CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 121/21
In the matter between:
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
WOMENS LEGAL CENTRE TRUST Fifth Respondent
Neutral citation: Social Justice Coalition and Others v Minister of Police and
Others [2022] ZACC 27
Coram: Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J,
Theron J, Tshiqi J and Unterhalter AJ
Judgments: Kollapen J (minority): [1] to [122]
Unterhalter AJ (majority): [123] to [152]
Heard on: 3 February 2022
Decided on: 19 July 2022
Summary: Declaratory order — outstanding Equality Court order —
constructive refusal — remedy
ORDER
On appeal from the Equality Court of South Africa, Western Cape Division,
Cape Town:
1. Leave to appeal is refused.
JUDGMENT
KOLLAPEN J:
Introduction
[1] Section 9(3) of the Constitution prohibits the state from unfairly discriminating
directly or indirectly against anyone.
1
1 Section 9 of the Constitution provides:
“(1) Everyone is equal before the law and has the right to equal protection and
benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To
promote the achievement of equality, legislative and other measures
[2] The rationale for the constitutional injunction against unfair discrimination lies
deeply rooted in our shameful past and is synonymous with the commitment found in
the preamble to the Constitution to “establish a society based on democratic values,
social justice and fundamental human rights”. Unfair discrimination is inimical to the
idea of a just society and the Constitution sets its face firmly against it.
[3] It must remain a matter of grave concern that some 28 years into democracy
that is posited on a Constitution unconditionally committed to an equal society, a
recent World Bank study has concluded that South Africa is the most unequal
country in the world.
2
[4] This case is about a systematic and sustained pattern of discrimination in the
allocation of policing resources that disparately impacts poor and Black communities
in the Western Cape. It is also a case about a long and unfulfilled wait for a just and
effective remedy to the unfair discrimination that was found to exist and which is
common cause between the parties.
[5] The applicants seek declaratory relief that the Equality Court of South Africa,
Western Cape Division, Cape Town (Equality Court) has cons tructively refused to
grant them a remedy; and, arising from that, seek leave to appeal, alternatively leave
to be granted direct access , to this Court from the Equality Court. It is an application
that raises novel and unprecedented issues both of substance and procedure.
designed to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on
one or more grounds, including race, gender, sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indir ectly against anyone on
one or more grounds in terms of subsection (3). National legislation must be enacted
to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair
unless it is established that the discrimination is fair.”
2 The World Bank New World Bank Report Assesses Sources of Inequality in Five Countries in
Southern Africa (Press Release No 2002/055/AFE, March 2022).
[6] At the level of substance, it involves a determination made by the
Equality Court that there has been ongoing discrimination in the allocation of police
resources in the Western Cape on the basis of race and poverty. This is the first time
a South African court has found unfair discrimination to exist on the basis of poverty
and, given the centrality of poverty in the lives of millions of South Africans, this
decision constitutes a finding of great significance both jurisprudentially as well as in
the larger socio-economic transformation of South Africa.
[7] At the level of procedure, it raises the question whether and , in what
circumstances, may an appellate court grant a declarator that an unreasonable delay
constitutes a constructive refusal of a remedy in conflict with the right of access to
courts.3
Factual background
The Safety and Justice Campaign
[8] The spectre of crime and violence looms large over the landscape of
South Africa, impacting virtually all aspects of the lives of its people. In welcoming
the first World Report on Violence and Health by the World Health Organisation
in 2002, former President Nelson Mandela said:
“Many who live with violence day in and day out assume that it is an intrinsic
part of the human condition. But this is not so. Violence can be prevented.
Violent cultures can be turned around . . . . Governments, communities and
individuals can make a difference.”4
[9] In 2003, the Safety and Justice Campaign was launched by the Treatment
Action Campaign (TAC) to end the scourge of violent crime in townships around
Cape Town. The campaign was triggered by the murders of three TAC activists and
what was described as the unsatisfactory manner in which those murders were
3 Section 34 of the Constitution deals with the right of access to courts and provides:
“Everyone has the right to have any dispute that can be resolved by the application of
law decided in a fair public hearing before a court or, where appropriate, another
independent and impartial tribunal or forum.”
4 World Health Organisation World Report on Violence and Health 2002.
investigated and prosecuted. The TAC’s campaign gained momentum when the first
applicant, the Social Justice Coalition (SJC), joined its cause. Together with a
coalition of organisations, including the second applicant, Equal Education (EE), and
other partner organisations, the SJC organised more than a hundred
demonstrations, pickets, marches and other forms of protest to highlight the levels of
crime and what they described as the “continued failures of the Khayelitsha police
and [the] greater criminal justice system”.
[10] In November 2011, the SJC and EE, together with other partner
organisations, lodged a formal complaint with the Premier of the Western Cape. This
led to the establishment of the Khayelitsha Commission of Inquiry (Commission)
commencing in August 2012, presided over by former Constitutional Court Justice,
Kate O’Regan, and former National Director of Public Prosecutions, Advocate
Vusi Pikoli. Prior to the Commission commencing with its work, the first respondent,
the Minister of Police (Minister), and the second respondent, the National
Commissioner of Police (National Commissioner), challenged the legality of the
decision to establish the Commission and the power of subpoena it had been
granted. The SJC opposed the challenge, and on 1 October 2013, the challenge was
rejected by this Court in Minister of Police.
5
Khayelitsha Commission of Inquiry
[11] During the period January to May 2014, the Commission conducted 37 days
of formal, public hearings recording the testimony of dozens of witnesses, which
included members of the community affected by crime; experts in various aspects of
policing (including that of Ms Jean Redpath); and members of the
South African Police Services (SAPS). The Commission further considered affidavits
received from hundreds of residents of Khayelitsha expressing their concerns about
the lack of effective policing in Khayelitsha which painted a vivid picture of the effects
of the burden of crime felt by victims in their daily lives.
5 Minister of Police v Premier of the Western Cape [2013] ZACC 33; 2014 (1) SA 1 (CC); 2013 (12)
BCLR 1405 (CC).
[12] SAPS’ evidence before the Commission provided details of the manner in
which policing human resources were allocated. SAPS explained that the theoretical
determination of the number of police officers that woul d be required at each station
if there were unlimited human resources was based on a model called the
Theoretical Human Resource Requirement (THRR). This model had remained
unchanged by SAPS since 2002 and was described by the C ommission as being
“irrational”, based largely on the testimony of Ms Redpath.
[13] Ms Redpath, a researcher employed at the University of the Western Cape’s
Dullah Omar Institute at the time, gave evidence before the Commission .
Ms Redpath was also the applicants’ expert wi tness in the Equality Court
proceedings. She told the Commission that analysis conducted on the available data
suggested that crime was significantly under -reported in Khayelitsha and that the
three Khayelitsha policing areas demonstrated exceptionally hig h rates of murder.
Her findings were based on an analysis of the allocation of police resources by
reference to population and crime. In determining the allocation of police resources
by population, Ms Redpath found that the average police personnel per 100 000 of
the population was 283 police personnel but that all three Khayelitsha policing areas
received resources that were less than the average allocation. The core issue
identified with this allocation system is that areas where there is significant under -
reporting of crime will be under -resourced if regard is had to the true crime rate.
Based on this analysis, she identified a number of flaws in SAPS’ THRR premised
largely on the reality of under-reported crime.
[14] She placed before the Commission a proposed method of allocation to
address the shortcomings in the model, the first change being that the THRR should
commence with the total number of human resources available. Once that number is
determined, the starting point would then be the size of the population – areas with
larger populations requiring proportionally more resources. She argued that the
focus of crime intelligence should be directly related to the number of crimes actually
occurring in the area as opposed to reported crimes, and that the incidence of
serious violent crime should be indicated by proxy through the number of murders,
the latter not being determined by evidence of reporting. There should be room for
individual police stations to tailor the command structure to meet unique needs. She
recommended that, in relation to visible policing, the total population should remain
the primary indicator of resourcing. The primary indicator of the administrative
burden should be the population of the area served, alternatively, the total size of the
policing allocation already made. Ms Redpath stated that regardless of the method
used to allocate human resources, it should be open and transparent, and subject to
public comment and scrutiny. The Commission relied substantially on her evidence
in coming to some of its conclusions.
[15] In August 2014, after hearing all the evidence and argument from the parties,
the Commission concluded that there were widespread inefficiencies in policing in
Khayelitsha and there was a breakdown of relationships between the police and the
community. The Commission found that SAPS’ system for allocating police
resources was systematically biased against poor, Black communities, resulting in
the under-staffing of police stations which serve the poorest areas in Cape Town.
[16] The Commission recommended that the Minister request the
National Commissioner to appoint a task team to investigate the system of human
resource allocation within SAPS as a matter of urgency. Given that a significant
re-allocation of resources would probably be necessary, the Commission
recommended that the re -allocation should be phased in over a period of time not
exceeding three years. It further recommended that the third respondent, the
Western Cape Police Commissioner ( Provincial Commissioner), allocate additional
uniformed police to the three Khayelitsha police stations in terms of section 12(3) of
the South African Police Services Act
6 (SAPS Act) , to enable regular patrolling of
informal settlements.
[17] Following the release o f the Commission’s findings in August 2014, the SJC
and EE say they sought to engage with SAPS, the Minister and the
National Commissioner on the implementation of the Commission’s
recommendations but that these efforts proved unsuccessful and were met wit h
disinterest from SAPS. The SJC and EE concluded that they had no alternative in
6 68 of 1995.
the circumstances but to litigate in order to address the serious imbalance in policing
resources found to exist by the Commission.
Litigation history
Equality Court
[18] In March 2016, the applicants 7 approached the Equality Court to seek
declarators; that police resources in the Western Cape unfairly discriminated against
Black and poor people; that the system employed by SAPS to determine the
allocation of police resources unfairly discriminated against Black and poor people
on the basis of race and pover ty; and that the Provincial Commissioner had the
power to determine the distribution of police resources between stations within the
province, as envisaged in section 12(3) of the SAPS Act.
[19] The fifth respondent, the Women’s Legal Centre Trust (WLCT), was admitted
as amicus curiae. It supported the applicants’ contentions , and advanced
submissions on the effect that under -resourced policing areas had on the extent and
incidence of gender-based crimes.
[20] In her affidavit filed in the Equality Court, Ms Redpath dealt with her evidence
before the Commission, the new analysis she had conducted upon the request of the
applicants and an analysis of data concerning the province of KwaZulu-Natal.
[21] She, in large measure , confirmed her evidence before the Commission that
crime was significantly under -reported in Khayelitsha, and that the three policing
areas concerned demonstrated exceptionally high rates of murder.
