City of Cape Town’s by-laws challenged by homeless in court action
Cape Town - A group of homeless people have lodged applications with the Western Cape High Court and the Equality Court, arguing that the city’s by-laws were unconstitutional and discriminated against them.
The case focuses on the Streets, Public Places and the Prevention of Noise Nuisances and the Integrated Waste Management By-Laws.
The High Court application sought to challenge the constitutionality of the by-law on the grounds that it infringed on homeless people’s fundamental human rights, including the rights to equality, human dignity, freedom and security, privacy, freedom of movement and residence, and property.
The Equality Court application, on the other hand, asked the court for an order declaring that the by-laws unfairly discriminated 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 in the future.
In an affidavit filed with the courts, main applicant Carin Gelderbloem argued that the by-laws together with the “incorrect” application of the waste by-law affected the homeless in an adverse manner for performing ordinary life-sustaining activities, like sleeping, camping, resting, bathing, erecting a shelter or keeping personal belongings in public. She also argued that the by-laws made it a crime to “beg”, lie down, sit or even stand in a public place.
Gelderblom argued that the by-laws infringed on their right to equality before the law.
She further argued that the criminalisation of the activities amounted to indirect discrimination against the homeless and perpetuated the “systemic disadvantage” as a vulnerable group in society,
“As homeless people, our physical and mental security is threatened by the by-laws that authorise law enforcement officers to question our presence in public spaces, ask us to leave areas and confiscate our belongings,” Gelderbloem said in the court papers.
The by-laws, the homeless also argued, violated their right to freedom of movement and residence.
"The issuing of fines to homeless people, at times requiring the payment of up to R1 000 is not justifiable and is irrational as we are already vulnerable and destitute members of society,“ Gelderbloem further argued.
They said the demand for shelter and other alternatives far exceeded the supply of shelter beds and housing by the City and non-governmental social welfare organisations.
In 2019, several of the applicants applied for and were granted an interim interdict by agreement between the parties.
The interdict was as a result of harassment which Gelderblom said homeless people in the city “endured at the hands of the City's Law Enforcement Officers.
“The harassment took the form of constant intimidation, pressuring us to move from specific public spaces where we are forced to live, the issuing of compliance notices instructing us to remove our personal belongings, confiscation of our personal belongings, and issuing of fines,” said Gelderblom in the papers.
The City undertook, in terms of the agreement order, pending the final determination of the interim interdict application, to refrain from enforcing or further prosecuting fines and summonses.
The court papers showed that the Camps Bay and Clifton Ratepayers’ Association, Avenue Response CC and the Atlantic Seaboard Action Group joined the interim interdict application as amici curiae, based on the impact that the interdict sought would have on homeowners, ratepayers and small businesses.
The parties argued that the conduct prohibited in the Streets By-Law might continue unabated and without consequence and that there had been a “decline of the Atlantic SeaBoard from being an attractive, well ordered, clean, low crime zone”.
“This decline is attributed by the proposed amici to more and more persons living on the streets,” according to the papers.
Legal representatives for the homeless, Ndifuna Ukwazi Law Centre, said the City was now of the view that it no longer considered itself bound by the December 2019 order.
One of the supporting affidavits for the applicants, showed the results of a December 2020 cost study by U-Turn, a faith-based organisation focusing on the long-term needs of street-based people.
According to U-Turn, approximately 14 357 people lived on the streets of Cape Town, but the city’s shelters only had 2 473 beds.
The study also showed that the total cost of homelessness in Cape Town was pinned at R744 million a year and that the City spent R335 million a year on punitive measures.
According to another affidavit by an expert, the adoption of vagrancy laws stemmed from colonial and apartheid eras which were designed to “socially control black people or poor population”.
“The final remnants of the vagrancy laws are repeated in municipal by-laws and remain in force in the democratic era,” the affidavit said.
Ndifuna Ukwazi said the case highlighted the fact that the by-laws “discriminated against homeless people by treating people like criminals purely for being without a shelter”.
The City had indicated that it would challenge the court applications.