A ground-breaking case on policing goes to the Equality Court in Cape Town on Tuesday. Activist groups want the court to declare that the allocation of police resources in the Western Cape unfairly discriminates against black and poor people.
The case was brought by the Social Justice Coalition (SJC), Equal Education (EE) and the Nyanga Community Policing Forum against the Minister of Police, the National and Provincial Police Commissioners and the Western Cape MEC for Community Safety in March 2016. The Women’s Legal Centre has joined as a friend of the Court.
In their papers, the activists argue that existing mechanisms to allocate police resources – which they term “a relic of apartheid” – have provided more police officers for wealthier white populations and fewer resources for poor, black populations that experience more crime.
Under section 9(3) of the Constitution, government is not allowed to discriminate unfairly against anyone on the grounds of race, gender, sex and religion. Any discrimination based on these grounds is assumed to be unfair unless the government can demonstrate that the discrimination is fair. This unfair discrimination is prohibited in the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000. The Act also creates Equality Courts run by specially trained judges. These are the only courts permitted to hear unfair discrimination cases.
The activists filed an application under the Act, arguing that the current police resource allocation system unfairly discriminates against certain people on the basis of their race and wealth.
A long-running campaign on police resource allocation by activist groups culminated in the establishment of the Khayelitsha Commission of Inquiry. The commission concluded its work in 2014 and found that the current system was “systematically biased against poor black communities”.
Data released by SAPS during the commission hearings showed that areas with high crime rates had among the lowest police resources in the Western Cape. The commission found that apartheid-era policies and allocation systems were continuing and that the current system was designed to weigh resource allocation in favour of wealthier neighbourhoods and leave poorer, largely black neighbourhoods under-policed. The Commission recommended that SAPS urgently revise the system used to allocate resources. However, according to the SJC, no revision or changes have been implemented in the three years since those recommendations.
The activists are trying to compel SAPS and provincial authorities to remedy the system. They argue that the current system indirectly discriminates on the basis of race and poverty and is a “consequence of apartheid’s legacy of overlapping lines of race, poverty and geography”.
In order for their case to succeed, the activists need
- to identify what grounds the system discriminates on;
- to ensure that at least one of these grounds is prohibited in the Act;
- to show that there has been discrimination; and
- to have the court find that the discrimination is unfair.
While discrimination based on race is prohibited, the Act and Constitution do not expressly recognise poverty as a ground for discrimination. So the SJC and EE need to prove that discrimination based on poverty should be considered unfair and therefore prohibited. They are arguing that poverty can fall under another listed and prohibited ground of discrimination: “social origin and birth”. Alternatively, they suggest that poverty is covered by the Act because discrimination based on poverty “causes or perpetuates systemic disadvantage or undermines human dignity”.
If the activists succeed in this argument, it will mean that unfair discrimination based on poverty will be prohibited by law in South Africa, something likely to have far-reaching consequences. However, in order to prove their case, the activists need to not only identify the grounds of discrimination but also show that there is actual discrimination. Since SAPS has not attempted to directly disadvantage poor black communities, the SJC and EE have to show that the policies indirectly discriminate by treating certain groups differently, depending on their race and economic status.
The activists argue that since police stations in poorer black areas face higher rates of crime but have lower police-to-population ratios than rich, white areas, this causes inefficient and ineffective policing. This means that poor black people are less safe and their right to dignity, life and freedom from violence is threatened. This also means that poor black areas receive an “inferior service” compared to wealthier neighbourhoods. This “inferior service” is considered to be a practice that constitutes unfair discrimination under the Act.
If the court agrees with these arguments, it will be up to the Ministers and Commissioners to show that the discrimination perpetrated by the allocation system is not unfair.
The Minister of Police and both the national and provincial commissioners have opposed the case. In their papers, they argue that the allocation system is reviewed on a regular basis and that there is research to evaluate the impact of the allocation system. In addition, they argue that there is no merit to the unfair discrimination case outlined by the activists and deny that the allocation system is racially discriminatory.
They say that race is not a variable used to determine how resources are allocated. The allocation process, they argue, is not racially discriminatory in itself but is “implemented in a social environment that is racialised” due to apartheid spatial planning. In fact, they argue, the allocation process is designed to counter the effects of apartheid spatial planning. The Minister and Commissioners also argue that the court does not need to order them to re-evaluate the process because it is revised and reviewed on a regular basis. Finally, the Minister and Commissioners argue that the analysis of allocation done by SJC is based on a number of misconceptions and incorrect assumptions which are technical in nature.
The activists are asking the court to declare that the system SAPS uses to determine allocation discriminates against people based on their race and lack of wealth. They also want an order to compel government officials to re-evaluate the provincial and national plans and, if necessary, redraft or amend them under the supervision of the court and with input from the public.
The Minister and Commissioners, however, are arguing that the order the activists want would infringe the separation of powers because allocation of resources is a technical and scientific policy exercise, not a legal one.
The case was initially set to be heard in August this year but was delayed. It will now be up to the courts to determine whether SAPS has done enough to improve policing resource allocation in poor areas and, if not, what should be done.
Court papers for this application have been made available here.
CORRECTION: An earlier version of the article did not mention that the Nyanga Community Policing Forum is an applicant in the case.
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