CAPE TOWN - The City of Cape Town recently passed amendments to its Bylaws for Streets, Public Places and the Prevention of Noise Nuisances. It’s caused quite a stir, on both sides of the street. As someone who experienced homelessness for several years but also a recent law graduate with a few years of practical paralegal experience, I have a vantage point.
In this month’s article, I want to dig into some high-level insight around the practical implications of the Streets Bylaws and the amendments from both my legal viewpoint and, most importantly, personal homeless experiences.
The Legal View
The original Street Bylaws first came into force more than 14 years ago, they’re not new and they cover some basics that help our City to function. The City last year approved some amendments to the Bylaws and signed them into law this year.
I have a few concerns with regards to the possible interpretation of the Bylaws, their amendments and practical application thereof. Let’s get down to the brass tacks …
In September 2021, the City’s Safety and Security Portfolio Committee issued a unanimous statement to amend the Street Bylaws such that a court may not sentence a homeless person found guilty of an offence in terms of the Streets Bylaws. “It may only fine the person”. The City’s Mayor, Honourable Geordin Hill-Lewis, issued a statement with a similar sentiment a few months later on February 14 this year.
He stated, “The City would like to see the courts ordering rehabilitation, rather than opting for punitive measures such as fines or the maximum allowable six months imprisonment.”
While that’s deeply admirable, from a legal standpoint, both these public statements are inconsistent with the actual Streets Bylaws and their final gazetted amendments, particularly around the very crucial point of imprisonment.
Firstly, if you were to delve into the amended Bylaws, you would find the Bylaws provide for the arrest, subsequent prosecution and, worse-case scenario, imprisonment of any person who is homeless and who is sleeping overnight in a public space if they refuse an offer for an “alternative shelter”.
This, of course, begs the question: what does the term “alternative shelter” mean? It could be anything. Someone who is homeless is already vulnerable with diminished freedom of movement, and they could be inextricably impacted by the interpretation of that term. It would be better practice for the City to provide legal certainty on that point.
Secondly, if you were to peruse the amended section 23(1), especially paragraph (b), you would discover that the courts are empowered to respond with a fine, imprisonment for up to 6 months, or both. There is no mention of any other alternative sanction.
Magistrates courts are ‘creatures of statute', meaning they generally operate within statutorily defined parameters and may not develop remedies beyond the statutory prescription. It is unlikely they would order for an alternative sentence such as rehabilitation, unless such alternative had been clearly legislated.
Both these points impact on both the individual who is homeless, on you and our City at large.
According to the research report, Cost of Homelessness: Cape Town, published by U-turn: street people in Cape Town are 11 times more likely to be arrested than the average person in our city. The report also found that our city already spends over R335 million per year on reactive and punitive responses to homeless people.
With the Street Bylaws fully operational, those figures will shoot through the proverbial roof, along with paperwork and administration costs.
The personal experience
I assume the term ‘alternative shelter’ simply refers to a bed in a local homeless shelter rather than a comprehensive rehabilitation and skills based programme. Based on my personal experiences of our local homeless shelters, it is unlikely the current gazetted Bylaws and their amendments will reduce the numbers of people begging, loitering and camping on our streets.
The majority of residents have limited or no education, may well be struggling with substance addiction and may not even have an Identity Document. In our current employment climate, the chances of them getting a job are fairly slim and even if they did secure job its unlikely they could keep the job. Many of the residents are there in part because of an educational deficit and limited employment opportunities. Their best options are to head back to their regular profitable spots to beg for money and later return to their shelter bed (if they ever do) that night.
When will our society start diverting energy and resources to better and long term solutions? While we wait for our City leadership to establish structures that will enable people facing homelessness to truly access a rehabilitative path (much like I did), we can start as citizens to guide the way. I doubt if the rate of begging, squatting and loitering would be this high if we could all stop tossing a R5 or R10 into a homeless persons’ pockets and instead put them in touch with “a very good alternative“ that provides a different future for themselves and this city that we all share.
* Sikhungo is a spokesperson for U-turn.
Cape Times