Automated Summary
Key Facts
The case addresses systemic discrimination in the allocation of policing resources in the Western Cape, disproportionately affecting poor and Black communities. The Equality Court (2018) declared the resource allocation system racially and economically discriminatory but delayed determining a remedy for over two years. Applicants argued this delay constituted a constructive refusal to grant relief, violating their constitutional right to access to courts (Section 34). The Constitutional Court's minority judgment (Kollapen J) supported granting leave to appeal, while the majority (Unterhalter AJ) ruled the court lacked jurisdiction due to the absence of a finalized decision from the Equality Court on the remedy.
Issues
- The first issue is whether the Constitutional Court has the power to grant declaratory relief in incomplete proceedings before another court where there has been an unreasonable delay in finalising proceedings, thereby conflicting with section 34 of the Constitution (right of access to courts).
- The second issue is whether the Equality Court's unreasonable delay in determining the remedy for unfair discrimination constitutes a constructive refusal of the remedy, as outlined in the applicants' arguments.
- The fourth issue is whether the Constitutional Court should exercise its jurisdiction to determine the remedy for unfair discrimination directly or remit the matter to the Equality Court for determination, considering the procedural history and delay.
- The third issue involves assessing if the interests of justice justify granting leave to appeal to the Constitutional Court, given the Equality Court's failure to address the remedy within a reasonable timeframe.
Holdings
- The minority judgment (Kollapen J) held that the Constitutional Court has the inherent power to grant declaratory relief in cases of unreasonable judicial delay, even in the absence of an order from the lower court. This power is grounded in the constitutional duty to protect access to courts and the interests of justice, particularly in matters involving systemic discrimination against marginalized communities. The delay by the Equality Court was deemed unreasonable and prejudicial, warranting direct intervention by the Constitutional Court to activate its appellate jurisdiction.
- The Constitutional Court refused leave to appeal from the Equality Court's order, as the Equality Court had not yet issued a decision on the remedy. The applicants argued that the Equality Court's unreasonable delay in finalizing the remedy hearing constituted a constructive refusal of a remedy, thereby infringing their constitutional right to access to courts under section 34. The majority judgment, however, concluded that the Court lacked jurisdiction to entertain the appeal until the Equality Court made an order, as no application had been made to the Equality Court to enforce the applicants' rights.
Remedies
Leave to appeal is refused.
Legal Principles
- The court discussed the inherent power under section 173 of the Constitution to regulate its own processes, but this was not explicitly listed in the facet enum. Other principles included the constitutional duty to ensure expeditious resolution of disputes under section 34 and the importance of effective remedies for human rights violations.
- The Constitutional Court emphasized the principle that substance should prevail over procedural formalities in cases involving the right of access to courts. This was demonstrated in its consideration of whether unreasonable delay by a lower court could justify a declaration of constructive refusal, allowing higher courts to exercise jurisdiction despite the absence of a formal order from the lower court.
Precedent Name
- AmaBhungane Centre for Investigative Journalism NPC v Minister of Justice
- Cassimjee v Minister of Finance
- Fose v Minister of Safety and Security
- S v Boesak
- Mwelase v Director-General
- Oosthuizen v Road Accident Fund
- Mukaddam v Pioneer Foods (Pty) Ltd
- New Clicks South Africa (Pty) Ltd v Tshabalala-Msimang N.O.
- Eke v Parsons
- Barkhuizen v Napier
- Minister of Police v Premier of the Western Cape
Cited Statute
- Uniform Rules of Court
- Constitution of the Republic of South Africa
- Promotion of Equality and Prevention of Unfair Discrimination Act
- South African Police Services Act
- Superior Courts Act
Judge Name
- Theron J
- Madlanga J
- Mhlantla J
- Mathopo J
- Majiedt J
- Tshiqi J
- Unterhalter AJ
- Kollapen J
Passage Text
- 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.
- Leave to appeal is refused.
- 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.