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Prohibition on sleeping in public places is Constitutional, and the City will enforce it humanely

Last updated on September 6, 2021

The City of Cape Town is committed to offering help to any person willing to get off the streets sustainably, and is the only metro dedicating a budget to this annually. The City will always offer social assistance, including alternative shelter, before enforcing the Streets, Public Places and Noise Nuisances By-Law. The prohibition on sleeping in public places is constitutional, and must be enforced humanely as we are all equal before the law.

 

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.

 

On 23 August, City Law Enforcement conducted an operation in Green Point to address ongoing violations of the Streets By-law and the many public complaints emanating from this hotspot, one of 350 across the metro.

 

The operation, filmed in its entirety by the Metro Police Video Unit, consisted of both social workers and law enforcement. SAPS were notably also in the area observing.

The matter is now the subject of Western Cape High court litigation brought on the advice of Ndifuna Ukwazi to those persons who refused to accept reasonable offers of The Haven Night Shelter and social assistance, refused to cooperate with law enforcement, and whose tents were lawfully impounded as a result.

 

Haven Night Shelter CEO, Hassan Khan, is offering expert testimony in support of the City’s argument that ‘homelessness’ should not be confused with a housing shortage issue.

 

The Haven defines a ‘homeless’ person as someone who is living on the street as a result of a breakdown in family relations, and consequently the loss of support from the family. The drivers of ‘homelessness’ are complex, and are best addressed through social work, interventions to reintegrate persons into society or reunite them with family, and the offering of drug abuse treatment, amongst other services.

 

Impoundment of tents in Green Point on 23 August

 

It is common cause that the Applicants:

 

were offered access to alternative accommodation at the Haven Night Shelter and Safe Spaces prior to and after the impounding of the tents.

were given the opportunity to remove the tents themselves from the public open space; and

enjoyed the right to collect the impounded tents in line with the confiscation notice, issued only to persons who refused to cooperate, and refused all reasonable offers of alternative shelter and social assistance.

There is no question that prior notice was given, with a 30-days letter of demand to vacate the property issued by the lessee of the area on 28 January 2021. Compliance Notices were also issued by law enforcement on 2 February 2020, 23 March 2021, and 16 August 2021.

 

Several people accepted the offer of shelter space, while others wished to be relocated or had unique requests for assistance. Aside from those who cooperated to remove their tents, a number of abandoned tents were also removed.

 

A few of the people refused to cooperate, and only in these instances were tents impounded lawfully under the Streets By-Law prohibition against blocking a public place [section 2(2)], and sleeping and camping overnight in tents and informal structures in an area not designated for this purpose, and which is not an informal settlement [section 2(3)(m)].

Only tents were confiscated, and no other personal belongings

 

Impounded tents were laid out in full view, and placed in separate bags with reference numbers attached for safe-keeping.

 

Only tents were confiscated, and these items were all returned by agreement on 27 August while the matter is heard in court.

 

Steadfast refusal to accept adequate accommodation

 

The Applicants have steadfastly refused to accept adequate accommodation in the form of the Haven Shelters and City-run Safe Spaces, which offer safe and secure living conditions, social services, access to registered social workers, and an emphasis on reintegrating people into society.

 

And yet there can be no reasonable expectation, nor a clear right, for the Applicants to live unlawfully and permanently in tents in public spaces not set aside for lawful occupation.

 

Sustainable Solutions to get people off the streets

 

The Streets By-Law, combined with the City’s Street People Policy and range of social assistance, is the most humane way to assist people living on the streets, because it is a legal mechanism to shorten a person’s stay in unsafe public places, while offering them a suitable alternative off the street.

 

The length of time a person stays on the streets, against their best interests, would only be lengthened by costly and lengthy processes to obtain a Court Order under the Prevention of Illegal Eviction and Unlawful Occupation (PIE) Act.

 

It is impossible for the City to guard every public space. At present there are more than 350 hot spots in public spaces owned by the City where homeless people sleep unlawfully.

 

Practically, this means the City would have to obtain 350 court orders under PIE. And once these orders are obtained, nothing would prevent persons from simply moving to another public space to occupy. This situation is wholly unworkable.

 

In short, the PIE Act is a blunt and inappropriate legal instrument in respect of people living on the streets.

Caring City – doing more than any other metro

 

While shelters and social welfare is the constitutional mandate of national and provincial government, Cape Town, as a caring city, is the only metro with a social development budget aimed at people living on the street.

 

The 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 on the street or reject offers of shelter

An emergency Covid-19 grant-in-aid package worth R34 million released to NPOs and SA’s highest service reach to the homeless during hard lockdown;

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.

 

Source: City Of Cape Town

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