Opinionista Justin Jaftha 30 January 2019

Equality delayed is equality denied: The importance of poverty as a ground of discrimination in South Africa

Our courts should not be the only branch of government that works to redress the root causes of inequality in society. The elected branches of government should equally play an important role in supporting and encouraging transformative changes as envisaged in our Constitution.

In a judgment delivered on 14 December 2018, the Equality Court found that poverty constitutes as a ground for unfair discrimination. The court made this finding in the matter of the Social Justice Coalition and Others v Minister of Police and Others. The judge in the matter found that the current system used by the South African Police Service (SAPS) to allocate police resources between police precincts discriminated, indirectly, against poor and black communities.

The judgment, which the state has now indicated it will not appeal, is of significance because it is the first time in more than 25 years of our constitutional jurisprudence that a court found the need to venture into poverty as a ground of unfair discrimination.

The consequence of the judgment means that poverty now sits as an unlisted ground of discrimination alongside HIV status (included in Hoffman v South African Airways ) and citizenship (included in Larbi-Odam and Others v Member of the Executive Council for Education (North-West Province) and Another).

The Social Justice Coalition (SJC), Equal Education (EE) and the Nyanga Community Police Forum (Nyanga CPF), as the applicants in the court case, had for years attempted, in good faith, to highlight the problems with the system used by the SAPS to determine the allocation of police resources. Despite numerous letters, petitions, some meetings and protest actions the state was unresponsive and failed to act. Left with no other recourse the applicants turned to the courts.

In the Equality Court, the applicants challenged the national Theoretical Human Resource Requirement (THRR) model that SAPS uses in its allocation of resources to all 1,140 police stations across the country.

The applicants argued that the numbers generated by the THRR indirectly resulted in discrimination on the basis of race and poverty. The applicants made this argument by placing data in front of the court which showed that police stations serving wealthier, white populations with low contact crime rates received more police resources than police stations serving poor, black communities with high contact crime rates.

One of the novel arguments presented by the applicants in this matter was that the Equality Court should recognise poverty as an unlisted ground for discrimination.

The Equality Court upheld the applicant’s arguments and found that discrimination on the ground of poverty amounted to unfair discrimination. The Equality Court persuasively remarked that after 25 years into our democracy, poor black people still live under conditions which existed during the apartheid system of government.

The court pointed out that the unfortunate reality is that residents of communities such as Khayelitsha in Cape Town, who are poor and black, continue to receive inferior services from SAPS. By finding that poverty constituted a ground of discrimination, the Equality Court lived up to its transformative promise to promote and embrace the notion of substantive equality.

The judgment means that poverty is now on par with the listed grounds included in the Constitution’s enumerated equality clause, itself a hard-fought for and won clause, making it easier to guarantee non-discrimination. Poverty now occupies a space alongside race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

The judgment is to be welcomed. In doing so, however, the government’s failure to show political will, to act and to take positive steps to transform our society by addressing the deep social and economic inequalities cannot be overlooked.

The Promotion of Equality and Prevention of Unfair Discrimination Act (the Equality Act) not only places an obligation on our courts but also on other branches of government to redress apartheid-era inequalities.

Section 34(1) of the Equality Act provides for the Minister to give special consideration for the inclusion of certain prohibited grounds of discrimination. The inclusion of additional prohibited grounds of discrimination would serve to protect and ensure the right to equality of a group or category of persons. This legislative power has never been exercised. Instead, it fell to the courts to compel South Africa to works towards ensuring that discrimination on the basis of HIV status, citizenship and now poverty was addressed.

Our courts should not be the only branch of government that works to redress the root causes of inequality in society. The elected branches of government should equally play an important role in supporting and encouraging transformative changes as envisaged in our Constitution.

The judgment has put the commitment of the government to address the social and economic inequalities in the country in the spotlight.

Given South Africa’s history, our equality jurisprudence (the Constitution, Equality Act and many court decisions) aims to ensure that we achieve substantive equality, which is remedial in nature and aims to overcome the effects of past and ongoing prejudice and discrimination. This jurisprudence recognises that the achievement of equality requires the state and other key institutions (including our courts) to take positive steps to address the deep social and economic inequalities in society.

Despite this jurisprudence, many government departments (including SAPS, as evidenced by this judgment) have frustrated transformation by not acting swiftly to redress the prolonged inequality in our society.

In the next few years we may witness more cases being brought by people who feel that they have been left behind during South Africa’s recent, at times small, at times significant, yet always unequal economic expansion. Appropriate claims of discrimination on the grounds of poverty or socio-economic status should be considered by our courts, politicians and the private sector. The inclusion of poverty as a ground of discrimination has great importance in a country such as South Africa where millions of people are living in dire poverty.

Amongst others, the inclusion of poverty will further empower poor people in securing greater access to security of tenure, education, health care, food security, sanitation services, water, public transport, well-located and inclusionary social housing, and generally safe and dignified communities. The judgment is already informing the SJC’s campaign against the City of Cape Town for the discriminatory allocation of inferior public lighting to poor, black suburbs across the city.

The fact that systematic inequalities and unfair discrimination still remain deeply entrenched in social structures, practices and attitudes, places an even greater responsibility on all organs of state to address the social and economic inequality in our society.

The dawn of democracy and the constitutional promise of equality has not changed the lot of our people, because the commitment to root out poverty and inequality is absent. As the Constitutional court ardently stated in National Coalition for Gay and Lesbian Equality v Minister of Justice, “Past unfair discrimination frequently has ongoing negative consequences, the continuation of which is not halted immediately when the initial causes thereof are eliminated, and unless remedied, may continue for a substantial time and even indefinitely. Like justice, equality delayed is equality denied.” DM

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