[22] The respondents opposed the application in the Equality Court and took the
view that the relief sought by the applicants was “f ar-reaching”. They denied that the
THRR was racially discriminatory in its application and said that the allocation
process was subject to regular and annual reviews, was dynamic and evolving, and
multi-faceted. They further submitted that the human resource allocation, particularly
7 The applicants in the Equality Court at this point in time included the Nyanga Community Policing
Forum. It subsequently joined the proceedings as the third applicant.
in poor and Black areas, had benefitted greatly in recent years, borne out by the
additional human resources allocated to these police stations. Alluding to any
shortcomings in the allocation process, they countered that many of the concerns
raised by the Commission were already being attended to by the time the
Commission issued its report in August 2014. The respondents disputed Ms
Redpath’s evidence and rejected her proposals on the basis that she was not an
expert on policing. Finally, they adopted th e stance that the relief sought in the
Equality Court infringed the principle of the separation of powers and that the
application fell to be dismissed.
Findings of the Equality Court
[23] In its judgment dated 14 December 2018, the Equality Court pointed out that
once the complainant had made out a prima facie case of discrimination, it fell on the
respondent to prove on the facts be fore it, either that the discrimination did not take
place as alleged, or that the conduct was not based on more than one of the
prohibited grounds; or, if the discrimination did take place, that such discrimination
was fair.
8
[24] The Equality Court, relying in part on the Commission’s report and findings as
well as the evidence before it, accepted that the unequal distribution of resources led
to the insufficient allocation of resources to Khayelitsha Police Stations. It further
confirmed the Commission’s conclusi ons based on the evidence of Ms Redpath that
the application of the THRR led to the skewed and unequal allocation of human
resources, and that this undermined effective policing in Khayelitsha and other Black
areas in the Western Cape.
9 The Equality Court , in its judgment , reiterated that
Ms Redpath’s evidence indicated that crime in Khayelitsha was significantly under -
reported which influenced the allocation of police personnel to the area. 10 It also
accepted her analysis that the THRR prejudiced township areas and left those Black
townships at the bottom of the allocation of resources list. 11 It accepted that the
8 Social Justice Coalition v Minister of Police 2019 (4) SA 82 (WCC) (Equality Court judgment) at para
39.
9 Id at para 41.
10 Id at para 42.
11 Id at para 48.
THRR led to perverse outcomes and that these were not caused by any deliberate
conduct but rather shortcomings in the methodology used. The result was
unintentional, yet it led to severe discrimination on the grounds of race and poverty.12
[25] The Equality Court was satisfied that the incidence of poverty fell within the
definition of the Equality Act 13 as an unlisted ground. In this regard, for an unlisted
ground to meet the definitional requirements it must—
(a) cause or perpetuate systemic disadvantage;
(b) undermine human dignity; or
(c) adversely affect the equal enjoyments of a person’s rights and
freedoms in a serious manner that is comparable to discrimination on any of
the prohibited grounds.14
[26] It was ultimately satisfied that the manifestation of poverty, its systemic
nature, and the effect it has on human dignity and the equal enjoyment of rights and
freedoms justified its recognition as a ground of discrimination.
[27] The Equality Court concluded that police stations in the Western Cape that
served poor, Black communities had the lowest police to population ratios in
comparison to wealthier areas, which are White- dominant. It found that poor , Black
areas have high rates of contact and violent crimes and held that Ms Redpath’s
evidence supported the view that SAPS’ allocation system was prejudicial towards
poor, Black townships. It concluded that the evidence unequi vocally established a
prima facie case of discrimination on the grounds of race and poverty.
15
[28] The Equality Court then considered whether SAPS had succeeded in showing
either that there was, in fact, no discrimination or that the discrimination was fair.
SAPS’ case was that the resource allocation did not discriminate at all but if it did, it
was not unfair discrimination. SAPS also advanced other arguments based on the
12 Id.
13 Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
14 Equality Court judgment above n 8 at para 57.
15 Id at paras 30-8.
separation of powers doctrine and disputed the credibility of the evidence before the
Equality Court. The Equality Court concluded that SAPS had failed to discharge the
evidentiary burden of showing that there was no discrimination, alternatively that the
discrimination was not unfair.
[29] The Equality Court held that the allocation of police human resources in the
Western Cape unfairly discriminates against Black and poor people based on race
and poverty. The Equality Court declined to grant the national relief sought by the
applicants on the basis that the evidence before it was sufficient only to support the
finding in respect of the Western Cape. It also declined to grant the relief sought by
the WLCT, holding that the unfair discrimination challenged in the proceedings was
on the basis of race and poverty and not gender.
16
[30] It made the following order:
“1. It is declared that the allocation of p olice human resources in the
Western Cape unfairly discriminates against Black and poor people on the
basis of race and poverty;
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 show n 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.”
17
Events following the Equality Court order
[31] On 10 January 2019, the respondents filed an application for leave to appeal
to the Supreme Court of Appeal against the entire judgment and orders made by the
Equality Court on 14 December 2018, save for the findings in respect of
16 Id at para 92.
17 Id at para 94.
section 12(3) of the SAPS Act. On 31 January 2019, the applicants filed an
application for leave to cross -appeal against paragraph 2 of the Equality Court ’s
order that refused to grant relief r elevant to SAPS’ resource allocation in other
provinces. In April 2019, and after negotiations, the parties, by agreement, withdrew
their respective applications , seemingly with the intention of attempting to expedite
the finalisation of the proceedings in the Equality Court.
[32] The parties thereafter attempted to reach an agreement on the appropriate
remedy but without success, resulting in the applicants on 6 June 2019, addressing
a letter to Dolamo J and Boqwana J, requesting a directions heari ng before the
recess on 30 June 2019 in order to determine the way forward for the remedy st age
of the hearing. On 27 June 2019, a meeting was convened between the part ies and
the Judges and on 4 July 2019 a court order was made by agreement between the
parties. There, it was recorded that the parties would meet by 12 July 2019 to agree
on the process to finalise a remedy and would thereafter report t o the Equality Court
by 26 July 2019, failing which the Court would set the matter down on an expedited
basis to hear argument on the appropriate remedy.18
[33] On 6 August 2019 , and upon receipt of the report of 26 July 2019, the
Equality Court made an order substantially in accordance with the parties’ proposals,
setting out clear timeframes for the filing of a remedial plan by SAPS and a response
thereto by the applicants, failing which the Equality Court would set the matter down
for argument on the earliest suitable date.
[34] On 1 September 2019, SAPS filed what it called the Integrated Resource
Strategy (IRS) as its plan. The applicants say that the IRS was contrary to what had
been agreed to by SAPS at the 12 July 2019 meeting . It appeared to be a
generalised document rather than a remedial plan that aimed at remedying the
deficiencies and the unfair discrimination of resource allocation as identified in the
Equality Court’s judgment.
18 Equality Court judgment above n 8 at para 60.
[35] Aggrieved by the approach adopted by SAPS, the applicants addressed a
letter to Dolamo J and Boqwana J on 18 September 2019, advising them of the IRS
filed by SAPS and their unhappiness with it , and requested the Court to set the
matter down for hearing on remedy to avoid any further delays in concluding the
matter. On 30 September 2019, the State Attorney repr esenting the Provincial
Minister addressed correspondence to the parties stating that the IRS was not a
remedy for the problem of a discriminatory allocation of human resources. This was
expanded upon in an affidavit filed on behalf of the Provincial Minis ter on 13
December 2019 in relation to the IRS stating, amongst other things, that: (a) the IRS
did not constitute a remedy addressing the problem of discriminatory human
resource allocation; (b) the IRS appeared to have been a generic document drafted
in isolation from the Equality Court’s judgment; (c) SAPS had failed to consult with
the Western Cape Provincial Government in drawing up the IRS; and (d) the IRS did
not provide sufficient detail concerning future policing plans and did not adequately
address the problems identified in the THRR.
[36] The Court, in response to the applicants’ letter of 18 September 2019,
indicated that it was available to hear the matter in March 2020. That date did not
suit the respondents and – attempts to agree on another date came to nothing.
However, on 23 June 2020, the parties were advised by Dolamo J that since they
were not able to agree on a suitable date before the end of April 2020, the matter
was not enrolled then, as they were previ ously advised that Boqwana J was not
available after April 2020. The parties were also informed that the matter would be
determined on the papers on 11 August 2020. The issue of remedy was however
not determined on 11 August 2020.
[37] On 8 September 2020, the Court gave the parties a choice between the
following options—
(a) await Boqwana J’s return, the exact date of which could not be
confirmed;
(b) have the remedy determined by a differently constituted Bench; or
(c) have the remedy determined by Dolamo J and another Judge.
[38] The parties responded and the applicants indicated a preference for the third
option, while the respondents preferred the first option. Thereafter, and during the
period September 2020 to April 2021, the applicants’ attorneys followed up both
telephonically and in writing with the Equality Court as well as the office of the
Judge President regarding the finalisation of the matter. In this regard, letters were
written on 11 February 2021, 1 March 2021, and 19 Mar ch 2021, but there was no
response to their enquiries which then led to the institution of the proceedings before
this Court.
[39] On 30 April 2021, the State Attorney on behalf of the state respondents,
suggested to the applicants that the parties make a joint approach to the
Judge President to obtain a hearing date. They proposed that any ruling by this
Court be held in abeyance until the Judge President had been approached. The
suggestion made by the respondents was rejected by the applicants on the basis
that the Judge President had already received three letters from the applicants
requesting that the hearing on remedy be set down as a matter of urgency, to which
he failed to respond.
Issues before this Court
[40] The issues for determination are as follows:
(a) Is this Court’s jurisdiction engaged on the basis that it has the power to
grant declaratory relief in incomplete proceedings before another Court,
where there has been an unreasonable delay in finalising proceedings in
conflict with section 34 of the Constitution?
(b) If it does have such power , has a case been made out for the
declaratory relief of a constructive refusal of a remedy?
(c) If so, do the interests of justice warrant granting leave to appeal?
(d) If leave is granted, should this Court determine the remedy or refer the
matter back to the Equality Court for such a determination?
Jurisdiction
[41] What is novel and unusual about this matter is the antecedent jurisdictional
question whether this Court may exercise its appellate jurisdiction over another Court
in the absence of an order of such a Court. That goes to the heart of the question
whether this Court can be said to have such a power that it may exercise to enable it
to exercise its appellate jurisdiction. The argument advanced against this is that if the
matter still serves, and remains outstanding before the Equality Court, this Court will
not have jurisdiction to entertain this appeal. It may be useful to deal with this issue
first.
Does this Court have the power to grant the declaratory relief?
