterns. Such
distribution
of resources is described as being a dynamic and flexible process,
and by no means rigid.
[25]
According to the respondents the powers of the Provincial
Commissioner are statutorily regulated in clear and unambiguous terms
and that therefore was no need to grant the applicants any relief in
this regard. Indeed section 12(3) is self-explanatory and
requires no
order to clarify its terms. A Court would not grant a declaratory
order where the legal position has been clearly laid
down by
statute.
[16]
The fact that the
then Provincial Commissioner, who testified at the Khayelitsha
Commission that he was not aware of the powers
of a Provincial
Commission to determine the distribution of the strength of the
service in the Western Cape amongst the different
areas and stations,
does not affect the fact that section 12(3) gave him this power. A
declaratory order therefore is unnecessary
in this respect.
THE
KHAYELITSHA COMMISSION
[26]
Reverting back to the Khayelitsha Commission, after hearing evidence
from various stakeholders and experts it concluded that
there were
inefficiencies in policing and a breakdown in relationships between
the police and the community of Khayelitsha.
[17]
Part of the problem affecting effective policing, the commission
found, was the allocation of human resources. It found that the
system used by SAPS for determining the THRR was highly complex; was
neither publicly available or debated, even within SAPS or
by the key
oversight bodies, such as the National Parliament and the Provincial
Legislature; that data provided by police stations
and used to
calculate the THRR was not necessarily accurate; and that the
weighting attached to different environmental factors
may result in
over- or under-estimation of the policing implications of these
factors to Khayelitsha and other areas which are
occupied
predominantly by Black and poor people.
[27]
With regards to the allocation of human resources, the Khayelitsha
Commission, whose report was released on the 25 August 2014,
made the
following recommendations:
[18]
'59.1
The Minister of Police requests the National Commissioner of SAPS to
appoint a task team to investigate the system of human
resource
a/location within SAPS as a matter of urgency.
59.2 the new
mechanism to be adopted by SAPS should "be subject to oversight
by the key oversight agencies, notably the Civilian
Secretariat and,
in relation to provincial resource allocations, the provincial
governments". The a/location system should
also be disclosed in
the SAPS annual report to Parliament as well as to provincial
legislatures.
59.3 If the
system produced "any significant departure from an allocation
based on population figures and reported crimes rates,
[it] should be
explained."'
[28]
After
the release of the Khayelitsha Commission's report, the applicants
campaigned for the implementation of its key recommendations.
This
campaign included directly engaging with SAPS and policy makers at a
local; provincial and national level. The applicants
were focusing,
particularly, on the implementation of the following
recommendations:
[19]
"61.1
The urgent and equitable allocation of policing resources, in order
to ensure that the poorest areas with the highest
levels of crime
have sufficient numbers to competent and experienced police
personnel, who can properly prevent and investigate
crime;
61.2 The
urgent development of guidelines for visible policing in informal
settlements; and
61.3 The
development of a plan by the South African Police Service (SAPS) at a
national level to address vigilantism."
[29]
The applicants were engaging with the SAPS through the SAPS
Khayelitsha Cluster Joint Forum, which was established in 2014
by the
Cluster Commander of The SAPS. The aim of the Joint Forum, according
to the applicants, was to bring together all stakeholders
so as to
develop and implement safety interventions for Khayelitsha. The
applicants further submitted that despite the good intentions
of the
Joint Forum, its objectives had never been effectively implemented.
The applicants have since been seeking to engage with
the SAPS to
implement some of the critical recommendations of the Commission, but
without any measure of success, the applicants
submitted. The
applicants further submitted that it was after all efforts to engage
with the respondents had failed that the applicants
resorted to
bringing this application.
[30]
It is convenient at this stage to look into the provisions of the
Equality Act: the legal framework within which this application
was
brought. The Equality Act has its origin in section 9 of the
Constitution which provides that everyone is equal before the
law and
has the right to equal protection and benefit of the law. Subsection
(4) requires that National Legislation be enacted
to prevent or
prohibit unfair discrimination. It is pursuant to this prescript that
the Equality Act was promulgated.
[31]
The
object of the Act,
inter
alia,
is
to give effect to the letter and spirit of the Constitution [in
promoting equality] and eradicating the injustices of the past
to
establish a society based on democratic values, social justice and
fundamental human rights. Section 3 of the Act prescribes
that any
person applying the Act must interpret its provisions to give effect
to the Constitution. Such interpretation must take
into account the
context of any dispute and the purpose of the Act.
[20]
For purposes of the Act every Division of the High Court or the local
seat thereof is an equality court for the area of its jurisdiction
and any Judge may be designated a presiding officer of the equality
court of the area in respect of which he or she is a Judge.
[21]
[32]
Proceedings
in terms of or under the Act may be instituted
by
'any person acting (a) in their own interest; (b)
on
behalf
of
another
person who cannot act in his or her own name; (c)
as
a
member
of,
or
in the interests of,
a
group
or class of persons; (d) in the public interest; (e) by any
association acting in the interests of its members'.
[22]
Chapter
9 institutions, such as the South African Human Rights Commission, or
the Commission for Gender Equality, may also institute
proceedings in
the Equality Court.
[23]
In these proceedings the applicants act in their own interest as
organisations committed to equality and improving the lives of
the
most vulnerable. They also act on behalf of their members and in the
public interest.
[33]
The Equality Act is binding on individuals as well as on the State.
Section 6 provides that neither the State nor any person
may unfairly
discriminate against any person. Given the past history of this
country, where racial discrimination was government
policy and given
the stated objectives of the Equality Act, it is no surprising that
race, as the most notorious form of discrimination,
was at the top of
those singled out in the Act for special attention: section 7
provides that no person may unfairly discriminate
against any person
on the ground of race.
[34]
What is discrimination? In terms of the Equality Act discrimination
'means
any act or omission, including a policy, law, rule, practice,
condition or situation which directly or indirectly (a) imposes
burdens, obligations or disadvantages on; or (b) withholds benefits,
opportunities or advantages from any person on one or more
of the
prohibited grounds'.
