The City of Cape Town’s mayoral committee has recommended that City Council approve the new unlawful occupation by-law, alongside updates to the streets, public places and prevention of noise nuisances by-law.
The new and amended by-laws were unanimously supported and recommended for final approval by the safety and security portfolio committee earlier this month before it was taken before the mayoral committee.
If passed, the new by-laws would see people living on the streets being served with contravention notices should they refuse assistance from the City.
Mayor Dan Plato said the by-laws would help the City protect land and buildings against unlawful occupation, and ensure the humane and constitutional enforcement of the prohibition on sleeping in public places.
“The City has an obligation to make sure that our public open spaces and our city remain sustainable, that there is equality before the law, and that while we are offering assistance to help people off the streets, our by-laws are being applied equally to all residents at the same time,” he said.
The City’s by-law relating to streets, public places and the prevention of noise nuisances has been in existence since 2007, and the new amendments are designed to help resolve public complaints more effectively, by ensuring enforcement actions are supported by legislation.
There are currently over 350 hot spots for public complaints around by-law violations relating to people living on the streets. Asked about the hot spots in the city centre, chairperson of the safety and security portfolio committee, Mzwakhe Nqavashe said only that there were “several” in the inner city and surrounds.
In a statement issued to the media, the City said that if a person was found sleeping in a public place without authority, they would first be issued with a compliance notice, and would be offered alternative shelter. If the person refused the offer, they would be committing an offence.
A court may not sentence a guilty person to prison, but could fine the person, said the statement.
Mr Nqavashe said the City’s offer to any person willing to get off the streets included accommodation at one of the City’s three Safe Spaces, or any night shelter in 19 different locations. The City receives daily updates on the total bed space available at the shelters.
Asked how the City would work around people refusing to go to shelters, he said sometimes it was difficult to balance the needs of different people and communities. “That is why we are guided by our laws and policies, and apply these equally while playing our part to help those willing to accept it.”
The by-law now limits and explicitly states that law enforcement may direct a person to stop prohibited conduct, remove an obstacle, and to leave and remain out of a specified place; issue compliance notices as well as notices to appear in court or pay a fine; arrest a person who commits an offence in terms of the by-law and to search a person if necessary. Law enforcement is now also able to impound goods and materials.
The City’s mayoral committee member for safety and security, JP Smith, said the streets by-law, combined with the City’s street people policy and range of social assistance, was “the most humane way” to assist people living on the streets, because it was a legal mechanism to shorten a person’s stay in unsafe public places, while offering them a suitable alternative off the street.
The objectives of the unlawful occupation by-law include the prevention of unlawful occupation of land and buildings and the managing of informal settlements in the city.
The by-law also supports the City’s discretion to act on behalf of private land owners and other entities when unlawful land occupation attempts occur, and imposes certain obligations on land owners, both private and public, to protect their land.
Mayco member for human settlements, Malusi Booi, said: “We now have a new Human Settlements Strategy, Unlawful Occupation Framework, and related by-law that are all aligned for the greater good”.
Hassan Khan, CEO of the Haven Night Shelter Welfare Organisation, said he supported the the by-law.
“I believe that when law enforcement and the courts, acting together, send a clear message that taking over a pavement is not one of the options available, we will see homeless persons making different choices with regards to where they sleep and making peace with relatives, safe spaces, shelters will be considered.”
Mr Hassan said people who block pavements should be fined. “Anyone who arbitrarily dispossesses the community of the free use of a pavement should be fined and has the option to go to a community court to explain himself or pay the fine and stop his behaviour.”
He said too many people conflated homelessness with not having housing. “These are different issues and should be seen as such in the context of homelessness. Shelters are not housing solutions and I must add neither are tents on the pavement.”
The advocacy and fundraising co-ordinator for upliftment organisation Souper Troopers, Caryn Gootkin said until the City of Cape Town was able to provide dignified accommodation for each of the 14 000 people currently living on the street, they were in no position to issue fines or arrest people simply for being homeless.
“The City also needs to find a dignified accommodation solution that gives residents agency and takes into account the variety of different people living on the streets, including victims of abuse, mothers and children, couples, the mentally ill, and the LGBTIQIA+ individuals. The current shelter system doesn’t adequately accommodate any of those categories,” she said.
“Most homeless people don’t have any option other than being on the street. And while many people say they should go home or back to their communities, for the vast majority of people on the streets, home is a place of trauma, neglect and violence, so going back is not an option.“
The Hope Exchange, Streetscape and Community Chest did not respond by the time this article was published.