An urgent court application regarding the dismantling and confiscation of the informal structures of 21 people living on a piece of vacant City-owned land next to the Green Point Tennis Club was brought before the Western Cape High Court Acting Judge Tessa le Roux last Friday, September 3.
The homeless, who are represented by Ndifuna Ukwazi Law Centre, launched the application early last week, arguing that the City used obscure provisions of the By-law relating to Streets, Public Places and the Prevention of Noise Nuisances (2007) to circumvent occupiers’ constitutional protections and effect an illegal eviction in direct conflict with section 26(3) of the Constitution and the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998 (PIE Act).
The occupiers asked for their belongings to be returned and for them to be allowed to rebuild their tents and shelters.
The City’s confiscation of shelters and tents on August 23 left the occupiers destitute during inclement weather and amounted to an illegal eviction, according to the Ndifuna Ukwazi Law Centre.
“I am deeply concerned that the City of Cape Town thinks that the vile public prejudice of some Sea Point and Green Point residents against street-based people can ever be a legitimate reason to deprive poor and vulnerable people of their tents and personal possessions. This is not unlike Apartheid-era forced removals where the government used ‘anti-social behaviour’ to evict poor Black and Coloured people from ‘Whites-only’ urban areas. I am appalled that the City has used similar arguments 27 years into our constitutional democracy,” said Jonty Cogger, Ndifuna Ukwazi attorney.
On September 1 the City of Cape Town’s Safety and Security Portfolio Committee unanimously approved four by-laws for adoption at its monthly meeting, one being the new Unlawful Occupation by-law.
Safety and Security Portfolio Committee Chairperson, Mzwakhe Nqavashe said the approval by the Portfolio Committee is the first step.
“From here, the documents will serve before the Mayoral Committee, and then final approval will need to be obtained from full Council. As chairperson of the committee that drove these processes, I am incredibly thankful for the inputs we received on these matters. And, while they may be wide-ranging in nature, all four by-laws are underpinned by our commitment, as a caring administration, to public safety and safeguarding the rights of all of our residents, as well as our four-legged companions.”
The other amendments are to the Traffic By-law, Animal Keeping By-law and the By-law relating to Streets, Public Places and Prevention of Noise Nuisances.
The fourth by-law is the new Unlawful Occupation ByLaw. The Portfolio Committee first began the process in 2019, with the proposed amendments to the Traffic By-Law.
All four pieces of legislation went through a process of public participation before being finalised for approval.
The City said amendments are designed to help resolve complaints more effectively, but also mitigate risks to the City, individuals and landowners by ensuring necessary and ongoing enforcement actions are supported by legislation.
To ensure the prohibition is enforced humanely, and in compliance with the Constitution, the City said the by-law has been amended to provide for the following:
- A person found sleeping in a public place without authority will first be issued with a compliance notice;
- Such a person only commits an offence if the person refuses a reasonable offer of alternative shelter;
- A court may not sentence a guilty person to prison. It may only fine the person.
The City said any concerns about the impact of the amendments on people living on the street should be considered together with the primary focus to first offer social interventions before enforcement actions take place.
The City released a statement on September 5 saying that those living along the tennis court were given prior notice, with a 30-days letter of demand to vacate the property issued on January 28. Compliance notices were also issued by law enforcement on 2 February 2020, March 23 2021, and August 16 2021.
However, the homeless were caught off-guard when their homes were dismantled (Homeless evicted, August 26). More than half of the homeless that lived at the Green Point tennis courts have left, according to Shaun Hibbert.
“I’m not sure where they are. As you can see most of them are not here even though our tents were returned on the Friday (August 27). But we couldn’t put it up according to the law enforcement; they said we must wait until the court case is done. On Saturday (August 28) we received new tents from an anonymous person and we have put them up,” said the 49-year old Mr Hibbert.
“We have the law enforcement watching us day and night, their cars are idling throughout the night as I’m sure they get cold in their cars,” he said of the presence of the law enforcement.
Dolfi Khumalo says he did not receive his tent back from the law enforcement and had to scavenge for new materials to make a shelter.
“They never gave us a reason for taking my stuff, our stuff. They just doing their job and I had to get new things, new plastics, I did not fight with them,” said the 42-year-old.
The judgment is expected to be handed down within the next month.