[24]
The
prohibited grounds on the other hand, are defined as:
'(a)
race, gender, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language, birth and HIV/AIDS status; or
(b)
any other ground where discrimination based on that other
ground
(i)
causes
or perpetuates systemic disadvantage;
(ii)
undermines human dignity; or
(iii)
adversely
affects the equal enjoyment of
a
person's
rights and freedoms in a serious manner that is comparable to
discrimination on
a
ground
in paragraph (a)'
[25]
[35]
The Equality Act recognises that legislative and other measures
designed to protect or advance persons, or categories of persons
disadvantaged by past unfair discrimination, may be taken. For this
reason section 14(1) of the Act provides that it is not unfair
discrimination to take measures designed to protect or advance
persons or categories of persons disadvantaged by unfair
discrimination
or the members of such groups or categories of
persons. These means that the Equality Act only deals with unfair
discrimination.
[36]
Unfair discrimination may be both direct or indirect. Direct
discrimination, in my view may be easy to prove: and occurs where
a
provision specifically differentiates on the basis of a listed or
unlisted ground. Indirect discrimination, on the other hand,
occurs
were differentiation appears to be neutral but has the effect of
discriminating on a prohibited ground, whether listed or
unlisted.
[26]
As would be
pointed out
infra
the
applicants only allege indirect discrimination. Indirect
discrimination is best illustrated by the facts of the
Pretoria
City Council v Walker.
[27]
In that matter, the applicant had charged the residents of the former
municipal area of Pretoria on the basis of a tariff for the
actual
consumption of water and electricity supplied which was measured by
means of meters installed on each property, whereas
it had charged
residents in the former Mamelodi and Atteridgeville municipal areas
(where no meters had been installed) a flat
rate based on the amount
of water and electricity supplied to such areas divided by the number
of residences therein. The respondent
alleged that the applicant's
uniform or flat rate for water and electricity charges in the former
municipal areas of Mamelodi and
Atteridgeville was lower than the
metered rate charged to the respondent and other persons in the
former municipal area of Pretoria
and that this meant that the latter
were subsidising the former; and the imposition of differential rates
was a contravention of
section 178(2) of the Constitution.
[37]
The High Court held that the applicant's conduct constituted a breach
of section 178(2) of the Constitution. The conduct of
which the
respondent complained, which differentiated between the treatment of
residents of townships which were historically Black
areas and whose
residents were still overwhelmingly Black and residents in
municipalities which were historically White areas and
whose
residents are still overwhelmingly White, constituted indirect
discrimination on the grounds of race. The fact that the differential
treatment was made applicable to geographical areas rather than to
persons of a particular race might mean that the discrimination
was
not direct but it did not alter the fact that in the circumstances of
the present case it constituted discrimination, albeit
indirect, on
the grounds of race.
[38]
To
be actionable, discrimination must be unfair. The test for unfair
discrimination was first set out in
Harksen
supra
[28]
where
it was summarised it as follows:
'
Does
the differentiation amount to unfair discrimination? This requires a
two-stage analysis:
(i)
Firstly, does the differentiation amount to 'discrimination'?
If it is on a specified ground, then discrimination will have been
established. If it is not on a specified ground, then whether or not
there is discrimination will depend upon whether, objectively,
the
ground is based on attributes and characteristics which have the
potential to impair the fundamental human dignity of persons
as human
beings or to affect them adversely in a comparably
serious manner.
(ii)
If the differentiation amounts to 'discrimination', does it
amount to 'unfair discrimination'? If it has been found to have been
on a specified ground, then unfairness will be presumed. If on an
unspecified ground, unfairness will have to
be
established by the complainant. The test of unfairness focuses
primarily on the impact of the discrimination on the complainant
and
others in his or her situation.'
[39]
Final
comments on the question of
prima
facie
proof:
once the complainant has made out a
prima
face
case
of discrimination, it falls on the respondent to prove, on the facts
before the Court, either that the discrimination did not
take place
as alleged, or that the conduct was not based on one or more of the
prohibited grounds or if the discrimination did
take place that such
discrimination was fair.
[29]
The respondent therefor bears the
onus
of
proving that the impugned discrimination was fair. In determining
whether the respondent has proved that the discrimination was
fair
the factors enumerated in 14(2)
[30]
of the Equality Act must be taken into consideration.
[40]
Discrimination, when it occurs, can only be saved from declaration of
unlawfulness if it is benign discrimination aimed at
protecting or
advancing people who were disadvantaged by unfair discrimination in
the past. Section 14(2) sets out what a respondent
who claims that
discrimination was fair has to prove.
[31]
[41]
To complete the genesis of this application, I revert back to the
report of the Khayelitsha Commission. In this regard the
Commission
found,
inter alia,
that
the unequal distribution of resources led to insufficient allocation
of human resources to Khayelitsha Police Stations. The
Commission
concluded that the structural understaffing of the Khayelitsha Police
Stations, resulting from the application of the
biased THRR, was one
of the reasons for many of the inefficiencies. For this conclusion
the Commission relied
inter alia
on
the evidence of Jean Redpath who held the view that the application
of the THRR led to a skewed allocation of human resources
and that
this affected effective policing in the Khayelitsha and other Black
areas in the Western Cape. The applicants too mounted
the challenge
against the THRR in this Court relying heavily on this statistical
evidence by Redpath. I now turn my attention to
her evidence.
[42]
Redpath's evidence was to the effect that crime was significantly
under-reported in Khayelitsha; and that this affected the
allocation
of police personnel to the area. For purposes of her statistical
analysis she obtained population estimates for nine
police stations,
namely, Camps Bay, Durbanville, Grassy Park, Kensington, Mitchells
Plain, Muizenberg, Nyanga, Phillipi and Sea
Point, as well as the
three Khayelitsha policing areas, which were calculated using census
2011 population figures. These were
close to the SAPS estimates for
these nine areas, save in the case of Lingelethu-West and Mitchell's
Plain. On the other hand,
the Secretary of the Khayelitsha Commission
obtained data, from SAPS, on the number of operational personnel, the
total population,
and the ratio for all policing areas in the Western
Cape. Using the number of personnel for each policing area from the
data supplied
by the SAPS, in their letter of 22 October 2013, she
calculated the number of police personnel for every 100 000 of the
population
in each policing area in the Western Cape.
[43]
Redpath found that the average was 283 police personnel per 100 000
of the population. According to her the most resourced
was 2636 per
100 000, being Table Bay Habour, and the least resourced being
Harare, with 111 per 100 000. According to her all
three Khayelitsha
policing areas demonstrated less than average allocations; with
Khayelitsha at 190 per 100 000 and Lingelethu-West
at 275 per 100
000. She also noticed that a number of areas which, to her knowledge,
were similar to Khayelitsha in that they have
large informal
settlements and/or serious violent crime, also demonstrated figures
which were much lower than the average.