[42] The applicants locate their application for leave to appeal in what they say is a
constructive refusal by the Equality Court to grant them a remedy, alternatively, they
seek direct access to thi s Court on the basis of section 167(6) of the Constitution. 19
An application for leave to appeal will ordinarily lie against the order of another court
and a preliminary issue in determining the application for leave to appeal is whether
there is an order of another court that can be appealed against. The existence o r
otherwise of an “ order” as a necessary jurisdictional fact to unlock this Court’s
jurisdiction is central to this application. The applicants seek a declaratory order that
there has been a constructive refusal of a remedy by the Equality Court and this , in
their view, is the “ order” in respect of which leave to appeal would then be sought ,
satisfying the jurisdictional fact that will trigger jurisdiction. The state respondents
take a different view and argue that unless and until the Equality Court makes a
determination on remedy this Court’s jurisdiction cannot be engaged.
[43] In New Clicks CC,
20 upon which the applicants rely in advancing their case for
the declaratory relief, the facts related to proceedings before the High Court in an
application for leave to appeal. In th at instance, the High Court , after making a
determination on the merits and remedy of a claim, had heard the application for
leave to appeal but its judgment was outstanding under circumstances which the
19 Section 167(6) of the Constitution provides:
“National legislation or the rules of the Constitutional Court must allow a person,
when it is in the interests of justice and with leave of the Constitutional Court—
(a) to bring a matter directly to the Constitutional Court; or
(b) to appeal directly to the Constitutional Court from any other court.”
20 Minister of Health v New Clicks South Africa (Pty) Ltd [2005] ZACC 14; 2006 (2) SA 311 (CC); 2006
(1) BCLR 1 (CC).
applicant in New Clicks CC regarded as being unreasonably long. This prompted the
applicant to approach the Supreme Court of Appeal , seeking leave to appeal on the
basis that the delay by the High Court in deciding the application for leave to appeal
constituted a constructive refusal of leave, justifying the approach to the
Supreme Court of Appeal and engaged its jurisdiction. This argument found favour
with the Supreme Court of Appeal.
[44] The Supreme Court of Appeal granted the application for leave to appeal and,
on a further appeal to this Court, it was held:
“An application to the [ Supreme Court of Appeal] to grant leave to appeal on
the ground that there has been a constructive refusal of leave to appeal by
the High Court is a legitimate cause of action. An unreasonable delay in
dealing with an application for leave to appeal interferes with a litigant’s
constitutional right to have access to court. This is of particular concern
where the issues are urgent and the delay may cause substantial
prejudice.”
21
[45] New Clicks CC is authority for the proposition that an unreasonable delay in
dealing with an application for leave to appeal interferes with the right of access to
courts. However, the question at the level of principle t hat arises in these
proceedings is whether such an unreasonable delay in incomplete proceedings may
similarly constitute an interference with the right of access to courts, and may justify
the conclusion of a constructive refusal.
[46] The answer to this question requires an overview of both a number of
substantive and procedural rights that all in the main relate to access to courts as
well as the inherent and remedial power of this Court.
[47] This matter, like New Clicks CC, implicates the scope and content of the right
of access to court s. The right of access to court s contained in section 34 is
significant in that it represents an enabling right to access a court to have a
21 Id at para 68.
justiciable dispute decided. These disputes range in their diversity and complexity
and in the context of this matter, relates to the assertion and enforcement of
fundamental human rights.
[48] Human rights may be advanced, promoted and protected in a variety of ways
including through legislation, t he adoption of policies consistent with them and the
implementation of programs that give effect to them. When that fails or proves
inadequate, an aggrieved person has the right to assert that right in a court and seek
the determination of that court. It i s those decisions that become binding and
definitive and have relevance not just for the parties but also for others who find
themselves similarly situated. The right of access to courts as inimical to the notion
that for rights to have real meaning, they must be capable of being enforced, and
that enforcement of rights through the courts, are an important feature of the broad
machinery of democracy and the concomitant commitment to protect human rights.
[49] In Barkhuizen,
22 Ngcobo J expressed this principle as follows:
“Our democratic order requires an orderly and fair resolution of disputes by
courts or other independent and impartial tribunals. This is fundament al to
the stability of an orderly society. It is indeed vital to a society that, like ours,
is founded on the rule of law. Section 34 gives expression to this
foundational value by guaranteeing to everyone the right to seek the
assistance of a court.”
23
[50] In Chief Lesapo,24 Mokgoro J stated:
“The right of access to court is indeed foundational to the stability of an
orderly society. It ensures the peaceful, regulated and institutionalised
mechanisms to resolve disputes, without resorting to self -help. The right of
22 Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); [2008] JOL 19614 (CC).
23 Id at para 31. See also Erasmus Superior Court Practice 2 ed (Juta & Co Ltd, Cape Town 2018)
vol 1 (Erasmus I) at A1-4.
24 Chief Lesapo v North West Agricultural Bank [1999] ZACC 16; 2000 (1) SA 409; 1999 (12) BCLR
1420 (CC).
access to court is a bulwark against vigilantism, and the chaos and anarchy
which it causes. Construed in this context of the rule of law and the principle
against self -help in particular, access to court is indeed of cardinal
importance. As a result, very powerful considerations would be required for
its limitation to be reasonable and justifiable.”25
[51] The right to a ccess to court is more than simply the right to approach a court
and initiate a case in support of a justiciable dispute. The object of going to court is
to secure a decision on a dispute and the language of section 34 expressly extends
to the right to have a dispute decided. Similarly, the process by which a decision is
reached is also covered by the right in its reference to a “fair hearing”. Put differently,
section 34 is a right that guarantees access to court to have a dispute decided in a
fair public hearing.
[52] To achieve this objective, the R ules of court facilitate the litigation process
that invariably underpins the expression of the right of access. Erasmus II
26 explains
this as follows:
“[T]he object of the rules is to secure the inexpensive and expeditious
completion of litigation before the courts: they are not an end in themselves.
Consequently, the rules should be interpreted and applied in a spirit which
will facilitate the work of the courts and enable litigants to resolve their
disputes in as speedy and inexpensive a manner as possible. Thus, it has
been held that the rules exist for the court, not the court for the rules.
Formalism in the application of the rules is not encouraged by the courts.”27
[53] In Eke,28 this Court held:
25 Id at 22. See also Erasmus I above n 23 at A1-4A.
26 Erasmus Superior Court Practice 2 ed (Juta & Co Ltd, Cape Town 2018) vol 2 (Erasmus II).
27 Id at D1-7 to D1-8.
28 Eke v Parsons [2015] ZACC 30; 2016 (3) SA 37 (CC); 2015 (11) BCLR 1319 (CC) at para 39- 40.
See also id at D1-8.
“Without doubt, rules governing the court process cannot be disregarded.
They serve an undeniably important purpose. That, however, does not mean
that courts should be detained by the rules to a point where they are
hamstrung in the performance of the core function of dispensing justice. Put
differently, rules should not be observed for their own sake. Where the
interests of justice so dictate, courts may depart from a strict observance of
the rules. That, even where one of the litigants is insistent that there be
adherence to the rules. Not surprisingly, courts have often said ‘[i]t is trite
that the rules exist for the courts, and not the courts for the rules’.
Under our constitutional dispensation, the object of court rules is twofold.
The first is to ensure a fair trial or hearing. The second is to ‘ secure the
inexpensive and expeditious completion of litigation and . . . to further the
administration of justice’ . I have already touched on the inherent jurisdiction
vested in the superior courts in South Africa. In terms of this power, the High
Court has always been able to regulate its own proceedings for a number of
reasons, including catering for circumstances not adequately covered by the
Uniform Rules and generally ensuring the efficient administration of the
courts’ judicial functions.”
29
[54] The Rules of c ourt provide both details of substance and of procedure that
govern the litigation of disputes and it would be fair to say that those rules seek to
broadly achieve the fair and efficient management of the litigation process. Fairness
is ensured by allowing the proper participation of parties and the full ventilation of
issues and efficiency is advanced through the regulation of timelines and time
periods that apply in the litigation process.
[55] In Mukaddam,
30 this Court stated:
“However, a litigant who wishes to exercise the right of access to courts is
required to follow certain defined procedures to enable the court to
adjudicate a dispute. In the main these procedures are contained in the rules
29 Id. See also Erasmus II above n 26 at D1-8A.
30 Mukaddam v Pioneer Foods (Pty) Ltd [2013] ZACC 23; 2013 (5) SA 89 (CC); 2013 (10) BCLR 1135
(CC).
of each court. The Uniform Rules regulate form and process of the high
courts. The Supreme Court of Appeal and this court have their own rules.
These rules confer procedural rights on litigants and also help in creating
certainty in procedures to be followed if relief of a particular kind is sought.”31
[56] The Rules of c ourt to this extent also create mechanisms where
non-compliance w ith the rules may result in far -reaching and prejudicial
consequences for a party in default. It may result in a claim being dismissed or a
defence being struck out regardless of the merits of the claim or the defence.32
[57] All this is in advance of the objective of efficient and expeditious litigation and
the very idea of being intolerant of unreasonable delay is consistent with the
imperatives of efficient litigation. Indeed, unreasonable delay may well present as an
insurmountable obstacle to advancing a claim, even one that is meritorious in all
other respects.
[58] In Cassimjee,33 the Supreme Court of Appeal dealt with the inordinate delay
in prosecuting a cl aim and held that “[a] n inordinate or unreasonable delay in
prosecuting an action may constitute an abuse of process and war rant the dismissal
of an action”.34
[59] And so , if the R ules of court demonstrate an intolerance of unreasonable
delay on the part of litigating parties and create mechanisms to visit far -reaching
consequences on defaulting parties, what then of inordinate or unreasonable delay
on the part of the Court i tself? It would defeat the very objective of effic ient and
31 Id at para 31. See also Erasmus II above n 26 at D1-8.
32 Rule 30A(1) of the Uniform Rules of Court provides:
“Where a party fails to comply with these rules or with a request made or not ice given
pursuant thereto, or with an order or direction made in a judicial case management
process referred to in rule 37A, any other party may notify the defaulting party that he
or she intends, after the lapse of 10 days from the date of delivery of such notification,
to apply for an order—
(a) that such rule, notice, request, order or direction be complied with; or
(b) that the claim or defence be struck out.”
33 Cassimjee v Minister of Finance [2012] ZASCA 101; 2014 (3) SA 198 (SCA).
34 Id at para 10.
expeditious litigation if the parties to the litigation were held to relatively tight
timeframes in ripening a matter for hearing , but that from that point onwards, time
would cease to be of essence.
[60] It must follow that, if section 34 is to have its proper effect it must be
interpreted as both encompassing a right to bring a dispute to court, a right to have it
litigated to finality and a right to have it decided. All the components of the litigation
process are meant to flow seamlessly into each other, and they all collectively give
expression to the right of access to court. No single component is more important
than the other.
