Lawyers association to challenge City of Cape Town over by-laws 'penalising' homeless

Published Jul 10, 2019


Cape Town – The National Association of Democratic Lawyers (Nadel) has put together a team of attorneys and advocates the challenge the validity, relevance and constitutionality of the City's by-laws following public outrage over fines issued to the homeless.

The South African Human Rights Commission (SAHRC) has thrown its weight behind Nadel’s case, saying homeless people must be treated with dignity.

Nadel's national deputy secretary, Ugeshnee Naicker, said: “We will oppose the City of Cape Town by-laws that criminalise and penalise poor and homeless people.

“Twenty-five years into democracy, it is astounding that a municipality in South Africa would adopt such tyrannical and oppressive by-laws that target the most vulnerable and poor in our society.

“The by-law, which has been enforced for some months now under a veil of secrecy, prohibits people from erecting a shelter or sleeping overnight in certain areas.

“It prohibits anyone from ‘in any way’ obstructing pedestrian traffic on a sidewalk or depositing, packing, unpacking or leaving any goods in a public place.

“This could attract a fine up to R300. The poor can be charged and fined up to R1500 for lighting a fire in a public place during the harsh winter that we are experiencing,” said Naicker.

Naicker said the poor had become the target of by-laws, which were “reminiscent of tyrannical colonial and apartheid-style attacks” on the most vulnerable people in society.

“Nadel believes that since we are a developing country with severe levels of poverty, it is irrational, counter-intuitive and oppressive to enact and enforce such by-laws in our legal system.

“The rationale that these laws are there to maintain public order, public safety and prevent crime holds no weight in our current constitutional order,” he added.

The offences created by these by-laws, Nadel said, have opened the homeless and poor to abuse because minor offences could potentially attract disproportionate penalties.

SAHRC provincial commissioner Chris Nissen said that all municipalities with similar by-laws were to be challenged.

“We are not going to leave this alone until we are satisfied because no by-law must violate people's right against the Constitution.

“The State is obliged to deliver service to the poor and most vulnerable. We will be working with Nadel on how we can develop a national policy that will influence all by-laws nationally concerning people who are homeless.

“These by-laws are only applied when it comes to the CBD and suburbs, they don’t apply these by-laws in the township,” he said.

Nissen is set to meet with Mayor Dan Plato tomorrow to discuss the City’s approach and find a “sustainable solution that respects the dignity of our people”.

He will also meet the Commission’s Justice Portfolio Committee to raise the issue in Parliament and develop a national plan for government on all levels to deal with homeless people.

Mayco member for safety and security JP Smith said 199 fines over six months, out of around 1 million fines issued in total, equates to less than 0.02% of the total fines issued.

“Also remember that the City has only fined a few of the more persistent offenders as a last resort, following repeated warnings and offers of access to social services.”

He said that if Nadel was not including the SAPS in their legal action, “they are clearly not serious about this and are just busy with political posturing”.

Venetia Orgill from Discover Your Power, an organisation feeding the homeless, said: “In two instances the people were sitting and eating and put their belongings down then they received two fines. 

"One fine for dumping, which was for the belongings, and one fine for littering which was for the food. So it is clear that they are being targeted and victimised.

Peter Solomon, director at The Hope Exchange, an NGO helping homeless people, said: “It (the by-law) is short-sighted. It does not deal with the underlying issues and is not a sustainable solution.

“It’s unlikely to have a positive outcome, but rather has the effect of criminalising homelessness.”

Cape Times

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City of Cape Town