[44]
She
sought to understand how SAPS arrived at these figures and whether
there was a rational basis for these figures. She thereafter
calculated the number of police personnel per 100 reported crimes. I
pause here to point out that SAPS published, on a yearly basis,
the
number of crimes reported per policing area for 20 crimes.
[32]
When police personnel was calculated per 100 of the 20 crimes
published she found that the range was from 1.9 police officials
per
100 reported crimes to 37 police per 100 reported crimes, with an
average of 3.4 police per 100 crimes per year. Redpath goes
on to
argue that:
'27.
Furthermore areas already over-supplied with human resources will
continue to be over-resourced as they are likely to have
better
reporting rates. In other words the skewed allocation leads to skewed
reporting trends which in tum leads to further skewed
allocations.
28. Indeed on
the reported crime measure, many areas where it is known significant
under-reporting occurs, on the per 100 total
reported crime measure,
emerge with more police per 100 reported crimes than average.
29. However,
some of the policing areas less-resourced than average on the per 100
000 population basis are still less resourced
than average on the per
100 reported crimes basis. Thus reported crime and the phenomenon of
under-reported crime does not explain
all the anomalies in human
resource allocation observed. '
[45]
She concluded that the problem with a resource allocation based
solely on reported crime was that areas where there was significant
under-reporting of crime would be under-resourced in respect of the
true crime rate. She, however, acknowledged that reported crime
was
nevertheless a rational basis on which to base allocations in
relation to one component of SAPS, namely, the detective service,
as
SAPS detective can only investigate reported crime. She further
argued that in relation to other components of the SAPS, such
as
visible policing and crime intelligence, the total population and the
actual violent crime rate are better guides to resource
needs
because, according to her, the burden of work faced by, for example,
sector teams and crime prevention officials was not
determined
primarily by reports of crime but by the size of the population they
were required to patrol and the actual level of
violence and crime
occurring within the population they were required to patrol.
[46]
Redpath regarded murder as a robust crime indicator which was not
susceptible to reporting trends. She submitted that this
crime,
checked against morgue data, appeared not to be suffering from any
significant under-reporting; that in areas where there
were high
reporting rates, murder tended to track serious violent crimes such
as aggravated robbery
[33]
and
could be considered to be a proxy for such crime. Murder was
therefore frequently used as a proxy indicator for violent crime.
She
initially used the number of murders and culpable homicide as proxy
indicators of the actual violent crime r
ate
in an area. She later, however, changed to using murder alone as
culpable homicide tended to refer to motor-vehicle related
incidents.
She nevertheless submitted that her analysis had not been
significantly altered. She found that when the number of police
personnel was calculated per murder, there was a high degree of
similarity between the areas which were under-resourced on this
measure, and those which were under resourced on a per 100 000
people measure. The range was from 1 to 146 police personnel
for each
murder in an area (excluding those areas which reported no murders).
In particular Nyanga, Harare, Gugulethu, Khayelitsha
and Mfuleni have
two or fewer police persons per murder per year and occupying the
bottom rungs of the rankings rank from most
to least resourced per
murder homicide.
[47]
Redpath took issues with the way resources were allocated using the
THRR. She found that this allocation was based on a theoretical
requirement, calculated on the total time taken for all tasks done at
a particular station, as affected by a range of factors,
such as the
presence of gangs or daily influx of commuters which SAPS recorded on
the
"Impact Management Sheer.
Summing up the THRR for
every police station gave the National requirement for police
stations in terms of numbers and rank levels.
But the THRR was larger
than what the budget allocated per unit resulting in only 68% being
available for each police station.
This fixed establishment was not
the same as the THRR as it only reflected the number of posts which
could be established in terms
of the SAPS budget and medium term
expenditure framework.
[48]
The THRR, according to her, appeared to prejudice township areas to
an even greater extent than the actual figures do and leaves
these
Black township areas at the bottom of the allocation of resources.
According to her, the THRR which underpinned the budget-dependent
actual allocation, led to perverse outcomes. These were not caused by
any event or deliberate inclusion of factors which were obviously
discriminatory in nature but was due to shortcomings in the method
which resulted in unintentional, but nevertheless severe
discrimination
on the grounds of race and poverty.
[49]
Apart from the problem caused by budget constraints, the THRR,
according to Redpath, has a number of flaws. The main shortcoming
in
the THRR which she identified was that this method of allocation
failed to take into account that there was a wide variation
in under
reporting of less serious crime from one area to another: In this
respect she argued that it failed to take into account
that poor,
Black, more informal areas demonstrated low levels of reporting of
crime when compared to richer, White, more formal
areas. She
submitted that the extent to which that allocation of resources was
calculated on the basis of reported crime, will
continue to be skewed
against areas which had high levels of under-reporting. According to
Redpath:
[34]
'The
insidiousness
of
the primary
under-reporting problem lies in the fact that low allocations of
police resources in tum tend to inhibit reporting
of
crime, resulting in areas with low resources
continuing
to
show
artificially low levels
of
total
reported crime, which in tum keeps their allocation
of
resources low. The opposite happens in better
resourced areas, where
more
resourcing
encourages high reporting which in tum results in large a/location of
resources.'
[50]
She also identified as a problem of the THRR, the failure to give
sufficient weight to violent crime. According to SAPS, to
calculate
the crime prevention component, murder was equated with robbery with
aggravating circumstances as they are both classified
as contact
crimes; contact crime was worth 2.5 less serious crime in terms of
posts. According to her this ratio appeared to have
been relatively
arbitrarily determined and bore no relation to the relative burden of
policing and investigating murder.
[51]
Another problematic area which she identified was that the majority
of ostensibly neutral weightings which were used tended
to skew the
allocation towards formal areas. Of the 56
"environmental,
social and economic"
factors listed, only 15 were highly
likely to be present in informal areas. In this regard Redpath's
conclusion was that formal
areas potentially have an additional 205%
weighting on these facts, while informal areas have a potential 75%
weighting relating
to informal areas that can be taken into account.
In other words, factors relating to formal areas are taken into
account to a
far greater extent than informal areas.
