Housing lobby group Ndifuna Ukwazi (NU) is threatening to take the City of Cape Town to court to contest the “constitutionality” of council’s approval of the new unlawful occupation by-law, alongside updates to the streets, public places and prevention of noise bylaw.
Last week, the council gave the green light for the approval of these by-laws following the “unanimous support” by the City’s safety and security portfolio committee earlier in September.
This, despite many objections.
According to Buhle Booi, head of political organising at Ndifuna Ukwazi, more than 8 640 people had signed a petition and made submissions rejecting the unlawful occupation by-law.
According to the updated streets by-law, any person that is found sleeping in a public place without authority would be issued with a compliance notice.
The bylaw states that those on the street will be offered alternative shelter. “Such a person only commits an offence if they refuse a reasonable offer of alternative shelter. A court may not sentence a guilty person to prison. It may only fine the person,” reads the bylaw.
The unlawful occupation bylaw states there are “conditions under which a structure can be dismantled to protect land from illegal occupation”.
The passing of the bylaw means City officials would be able to dismantle the structure and confiscate the occupier’s possessions if it is on land under the City’s control or if the structure is “not yet capable of constituting a home” on any other land.
Responding to the unlawful occupation bylaw, Booi says: “It wants to impose what constitutes a home. If your home is a shack, maybe that will not be home enough for the City and it might give them power to demolish your structure. So those are the problematic structures in that bylaw.”
He says the new unlawful occupation by-law seeks to bypass the Prevention of Illegal Eviction Act which speaks directly to issues of evictions – that no one may be evicted without a court order.
“We see the passing of these two by-laws as a regression in history, as oppressive enforcement policies and the people have a right to disobey unlawful laws and that’s what will be challenged legally, the constitutionality of these bylaws.”
Karen Hendricks, a chapter leader for Reclaim the City, says the by-law seeks to displace people living on occupied land or occupied buildings well as the on the streets
“With these by-laws and policies that the City is implementing, there has hardly been any public participation processes. Decisions are made for the people without the people.”
But according to Mayor Dan Plato, these “crucial bylaws” will help the City to protect land and buildings from unlawful occupation.
Plato says: “We are a caring City seeking to uphold the rule of law. That is why, once gazetted, it will officially be law in Cape Town that an offer of social assistance first be made, including shelter, to ensure the constitutional enforcement of the prohibition on sleeping in public places.”
JP Smith, Mayco member for safety and security, says: “The City proceeds from the principled position that no person should be living on the street. It is not a place for any human being to live. Every action of the City is directed towards assisting people to be able to leave the streets and reintegrate with their families and communities.”
The streets bylaw, combined with the City’s street people policy and range of social assistance, is, according to the City, the most humane way to assist people living on the streets, because it’s a legal mechanism to shorten a person’s stay in unsafe public places, while offering them a suitable alternative off the street.
“It is imperative that the City manages our public spaces in a manner that makes them usable by all, and ensures that our city continues to create jobs, attract investment, and drive urban regeneration,” said Smith.
Ndifuna Ukwazi law centre is currently challenging the City’s unlawful occupation by-law, and represents people in three cases: the illegal eviction of 46 occupiers at District Six; the illegal eviction of 21 occupiers from Green Point Tennis Club and the repeated raids on 11 homeless people in the City Bowl known as the Gelderbloem case.
Booi adds that both these bylaws seek to criminalise poor people and criminalise homelessness. He adds that the City is not “sympathetic” to people who are now living on the street due to the effects of the Covid-19 pandemic.
“People are occupying the street based on a need. The majority of people have been on the database waiting list for over 30 years. We are taking the matter to court because those bylaws must be scrapped because they are inconsistent with national legislation, and they are unconstitutional.”