Poverty as a Ground of Indirect Discrimination in the Allocation of Police Resources – A Discussion of Social Justice Coalition v Minister of Police 2019 4 SA 82 (WCC)

Abstract

The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) prohibits indirect and direct unfair discrimination in terms of the grounds listed in the act (such as race, sex, and sexual orientation) as well as unlisted grounds (which are to be alleged and proven by an applicant). South African courts had also grappled with the specific issue of indirect unfair discrimination prior to the enactment of PEPUDA, where applicants could rely on the Constitution of the Republic of South Africa, 1996 directly. This is evident in cases such as Pretoria City Council v Walker 1998 2 SA 363 (CC) and S v Jordan 2002 6 SA 642 (CC). This contribution is an analysis of the pioneering judgment in Social Justice Coalition v Minister of Police 2019 4 SA 82 (WCC) (SCJ case), wherein a South African court for the first time recognised poverty as a ground of indirect discrimination under PEPUDA. This conclusion flows from the court's finding, based on expert evidence that the formula used to allocate police resources in the Western Cape unfairly discriminates against poor and Black people in an indirect manner. The analysis of the SCJ judgment will take place against the backdrop of the antidiscrimination framework under PEPUDA and direct constitutional litigation that predates PEPUDA. The underlying theme of intersectionality will also be discussed, as it was apparent from a reading of the SCJ case that grounds of discrimination often intersect with one another and disproportionately affect certain groups of people.