[52]
On the question of poverty, Redpath testified that the Khayelitsha
Commission, requested her to compare police allocation to
indicators
of poverty and informal housing. She did this by combining the data
on actual numbers obtained for the Western Cape
and KwaZulu-Natal.
Although data relating to housing and racial composition of the
population was available only at ward level,
which could not be
adequately mapped to the boundaries of police precincts, she was able
to determine that areas with a high percentage
of electricity and
piped water availability per household usually had a high percentage
of formal housing. The converse, according
to her was also true:
informal housing or rural housing was, in turn, indicated by lower
levels of electricity and water provision.
[53]
It is a well-known fact that for historical reasons poorer Black
people tend to live in informal settlement characterised by
lower
levels of service provision. Using this data, Redpath concluded that
service provision levels were a reliable indicator of
the racial
demographics of an area. She further found that when comparing the
trends relating to provision of police resources
per 100 000 people
to levels of service provision (percentage piped water and
electricity) there was a statistically significant
relationship
between the variables. The p-value associated with the observed
correlations was close to zero i.e. there was a close
to 100%
probability that there was a relationship between the variables. This
data, according to Redpath, showed that lower levels
of service
provisions were associated with lower levels of police resourcing.
[54]
The question for determination is whether the system of allocation of
human resources, used by SAPS, discriminates against
Black and poor
people.
[55]
There
are a number of cases in which the Constitutional Court found that
unfair racial discrimination has taken place on the ground
of race.
The applicants relied on these judgments to support their claim that
the THRR discriminated against Black poeple. In
Moseneke
v Master of the High Court
[35]
the
Constitutional Court commenting of the sections of the Black
Administration Act applicable to the administration of estates
of
deceased Blacks found that: "...
the
concepts in which it was based, the memories it envokes, the language
it continues to employ and the decision it still enforces
are
antithetical to the society envisaged by the Constitution. It was an
affront to all of us that people are still treated as
'blacks' rather
ordinary persons
...
in
conflict with the establishment of a non-racial society ...".
The
THRR, when applied in the Western Cape and if it were to be found
that the concepts on which it was based were antithetical
to the
society which is free of racial discrimination as envisaged by the
Constitution, would suffer the same fate as the impugned
sections of
the Black Administration Act in
Moseneke
supra.
[56]
Not only do the applicants rely upon the prohibited ground of race
but they also rely on the overlapping ground of poverty
for the
contention that the THRR unfairly discriminates against Black people
in the Western Cape. In other words, they rely on
intersectional
discrimination on the grounds of both race and poverty. There is no
difficulty in determining whether discrimination
has taken place on
the ground of race as it is a listed prohibited ground in terms of
paragraph (a) of the definition of
"prohibited ground'.
[57]
It is with poverty that it must be established whether it qualifies
as an unlisted ground in terms of paragraph (b) of the
definition of
prohibited ground. Since poverty is an unspecified ground the first
leg of the inquiry requires considering whether
differentiation on
this ground constitutes discrimination.
[36]
Whether poverty qualifies as an unlisted ground of unfair
discrimination would have to be tested against what the Act
contemplates
as
'any
other ground.
To
qualify as such, poverty must result in undesirable consequences
which (i) causes or perpetuates systemic disadvantage; (ii)
undermines human dignity; or (iii) adversely affects 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.
[58]
The applicants submitted that though there was no occasion on which a
Court had considered whether poverty was a ground of
discrimination,
there is a wealth of decisions which have applied analogous grounds
to find that there was discrimination on an
unlisted ground. Again
applicants found support for their submission that poverty qualifies
as an unlisted ground of discrimination
in a number of decisions
emanating from the Constitutional Court. Such a finding would be made
if the discrimination occurred on
a prohibited ground which is either
in paragraph (a) of the definition or one which qualified on one of
the criteria in paragraph
(b) of the definition.
[59]
One
of the judgments in which the Constitutional Court found unfair
discrimination based on unlisted grounds was in
Harksen
v Lane N.O. and Others
[37]
.
Although
these judgment was before the promulgation of the Equality Court if
it still finds application post the Act. In
Harksen
supra
it
was emphasised that grounds of discrimination can often intersect
with one another. Goldston J articulated this intersection
of grounds
of discrimination thus
[38]
:
"There
is often a complex relationship between these grounds. In some cases
they relate to immutable biological attributes
or characteristics, in
some to the associational life of humans, in some to the
intellectual, expressive and religious dimensions
of humanity and in
some cases to a combination of one or more of these features. The
temptation to force them into neatly self-contained
categories should
be resisted'.
[60]
The applicants' case is that poverty constitutes an unlisted ground
of discrimination. They found support for this submission
from two
sources: the first is section 34(1) of the Equality Act which
provides that:
"'Directive
principle on HIV/AIDS, nationality, socio-economic status and family
responsibility and status
(1) In view
of
the overwhelming evidence of the importance, impact on
society and link
to
systemic disadvantage and discrimination
on
the grounds of HIV/AIDS status, socio-economic status,
nationality, family responsibility and family status-
(a)
special consideration must be given to the inclusion of
these grounds in paragraph (a) of the definition of 'prohibited
grounds'
by the Minister;
(b)
the Equality Review Committee must, within one year,
investigate and make the necessary recommendations to the Minister.'
Socio-economic
status, on the other hand is defined in the Equality Act as follows:
"includes
a
socio
or
economic condition or
perceived condition of
a
person who is disadvantaged by
poverty, low employment status or lack of or low-level education
qualification".
[61]
The question therefore is whether poverty is a ground of
discrimination which causes or perpetuates systemic disadvantage,
undermines human dignity, or adversely affects the equal enjoyment of
the rights and freedoms of the people of Khayelitsha, in
particular,
or the people of the other areas covered by Redpath's statistical
analysis, in general, in a serious manner that was
comparable to the
discrimination on any of the grounds listed in paragraph (a) of the
definition of prohibited grounds in section
1 of the Equality Act.
[62]
They
further argued that section 34(2)
[39]
makes it clear that action under section 34(1) does not affect the
ability of the Court to assess a claim that socio-economic status
constitute a prohibited ground under either paragraphs (a) or (b) of
the definition. Secondly, they found support for their contention
in
several academic writings which have supported the claim that poverty
constitutes a prohibited ground of discrimination, either
as an
analogous ground or within the concept of
"social
origin".
