Case CCT 121/21
 ZACC 27
Hearing date: 03 February 2022
Judgement Date: 19 July 2022
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Tuesday, 19 July 2022 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal and direct access to this Court seeking a declaratory order that the Equality Court of South Africa, Western Cape Division, Cape Town (Equality Court) has constructively refused to grant the Social Justice Coalition (applicants’) a remedy.
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.
In November 2011, the applicants’ and others lodged a formal complaint with the Premier of the Western Cape and this led to the establishment of the Khayelitsha Commission of Inquiry (Commission). Some of the respondents challenged the legality of the decision to establish the Commission and the power of subpoena it had been granted. The Social Justice Coalition (SJC) opposed the challenge, and on 1 October 2013, the challenge was rejected by this Court in Minister of Police v Premier of the Western Cape.
During the period of January to May 2014, the Commission held 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 also considered affidavits received from hundreds of residents of Khayelitsha expressing their concerns about the lack of effective policing in Khayelitsha. SAPS’ evidence before the Commission explained that the theoretical determination of the number of police officers and was based on a model called the Theoretical Human Resource Requirement (THRR) which had remained unchanged by SAPS since 2002 and was described by the Commission as being “irrational”, based largely on the testimony of expert witness, Ms Redpath.
In August 2014, 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. Importantly, 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.
The Commission made various recommendations and they included 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. It also recommended that the Western Cape Police Commissioner (Provincial Commissioner), allocate additional uniformed police to the three Khayelitsha police stations to enable regular patrolling of informal settlements.
Following the release of the Commission’s report, the SJC and Equal Education (EE), the second applicant, sought to engage with SAPS, the Minister and the National Commissioner on the implementation of the Commission’s recommendations but without success. The SJC and EE then decided to litigate in order to address the serious imbalance in policing resources found to exist by the Commission.
In March 2016, the applicants 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 poverty; 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 South African Police Services Act.
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.
The respondents opposed the application in the Equality Court and took the view that the relief sought by the applicants was “far-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, evolving, and multi-faceted.
The Equality Court, in its judgment delivered on 14 December 2018, declared that the system employed by SAPS to allocate human resources in the Western Cape unfairly discriminates against black and poor people on the grounds of race and poverty. The Court refused to grant the full extent of the national relief sought by the applicants on the grounds that the evidence before it was only sufficient to support the finding relative to the Western Cape. It further declined to grant the relief sought by the WLCT, that the unfair discrimination challenged in the proceedings was also based on gender. The hearing on remedy was postponed to a date to be arranged with the parties and that has ultimately led to this application before this Court.
There was an appeal and a cross appeal filed against the order of the Equality Court by SAPS against the main order and by the SJC and the other applicants against the refusal of national relief. Following negotiations between the parties, their respective applications to appeal and cross appeal to the Supreme Court of Appeal were withdrawn.
The parties attempted to reach an agreement on the appropriate remedy but no settlement on remedy could be reached. On 18 September 2019, the applicants requested the Equality Court to set the matter down for hearing on remedy as was contemplated by the Equality Court.
There was ongoing engagement between the parties and the Equality Court and, on 23 June 2020, the parties were advised by the Equality Court that the remedy would be determined on the papers on 11 August 2020. On 8 September 2020, the parties were informed by the Equality Court that one of the presiding officers was unavailable at the time as a result of an acting appointment in the Supreme Court of Appeal. The parties were then provided with the following options: (a) await the return of the presiding officer the exact date of which could not be confirmed; (b) have the question of remedy determined by a fresh Bench; or (c) have the remedy determined by one of the remaining presiding officers and a new Judge. The applicants preferred the third option while the respondents preferred the first option. The applicants thereafter wrote various letters to the Equality Court and the Judge President seeking the enrolment of the matter to determine remedy but say there was no response to their correspondence, which led them to bringing these proceedings in this Court.
The determination of the remedy remained outstanding from December 2018 when the judgment of the Equality Court was delivered. In April 2021, this application was launched.
The first judgment (minority), penned by Kollapen J held that this Court’s jurisdiction is engaged. The first judgment relied on Minister of Health v New Clicks South Africa (Pty) Ltd (New Clicks CC) for the proposition that an unreasonable delay in dealing with an application for leave to appeal interferes with the right of access to courts. The first judgment raised the question that at the level of principle what arose in this matter, was whether an unreasonable delay in incomplete proceedings may similarly constitute an interference with the right of access to courts, and may justify the order of a constructive refusal.
The first judgment undertook an overview of a number of substantive and procedural rights that all related to access to courts, as well as the inherent and remedial power of this Court. The first judgment held that, like New Clicks CC, this matter implicates the scope and content of the right of access to courts. The right of access to courts contained in section 34 is significant in that it represents an enabling right to access a court to have a justiciable dispute decided. It explained that the right to access to court was ultimately about the right to approach a court, initiate a case in support of a justiciable dispute and then to secure a decision and a remedy on the dispute. All of this was to be determined in a fair public hearing.
It further held that section 39(2) of the Constitution reminds us that when interpreting 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. It concluded that 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 then give rise to a need for an effective remedy to bring the infringement of the right to an end.