[61] In New Clicks SCA,
35 the Supreme Court of Appeal dealt with the duty that
this created on the part of the Court in the following terms:
“There rests an ethical duty on judges to give judgment or any ruling in a
case promptly and without undue delay and litigants are entitled to judgment
as soon as reasonably possible. Otherwise the most quoted legal aphorism,
namely that ‘justice delayed is justice denied’ , will become a mere platitude.
Lord Carswell recently said:
‘The law’s delays have been the subject of complaint from litigants for many
centuries, and it behoves all courts to make proper efforts to ensure that the
quality of justice is not adversely affected by delay in dealing with the cases
which are brought before them, whether in bringing them on for hearing or in
issuing decisions when they have been heard.’”36
[62] While the Cou rt spoke of an ethical duty on J udges to act promptly , it also
made reference elsewhere in its judgment to what is described as a constitutional
duty when it said that “[i]f properly engaged, this court has a constitutional duty to
deal with a matter and deal with it expeditiously”.
37
35 Pharmaceutical Society of South Africa v Minister of Health; New Clicks South Africa (Pty) Limited v
Tshabalala-Msimang N.O. [2004] ZASCA 122; 2005 (3) SA 238 (SCA) at para 39.
36 Id.
37 Id at para 10.
[63] It should not ultimately matter much if the duty contended for is an ethical one
or a constitutional one, as in either case a breach of the duty may result in an
actionable infringement of the right of access to court where there has been an
unreasonable delay. I take the approach, however, that characterising the duty as a
constitutional one is more consistent with the overall scheme of the Constitution and
the text of section 34.
[64] The right to fair hearing and a decision that would follow must, in order to be
meaningful, create a corresponding obligation for the fulfilment of that ri ght.
The Legislature will carry a part of that obligation in so far as it relates to a passage
of legislation and the enactment of rules and procedures governing litigation, while
the executive would equally carry the responsibility for availing the resour ces that
would enable courts to be established, staffed and operationalised. What then of the
courts and judicial officers? It is inconceivable that courts and judicial officers can
somehow be insulated from this important need to effect a fair division of labour. But
beyond fairness, the very essence of the right of access and its fulfilment must mean
that courts and judicial officers carry a legal responsibility to discharge the
obligations that section 34 places upon them, and foremost amongst these are to
convene and conduct a fair hearing, and thereafter render a decision. The notion that
courts have binding obligations is also consistent with section 8(1) of the Constitution
which provides, amongst other things, that the Bill of Rights binds the judiciary. If that
obligation is correctly characterised as a constitutional obligation, then it must in
terms of section 237 of the Constitution, be discharged diligently and without delay.
[65] Section 39(2) of the Constitution also reminds us that when inter preting the
Bill of Rights, a court must promote the values that underlie an open and democratic
society based on human dignity, equality and freedom, all of which point
compellingly in the direction that section 34 is binding on the judiciary.
[66] The effect of an unreasonable delay on the part of a court that results in the
infringement of the right of access to court must result in the need for an effective
remedy. In practise, it often happens that parties who experience unreasonable
delay may seek the intervention of the head of the court or will prevail upon the
Judge in question to bring the matter to finality. In many instances, this may well
resolve the problem. But what i f it does not, as the applicants say in these
proceedings?
[67] It must be that an unreasonable delay on the part of a court may well in
certain situations result in an infringement of the right of access to court. How then
should such an infringement of the right in section 34 be dealt with as a matter of law
and in a manner that provides an effective remedy , and one that is able to, at the
level of principle, overcome the jurisdictional challenge to which reference has been
made?
[68] This Court has, in Fose,38 spoken about the need for an effective remedy
when rights are breached when it said:
“In our context an appropriate remedy must mean an effective remedy, for
without effective remedies for breach, the values underlying and the rights
entrenched in the Constitution cannot properly be upheld or enhanced.
Particularly in a country where so few have the means to enforce their rights
through the courts, it is essential that on those occasions when the legal
process does establish that an infringement of an entrenched right has
occurred, it be effectively vindicated. The courts have a particular
responsibility in this regard and are obliged to ‘ forge new tools ’ and shape
innovative remedies, if needs be, to achieve this goal.”
39
[69] In Mwelase,40 this Court held:
“The vulnerability of those who suffer most from these failures underscores
how important it is for courts to craft effective, just and equitable remedies,
as the Constitution requires them to do. In cases of extreme rights
infringement, the ultimate boundary lies at court control of the remedial
process. If this requires the temporary, supervised oversight of
38 Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786; 1997 (7) BCLR 851 (CC).
39 Id at para 69.
40 Mwelase v Director-General, Department of Rural Development and Land Reform [2019] ZACC 30;
2019 (6) SA 597 (CC); 2019 (11) BCLR 1358 (CC).
administration where the bureaucracy has been shown to be unable to
perform, then there is little choice: it must be done. Here, the fact that the
Department’s tardiness and inefficiency in making land reform and restitution
real has triggered a constitutional near-emergency, as explained earlier. This
fact underscores the need for practically effective judicial intervention.”
41
[70] In search of an effective remedy, New Clicks CC is of assistance but
admittedly in a limited sense as it was confined to an application for leave to appeal
where the merits and the remedy had already been decided by the High Court. The
Rules of court appear silent on the matter, but this Court in Mukaddam contemplated
precisely such a situation. It said in relation to the rules and to any lacuna that may
exist:
“It is important that the [R]ules of courts are used as tools to facilitate access
to courts rather than hindering it. Hence rules are made for courts and not
that the courts are established for rules. Therefore, the primary function of
the [R]ules of court s is the attainment of justice . But sometimes
circumstances arise which are not provided for in the rules. The proper
course in those circumstances is to approach the court itself for guidance.
After all, in terms of section 173 each superior court is the master of its
process.”
42 (Emphasis added.)
Similar sentiments were expressed by this Court in Eke.43
[71] Mukaddam directs us to section 173 which in turn provides that “the
Constitutional Court, the Supreme Court of Appeal and the High Court of
South Africa each have the inherent power to protect and regulate their own process,
and to develop the common law, taking into account the interests of justice”. 44 The
inherent power of this Court and other superior courts to protect and regulate their
41 Id at para 49.
42 Mukaddam above n 30 at para 32. See also Erasmus II above n 26 at D1-8.
43 See [53] above.
44 Mukaddam above n 30 at para 33.
own processes, is closely associated with and inextricably linked to the manner and
fashion in which a litigant may exercise the right of access to courts.
[72] This Court in SABC ,45 described the provision as an important one, pointing
out that the only qualification on the exercise of the power contained in section 173
was that the Court must take into account the interests of justice. This Court said in
that context:
“Courts, therefore, must be independent a nd impartial. The power recognised in
section 173 is a key tool for courts to ensure their own independence and
impartiality. It recognises that courts have the inherent power to regulate and protect
their own process. A primary purpose for the exercise of that power must be to
ensure that proceedings before courts are fair. It is therefore fitting that the only
qualification on the exercise of that power contained in section 173 is that courts in
exercising this power must take into account the interests of justice.”
46
[73] This Court went on to state that:
“In my view it must be added that the power conferred on the High Courts,
Supreme Court of Appeal and [the Constitutional Court] in section 173 is not
an unbounded additional instrument to limit or deny vested or entrenched
rights. The power in section 173 vests in the judiciary the authority to uphold,
to protect and to fulfil the judicial function of administering justice in a
regular, orderly and effective manner. Said otherwise, it is the authority to
prevent any possible abuse of process and to allow a Court to act effectively
within its jurisdiction. However, the inherent power to regulate and control
process and to preserve w hat is in the interests of justice does not translate
into judicial authority to impinge on a right that has otherwise vested or has
been conferred by the Constitution.”
47
45 South African Broadcasting Corp Ltd v National Director of Public Prosecutions [2006] ZACC 15;
2007 (1) SA 523 (CC); 2007 (2) BCLR 167 (CC).
46 Id at para 36.
47 Id at para 90.
[74] Does section 173 provide a basis for this Court to interfere i n the process of
another Court? While it would not ordinarily do so, it may well have the right and the
obligation to do so in some circumstances. This Court has, in terms of section 29 of
the Superior Courts Act and rule 19(2) of the Rules of this Court, the appellate power
to hear appeals directly from other courts on constitutional matters . However,
rule 19(2) expressly contemplates a “decision” of another court as the basis for
this Court exercising its power in terms of rule 19(2). It is not in dispute that the
Equality Court has not made a “decision” and to that extent it is argued that
this Court does not have jurisdiction until the Equality Court makes a decision.
[75] While such an approach appears reasonable and practical, and is one that
preserves the comity between courts and the orderly movement of matters within the
hierarchy of the court system, it may well have unintended and prejudicial
consequences and be contr ary to the interests of justice if applied rigidly and out of
context. New Clicks CC compellingly illustrates that the approach is not cast in stone
and that an order or a decision is not always a prerequisite for an appellate court to
enjoy appellate juri sdiction. This may, at first, sound like a far -reaching proposition,
but it may be a necessary one in those rare cases and when used as a measure of
last resort. In particular, when it is alleged that a court has unreasonably delayed in
finalising a matter or in rendering a judgment which results in the infringement of the
right of access to court, the insistence that there be an order at the court of first
instance should not and cannot be dispositive of the enquiry into the appellate
jurisdiction of this Court.
[76] In such a case, it would mean that this Court would be precluded from
exercising its appellate jurisdiction because there is no order of another court . More
concerning, it would mean that the infringement of a litigant’s right of access by
another court would stand as an insurmountable obstacle to this C ourt exercising its
appellate jurisdiction. In addition, it would leave the aggrieved party in perpetual legal
limbo: they would be at the mercy of the court that has unreasonably delayed the
determination of the dispute and would have no legal means to end the delay, while
at the same time they would be procedurally barred from approaching this Court for
relief until the lower court has made an order on the matter. Such a party would face
a so-called double jeopardy – it would have no remedy in respect of its original claim,
in this instance one of unfair discrimination – and it would also have no remedy in
respect of the violation of its section 34 right of access to courts occasioned by the
unreasonable delay as it would be barred from engaging this Court.
[77] It is impossible to conceive how that outcome would fit into the structure of our
Constitution, and, in particular, the commitment to protect and promote human rights,
and to provide an effective remedy when those rights are violated or infringed. It
would lead to the absurd conclusion that for so long as there remains a continued
violation of the right to a decision on a dispute on account of the unreasonable delay
of a lower court, then the right to seek relief from this Court would simply not exist.