Notable
amongst the academic writers referred to by the applicants are S
Woo/man's & M Bishop's
Constitutional
Law of South
Africa,
[40]
where they quoted the judgment in Khossa and Others v Minister of
Social Development and Others
[41]
and pointed out that:
'Although
Khosa concerned the rights of non-citizens living in poverty to state
support, Mokgoro J linked the ground of citizenship
to poverty by
pointing out the need for the poor to be treated as equal members of
society.'
[63]
The
applicants submitted that the Equality Act, and the academic
authorities referred to
supra
unequivocally
supported the submission that poverty qualified as a ground of
discrimination. The applicants submitted that poverty
was a systemic
problem, the result of our history and economic system that result in
people living in poverty and rendering them
vulnerable and
marginalised. They found support in the obiter-dictum in
Soobramoney
v Minister of Health (KwaZulu- Natal)
[42]
which
was to the effect that millions of people were living in deplorable
conditions and in great poverty but that the demand to
receive
medical treatment at State hospital had to be determined in
accordance with the provision of sections 27(1) and (2) of
the
Constitution.
[64]
The
applicants further submitted that poverty undermine human dignity
because it is an immutable characteristic of a person or that
treating someone differently on that basis was inconsistent with the
ideas of equal concern and equal respect. For support the
applicants
called on the judgment of the Constitutional Court in
Minister
of Health and Another v New Clicks Sought Africa (Pty) Ltd and
Others
[43]
where
Moseneke DCJ explained how poverty was at odds with the well-earned
and lofty thrust of our Constitution and wrenched dignity
out of any
life.
[65]
According to the applicants discrimination on the basis of poverty
clearly imparts on the social and economic rights protected
in the
Constitution as this adversely affects the equal enjoyment of a
person's right and freedom in a serious manner that is comparable
to
discrimination on a listed ground. Discrimination on the ground of
poverty, in my view, and as the applicants have shown, amounts
to
unfair discrimination.
[66]
Section 13(1) of the Equality Act provides that:
'If the
complainant makes out a prima facie case of discrimination-
(a) the
respondent must prove, on the facts before the court, that the
discrimination did not take place as alleged; or
(b) the
respondent must prove that the conduct is not based on one or more of
the prohibited grounds."
[67]
The next question for determination is what constitutes
prima
facie
proof of discrimination? There was a
suggestion that
prima facie
proof,
for purposes of section 13(1) of the Equality Act, was a less
stringent test than the normal balance of probabilities. This,
it was
submitted, was to lighten the burden on the complainant. In my view,
and in the context of section 13(1)
prima
facie
proof attracts something less than
proof on a balance of probabilities. This is evident from the scheme
of section 13(1) where it
is clear that the test was not aimed at a
final relief. This sub-section is used to determine whether the
complainant has established
on a
"prima
facie"
basis the existence of
discrimination. Once that has been proved the burden shifts, from the
complainant to the respondent, who
then must show that there was no
discrimination at all or that the discrimination complained about was
fair. The shifting of the
onus to the respondent occurs immediately
when the complainant makes out a
prima facie
case of discrimination and even before the
kind of discrimination is established. Proof of discrimination at
this stage does not
require the complainant to prove that it was
unfair. Final relief will only be granted if the respondent fails to
prove that no
discrimination took place or, if it took place, that it
was one which was not unfair. I am fortified in my conclusion by the
fact
that section 13(1)(a) requires the complainant to merely make
out a
prima facie
case
whereas the respondent must prove, on the facts before Court, that
discrimination did not take place as alleged or if it did,
was not
unfair. The
onus,
in
my view, is heavier on the respondent to prove either that no
discrimination has taken place or, if it did, that it was not unfair.
This being akin to civil proceedings, the
onus
may be discharged on a balance of
probabilities.
[68]
This much was confirmed in the decision of
Manong
and Associates (Pty) Ltd v City Manager, City of Cape Town, and
Others
[44]
where
Moosa J observed that
'[i]n
terms of s 13 of PEPUDA all complainant is required to do in order to
discharge its onus is to make out
a
prima
facie case of discrimination based on race. In that event the burden
of proof shifts to the respondents who must show either
discrimination did not take place or that the impugned conduct is not
based on race.......[t]he rebuttable presumption of unfair
discrimination which is an evidential burden assists complainant to
cross the hurdle from prima facie proof to proof on the balance
of
probabilities.'
[45]
[69]
The respondents submitted that, with the exception of
Manong
v City of Cape Town and Another
most of the
jurisprudence on the test for discrimination predated the
promulgation of the Equality Act. They however, accepted the
correctness of the first leg of the test set out in
Harsken
supra,
save that this Court would have to
interrogate what would be the comparator. The respondents also argued
that this case was unique
in the sense that there was no comparator
(i.e. the differentiation aspect), unlike in the
Walker
case
(supra)
where
the differentiation was between wealthier areas versus less wealthier
areas.
[70]
The applicant submitted that the evidence of Redpath stands
uncontradicted. The applicant emphasised that nowhere in SAPS'
answering affidavits, including that of General Sekhukhune, a
qualified statistician, did the respondents' question the accuracy
of
her statistical analysis of the data; the oral submissions of Counsel
for the SAPS, questioning her expertise and accordingly
the
reliability of her evidence was misdirected; and the skewed
allocation of resources in terms of the THRR resulted in Black
and
Coloured areas being heavily under-resourced and that this was
irrational and discriminatory.
[71]
The respondents' challenge to the evidence of Redpath can be
summarised as follows: she is not an expert nor does she have
any
experience in policing; she relied on outdated statistics and had not
sufficiently considered the variables; and her theory
of allocation
took only a few variables into account and this rendered it
unworkable and unresponsive to the complexities of proper
policing.
The other criticism against Redpath's theory of allocation was that
she did not consider budgetary constraints. According
to the
respondents, Redpath's theory will impact negatively on the
operations of SAPS: it ignored the fact that the SAPS does not
police
people but polices crime, its primary objective being to assemble a
policing structure and deploy resources that make it
possible to
discharge its constitutional mandate and the human resources
requirement associated with police stations cannot be
calculated on
population and crime alone. The applicants, in response, submitted
that these criticisms of Redpath were misdirected,
mainly because the
applicants were not challenging the THRR in isolation.