Regarding whether section 173 of the Constitution provides a basis for this Court to interfere in the process of another Court, the first judgment explained that 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. It held that this Court has the power to consider appeals before it without the leave of another court first being obtained. That said, the first judgment held that 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.
Regarding the delay by the Equality Court to grant the applicants a remedy, the first judgment explained that judicial delay in either convening a hearing or in delivering a decision in itself threatened the independence and the integrity of the judicial function and the judicial authority. It explained that when a court intervenes to address judicial delay, its objective is to protect the integrity and the independence of the judiciary and of all courts, rather than to imperil the relationship between courts. For these reasons, the first judgment found that this Court does have the jurisdiction to make the declaratory order and that there was a constructive refusal of a remedy in the proceedings before the Equality Court.
In respect of the urgency of the issue, the first judgment held that ending unfair discrimination against communities that have faced the brunt of apartheid inequality for centuries cannot ever be anything but urgent. It said that the delay in granting a remedy will continue to cause prejudice in addressing the matters of safety and security for poor and Black communities in the Western Cape. That prejudice, according to the first judgment, 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.
The first judgment held further that there was a proper case made out for the granting of the declarator and concluded that it had the necessary jurisdiction to hear the appeal, that the interests of justice supported the granting leave to appeal and that there were good prospects of success. In the result, the first judgment held that leave to appeal must be granted to the applicants and that a proper case has been made out for the declaratory order sought by the applicants.
Regarding the issue of remedy, the first judgment found that a remittal would be appropriate as evidence may well be required for a proper determination of remedy. Given the history of the matter, there may be a need to suggest timeframes on when the Equality Court deals with the matter so as to avoid any further delays.
The first judgment concluded that 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 filing of written submissions, expert evidence or any other matter relevant for the hearing to be convened as the Judge President may deem fit.
The second judgment (majority), penned by Unterhalter AJ (Madlanga J, Majiedt J, Mathopo J, Mhlantla J, Theron J and Tshiqi J concurring) disagreed with the first judgment that this matter engaged this Court’s jurisdiction. In particular, the second judgment differed with the conclusion reached by the first judgment that this Court, having derived its powers from the broad remedial powers contemplated in section 172(1) of the Constitution, enjoys the power to entertain an application for leave to appeal from the Equality Court, where that Court failed to make a decision.
The second judgment held that until the Equality Court issues an order, the case remained pending before it, and the power to decide the case remained with that Court. Absent such an order, this Court’s appellate jurisdiction was not engaged.
It reiterated the Appellate Division’s decision in Heyman v Yorkshire Insurance Co. Limited that an appeal lies from the order of the court below. Furthermore, it referred to rule 19(2) of this Court’s Rules which gives effect to section 167(6)(b) of the Constitution. In terms of this rule, there must be a litigant who has been aggrieved by a decision of a court. Without the decision of a court, no appeal can lie to this Court, and this Court shall enjoy no jurisdiction to entertain such an appeal.
The second judgment found that the applicants were attempting to escape this jurisdictional obstacle by seeking declaratory relief from the Constitutional Court that the failure by the Equality Court to take a decision should be taken to constitute a refusal of a remedy by that Court. To grant such declaratory relief would deem a decision to have been taken by the Equality Court. It required this Court to make a substantive order of the Equality Court, that is, to make a decision that no remedy is granted to the applicants. The second judgment found this to be an order of extraordinary reach. It held that this Court would be required to make a decision for another court, in a case pending before that court, on the basis that this other court refused relief to the applicants, when in fact it made no such order. This Court has no such power in terms of the Rules of this Court. This power is also not found in the Constitution.
The second judgment went on to differentiate between the present case and New Clicks CC. It held that in New Clicks CC, this Court recognised that superior courts have an inherent power to regulate and protect their own processes, 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. However, 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 to regulate the processes of other courts, which is not a power given to appellate courts, including this Court under section 173.
It agreed with the first judgment that judicial officers owe duties to those who enjoy the right of access to the courts in terms of section 34 of the Constitution. However, it found that a litigant’s section 34 rights do not allow them to bypass a competent court when seeking relief. This, according to the second judgment, was the error from which the first judgment proceeded. It found that it would be contrary to the scheme of the Constitution if the court that is expressly given the power to regulate its own processes and thereby fulfil its duty under section 34 was not the competent court, in the first instance, approached by the parties for relief. This would conflict with the principle of comity between the courts and would have far-reaching consequences. According to the second judgment, 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 carry out their duties under section 34. It found that this could never have been contemplated in terms of section 38.
The second judgment concluded that this Court was not competent to enforce the duties of the Equality Court by giving the applicants access to that Court when no application had been made to the Equality Court to do so. It held that this Court may only exercise the remedial powers given to it in section 172 if it has jurisdiction. It disagreed with the first judgment’s proposition that if a remedy is required to make good an infringement of rights, this Court enjoys jurisdiction. In this respect, it found this approach to be a reverse engineering of jurisdiction and an untenable interpretation of the Constitution.
In the result, leave to appeal was refused for lack of jurisdiction. No order was made as to costs.
The Full judgment here