The drafters of the Constitution could never have contemplated this, and to the
extent that is required and necessary, this Court must exercise its inherent power in
the interests of justice to become seized with the matter. Of course, whether it grants
the necessary relief would depend on the facts of the matter however, as a matter of
law, its jurisdiction cannot be ousted.
[78] The Supreme Court of Appeal and this Court recognised and aff irmed the
view that a litigant, who in principle, has a right to approach a higher court, should
not, on account of the unreasonable delay of a lower court , be prevented from doing
so. In New Clicks SCA, the Supreme Court of Appeal said the following:
“The Supreme Court Act assumes that the judicial system will operate
properly and that a ruling of either aye or nay will follow within a reasonable
time. The Act – not surprisingly – does not deal with the situation where
there is neither and a party’s rig ht to litigate further is frustrated or
obstructed. The failure of a lower court to give a ruling within a reasonable
time interferes with the process of this Court and frustrates the right of an
applicant to apply to this Court for leave. Inexplicable inaction makes the
right to apply for leave from this Court illusory. This Court has a
constitutional duty to protect its processes and to ensure that parties, who in
principle have the right to approach it, should not be prevented by an
unreasonable delay by a lower court.”48 (Emphasis added.)
[79] The Court placed explicit reliance on section 173 in coming to its conclusion
and, expressing similar sentiments, this Court said in New Clicks CC:
“Superior Courts have an inherent right to regulate and protect their own
process. In the exercise of this power they can decide whether or not to
grant an application based on a constructive refusal of leave to appeal, and
to penalise a litigant by a costs order where such an application is wrongly
brought.”49
[80] At the same time, section 173 does not provide the Court with unlimited
powers to do as it pleases and, in Molaudzi,
50 this Court located that power carefully
in the overall power and jurisdiction of the Court when it said:
“This inherent power to regulate process does not apply to substantive right s
but rather to adjectival or procedural rights. A court may exercise inherent
jurisdiction to regulate its own process only when faced with inadequate
procedures and rules in the sense that they do not provide a mechanism to
deal with a particular scenari o. A court will, in appropriate cases, be entitled
to fashion a remedy to enable it to do justice between the parties.”51
[81] More importantly, New Clicks SCA cautions that the court’s inherent power
“does not extend to the assumption of jurisdiction not conferred upon it by statute”. 52
In doing so, the Court cautioned that a court’s inherent power could not be invoked
48 New Clicks SCA above n 35 at para 31. See also section 173 of the Constitution, which deals with
this Court’s inherent power to regulate and protect its own process. In S v Venter 1999 (2) SACR 231
(SCA), the trial court took eight months to enroll the application for leave to appeal. The applicant had
been sentenced to 4 years effective imprisonment. He was in prison and on appeal his sentence was
reduced to six months. A clear failure of justice due to judicial delay.
49 New Clicks CC above n 20 at para 72.
50 S v Molaudzi [2015] ZACC 20; 2015 (2) SACR 341 (CC); 2015 (8) BCLR 904 (CC).
51 Id at para 33.
52 New Clicks SCA above n 35 at para 19.
to give a party a right it would otherwise not have. In Moch,53 the Court was urged to
use its inherent power to grant a party a right of appeal which the statute, the
Insolvency Act,54 did not give to it. It was in response to this submission that
the Court observed that its inherent power did not extend to the assumption of
jurisdiction it otherwise did not have. In Basson,55 this Court refused to use its
inherent power to grant the state a right of appeal that the law did not provide for.
Similarly in Oosthuizen, 56 it was said that the use of the Court’s inhe rent power was
only possible in a case where the Court otherwise has jurisdiction but is faced with
[R]ules of court and procedures which do not provide mechanisms to deal with the
problem at hand. This case is not about using the inherent power of the court to
create a substantive right where one does not otherwise exist. It is, as it was done in
New Clicks SCA, about using the inherent power of the Court in situations where a
right of appeal exists but is subject to procedural pre- conditions.
57 It is about
procedure rather than substance and fits precisely into the correct side of the
distinction made in Molaudzi.
[82] Therefore, in New Clicks CC, the absence of an order on leave by the
High Court was not fatal in enabling the Supreme Court of Appeal to find that it had
jurisdiction. That Court recognised the appellant’s right of appeal in those
proceedings and made an order of constructive refusal in order to cure any
procedural pre- conditions that stood in the way of dealing with the matter. In
addition, it placed reliance on section 39(2) of the Constitution in interpreting and
giving effect to the appellant’s rights of appeal located in section 20(4) of the
Supreme Court Act.58
[83] Those same considerations apply here and even though the Equality Court
did not make an order on remedy on account of unreasonable delay, the applicants
have a right of appeal in terms of section 29 of the Superior Courts Act. That right is
53 Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service [1996] ZASCA 2;1996 (3) SA 1 (A).
54 24 of 1936.
55 S v Basson [2004] ZACC 13; 2005 (1) SA 171 (CC); 2004 (6) BCLR 620 (CC).
56 Oosthuizen v Road Accident Fund [2011] ZASCA 118; 2011 (6) SA 31 (SCA).
57 New Clicks SCA above n 35 at para 20.
58 59 of 1959.
the subject of a procedural pre- condition that an order first be granted to enable the
appeal to be considered a nd an order of constructive refusal fulfils that pre- condition
by putting in place the order of the Equality Court.
[84] There are no reasons why New Clicks CC must be narrowly construed to
confine its application to applications for leave to appeal. In its judgment, th is Court
expressed its view on delay generally and the impermissibility of preventing a litigant
from approaching a higher court because of delay.
59
[85] Finally, the provisions of section 39(2) must also find application and be of
relevance in these proceedings in giving effect to the right of appeal t he applicants
enjoy.
60
[86] This Court has the power to consider appeals before it without the leave of
another court first being obtained. That said, and if there is an unreasonable delay
on the part of another court in determining proceedings before it, this Court must
equally be entitled to use its inherent power to enable it to exercise its appellate
jurisdiction.
[87] The second judgment says that New Clicks CC does not hold that the
inherent power of an appellate court to regulate its own process extends to making
decisions for other courts, in pending proceedings before those courts. However,
that is precisely what occurred in New Clicks CC when this Court concluded that the
unreasonable delay in making an order on the part of the High Court constituted a
constructive refusal of the application by the High Court. The applicants seek a
similar order in these proceedings and the fact that no hearing on remedy was
convened by the Equality Court cannot be dispositive. The ulti mate enquiry must
accept that there has been an unreasonable delay in convening a remedy hearing
which would constitute a constructive refusal of remedy. Once such an order is
59 New Clicks CC above n 20 at para 84.
60 Section 39(2) of the Constitution provides:
“When interpreting any legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote the spirit, purport and objects of the Bill of
Rights”.
made, and it is an order that the applicants have made out a compelling case for , the
procedural pre- condition for this Court to exercise its appellate jurisdiction is
satisfied.
[88] The second judgment says that there has been an unconscionable delay in
the determination of a remedy by the Equality Court, but contends that if such a
delay constitutes a violation of the applicants’ section 34 rights of access to court,
the applicants must approach the Equality Court by way of application as the
competent court and not this Court. The difficulty with that proposition is that all
reasonable attempts to approach the Equality Court to convene a hearing on remedy
has come to nothing and it is no remedy to redirect the applicants to the Court that
has acted in violation of their rights to now vindicate their rights. The Equality Court
is not the competent court to sit in judgment of its own conduct and it is a doubtful
proposition to suggest, as the second judgment does, that it would have the
jurisdiction to hear an application that it has violated the applicants’ rights of access
in terms of section 34. In addition, what the applicants seek is not for this Court to
vindicate their access rights as an end in itself but advances the violation of those
rights as part of the factual and legal matrix that entitle them to an order of
constructive refusal and for the appeal to be considered by this Court.
[89] The second judgment also cautions that it would be impermissible for
this Court to interfere in regulating the process of another court which is what a
declaration of constructive refusal has the effect of doing. The order of constructive
refusal that is sought will enable this Court to regulate its own process in exercising
its appellate power and is not in the main about regulat ing the process of the
Equality Court. In Psychological Society,
61 this Court said:
“This Court has emphasised repeatedly that the power to intervene in
unconcluded proceedings in lower courts will be exercised only in cases of
great rarity – where grave injustice threatens, and where intervention is
necessary to attain justice.”62
61 Psychological Society of South Africa v Qwelane [2016] ZACC 48; 2017 JDR 0062 (CC); 2017 (8)
BCLR 1039 (CC).
62 Id at para 40.
[90] The idea that an appellate court should not interfere in unconcluded
proceedings in lower courts is not absolute as Psychological Society reminds us.
The need to avoid grave injustice and attain justice, which finds application in these
proceedings would justify such interference.
[91] Finally, and in the event that any doubt may still exist with regard to the power
of this Court to consider the relief that is being pursued, the provisions of section 172
of the Constitution are instructive i n providing that when deciding a constitutional
matter within its power, a court may make any order that is just and equitable. I have
already set out the basis for concluding that this is a constitutional matter within the
power of this Court. (Emphasis added.)
[92] In Hoërskool Ermelo, 63 this Court in analysing the power contained in
section 172(1)(b) said the following:
“The power to make such an order derives from section 172(1)(b) of
the Constitution. First, section 172(1)(a) requires a court, when deciding a
constitutional matter within its power, to declare any law or conduct that is
inconsistent with the Constitution invalid to the extent of its inconsistency.
Section 172(1)(b) of the Constitution provides that when this Court decides a
constitutional matter within its power it ‘may make any order that is just and
equitable’. The litmus test will be whether considerations of justice and
equity in a particular case dictate that the order be made. In other words the
order must be fair and just within the context of a particular dispute.
It is clear that section 172(1)(b) confers wide remedi al powers on a
competent court adjudicating a constitutional matter. The remedial power
envisaged in section 172(1)(b) is not only available when a court makes an
order of constitutional invalidity of a law or conduct under section 172(1)(a).
A just and eq uitable order may be made even in instances where the
outcome of a constitutional dispute does not hinge on constitutional invalidity
63 Head of Department: Mpumalanga Department of Education v Hoërskool Ermelo [2009] ZACC 32;
2010 (2) SA 415 (CC); 2010 (3) BCLR 177 (CC).
of legislation or conduct. This ample and flexible remedial jurisdiction in
constitutional disputes permits a court to for ge an order that would place
substance above mere form by identifying the actual underlying dispute
between the parties and by requiring the parties to take steps directed at
resolving the dispute in a manner consistent with constitutional
requirements. In several cases, this Court has found it fair to fashion orders
to facilitate a substantive resolution of the underlying dispute between the
parties. Sometimes orders of this class have taken the form of structural
interdicts or supervisory orders. This approach is valuable and advances
constitutional justice particularly by ensuring that the parties themselves
become part of the solution.”