[72]
Apart from being critical of Redpath's expertise and evidence, the
respondent's case in essence is that the THRR does not discriminate
against poor and Black communities on the basis of race and poverty.
On the contrary, they submitted that the system of resource
allocation was weighted in favour of poor communities which are
predominantly Black and results in greater police resources being
directed at the communities where crime rates were the highest.
Secondly, they argued that the Provincial Commissioner has exercised
his statutory powers in terms of section 12 (3) of the SAPS Act to
supplement and increase policing resources in poor and predominantly
Black areas. Lastly, the respondent submitted that the application
was both premature, inappropriate and would impermissibly violate
the
doctrine of separation of powers.
[73]
The respondents disagreed with Redpath's use of murder as a proxy to
determine the extent of violent crime where there was
under-reporting
they argued that this was inflated by the applicants. Otherwise, so
the respondents' argued, how do you actually
factor in
under-reporting?; that it was unrealistic to expect anyone to
determine allocation from unreported cases; and that there
was no
rational principle on which police resources may be allocated on the
basis of poverty.
[74]
The respondents cautioned against the adoption of a technical
approach of population
vis
a
vis
human resources.
Allocation of police officers, they argued, must be placed in
context, the guiding principle being the effectiveness
in utilising
police resources given to a community, such as Khayelitsha. They
allege that police stations operate in different
social, economic,
political and geographical environments. These socio-economic and
political scenarios present different policing
needs that cannot be
resolved through equal allocation of resources premised upon race and
socio-economic considerations. Accordingly,
the burden of policing
differs between, for example, Rondebosch and Khayelitsha, ultimately
allocation of resources must be directed
at providing effective and
efficient service in communities regardless of the social status and
race.
[75]
Redpath's analysis showed that the demographics, such as
environmental, social and economic factors present in informal areas,
which were taken into account when allocations were made in terms of
the THRR and which were ostensibly intended to benefit these
areas
actually resulted in allocations which were skewed and in favour of
privileged and historically White areas. In my view this
is
discrimination. The question is whether this discrimination is one
based on any of the prohibited grounds or on unlisted grounds.
[76]
Although the THRR is geared at allocating resources on a racially
neutral basis it is evident from the analysis by Redpath
that
predominantly Black areas receive inferior policing services as
compared to the so-called White areas. That this was a result
of a
racially neutral system of allocation does not change the fact that
it is discriminatory. Nor does it make any difference
that there were
contributory causes, such as the standard of living to which Black
communities are exposed.
[77]
I have no doubt that the evidence of Redpath has established a
prima
facie
case of discrimination, in so far as the Western Cape and
Kwa-Zulu Natal were concerned. There is however, no evidence as to
how
the THRR affects other parts of the country. It is not enough to
conclude, as the applicants have argued, that since there are
similarities between the Western Cape and Kwa-Zulu Natal, that the
pattern of discriminatory distribution of resources are replicated
in
the other seven provinces as well. This kind of reasoning requires
making assumptions where no evidentiary proof exists. Secondly,
only
in reply did Redpath deal specifically with the other provinces. An
applicant must make out its case in the founding papers
and not in
reply.
[78]
In view of my finding that there is
prima facie
proof of
discrimination on the basis of race and poverty, the respondent must
show that such discrimination is fair. In this regard,
factors that
have to be considered are: (a) the position of the complainants in
the society, (b) the impact of the discrimination
and (c) the
systemic nature of the discrimination.
[79]
The respondent argued that should the Court find that the applicants
have made out a
prima facie
case of discrimination that the
section 14 fairness inquiry would kick in. At the outset the
respondents were at pains to state
that the allocation system did not
fall under section 14(1) but was a section 14(2) type of case. In
this respect they submitted
the factors which must be taken into
account were first context. The respondent submitted that the context
in terms of the factors
that went into the THRR included the
provision of section 12(3) of the SAPS Act assessment.
[80]
The respondents deny that there is any discrimination at all.
Alternatively that, if this Court were to find that there was
some
discrimination brought about by the THRR that such discrimination was
not unfair discrimination. As regards the claim of unfair
discrimination the SAPS submitted that, at its simplest, the
allocation system was geared at responding on an
"extent of
crime basis";
that it followed from this that stations with
the highest incidence of crime were provided with a priority
allocation of personnel
resulting in stations, irrespective of where
they were situated, being allocated personnel based on the demand as
generated by
the prevalence of crime. The SAPS concluded that when
approached on this basis there was no evidence of direct or indirect
discrimination.
This bold statement by the SAPS, in my view, is not
supported by the analytical evidence of Redpath.
[81]
The
respondents further argued that since this is a case of unfair
discrimination based on the grounds of race and poverty, an
appropriate comparator has to be identified as was pointed out by
O'Reagan J in
MEG
for Education KwaZulu-Natal and Others v Pillay
[46]
In
the quest to identity an appropriate comparator for purposes of
determining whether a differentiation was based on unfair
discrimination
O'Reagan held that:
"[164]
In answering this question, one of the issues that arises is whether
the Equality Act, properly construed, requires
a
complainant to show that he or she has been
treated differently to
some
comparably
situated person. I agree with the Chief Justice that it is not
necessary in this case to determine whether it is always
necessary
for a complainant to point to a comparator in order to establish
discrimination in terms of the Equality Act, as there
is a comparator in this case. Langa CJ finds the comparator to be
those learners
whose sincere religious or cultural beliefs are not
compromised by the code. In my view, the correct comparator is those
learners
who have been afforded an exemption to allow them to pursue
their cultural or religious practices, as against those learners who
are denied exemption, like the learner in this case. Those learners
who are not afforded an exemption suffer a burden in that they
are
not permitted to pursue their cultural or religious practice, while
those who are afforded an exemption may do so."
[82]
I am of the same view, as Langa CJ in the Pillay judgment that it is
not always necessary for a complainant to point to a comparator
in
order to establish discrimination when acting in terms of the
Equality Act.
[83]
The respondents argued that the doctrine of separation of powers
requires of this Court to refrain from judicial overreach
save in
instances where the encroachment of unavoidable and constitutionally
permissible
[47]
. The
respondents also called upon this Court to appreciate the legitimate
and constitutionally ordained province of administrative
agencies; to
admit the expertise of those agencies in policy-laden or polycentric
issues and to be sensitive in general to the
interests of
legitimately pursued by administrative bodies and the practical and
financial constrains under which they operate
[48]
.
