One of the foundational tenets of South Africa’s democracy is public participation. The Constitution explicitly requires “accountability, responsiveness and openness”. So why is it then that people living in South Africa, and specifically those who are poor and Black, are not being listened to?

While public participation in theory plays a big role in our democracy, there are very real obstacles that have mitigated meaningful, impactful public engagement between people and government officials. One of these obstacles is that public participation, when it is done, happens after communities have cut through endless red tape in order to get to their elected officials.

Another obstacle is when communities finally enter the room where decisions are being made their input and participation is most often engaged only to the extent that it helps meet the requirement of participation. The content of the input isn’t engaged. Participation becomes a tick box exercise. The case of Pietermaritzburg Pensioners Forum drives this point home.

So, in cases where communities make considerable effort, take the time and pool their already scarce resources, only to be dismissed and ignored, what alternatives for communities are there?

For many communities who feel unheard and dismissed protesting has become the only meaningful form of public participation. When communities protest politicians are more likely to sit up and listen because they are inconvenienced or pressured by the media. But community protests are often met with state issued violence from the South African Police Service (SAPS) or Metro Police; who have now normalised using teargas, rubber bullets and brute force against unarmed protestors. Until November of last year, the failure to give notice of protest often led to criminalisation. Since then the state has already found alternative means of criminalising protest as evidenced recently  by the arrest of an 80 year-old in the Bo-Kaap, in Cape Town.

In South Africa, there is meant to be separation of powers between the judiciary, the executive and the legislature. This separation assists in checks and balances. But where the legislature fails to hold the executive to account (and vice versa), the role of oversight falls squarely on the judiciary. The courts are empowered in terms of the Constitution to review and set aside the actions of the other two branches of government.

This has meant that civil society, after having exhausted all other avenues of engagement, have very little choice but to turn to the judiciary. When civil society approach the court, there is greater chance of departments being held to account in a way that will result in discriminatory and unjust policies being declared unconstitutional, services being delivered and unlawful conduct by officials being declared as such.

One example of this is the Social Justice Coalition’s (SJC’s) Police Resources Court Case.  In 2014, the Commission of Inquiry into Allegations of Policy Efficiency and a Breakdown in Relations between SAPS and the community of Khayelitsha (the Khayelitsha Commission) stated that “one of the questions that has most troubled the Commission is how a system of human resource allocation that appears to be systematically biased against poor black communities could have survived twenty years into our post-apartheid democracy.”

Since the release of the Commission’s report very little has changed in terms of police resourcing in Khayelitsha and across the country. This inaction from government was in spite of letters sent, signed petitions, engagements at public meetings, engagements in private meetings, protest action and presentations made to Parliament over a period of two years. Given that sustained engagement and participation was ultimately ignored the SJC, along with Equal Education and the Nyanga Community Police Forum filed papers against the Minister of Police and the National Police Commissioner in the Equality Court. The applicants argued, as they had done countless times outside the courtroom, that the allocation of the police’s human resources discriminates against poor, Black police precincts.

On Friday, 14th of December the Equality Court ruled in favour of the applicants. The victory in this case has been a long time coming. It means that communities who have high murder rates and unprecedented levels of violence will receive the policing they deserve: A police service that is visible, present and resourced for the job. The ruling should be celebrated.

On Thursday the 10th of January the representatives for the Minister of Police filed leave to appeal this judgment, even though specific remedy for the initial judgment has not yet been determined. This not only wastes taxpayers money, but is actively standing in the way of poor communities having access to justice. It will very likely result in a Constitutional Court proceeding that no doubt will rule in the favour of the brutalised, unsafe, abandoned and those rendered voiceless by government’s selective hearing. After various initiatives by the SJC media attention was drawn to the intention of SAPS to appeal. On Friday the 25th of January Bheki Cele made public that SAPS would not be appealing. While the withdrawal of the appeal is most welcomed. It is unclear if this will still be the case after remedy has been granted. In which case the SJC will yet again have to mobilise both inside and outside the court to call upon the Minister to prioritize the lives and safety of the poor across South Africa.

In lower courts, where acting judges are presiding over eviction cases and service delivery protests there is not only a formalistic approach to rights but there is a complete lack of empathy for the plight of vulnerable communities. In cases involving the occupation of land, these judges often even overlook the call to empathy that the Prevention of Illegal Evictions and the Unlawful Occupation of Land Act (PIE) espouses in its preamble. These judges forsake their mandate to protect the constitutional rights of the poor, those disenfranchised by government indifference to their voices and the very real socio-economic faultlines of South African society.

While favourable judgments might seem victorious it does not solve the crisis in our democracy. What will it take for political parties and departments across the board to have the political will and dedication to prioritize dignity, safety and the lives of those living in extremely violent and under resourced police precincts?

Poor communities struggle to get access to legal representation and often do not have the time or money to attend lengthy court processes. Whereas government departments have widely expensive senior counsel on call to further silence the voices of impacted communities. Going to court and securing favourable judgments should not become the de facto method of holding government to account. What South Africa needs is a willingness from government to hear and meaningfully engage with communities, and the political will to be responsive to the needs of the people.  

Khadija Bawa is a researcher at the Social Justice Coalition in Khayelitsha. She completed her undergraduate degree in BA Law at the University of Stellenbosch and completed her Philosophy Honours with a special focus on feminist theory and the law.

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