The City of Cape Town invites the public to comment on proposed amendments to the Streets, Public Places and Noise Nuisance by-law. The proposed amendments address, firstly, that the enforcement of the prohibition on sleeping in public places is constitutional, and clearly sets out the powers of the City’s authorised officials to enforce the by-law.
The by-law has been in existence since 2007; aligns with the by-laws of South Africa’s major metropoles and most municipalities; and includes the following prohibitions:
Blocking the safe passage of residents or motor vehicles
Making physical contact without consent
Use of abusive language or threatening actions
Approaching or following a person in a way that causes fear of imminent harm, or intimidates
Continuing to follow or beg from a person after a negative response
Urinating or defecating except in a toilet, and spitting
Bathing except in instances where this is permitted
Performing a sexual act or exposing oneself
Consuming liquor or drugs, or being drunk or under the influence thereof
Solicitation for prostitution
Gambling
Starting or keeping a fire
Sleeping or camping overnight or erecting any shelter, except where designated or with permission
Powers to Enforce the by-law
The amendments to the by-law now explicitly set out the powers of the City’s authorised officials to enforce it, and provide for measures to prevent the abuse of those powers.
It is important to note that the powers to summons, issue admission of guilt fines, arrest, and search, are those conferred on law enforcement officers under the Criminal Procedure Act. The by-law now limits and explicitly states those powers of enforcement to:
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
Impound goods and materials as per the City’s Standard Operating Procedure on the Impoundment of Goods and Animals, 2012
Require identification
By-law amendments are expected to streamline procedures underpinning the effective resolution of complaints, and to mitigate risks to the City, individuals and landowners by ensuring necessary and ongoing enforcement actions are supported by legislation.
Obligations to prevent abuse of powers
The by-law amendments provide for obligations in respect of conduct relating to abuse of powers, including that powers be exercised reasonably and with due regard for fundamental rights outlined in Chapter 2 of the Constitution of South Africa.
The authorised official in charge must exercise their duty of care by intervening and taking the necessary steps to curtail any unreasonable exercise of powers or disproportionate use of force by any official under their command.
Enforcement of the prohibition on sleeping in public places
To ensure the prohibition is enforced humanely, and in compliance with the Constitution, the by-law has been amended to provide for the following:
– A person found sleeping in a public place without authority will be first 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.
We are all equal before the law
‘Law Enforcement officers are duty-bound to apply the law equally, and to respond to the hundreds of complaints from residents each month about anti-social behaviour, breaking of by-laws, and crime committed on streets and in public places. Criminal matters are referred to SAPS in terms of their crime prevention and enforcement mandate.
Insofar as offences may relate to people living on the street, only once all offers of social assistance are rejected, does the City issue compliance notices and fines – the key legal mechanisms available to enforce by-laws.
We have 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 to everybody at the same time.
The City issues thousands of notices and fines each year, including to people living on the street, as we are all equal before the law. Sometimes it is 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. It is no crime to be poor or down on your luck, but every single resident has to comply with by-laws, and the law in general,’ said Councillor Mzwakhe Nqavashe, Chairperson of the Safety and Security Portfolio Committee.
While shelters and social welfare is the constitutional mandate of national and provincial government, Cape Town, as a Caring City, is going above and beyond its municipal mandate to assist people living on the street, including:
A Reintegration Unit working daily to link willing individuals to shelters, reunite families where possible, and offer support to obtain ID documents, social grants, employment training, and EPWP jobs;
Access to Matrix programmes to help people get off drugs, a key driver of why people end up the street or reject offers of shelter
An emergency Covid-19 grant-in-aid package worth R34 million released to NPOs;
Funding for Safe Spaces and the expansion of shelters operating on City-owned land;
Annual Winter Readiness campaigns working with shelters to care for more people when the worst weather arrives.
Comment on proposed by-law amendments
In terms of section 17 of the Local Government: Municipal Systems Act, Act 32 of 2000, the public and interested parties or groups are given the opportunity to submit comments, recommendations or input on this draft by-law to the municipality from 29 May to 29 June 2021.
Comments, input or recommendations may be submitted by:
Email: Streetspublicplaces.Bylaw@capetown.gov.za
Written submission: Leon Wentzel, Law Enforcement Department, City of Cape Town, 1st Floor, Omniforum Building, 94 Van Riebeek Street, Kuilsrivier 7590
Internet: www.capetown.gov.za/haveyoursay
Hand: Nearest Subcouncil office
The City’s Public Participation Unit will assist people who cannot read or write, people living with disabilities and people from disadvantaged groups who are unable to submit written comments, to have their comments or input recorded and submitted to the City.
Contact Anathi Dywili on 021 400 9825 or anathi.dywili@capetown.gov.za for general participation.
The draft by-law is available for viewing at www.capetown.gov.za/haveyoursay, subcouncil offices and City libraries.
Contact Leon Wentzel on 021 444 0231 or Streetspublicplaces.Bylaw@capetown.gov.za for further information on the amendments to the By-law.
Source: City Of Cape Town