[84]
The warning by the Constitutional Court to guard against judicial
overreach and to defer to the administrative bodies with
the
necessary administrative expertise is a salutary one. It remains the
duty of the Court, however, to protect the Constitutional
rights and
declare unlawful any act or omission, including a policy, law, rule,
practice, condition or situation which directly
or indirectly,
imposes burdens, obligations or disadvantages on or withholds
benefits opportunities or advantages from any person
on one or more
of the prohibited grounds.
[85]
The respondents have also raised the question of the application
being premature. This argument is premised on the fact that
the
report of the Khayelitsha Commission which gave SAPS a period of 3
years within which to implement the remedial measures. The
respondent
argued that this application was brought less than 2 years after the
release of the report in August 2014
[49]
.
The respondents submitted that although the recommendations of the
Commission were not binding SAPS took them seriously and had
been
implementing them in order to improve the system of allocation. There
is no merit in this argument: The Commissions findings
are not
binding and there is no reason why the complainants should wait for
the expiry of the 3 years period before bringing the
application.
[86]
The Redpath alternative method of allocation, which was heavily
criticised by the respondents, was merely developed by her
during the
Khayelitsha Commission to demonstrate an alternative model and to
show how that would affect allocations. She did not
contend that this
was the best method of determining the allocation of police resources
but was her attempt to demonstrate that
this could be what she
referred to as a rational method of resources allocation. The
criticism that she was not an expert nor has
she any experience in
policing is not justified.
[87]
In my view, the respondents have not been able to discharge their
evidentiary burden of showing that no discrimination exists.
First,
the analytical evidence of Redpath and the data presented shows that
police stations that serve poor, Black areas have the
lowest police
to population ratios, relatively speaking, as compared to wealthier,
rich areas which are predominantly White. This
is not an adoption of
a technical numbers game. Context shows that the poor, Black areas
also have the highest rates of contact
and violent crime. Whilst, one
cannot ignore other crimes, such as theft which appear to occur in
greater numbers in commercial
areas such as the CBD, it cannot be
disputed that contact crime is more prevalent in poor and Black
areas.
[88]
I accept that higher allocation of police officers may not
necessarily by itself translate into reduction of crime but it is
a
factor that contributes. More resources and better policing may
result in less actual crime. I did not understand the respondents
to
dispute that. The fact that there are socio-economic and
infrastructural challenges which present difficulties to police
efficiency
and effectiveness in poor, Black areas cannot be a
justification for inferior police services. Whilst Redpath is not an
expert
in policing, the studies she presented shows the impact
policing has on crime. Rabie on behalf of the respondents, had
testified
before the Khayelitsha Commission that weakening of visible
policing might lead to an increase in crime levels. In his words
'you
can expect an increase in crime immediately.'
[89]
While Redpath has succeeded in pointing out the most obvious
shortcomings with the THRR by using statistics, she has not, in
my
view, shown that more policing in under developed areas will
result in the eradication of crime. Poverty, for example,
which
cannot be solved by more police in Khayelitsha without addressing the
socio-economic factors associated with under-developed
informal areas
and which continues to generate more crime. More than just
statistical evidence would be required to solve the problem
associated with policing in poor Black areas. Such interventions, of
necessity, would have to be by policing experts. For the police
to
improve on their policing duties there needs to be an improvement in
the socio-economic conditions.
[90]
25 years into our democracy people, Black people in particular, still
live under conditions which existed during the apartheid
system of
government. The dawn of democracy has not changed the lot of the
people of Khayelitsha. They continue to live in informal
settlements
where the provisions of services are non-existent or at a minimum.
This is more glaring where a comparison is made
with the more
affluent areas, mainly occupied by the privileged minority. Such a
comparison brings to the fore the stark reality
of abject poverty.
The unfortunate reality is that the residences of Khayelitsha, who
are predominantly Black, continue to receive
inferior services,
including services from the SAPS. The SAPS discriminates against this
impoverished community by using a system
of human resources
allocation.
[91]
What remains is to deal with the submissions of the amicus curiae and
the respondent's argument on the separation of powers.
The amicus is
the Women's Legal Centre, whose core objective is to advance and
protect the human rights of all woman and girls
in South Africa, was
admitted to this proceedings on an unopposed basis, made meaningful
contributions towards the resolution of
the issues in this
proceedings. At the onset the amicus was mindful of its role in this
proceedings, which is to draw the attention
of the Court to relevant
matters of law and fact to which attention would otherwise not have
been drawn.
[92]
Central to the amicus' submission is that women and girls in South
Africa suffer man intersecting forms of disadvantage. In
this respect
the amicus drew the Court's attention that SAPS has committed itself
to providing resources to address the high levels
of violence against
women through legislation and policies the evidence that was placed
before the Khayelitsha Commission and before
this Court show that
this undertaking has not been met. While the focus of the amicus was
to highlight the inadequacies of the
SAPS' efforts to combat gender
violence, in general, and in the community of Khayelitsha which is
highly appreciated by this Court
the unfair discrimination challenged
in this proceedings on the basis of race and poverty and not gender.
[93]
Lastly I wish to convey the Court's gratitude and appreciation for
the hard work by Counsel on both sides in preparing the
papers and
arguing the matter, which was by no stretch of the imagination, an
easy one.
[94]
In the result the order is as follows:
1. It is
declared that the allocation of Police Human Resources in the Western
Cape unfairly discriminates against Black and poor
people on the
basis of race and poverty; and
2. It is
declared that the system employed by the South African Police Service
to determine the allocation of Police Human Resources,
in so far as
it has been shown to be the case in the Western Cape Province,
unfairly discriminates against Black and poor people
on the basis of
race and poverty.
3. The hearing
on remedy is postponed to a date which shall be arranged with the
parties.
4. Costs shall
stand over for later determination.
_______________
M
J DOLAMO
JUDGE
OF THE EQUALITY COURT
I
agree.
______________
N
P BOQWANA
JUDGE
OF THE EQUALITY COURT
[1]
Act 4 of 2000.
[2]
See first part of the Preamble to the Act 3 of 2000.
[3]
Act 108 of 1996.
[4]
Act 68 of 1995.
