Khayelitsha policing collapse the result of ‘catastrophic’ and ‘unconscionable’ political and judicial failure

Despite concerted efforts by civic society organisations over almost 20 years, police in the Khayelitsha area remain understaffed because of a catastrophic failure of the national government and the failure of the high court to finalise a case. This is the reality that needs to be considered when looking at the government’s failures — not the feckless stories we are often peddled.

There is a story that feckless ANC politicians, their corrupt or otherwise compromised allies — as well as their supporters — continue to peddle to justify the many failures of the ANC government.

In one version of this story, it is reactionary NGOs (funded by Western imperialists) who take the government to court — and judges who rule against the government in such cases — that are largely to blame for the failures of the ANC government.

(Some qualify this by claiming that there is a handful of noble and principled judges such as Judge President John Hlophe, who are being victimised for daring to champion the interests of poor, black people.)

Then there is the reality.

And the reality is very different. Anyone who is familiar with Saflii (the Southern African Legal Information Institute) and has read just a smattering of the relevant court judgments will know this.

But few judgments better illustrate the mendacity of those who peddle this story than the recent Constitutional Court judgment in Social Justice Coalition v Minister of Police (CCT 121/21) [2022] ZACC 27 (19 July 2022). Here, I am not interested in the novel, legal issue raised in the case. Instead, what is relevant here are the facts that led to the Social Justice Coalition approaching the Constitutional Court.

It all started in 2003, when the Treatment Action Campaign (TAC) launched a campaign to end the scourge of violent crime in townships around Cape Town after three of its activists were murdered in Khayelitsha.

The campaign, later joined by Social Justice Coalition (SJC), Equal Education (EE), and other partner organisations, sought to highlight the extreme levels of crime in the area, and what they described as the “continued failures of the Khayelitsha police and [the] greater criminal justice system”.

In 2014, a commission of inquiry appointed by the premier of the Western Cape concluded that there were widespread inefficiencies in policing in Khayelitsha, and that the SAPS’ system for allocating police resources was systematically biased against poor, black communities.

Police resources were allocated using a model introduced in 2002, based on the size of the population and the rate of crimes reported in that area. Because crime is significantly unreported in areas like Khayelitsha, and because the method used to measure serious crimes like murder was flawed, the model produced skewed results.

The commission thus found that the SAPS’s system for allocating police resources was systematically biased against poor, black communities, resulting in the understaffing of police stations which serve the poorest areas in Cape Town.

Section 206 of the Constitution makes it clear that policing is a national competence, and the Minister of Police is responsible for policing, although provinces may monitor police conduct. The SJC and EE therefore attempted to engage with the responsible entities — the SAPS, the Minister of Police and the National Commissioner — to try to persuade them to implement the commission’s recommendations. Alas, this came to nought.

On a generous interpretation, up until 2014 the government may have acted in good faith and may have used a system to allocate SAPS resources that was systematically biased against poor, black communities because they were unaware that the system was flawed. But it beggars belief that the government continued on its path despite being aware of the problem.

A combination of arrogance, incompetence and a callous disregard for poor, black communities probably explains this unconscionable behaviour. To what extent this reluctance to act stemmed from the ANC government’s antagonism towards the DA government in the Western Cape is not clear.

It is at this point that the SJC and its partners approached the high court in Cape Town (sitting as an equality court) to seek an order declaring, among other orders, that police resources in the Western Cape unfairly discriminated against black and poor people on the basis of race and poverty and that the provincial police commissioner had the power to determine the distribution of police resources between stations within the province.

The equality court confirmed 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, and held that this constituted unfair discrimination against black and poor people on the basis of race and poverty.

The court rejected the arguments advanced by the SAPS that the resource allocation did not discriminate at all, or if it did,  that the discrimination was fair.

However, the court postponed to a later date a decision on what remedy would be appropriate to fix the problem, as it said it did not have sufficient evidence before it to do so. The judgment was handed down on 14 December 2018.

By June 2020, the equality court had still not convened to consider what remedy should be imposed, by which time one of the two judges who heard the case was no longer available. In the period from September 2020 to April 2021, the SJC’s attorneys followed up telephonically and in writing with the equality court, as well as with the office of Judge President John Hlophe, regarding the finalisation of the matter, writing letters on 11 February 2021, 1 March 2021, and 19 March 2021, but there was no response.

The failure of the equality court and the Judge President to respond to the requests remains unexplained.

The Constitutional Court (in a judgment penned by Acting Justice Unterhalter) described the delay by the equality court to finalise the matter as “unconscionable”.

As Justice Kollapen remarked in his dissenting judgment, the findings of the commission and the ruling of the equality court “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”.

Moreover: “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’.

To add insult to injury, the prejudice is likely to continue for the foreseeable future, as the Constitutional Court (in a majority decision) — for various technical reasons — held that it did not have the power to hear this appeal against a decision that was not made.

Despite the concerted efforts of the SJC and its partners over a period of almost 20 years, the SAPS serving the Khayelitsha area remains understaffed — not because of meddling by the judiciary, but because of the catastrophic failure of the national government and the failure of the high court to finalise the case.

This is part of the reality that the feckless politicians and their supporters hope voters will ignore — if they can be persuaded that NGOs, judges (and foreign nationals) are to blame for the failures of government.

Of course, this does not mean that all NGOs are perfect and that they are above criticism. The same is true for judges and court judgments. Similarly, it would be too simplistic to claim that all government policies harm poor and black communities.

Reality is always more complex than this

 

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