Equality is enshrined in section 9 of the Constitution and prohibits unfair discrimination on numerous grounds, including race. The Equality Act gives effect to the letter and spirit of the Constitution and in section 1, when speaking to the listed grounds for unfair discrimination, does not close the list. Any other ground where discrimination causes or perpetuates systemic disadvantage or adversely affects the equal enjoyment of a person’s rights, can also be the basis of unfair discrimination. 

In terms of section 205(3) of the Constitution, the South African Police Service (SAPS) is charged with the prevention, combatting and investigation of crime, as well as the protection and securing of those living in the country. Section 206 empowers each province to monitor police conduct and oversee the effectiveness and efficiency of SAPS, to promote good relations between officers and the communities they serve and to assess the effectiveness of visible policing, among others. Where there is a breakdown of relations between SAPS and the community, the province may appoint a commission of inquiry to investigate it. In discharging its duties, SAPS is guided by the South African Police Service Act (SAPS Act). Section 12(3) states that the allocation of police human resources must be coordinated by both national and provincial police commissioners. 

It is common knowledge that crime is rampant in South Africa. In response, SAPS use a database in conjunction with the annual crime statistics to influence both policy and resource allocation. The recording of incidents of crime influences resource allocation. SAPS have a system to calculate the ideal number of officers allocated to a station. The system takes into account factors such population density, area size, geography and the unemployment rate in that area. Socio-economic factors like the presence or absence of street lights and road access are also considered. If an area is determined as disadvantaged, the allocation increases from the average one post for every 5 000 people, to one post for every 2 500 people. 

It is on this basis (by way of a brief background) that in 2012, the Premier of the Western Cape set up the Khayelitsha Commission of Inquiry (the Commission) to investigate claims of the breakdown of trust between the SAPS and the residents, made by the applicants and other members of civil society. 

The Commission concluded that there were indeed inefficiencies in policing in the area, as well as a breakdown of relations. One of the main contributors was the allocation of police resources. The Commission heard from Jean Redpath, a researcher whose research influenced the Commission’s findings, who questioned the calculation system – the theoretical human resource requirement (THRR) and the data used to determine the allocation. She said that the different weighting assigned to the different factors resulted in the under-allocation to Khayelitsha and other poor and black areas. The recommendations of the Commission included a request to the National Police Commissioner to appoint a task team to investigate the THRR and recommended that any mechanism used by SAPS going forward should be open to oversight. 

These recommendations have yet to be effectively implemented by SAPS. 

The unequal distribution of resources led to the insufficient allocation of human resources to Khayelitsha stations. One reason is that crime is generally underreported in Khayelitsha. The Commission was told that the average ratio of police to people in the country was 283/100 000. The most resourced area at the time was the Table Bay Harbour Area (affluent) with 2 636/100 000. The least resourced was Harare in Khayelitsha (poor black), with 111/100 000. The point is, where crime is consistently reported, more resources will be deployed and where it is not, the opposite happens. Therefore, it is not that areas like Harare are not in need of police presence, it is just that residents don’t report crimes (for multiple reasons) as often as their more affluent counterparts. 

While reporting rates are important to the deployment of resources, they should not be the sole influencer. Relying on the Commission’s findings, the applicants said that the THRR should consider other factors, such as the wide variation in underreporting of less serious crimes in poorer areas and the fact that murders are counted as contact crimes – robbery – in the algorithm used by the THRR. This doesn’t give an accurate representation of the actual offences in the areas and therefore prejudices them. While the prejudice is obviously not deliberate, it is the direct result of the flaws in the system.

In answering the question of unfair discrimination, the court noted that while race is, in terms of the Equality Act, a specified ground in terms of which one can claim unfair discrimination, poverty is not. The court then asked whether poverty perpetuates systemic disadvantage or adversely affects the equal enjoyment of a person’s rights, in terms of the Equality Act. The applicants argued that poverty undermines human dignity and is an immutable characteristic of a person, and that differentiation based on such a characteristic is inconsistent with the ideals of equality and equity. The court echoed this sentiment and said that because poverty is a serious impediment to the enjoyment of socio-economic rights, comparable to the impact of a specified ground, discrimination based on one’s poverty is unfair. 

Once a complainant establishes, on the face of it, that there has been unfair discrimination, the onus to prove that there was either no discrimination, or that it was fair, falls on the respondent. 

SAPS in this case argued that there was no unfair discrimination in the resource allocation, and should the court find otherwise, they argued that it was not unfair. Among the reasoning behind this stance was that SAPS does not police numbers, it polices crime i.e. ‘Extent of crime basis’. This renders SAPS a responsive service. In addition, changing the method for resource allocation would severely affect SAPS financially. Another valid point made was that merely deploying more police would not on its own remedy the problem of high crime in poor black and coloured areas. 

The court held that the respondents failed to show and prove that no unfair discrimination existed. It said that context is necessary when determining resource allocation. Context will show that crime is more rampant in poor black and coloured areas and that this demographic has a higher contact with violent crime than any other. While the court agreed that higher allocation is not a panacea – because simple policing will not eradicate poverty – it will definitely help.

This ruling is important for more than one reason. It speaks to the necessity and importance of the Equality Court in the vindication of both the equality of all people and their inherent human dignity. It is a testament to the Constitution that the right to freedom from unfair discrimination is justiciable for all. In addition, it frames poverty as not a mere social ill or by-product of the stark inequality that too many South Africans experience, but recognises it as an impediment to the enjoyment of other rights enshrined in the Bill of Rights. These include human dignity and the freedom and security of the person. Finally, the judgment emphasises that just because a system is racially neutral, or not intended to be racially discriminatory, it doesn’t mean it is incapable of being so.

By Rebecca Sibanda: Legal Assistant, Centre for Constitutional Rights
29 January 2019