The City of Cape Town on Wednesday 29 September approved a new unlawful occupation by-law (2021) and amendments to its unlawful occupations and streets, public places and prevention of noise nuisances by-law (2007) that allow homeless people to be arrested if they refuse alternative accommodation. They could serve up to six months in prison for sitting or lying down in a park.
Homeless people are currently challenging the constitutionality of the old version of this by-law in at least three court cases against the City.
The Strandfontein Homeless Action Committee won its case against the City of Cape Town in May 2020, when it demanded that homeless people be quarantined after Covid-19 exposure and provided with alternative accommodation at the city’s Safe Space overnight facility under the Culemborg bridge in the central business district.
Carlos Mesquitas, 51, formed the committee that has since evolved into a non-profit called The Rehoming Collective as well as a homeless shelter run by formerly homeless people who are part of the collective. Mesquitas hopes that by the end of the year, a Rehoming Coalition will take shape, where people with experience of homelessness will be represented and work with service providers or non-governmental organisations such as the Street People’s Forum, a body formed by organisations whose clients include people living on the streets of Cape Town.
A win against the City in court in 2019 changed the life of Carin Gelderblom, 48. She used to sleep in the Company’s Garden, a heritage park in central Cape Town, and was fined R1 500 for littering under the old municipal by-law, a charge she denied. Gelderblom has since moved into the Our House shelter in Observatory and makes jewellery, which she sells.
Her case highlighted the plight of Cape Town’s homeless people, who say municipal by-laws are used to criminalise them and take away their shelters. They are unable to pay the City’s fines. The judgment in Gelderblom’s case ordered the City not to remove homeless shelters or fine or harass homeless people pending a review of the constitutionality of the old by-laws. But the City has appealed this judgment.
Gelderblom and other homeless people filed additional applications in the Cape Town high court and at the equality court in March 2021 to challenge the old by-laws on streets, public places and the prevention of noise nuisances, and integrated waste management (2009).
While Gelderblom’s latest case is yet to be heard, Valencia Lewis and 20 others filed an urgent application against the City recently after their shelters and belongings were confiscated from the informal Tent City in Green Point. Although their belongings were returned following an urgent court order on 27 August, their case challenges the legality of fining them and removing their shelters.
City of Cape Town legal representatives argued in the high court on 3 September that the inhabitants of Tent City were served several notices to let them know they were contravening municipal by-laws and warn them that non-compliance would lead to the demolition of their tents. The City says it offered alternative accommodation but most people refused to be homed in shelters.
Law centre Ndifuna Ukwazi, which represents Gelderblom, Lewis and another group of homeless people, argued that fining criminalises the homeless. Ndifuna Ukwazi argued in the high court that there is a moratorium on evictions in terms of the Disaster Management Act, that in accordance with the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act the inhabitants did not receive court orders, and that the applicants were not contravening municipal by-laws when their shelters were removed.
Judge Tessa le Roux is expected to deliver a judgment in the Lewis case any day now.
Law enforcement officers also cracked down on 46 occupants of a parking lot in District Six on 19 September. The land is subject to District Six restitution processes and the group has approached the high court with Ndifuna Ukwazi as their legal representative.
Jonty Cogger, an attorney at Ndifuna Ukwazi, says the organisation will amend the relief sought in all the continuing court cases to include a challenge to the amended by-laws.