64
[93] The caution expressed by this Court that form must, in proper cases, yield to
substance in the manner in which this Court approaches its remedial jurisdiction in
constitutional disputes is of critical relevance here. At the level of principle, it must
consolidate the conclusion that this Court does indeed have the power to consider
the grant of the declaratory relief necessary to regulate its processes to ensure that,
if a proper case is made out, a litigant is not unjustifiably denied the right to access
this Court. It is a power contemplated by section 173 and one that is closely aligned
to activating its own jurisdiction, and it is a power the court must exercise in the
interests of justice, which is the only qualifying consideration to the exercise by this
court of its section 173 power.
[94] I do not believe that the extension of the principle in New Clicks CC beyond
matters involving applications for leave to appeal, and subject to the caveat that it is
to be seen as a measure of last resort is offensi ve with the general scheme of
the Constitution or creates uncertainty in the litigation process. Indeed, its extension
may be necessary and consistent with the general spirit and tenor of the Constitution
and the need to properly recognise and give meaningful effect to the rights enshrined
in it, in particular, the right to have access to court. If, as SABC reminds us, the
primary purpose of section 173 is to ensure fairness in the judicial process and to
enable a court to uphold, protect and fulfil the judicial authority it must then exercise
64 Id at paras 96-7.
that power in order to deal with a complaint of unreasonable delay on the part of a
Court – this is perfectly consistent with the rationale for the giving of such power.
[95] Judicial delay in either convening a heari ng or in delivering a decision in itself
threatens the independence and the integrity of the judicial function and the judicial
authority. When a court intervenes to address judicial delay, its objective is to protect
the integrity and the independenc e of the judiciary and of all courts , rather than to
imperil the relationship between courts. For these reasons, I conclude that this Court
does have the power to make the declaratory order of constructive refusal in the
proceedings before the Equality Court.
The case in support of declaratory relief
[96] Having concluded that this Court may consider the granting of the declaratory
relief, what remains for consideration is whether a proper case has been made out
for declaratory relief, including whether the factors that are relevant to an order of
constructive refusal as espoused in New Clicks CC find application here.
[97] Our courts have accepted that declaratory relief can generally be employed
as a useful tool in the resolution of disputes and that there is generally a two- staged
approach to follow. In Cordiant Trading CC
65 that two -staged approach was
described as follows:
“First the Court must be satisfied that the applicant is a person interested in
an ‘existing, future or contingent right or obligation’, and then, if satisfied on
that point, the Court must decide whether the case is a proper one for the
exercise of the discretion conferred on it.”66
[98] The applicants are interested parties to the extent required. They initiated the
proceedings in the Equality Court to assert the right to equality and continue to seek
to bring that matter to finality in these proceedings, relying in addition on their right of
65 Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd [2005] ZASCA 50; 2005 (6) SA
205 (SCA).
66 Id at para 16 quoting from Durban City Council v Association of Building Societies 1942 AD 27 at
32.
access to court. They have a direct interest in the right to which the declarator
relates.
Is this a proper case for the exercise of this Court’s discretion?
[99] In approaching the question whether there was unreasonable delay on the
part of the Equality Court, a useful starting point in order to set the context would be
to recall the observations of the Commission. In finding that the SAPS’ system for
the allocation of human resources had – albeit in good faith – produced an in- built
bias against po or areas in the Western Cape, the Commission raised the following
concern:
“One of the questions that has most troubled the Commission is how a
system of human resource allocation that appears to be systematically
biased against poor black communities cou ld have survived twenty years
into our post -apartheid democracy. In the view of the Commission, the
survival of this system is evidence of a failure of governance and oversight of
SAPS in every sphere of government.”
[100] Those observations, and the subs equent finding, by the Equality Court in
December 2018 that SAPS’ system of resource allocation unfairly discriminated
against poor and Black people, should have created a sense of urgency on the part
of the parties and the Court for the need to deal with, and finalise, the question of
remedy without delay. This would, in turn, have been bolstered by the provisions of
the Equality Act which provides for expeditious proceedings.
67
[101] By September 2019, the applicants took the view that negotiations were not
yielding the desired outcome on settlement. The plan filed by SAPS was the IRS,
and SAPS later conceded that this plan was inadequate, generic and did not even
begin to engage and respond to the judgment of the Equality Court on the merits.
67 Section 4(1)(a) of the Equality Act provides:
“In the adjudication of any proceedings which are instituted in terms of or under this
Act, the following principles should apply:
(a) The expeditious and informal processing of cas es, which facilitate
participation by the parties to the proceedings.”
The applicants in the same month requested the Equality Court to convene a hearing
to determine the remedy and the Co urt, in engaging with the parties, proposed
March 2020 for the hearing, which was not suitable to the respondents. Further
attempts to find a suitable date were unsuccessful and the Court finally indicated that
it would determine the matter of remedy on the papers on 11 August 2020. However,
in September 2020, the parties were advised that as one of the Judges who
constituted the Court was acting in the Supreme Court of Appeal, the parties were
invited to indicate whether they wished to await the return of the Judge or preferred a
new court being constituted. The respondents indicated a preference for the former
while the applicants were comfortable with a new court being constituted.
[102] The applicants’ attorneys made both telephonic and written enquiries with
the Court regarding the enrolment of the matter from about October 2020, but they
say no response was forthcoming. These enquiries spanned the period from
October 2020 to January 2021. In the period from 11 February 2021 to 19 March
2021, three letters were addressed to the presiding Judge as well as the Judge
President, seeking their intervention to arrange an urgent hearing to determine the
question of remedy. The applicants say that t here was no response to these letters
and that they were left with no option but to launch these proceedings in April 2021.
[103] Following the issue of this application, the respondents’ attorneys approached
the applicants’ attorneys suggesting that the parties make a joint approach to the
Judge President to secure a hearing date. However, the stance of the applicants’
attorneys was that they believed that the Court was functus officio (of no further
official authority or legal effect) on the basis that i ts refusal to convene a remedy
hearing constituted a constructive refusal of remedy.
[104] If regard is had to the timespan from December 2018, when the order on the
merits was made, to April 2021, when this application was brought, it does represent
a co nsiderable passage of time. While there were some unsuccessful attempts
during that period to negotiate an agreement on remedy, by September 2019, the
Court had been requested to convene a remedy hearing . By April 2021 no such
hearing had been convened. The applicants were not appraised of when such a
hearing would take place or even how the Court would be constituted for such a
hearing, notwithstanding that the parties’ views were sought and obtained as far
back as in September 2019.
[105] It has been poi nted out by the state respondents that part of the delay was
occasioned by the unavailability of counsel as well as the Judges who made the
merits order. While those are factors that would require consideration, I am not
satisfied that they stand as justif ication for the delay. What was required was the
Court fixing a date for hearing, and that simply did not happen from September 2019
to April 2021. The diary of counsel or the unavailability of Judges (even for good
reason) cannot justify an inordinate delay, in particular, where a matter requires a
level of urgency to be brought to it. Also, New Clicks CC reminds us that the delay
need not be deliberate.
68
[106] Following the withdrawal of the applications for leave to appeal and
cross-appeal in the Supreme Court of Appeal, the applicants pursued the finalisation
of the matter with consistency and with the necessary degree of urgency. They
initially sought directions on ensuring the negotiations between the parties on
remedy was time- bound and court supervised, and then when that failed sought a
remedy hearing. In the months that followed, the applicants maintained what may be
described as a level of persistency to bring the matter to finality. All of the
interventions to bring the matter to finality were initiated by the applicants – from the
seeking of directions on remedy to the requests for hearing dates – it was them who
demonstrated a focused commitment to bring closure to the litigation and have in
place an effective remedy. Rather than criticising them for this stance and their final
decision to institute this application, they should be commended for their
perseverance – mindful that they were not responsible for the system of unfair
discrimination that the Equality Court found to exist, nor was the capacity to remedy
that within their remit. These were matters that fell squarely within the duties and the
powers of the state respondents and one would have hoped for a greater level of
urgency and decisiveness on their part.
68 New Clicks CC above n 20 at para 69.
[107] The circumstances that could constitute an unreasonable delay may include
“deliberate obstructionism on the part of a court of first instance or sheer laxity or
unjustifiable or inexplicable inaction, or some ulterior motive”. 69 In these proceedings
inexplicable action for at least seven months from September 2020 to April 2021
coupled with hardly any progress for most of 2020, under circumstances where
action of an urgent nature was required, would suffice to constitute unreasonable
delay.
[108] The determination whether there has been an unreasonable delay , is not to
be arrived at only by some mechanical calculation on a timeline, important as that
may be, but also by the urgency that the matter would ordinarily warrant; the public
interest in deciding the matter expeditiously; the effect of the finding on the merits
which was no longer in dispute and the effect of any further delay in bringing the
matter to finality. All these considerations lead to the conclusion that the Equality
Court did not deal with the matter with the requisite degree of urgency and that the
delay was unreasonable. A finding of unreasonable delay is accordingly justified on
the facts before this Court.
[109] In New Clicks CC, this Court said that in addition to the unreasonable delay,
regard must be had to whether the remedy sought is a measure of l ast resort, the
urgency of the issue and whether the delay caused substantial prejudice.
[110] Having outlined the steps they took to bring the matter to finality, the
applicants say that this was a measure of last resort. The state respondents disagree
and contend that the applicants should have responded favourably to their
suggestion of a joint approach to the Judge President . This suggestion was made
after the lodging of this application. Whether this was a measure of last resort must
be assessed at the time the application was brought to this Court. As at early
April 2021, there had been no response to the various telephonic and written
requests by the applicants for a date for a hearing on remedy, and the state
respondents were ominously silent , while the applicants took all these measures to
secure a hearing date, albeit without success. In addition, some of those requests by
69 New Clicks SCA above n 35 at para 31.
the applicants had also been directed to the Judge President so it is not clear why a
joint approach would have made any difference. It may have, but that does not mean
that this was not a measure of last resort. One should be cautious in not setting an
absolute bar for the determination of a measure of last resort. It would suffice if the
applicants were able to show that they had diligently followed and exhausted all
reasonable measures open to them. I am satisfied that they did.
[111] On the urgency of the issue, it is evident for the reasons I have provided that
the matter carries with it the necessary attributes of urgency. Ending unfair
discrimination against communities that have faced the brunt of apartheid inequality
for centuries cannot ever be anything but urgent, and from this it must follow that the
delay will continue to cause prejudice in addressing the matters of safety and
security for poor and Black communities in the Western Cape. That prejudice will
exist in how people are able to live, to work, to play, to learn or simply to express
their humanity under the constraints that living in an unsafe environment brings. It is
so far removed from the constitutional promise of a society “based on democratic
values, social justice and fundamental human rights”.
