Cape Town - Eleven people experiencing homelessness launched applications in both the Western Cape High Court and the Equality Court challenging the constitutionality and discriminatory impact of two of the City’s municipal by-laws.
The applicants, represented by the Ndifuna Ukwazi Law Centre in both applications, say the by-law relating to streets, public places and the prevention of noise nuisances (2007) and the Integrated Waste Management By-law (2009) criminalise homelessness.
“These by-laws criminalise homelessness by making it a crime for persons living on the street to conduct ordinary life-sustaining activities, like sleeping, camping, resting, bathing, erecting a shelter or keeping personal belongings in public.
“The by-laws also make it a crime to “beg”, lie down, sit or even stand in a public place. The City has labelled these activities ’anti-social behaviour’ and has used these by-laws to issue fines of up to R2 000 against homeless people for unavoidable conduct,“ Ndifuna Ukwazi said.
“Every day, these by-laws are used by the City’s law enforcement officers to threaten, harass, arrest and, in some instances, forcefully displace homeless people, as well as confiscate what little possessions homeless people own.”
The organisation said homelessness went hand-in-hand with the City’s failure to address a major affordable housing shortage, and the inadequate supply of beds in shelters.
“According to the expert evidence of U-turn, a faith-based non-profit organisation offering skills development assistance to homeless people, there are approximately 14 357 people living on the streets of Cape Town, but only 2 473 beds in the City’s shelters.
“In other words, there are five times more people struggling with homelessness than there are shelter beds.
“The case highlights how the City’s by-laws discriminate against homeless people and violate their constitutional rights.
“The by-laws demonstrate a failure to break from discriminatory colonial and apartheid laws stretching back to 1760 that were used to dispossess Black and coloured people of their rights to land and forcibly remove them from well-located urban areas.”
The applicants’ challenge against the unjust by-laws consists of two applications.
The application in the High Court challenges the constitutionality of these by-laws on the grounds that they infringe on homeless people’s fundamental human rights, including the rights to equality, human dignity, freedom and security of the person, privacy, freedom of movement and residence, and property.
The application in the Equality Court asks the court for an order declaring that the by-laws unfairly discriminate against homeless people.
The application also asks for the court to order the City to pay damages to each of the 11 applicants, conduct a comprehensive audit of City policies to remove the harmful prejudice against homeless people, and interdict the City from fining homeless people.