Activists question constitutional implications of City of Cape Town's proposed by-law amendment
On April 17, the City published its Draft Amendment to the Streets, Public Places and the Prevention of Noise Nuisances By-law.
It invited the public comment on the amendment within a month, setting the deadline for last Sunday.
The streets by-law prohibited certain actions including to beg, stand, sit or lie, urinate, bath or wash, sleep overnight or erect any shelter in a public space.
Such activities could be subjected to penalties including a fine, imprisonment or both by officers or members of the City’s metro police.
In its correspondence, the City said that the proposed amendment to the by-law aimed to “add and streamline procedural aspects that supported and enabled necessary law enforcement” which included “effectively resolving complaints and situations relating to noise, and reducing risk to the City, individuals and land owners by ensuring that the processes or actions were supported by legislation”.
A researcher at the Dullah Omar Institute, Jean Redpath said the proposed amendment had constitutional implications.
“There are two constitutional questions: does the City have the power to legislate policing-type powers? The City would have to argue this is incidental to their incidental power to make by-laws. I am not aware of it being done before - usually the national minister accords policing-type powers via Section 334 of the Criminal Procedure Act.
“The second question is, does the limitation of rights such as dignity, freedom, property, privacy meet the requirements of the limitations clause of the Constitution?” she said.
Redpath said that the law required that any limitation of a right must be in terms of a law of general application, to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom, taking into account all relevant factors.
“Certainly, for a homeless person, for example, having their washing confiscated because it is hanging on a public fence is probably disproportionate to the purpose being addressed by the by-law,” Redpath said.
She further noted that the proposed by-law amendments were coincidentally published during lockdown.
“Neither the by-law amendments nor the lockdown regulations supersede the Constitution. All must meet the requirements of the limitations clause, to be valid,” Redpath added.
Activist group and law centre Ndifuna Ukwazi, said in a lengthy submission that should the proposed draft amendment be enacted, authorised officials would be given extensive powers to circumvent the Constitution and international human rights law, in clear violation of these laws.
“It is therefore our submission that the draft amendment, if enacted, will not survive constitutional scrutiny,” the organisation said.
They also said while the provisions of the draft amendment seemed neutral on face value, they disproportionately impacted the homeless.
Chairperson of the City’s safety and security portfolio committee Mzwakhe Nqavashe said the proposed amendments were to ensure a more effective resolution to complaints from the public.