70
[112] Therefore, and regard being had to the unreasonable delay, the urgency of
the matter, the issue involved and the conclusion that this was a measure of last
resort, I am satisfied that the applicants have succeeded in making out a case for
this part of the relief they seek.
Leave to appeal
[113] The result and, in sum, is that this Court has the power to grant the
declaratory relief that is sought and there is, in addition, a proper case made out for
the grant of such relief. The consequence is that this Court has the necessary
jurisdiction to hear the appeal. The interests of justi ce stands firmly in support of
granting leave to appeal, regard being had to the nature of the issue before this
Court as well as the prospects of success. 71 Leave to appeal must be granted and
the Court must make the declaratory order sought by the applicants in paragraph 1
70 See the Preamble of the Constitution.
71 S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC); 2001 (1) BCLR 36 (CC) at para 12.
of their Notice of Motion, namely, “[d]eclaring that the Equality Court has
constructively refused to grant the [a]pplicants a remedy pursuant to the declaratory
orders it made on 14 December 2018 in case number EC03/2016”.
Merits and remedy
[114] Before dealing with remedy, I deal briefly with the relief as set out in
paragraph 2(ii) of their Notice of Motion, namely, [g]ranting the [a]pplicants leave to
appeal to this Court against . . . paragraph two of the Equality Court’s order of
14 December 2018”. As I understand paragraph 2 of the order of
14 December 2018, it was the subject of a cross -appeal by the applicants, however,
following negotiations, the parties agreed to withdraw the appeal and the cross -
appeal and this was formalised by notice to that effect. That would effectively have
put an end to the cross -appeal and that relief is not before this Court, nor can it be
resuscitated.
[115] The determination of a suitable remedy is what ultimately remains outstanding
in this litigation and, for all the reasons given, its expeditious determination is
warranted. At the same time, that issue has not been venti lated before any court,
including this one. While the parties are broadly in agreement that the remedy will
take the form of a filing of a remedial plan, there are many issues that may require
consideration with regard to that plan. In particular, whether the plan is sufficiently
responsive to, and deals adequately with, the unfair discrimination the Equality Court
found to exist. The order of constructive refusal of a remedy cannot stand and must
be set aside and, in its place, the Court must then consider what an appropriate
remedy would be.
[116] As Fose reminds us, a remedy must be effective,
72 and this Court should
resist the temptation to deal with remedy notwithstanding its desire to bring the
matter to finality. The suitable remedy will require careful deliberation and possibly
expert input, and it would be just and equitable to remit the matter to the
Equality Court for determination.
72 Fose above n 38 at para 69.
[117] A remittal would be the most effective order that this Court can make and,
given the history of the matter, there may be a need to place timeframes on when
the Equality Court deals with the matter so as to avoid any further delays. This would
not constitute an unwarranted interference in the work of the Equality Court but
rather to ensure that, given the history of the matter, a plan for the expeditious
resolution thereof is put in place.
[118] The failure to do so may carry the risk of further delays and, in this regard, it is
worth recalling that at the hearing of this matter, counsel for the state respondents, in
reference to the approval of the THRR, said that the plan was “meandering”
somewhere within the SAPS hierarchy as part of the process for its approval.
[119] In all the circumstances, it would be just and equitable to remit the matter to
the Equality Court and request the Judge President of the Western Cape High Court
to constitute a bench that will hear the outstanding issue of remedy within 90 days of
this order, and to issue directions with regard to the filling of written submissions,
expert evidence or any other matter relevant for the hearing to be convened as the
Judge President may deem fit.
[120] Given that one of the Judges who sat on the merits part of the application has
been elevated to the Supreme Court of Appeal, and that a complaint has been
submitted to the Judicial Service Commission regarding the other Judge on which
we offer no view, it will probably be consistent with the interests of justice that a
differently constituted bench be appointed.
Costs
[121] The applicants have achieved substantial success in this Court and there is
no reason why they should not be awarded thei r costs, which should include the
costs of two counsel.
Order
[122] Had I commanded the majority in this Court, I would have proposed an order
granting a declarator that the unreasonable delay by the Equality Court of South
Africa, Western Cape Division, Cape Town (Equality Court) in convening a hearing
and deciding the issue of remedy constitutes a constructive refusal of remedy. I
would have further proposed that leave to appeal be granted, the appeal be upheld,
and the matter be remitted to the Equality Court for the determination of a remedy
before a different bench and in accordance with proposed timelines.
Unterhalter AJ (Madlanga J, Majiedt J, Mathopo J, Mhlantla J, Theron J and Tshiqi J
concurring):
[123] I have had the pleasure of reading the judgment penned by my Brother,
Kollapen J (first judgment). It reflects a deep concern that poor and Black
communities in the Western Cape have been discriminated against and have not,
after so long, been provided with a remedy by the Equality Court. That is a concern I
share. That the applicants are entitled to have the issue of remedy determined is
plain. That the Equality Court has unconscionably delayed in doing so is also clear.
We differ as to whether this Court enjoys the power to make a declaratory order of
constructive refusal so as to entertain an application for leave to appeal from the
Equality Court.
[124] My Brother Kollapen J finds this power to flow from the Equality Court’s
infringement of the applicants’ rights of access to courts in terms of section 34 of the
Constitution, read with the broad remedial powers conferred upon this Court under
section 172(1) of the Constitution. It is with regret that I conclude that this Court does
not have the power to effect the remedy sought by the applicants. That regret is
rooted in my wish that the applicants should enjoy an effective remedy. But the
powers of a court cannot be derived from the consequences that it would wish to
effect. This Court enjoys only those powers conferred upon it, no more and no less.
[125] The applicants move to this Court for sequenced relief. They seek declaratory
relief that the unreasonable delay of the Equality Court, in convening so as to decide
the issue of remedy, constitutes a constructive refusal of a remedy by that Court.
Such declaratory relief is the basis upon which the applicants then rely to seek leave
to appeal to this Court, from an order of refusal of a remedy that is imputed to the
Equality Court. Should leave to appeal be granted and the appeal upheld, then
this Court may either grant a remedy that the Equality Court has thus far failed to
determine, or give other relief that would permit the applicants to secure a remedy
for the unfair discrimination that the Equality Court has found to exist.
[126] The declaratory relief of constructive refusal is a necessary predicate for the
further relief sought by the applicants from this Court. The case that the applicants
seek leave to appeal is pending before the Equality Court . That Court has yet to
bring those proceedings to a conclusion and issue an order. That is the very
complaint that the applicants make. Until the Equality Court does so, the case
remains pending before it, and the power to decide the case rests with that Court.
There is no order of the Equality Court from which leave to appeal to this Court may
be sought.
[127] So too, absent an order of the Equality Court from which leave to appeal to
this Court is sought, the appellate jurisdiction of this Court is not engaged. It is
elementary, but fundamental, that a court’s appellate jurisdiction rests upon an order
having been made by the court from which leave to appeal is sought. An appeal lies
from the order of the court below. It was ever so, as Heyman,
73 and a long line of
authority since has confirmed. Rule 19(2) of this Court’s Rules gives effect to
section 167(6)(b) of the Constitution and sets out the basis upon which a person may
appeal directly to this Court from any other court. 74 In terms of the rule, there must
be a litigant who has been aggrieved by a decision of a court. Although this Court
has interpreted what constitutes a decision in a generous fashion, 75 absent a
73 Heyman v Yorkshire Insurance Co. Limited 1964 (1) SA 487 (A) at 490C-D.
74 Rule 19(2) of the Constitutional Court Rules provides:
“A litigant who is aggrieved by the decision of a court and who wishes to appeal
against it directly to the Court on a constitutional matter shall, within 15 days of the
order against which the appeal is sought to be brought and after giving notice to the
other party or parties concerned, lodge with t he Registrar an application for leave to
appeal: Provided that where the President has refused leave to appeal the period
prescribed in this rule shall run from the date of the order refusing leave.”
75 Khumalo v Holomisa [2002] ZACC 12; 2002 (5) SA 401; 2002 (8) BCLR 771 at paras 7- 9.
decision of a court, no appeal c an lie to this Court, and this Court enjoys no
jurisdiction to entertain such an appeal.
[128] The applicants recognise this jurisdictional obstacle. Since the Equality Court
has made no decision as to remedy, there is nothing from which to appeal to
this Court. Hence the applicants seek declaratory relief from us that the failure by the
Equality Court to take a decision should be taken to constitute a refusal of a remedy
by that Court. The grant of such declaratory relief deems a decision to have been
taken by the Equality Court, clearing the way for the applicants to then seek leave to
appeal to this Court.
[129] The question that then arises is this: where is the power that permits
this Court to make the declaratory order sought of it to be found? This Court is being
asked to deem another court to have taken a decision, so as then to sit on an appeal
from that ver y decision. Both the content and effect of the declaratory order sought
by the applicants is to have this Court make a substantive order of the
Equality Court, that is, to make a decision that no remedy is granted to the
applicants.
[130] That is an order of extraordinary reach. Clothed as a declaratory order, it
makes a decision for another court, in a case pending before that court, on the basis
that this other court has refused relief to the applicants, when in fact it has made no
such order. The power to make such an order is not to be found in section 167 of the
Constitution. As we have observed, section 167(6)(b) references an appeal to
this Court from any other court as allowed under the Rules of this Court. Those
Rules require that the other court has rendered a decision. The Rules do not permit
this Court to make the decision for the other court so as to entertain an appeal from
that decision.
[131] Nor is the power located as an incident of the inherent power of this Court to
regulate its own proc ess in terms of section 173 of the Constitution. In
New Clicks CC,
76 this Court recognised that superior courts have an inherent power
76 New Clicks CC above n 20 at para 72.
to regulate and protect their own process, and in the exercise of this power, they can
decide whether to grant leave to appeal based upon a constructive refusal of leave
by the lower court. The holding in New Clicks CC goes no further than to say that an
appellate court may exercise its own power to grant or refuse leave to appeal on the
merits of the application before it, and it is not prevented from doing so if the lower
court has unreasonably delayed in its own decision as to whether leave should be
granted. That is an incident of the appellate court’s inherent power to regulate its
own processes, because the ultimate power to grant leave to appeal resides with the
court to which an appeal lies.
[132] New Clicks CC does not hold that the inherent power of an appellate court to
regulate its own processes extends to making decisions for other courts in pending
proceedings before those courts. That would accord powers to an appellate court t o
regulate the processes of other courts, which is not a power given to appellate
courts, including this Court under section 173.
