Social Justice Coalition and Others v Minister of Police and Others

The Social Justice Coalition (SJC) and Equal Education (EE), together with partner organizations, campaigned against violent crime in townships around Cape Town. Following complaints, the Khayelitsha Commission of Inquiry was established in 2012 and found in 2014 that SAPS' resource allocation system was systematically biased against poor, Black communities. In March 2016, the applicants approached the Equality Court seeking declarators of unfair discrimination in police resource allocation in the Western Cape. On 14 December 2018, the Equality Court found that the allocation of police resources in the Western Cape unfairly discriminated against Black and poor people on the basis of race and poverty—the first time a South African court found unfair discrimination on the basis of poverty. The Court postponed the hearing on remedy. Despite numerous attempts by the applicants from September 2019 onwards to have the Equality Court convene a hearing on remedy, no such hearing was convened by April 2021. The applicants then approached the Constitutional Court seeking a declaratory order that the Equality Court had constructively refused to grant them a remedy, and leave to appeal from that constructive refusal.

• Whether the Constitutional Court has jurisdiction to grant declaratory relief that another court has constructively refused to grant a remedy in pending proceedings where there has been unreasonable delay
• Whether unreasonable delay by a court in finalizing proceedings constitutes an infringement of the right of access to courts under section 34 of the Constitution
• Whether the Constitutional Court can exercise its inherent power under section 173 of the Constitution to regulate its own process by making a declaration of constructive refusal to enable appellate jurisdiction
• Whether section 172(1) of the Constitution provides the Constitutional Court with remedial power to make orders in respect of another court's unreasonable delay
• Which court is the 'competent court' under section 38 of the Constitution to enforce a litigant's section 34 rights when a presiding judge has allegedly failed to convene a hearing

Leave to appeal was refused by majority decision (5-3). The minority would have: (1) declared that the Equality Court constructively refused to grant the applicants a remedy; (2) granted leave to appeal; (3) upheld the appeal; (4) remitted the matter to the Equality Court for determination of remedy before a different bench within 90 days; and (5) awarded costs to the applicants including costs of two counsel. No order as to costs was made.

The binding legal principle established by the majority is that the Constitutional Court does not have jurisdiction to make a declaratory order that another court has constructively refused a remedy in pending proceedings before that court, even where there has been unreasonable delay. The Constitutional Court's appellate jurisdiction under section 167(6)(b) and Rule 19(2) requires an actual decision or order of another court; the Court cannot create jurisdiction by deeming a decision to have been made. Section 173's inherent power to regulate a court's own process does not extend to making decisions for other courts in pending proceedings. When a litigant alleges infringement of section 34 rights of access by a presiding judge's delay, the competent court under section 38 that must be approached in the first instance is the court where the infringement occurs (here, the Equality Court), not the Constitutional Court. The wide remedial powers under section 172 can only be exercised when deciding "a constitutional matter within its power"—jurisdiction must first exist before remedial powers can be exercised. The minority ratio would have been that unreasonable delay by a court in finalizing proceedings constitutes an infringement of section 34 rights, and the Constitutional Court has power under sections 173 and 172 to make a declaratory order of constructive refusal to enable exercise of its appellate jurisdiction in the interests of justice.

The majority judgment observed that if the delay by the Equality Court amounts to an infringement of the applicants' section 34 rights, the appropriate remedy is for the applicants to bring an urgent application to the Equality Court itself, setting out the infringement and requiring the Presiding Judge to convene the Court. The majority deprecated the failure of the Presiding Judge to convene the Court but held this did not create jurisdiction in the Constitutional Court. The minority judgment made several important observations: (1) Courts and judicial officers carry a constitutional (not merely ethical) duty under section 34 to discharge their obligations diligently and without delay, as required by section 237. (2) If parties are held to tight timeframes in litigation, time cannot cease to be of essence once a matter is ripe for hearing. (3) The notion that courts have binding obligations is consistent with section 8(1) which provides that the Bill of Rights binds the judiciary. (4) The right of access to courts creates a corresponding constitutional obligation for its fulfillment. (5) Where rules of court are silent on a procedure, section 173 empowers courts to act, as "rules are made for courts and not that courts are established for rules." (6) The principle in Minister of Health v New Clicks South Africa (constructive refusal in leave to appeal applications) should not be narrowly construed and can apply beyond applications for leave to appeal. (7) Unreasonable delay need not be deliberate to constitute an infringement. (8) In determining unreasonable delay, courts should consider not just timeline but also the urgency the matter warrants, the public interest in expeditious resolution, and the effect of further delay. The minority also observed that directing applicants back to the Equality Court (which had allegedly violated their rights) to vindicate those rights is no remedy, as a court cannot sit in judgment of its own conduct.

This case is significant for several reasons: (1) The Equality Court's 2018 finding (which was not appealed and stood) represents the first time a South African court found unfair discrimination on the basis of poverty as an unlisted ground under the Equality Act. (2) The case addresses novel procedural questions about how to remedy unreasonable judicial delay that infringes the right of access to courts under section 34. (3) The judgments explore the limits of the Constitutional Court's inherent power under section 173 to regulate its own process and whether it can make declaratory orders about the conduct of other courts in pending proceedings. (4) The case demonstrates tension between protecting the right of access to courts and maintaining principles of judicial comity and the proper hierarchy of courts. (5) It highlights the practical difficulties litigants face when courts delay unreasonably and the lack of clear remedial mechanisms. (6) The case underscores the continued reality of systemic discrimination in resource allocation affecting poor and Black communities nearly three decades into democracy. (7) The substantive finding of discrimination in policing resources has important implications for equality, safety, and the criminal justice system.