[5]
The complaints were summarised by the Constitutional Court in
Minister of Police v Premier Western Cape
2014 (1) SA 1
(CC) at
paragraph [4] as follows:
'The
complaint contained statistics showing high and escalating crime
rates, with particular concern over figures relating to
homicides,
assaults and sexual crimes. Various and serious inefficiencies in
policing were claimed. including insufficient visible
policing in
the community, lack of witness protection. lack of co-ordination
between the police and prosecuting services and
poor treatment of
victims of crimes. The complaint described the routine violation of
the rights of the residents of Khayelitsha
and highlighted the
impact of high crime rates on residents, including children and
people vulnerable to discrimination. It added
that "the
[Khayelitsha] community has lost confidence in the ability of the
police to protect them from crime. and to investigate
crimes once
they have occurred.' The civil society organisations concerned
proposed that the premier appoint a commission of
inquiry into the
Police Service and Metro Police operating in Khayelitsha.
".'
[6]
See section 206(1) of the Constitution.
[7]
See section 206(3) of the Constitution.
[8]
See section 206(5) of the Constitution.
[9]
Section 11(2) of the SAPS Act.
[10]
Section 12(1) of the SAPS Act.
[11]
Section 12(2) of the SAPS Act.
[12]
See paras 1 and 4 of Major General Thulare Sekhukhune's affidavit on
pages 2243 - 2245.
[13]
See
Statistics Act 6 of 1999
which provides for the appointment of a
Statistician-General as head of the Statistics South Africa (('Stats
SASA') who is responsible
for the collection and dissemination of
official and other statistics.
[14]
See Sekhukhune's affidavit at paragraph 13 on page 2243-2247.
[15]
The demographic determinants include reference to areas that SAPS is
statutorily obliged to patrol; factors that complicate SAPS'
response time in addressing crime (for instance a lack of lighting,
street names and informal settlements).
[16]
See Ex Parle Noriskin
1962 (1) SA 856
(N).
[17]
See Record, at page 338: " According to the Proclamation
published in the Western Cape Provincial Gazette on 24 August 2012,
the Premier made the decision in terms of s 1 of the Western Cape
Provincial Commissions Act, 1998 read together with ss 206(3)
and
(5) of the Constitution of the Republic of South Africa, 1996."
[18]
See Record at page 28, para 59.
[19]
See Record at page 29, para 61.1; 61.2; 61.3.
[20]
Section 3(3) of the Act ' Any person applying or interpreting this
Act must take into account the context of the dispute and
the
purpose of this Act.’
[21]
Section 16 of the Equality Act
[22]
Section 20(1)(a)-(e) of the Act
[23]
Section 20(1)(f) of the Act.
[24]
Section 1 of the Act.
[25]
Ibid.
[26]
See Constitutional Law of South Africa (2nd Ed.) Vol.3, chapter 35
at page 47.
[27]
1998 (2) SA 363 (CC).
[28]
Harksen supra at para 54(b).
[29]
Section 13 of the Act.
[30]
Section 14(2) provides that 'In determining whether the respondent
has proved that the discrimination is fair, the following
must be
taken into account: (a) The context; (b) the factors referred to in
subsection (3); (c) whether the discrimination reasonably
and
justifiably differentiates between persons according to objectively
determinable criteria, intrinsic to the activity concerned.'
[31]
Section 14(2) provides that: 'In determining whether the respondent
has proved that the discrimination is fair, the following
must be
taken into account: (a) The context; (b) the factors referred to in
subsection (3); (c) whether the discrimination reasonably
and
justifiably differentiates between persons according to objectively
determinable criteria, intrinsic to the activity concerned.'
[32]
The crime categories reported by SAPS were murder, sexual crimes.
attempted murder, assault GBH, common assault, robbery, robbery
with
aggravating circumstances, arson, malicious damage to property,
burglary at non-residential and residential premises, theft
of or
out of a motor vehicle, stock theft, illegal possession of firearms
and ammunition, drug related crime, driving under the
influence of
alcohol or drugs, shoplifting, culpable homicide, crimen injuria,
neglect or ill treatment of the children, kidnapping,
and commercial
crime. See Record, para 23 on page 658.
[33]
I assumed she meant robbery with aggravating circumstances.
[34]
See record page 3766, paragraph 16.
[35]
2001 (2) SA 18 (CC).
[36]
See Larbi-Osam and Others v MEC for Education (North-West Province)
and Another
[1997] ZACC 16
;
1998 (1) SA 745
at para
[19]
.
[37]
[1997] ZACC 12
;
1998 (1) SA 300
(CC).
[38]
Harksen supra at para [50].
[39]
Section 34(2) reads: 'Nothing in this section- (a) affects the
ordinary jurisdiction of the courts to determine disputes that
may
be resolved by the application of law on these grounds; (b) prevents
a complainant from instituting proceedings on any of
these grounds
in a court of law; (c) prevents a court from making a determination
that any of these grounds are grounds in terms
of paragraph (b) of
the definition of 'prohibited grounds' or are included within one or
more of the grounds listed in paragraph
(a) of the definition of
'prohibited grounds'.'
[40]
(2nd Ed.), vol 3, Chapter 35 at page 63.
[41]
2004 (6) SA 505 (CC).
[42]
1998 (1) SA 765 (CC).
[43]
2006 (2) SA 311
(CC) at para 705.
[44]
2009 (1) SA 644
(EqC) at para 12.
[45]
See also Osman v Minister of Safety and Security and Others[2010]
ZAEQC 1; 2011 JDR 0228 (WCC) at 24 where the Court held that:
'The
phrase prima facie case employed in section 13 of the Act,
presumably is used in its generally accepted meaning of 'in the
absence of further evidence from the other side, that which is prima
facie now becomes conclusive proof
.'
[46]
[2007] ZACC 21
;
2008 (1) SA 474
(CC) at para 164.
[47]
The respondent relied on the judgment of the Constitutional Court in
Electronic Media Network Limited and Others v E.TV(Pty)
Ltd and
Other
2017 (9) BCLR 1108
(CC), especially para [2] where it was
said:
[2]
Turning to the Executive. one of the core features of its authority
is national policy development. For this reason any legislation,
principle or practice that regulates a consultative process or
relates to the substance of national policy must recognise that
policy-determination is the space exclusively occupied by the
Executive".
[48]
Hoexter: "The Future of Judicial Review in South Africa
Administrative Law"
(2000) 117 SALJ 484
at 501 -2.
[49]
The proceedings were instituted during March 2016.