[133] Where then is the power that would permit this Court to make the declaratory
order sought of it by the applicants locat ed? The first judgment finds that power in
the infringement by the Equality Court of the applicants’ rights of access to court in
terms of section 34 of the Constitution, read with the broad remedial powers enjoyed
by this Court under section 172 of the Constitution. I turn to consider this aspect of
the matter.
[134] Section 34 of the Constitution provides that “[e]veryone has the right to have
any dispute that can be resolved by the application of law decided in a fair public
hearing before a court or, w here appropriate, another independent and impartial
tribunal or forum”. The right of access to courts, by its clear wording, is a right to
have a dispute decided, if the dispute can be resolved by the application of law. The
dispute before the Equality Court is one that can be so resolved. If the hearing of a
dispute has been egregiously delayed, that prevents a dispute from being decided
and may thus amount to the infringement of the right.
[135] The applicants’ case is that the Presiding Judge in the Equality Court and the
Judge President of the Division have unreasonably delayed the convening of the
Equality Court to decide the question of remedy. The question that arises is this:
assuming, for the sake of argument , the delay amounts to an infringement o f the
applicants’ right of access to the Equality Court, is the right enforceable against the
Equality Court?
[136] The answer to this question is not free of difficulty. In terms of section 8(1) of
the Constitution, the Bill of Rights binds the judiciary. Section 7(2) of the Constitution,
requires that the state must respect, protect, promote and fulfil the Bill of Rights. The
courts, being the judicial authority of the state, form part of the state. The courts are
thus bound to do what section 7(2) of the Constitution requires. Indeed, the courts
are the principal institution under the Constitution by recourse to which the
Bill of Rights is enforced. It follows that the courts must respect, protect, promote and
fulfil the Bill of Rights.
[137] Judicial officers are central to the constitutional commitment to secure the
right of access to courts. The right of access to the courts is a right to have a dispute
decided in a fair public hearing. By reason of the fact that judicial officers preside
over the courts to which they are appointed, they bear the principal, but not
exclusive, duty to ensure that the disputes that come before their courts are decided
fairly, in public hearings, and within a reasonable time. That duty is plainly owed to
the judiciary, as an institution. But it is also owed to everyone who looks to the courts
to secure justice and enjoys the right of access to the courts that section 34
provides.
[138] That judicial officers owe duties t o those who enjoy the right of access to the
courts, does not resolve a distinct issue that lies at the heart of the case before us
how are these duties enforced? Section 38 of the Constitution provides that
“[a]nyone listed in this section has the right t o approach a competent court, alleging
that a right in the Bill of Rights has been infringed or threatened, and the court may
grant appropriate relief”.
77 Where a judge is alleged by a litigant to have infringed
their right of access to the court, which court is the competent court the litigant has a
77 Emphasis added.
right to approach to decide whether there has been an infringement and, if so, what
relief is appropriate?
[139] Section 38 gives expression to an important principle. To enforce a right, a
litigant must approach a competent court. Which court is competent is a threshold
question of jurisdiction. It does not follow that because the applicants’ right of access
to court may have been infringed and they require appropriate relief, this Court is the
competent court that the applicants may, in the first instance, approach to secure
that relief. In my respectful view, this is the error from which the first judgment
proceeds. It reasons that because the Presiding Judge of the Equality Court has
failed to convene his Court, he has breached the applicants’ rights to a decision on
remedy within a reasonable time, and the wide remedial powers of this Court permit
us to grant a remedy, including the declaratory relief sought by the applicants. This
reasoning does not explain the basis upon which this Court is the competent court
that the applicant may approach to enforce their rights.
[140] There are a number of considerations that weigh against this Court as a
competent court that may be approached, as a court of first instance, to enforce an
alleged infringement of a litigant’s right of access to the courts.
[141] First, if a judge, presiding over a case, is alleged to have failed to comply with
their constitutional duties, the aggrieved litigant must, in the first instance, bring an
application before the Presiding Judge and seek to have the judge cure the breach.
The Presiding Judge, as we have observed, owes duties to the litigants who come
before the courts. But the Presiding Judge must be called up to comply with those
duties, and, if a proper case is made out, the Presiding Judge is best placed to
resolve the issue in the very proceedings where the infringement is alleged to arise.
[142] So, for example, if a Presiding Judge acts in a manner that compromises the
fairness of the proceedings, perhaps because of some bias or conflict of interest, it
has long been part of our law that the litigant seeks the judge’s recusal. It is for the
judge against whom the allegation is made to decide, in the first instance, whether
recusal is warranted. The Presiding Judge will grant or refuse the order sought. A
refusal will permit the litigant who remains aggrieved to seek leave to ap peal. But the
competent court from which to seek redress is the court in which the unfairness
occurs. The same is true of the many decisions required of a Presiding Judge to
ensure the fairness of the proceedings: in camera rulings, confidentiality regimes that
govern the disclosure of documents, the recalling of a witness, to offer but a few
examples. It is for the Presiding Judge to rule on these matters. There is no
supervisory jurisdiction accorded to other courts to make these rulings when the
Presiding Judge has not yet done so.
[143] The second consideration is this: the right of access to the courts is much
concerned with due process. As I have observed, in terms of section 173 of
the Constitution, the courts have the inherent power to protect and regulate their own
process. The court that has the duty to protect access by a litigant to the courts is
also vested with the power to regulate its own process. It would be anomalous and
contrary to the scheme of the Constitution if the court that is expressly given the
power to regulate its own process and thereby fulfil its duty under section 34 was not
the competent court, in the first instance, by recourse to which enforcement takes
place.
[144] Third, the inherent power of a court to regulate its own process also entails a
principle of comity as between courts. One court will respect the power of another
court to regulate its own process. To do otherwise woul d be to disregard the very
power that section 173 confers. In particular, an appellate court will not regulate the
process of a lower court where the lower court has yet to exercise its powers and
render a decision as to how its process will be regulated s o as to protect a litigant’s
right of access. Remedial powers under this section are wide but certainly not
unfettered:
“The wide remedial power of making a just and equitable order under
section 172 of the Constitution has limits. Here, the words ‘a cour t . . . may
make any order that is just and equitable’ must be read in proper context.
They do not mean that a court is free to grant whatever order it considers to
be just and equitable. In context, these words enable a court to issue a just
and equitable remedy within its jurisdiction. The limit to what a court may
order is apparent from the opening words of section 172(1).”78
The notion that this Court is the competent court to enforce a litigant’s right of access
to the Equality Court, when the Equality Court has not yet been moved to do so,
would conflict with the principle of comity.
[145] Fourth, the applicants invite this Court to accept a broad supervisory
jurisdiction to regulate the process and enforce the duties of another court, when that
court has yet to rule on the matter. This would have far -reaching consequences.
This Court would be assuming an original jurisdiction to entertain hundreds of
applications to supervise the many ways in which litigants may complain that other
courts are failing to carr y out their duties under section 34. For the purposes of
enforcing the right of access to the courts, it could never have been contemplated
that this Court is, in terms of section 38, a competent court to undertake this
supervisory jurisdiction.
[146] For these reasons, I conclude that this Court is not competent to enforce the
duties of the Equality Court by giving the applicants access to that Court when no
application has been made to the Equality Court to do so. It is unsustainable to
contend that this Court can intervene here through it regulating its own process as
the first judgment appears to suggest. I simply cannot see how that power can
emanate from section 167 or section 171 of the Constitution or rule 19 of this Court’s
Rules.
[147] This conclusion rests upon the proposition that this Court has no competence
to enforce the section 34 rights of the applicants until such time as the Equality Court
has declined to do so. But the force of the declaratory relief sought of this Court is to
deem the Equality Court to have refused the applicants’ a remedy, and hence the
Equality Court must be taken to have made an order, from which an appeal lies to
78 AmaBhungane Centre for Investigative Journalism NPC v Minister of Justice and Correctional
Services; Minister of Police v AmaBhung ane Centre for Investigative Journalism NPC [2021] ZACC 3,
2021 (3) SA 246 (CC); 2021 (4) BCLR 349 (CC) at para 192.
this Court, rendering it a competent court to enforce the applicants’ right of access to
the Equality Court.
[148] This argument cannot prevail. The Equality Court has been repeatedly
approached to set down the applicants’ case for hearing. No application has ever
been made to it by the applicants to enforce their constitutional rights of access. The
declaratory relief sought of this Court is that the Equality Court should be taken to
have refused a substantive remedy to the applicants. The declaratory relief that is
sought does not declare the Equality Court to have refused to give the applicants
access to it. Nor could it do so because no such application has been made by the
applicants to the Equality Court to enforce their constitutional rights of access.
[149] It follows that this Court is not the competent court in terms of section 38 that
the applicants may approach to enforce their rights under section 34, when the
applicants have not first sought to enforce these rights before the Equality Court. If,
as I find, this Court therefore lacks jurisdiction to entertain the application before it,
there can be no basis to source its jurisdiction by recourse to a determination that
the applicants’ rights have been infringed and the wide remedial remit of section 172
that gives this Court the power to make an order to cure that infringement.
Jurisdiction is a binary concept - a court either enjoys jurisdiction or it does not. This
Court cannot simultaneously lack jurisdiction in terms of section 38 but enjoy
jurisdiction under section 172. Section 172 makes this very clear. Its introductory
words are these: “[w]hen deciding a constitutional matter within its power ”.
79
This Court must enjoy jurisdiction to decide a matter. If it does, only then may it
exercise the remedial powers given to it in section 172. The first judgment holds to
the proposition that if a remedy is required to make good an infringement of rights,
this Court enjoys jurisdiction. That reverse engineering of jurisdiction is not, in my
respectful view, a tenable interpretation of the Constitution.
[150] For these reasons, I conclude that the application before us must fail.
The Constitution does not give this Court the power to make the declaratory order
sought so as then to entertain an application for leave to appeal from that order. Nor
79 Emphasis added.
is this Court competent to enforce the applicants’ rights of access to the
Equality Court, when the applicants have not moved the Equality Court to do so. I
appreciate that the applicants have, with much persistence, requested the Presiding
Judge in the Equality Court to convene his Court. His failure to do so is to be
deprecated. What is required is an application, brought urgently if there are grounds,
to the Equality Court, setting out the infringement of the applicants’ rights and
requiring the Presiding Judge to convene his Court.
Conclusion
[151] In the result, leave to appeal must be refused for want of jurisdiction. In a case
of this kind, no order for costs is warranted.
Order
1. Leave to appeal is refused.
For the Applicants: P Hathorn SC, N Mayosi and M Bishop
instructed by the Legal Resources Centre
For the First to Third Respondents: R T Williams SC, K Pillay SC, U K Naidoo
and R Matsala instructed by the State
Attorney, Cape Town
For the Fifth Respondent: A Christians and V Jere instructed by the
Women’s Legal Centre Trust