The Democratic Alliance in the City of Cape Town council pushed through the controversial amendment to the street by-law which would see its officers taking measures against homeless people.
The move has been described as "disgusting, regressive and taking the city back to apartheid".
In its last sitting before the November municipal elections, the council adopted the Draft Amendment to the Streets, Public Places and the Prevention of Noise Nuisances of 2021, despite objections by civil society and faith-based organisations.
The by-law empowers authorised city law enforcement officers to:
* Remove any obstruction to the safe or free passage of a pedestrian or motor vehicle;
* Order people living on the street to leave and remain out of a specified public place;
* Arrest people living on the street who refuse to accept an offer of alternative shelter;
and impound their belongings including materials that they use to make structures or for camping overnight.
Only the ANC and Economic Freedom Fighters (EFF) registered their opposition to the amended by-law.
The SA Human Rights Commission criticised the decision and called for it to be tested in court against the Constitution.
Commissioner Chris Nissen said: “Any law or regulation that goes against the grain of the Constitution needs be tested in court. We cannot have laws or by-laws that make people feel less human”.
He called on the City to find “sustainable developmental” solutions to deal with homelessness.
Ndifuna Ukwazi (NU), a law centre fighting for spatial justice, described today's council decision as a "disgrace".
Jonty Cogger, an attorney at NU, said: "This is a sad day for democracy . It's a disgrace that a municipality would use an obscure piece of legislation to criminalise poverty".
Cogger said the amended by-law was reminiscent of "apartheid tactics" and was aimed at "cleansing the streets of unwanted people".
Cogger said the by-law would be challenged in court in the case of Gelderbloem and 10 Others vs City of Cape Town.
The case brought by 11 street people challenged the constitutionality of the Street by-law and the Integrated Waste Management By-law 2009 which allowed for the issuing of fines for non-compliance.
Ndifuna Ukwazi said homeless people were randomly stopped, or chased away by law enforcement, private security or members of the public because their presence in public places was regarded as a "criminal nuisance".
The ANC called for every councillor in support of the by-law to be "criminally charged".
ANC councillor Fiona Abrahams also described the amended by-law as an "attack on human rights".
"It infringes on the Constitutional rights of the homeless people", added Abrahams.GOOD Secretary General Brett Herron said the amendments also failed to honour a commitment made by the DA in 2019, to exempt the Athaan and ringing of church bells from the definition of "noise nuisance".
The commitment followed a public outcry over the City acting against a 100-year-old Mosque in District Six.
“The City's failure to honour its commitment to exempt the Muslim Call to Prayer and church bells from the definition of noise nuisance is tone-deaf and disgraceful," said Herron.
Reclaim The City also condemned the approval of the by-law as well as the Unlawful Occupation by-law.
“The passing of these by-laws has devastating implications for thousands of disadvantaged Capetonians . This would be no different from the forced removals we have seen in the history of the country,” said Reclaim The City.
Asked whether the City had any alternative "option" in dealing with the homeless people, Mayco member for Safety, JP Smith said they would be given an offer of "alternative accommodation, such as the Safe Space " and if this was declined "further steps" would be taken.
However, Herron said the by-law did not say where the homeless should go.
A recent study by a faith based organisation that deals with homeless people showed that they were more than 14 000 street based people and only a few spaces available in night shelters.