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[1]          Section 9(3) of the Constitution prohibits the state from unfairly discriminating directly or indirectly against anyone.

[2]          The rationale for the constitutional injunction against unfair discrimination lies deeply rooted in our shameful past and is synonymous with the commitment found in the preamble to the Constitution to “establish a society based on democratic values, social justice and fundamental human rights”. Unfair discrimination is inimical to the idea of a just society and the Constitution sets its face firmly against it.

[3]          It must remain a matter of grave concern that some 28 years into democracy that is posited on a Constitution unconditionally committed to an equal society, a recent World Bank study has concluded that South Africa is the most unequal country in the world.

[4]          This case is about a systematic and sustained pattern of discrimination in the allocation of policing resources that disparately impacts poor and Black communities in the Western Cape. It is also a case about a long and unfulfilled wait for a just and effective remedy to the unfair discrimination that was found to exist and which is common cause between the parties.

[5]          The applicants seek declaratory relief that the Equality Court of South Africa, Western Cape Division, Cape Town (Equality Court) has constructively refused to grant them a remedy; and, arising from that, seek leave to appeal, alternatively leave to be granted direct access, to this Court from the Equality Court. It is an application that raises novel and unprecedented issues both of substance and procedure.

[6]          At the level of substance, it involves a determination made by the Equality Court that there has been ongoing discrimination in the allocation of police resources in the Western Cape on the basis of race and poverty. This is the first time a South African court has found unfair discrimination to exist on the basis of poverty and, given the centrality of poverty in the lives of millions of South Africans, this decision constitutes a finding of great significance both jurisprudentially as well as in the larger socio economic transformation of South Africa.

[7]          At the level of procedure, it raises the question whether and, in what circumstances, may an appellate court grant a declarator that an unreasonable delay constitutes a constructive refusal of a remedy in conflict with the right of access to courts.