NADEL condemns City of Cape Town anti-poor by-laws that criminalise and penalise the poor and marginalised
9 July 2019
The National Association of Democratic Lawyers (NADEL) is set to oppose the City of Cape Town by-laws that criminalise and penalise poor and homeless people. Twenty five years into democracy, it is astounding that a municipality in South Africa would adopt such tyrannical and oppressive by-laws that target the most vulnerable and poor in our society. Such by-laws are contrary to the ethos and spirit of the South African Constitution and the Bill of Rights.
Nadel notes with concern that the South African Human Rights Commission(SAHRC) has reportedly received more than one hundred (100) complaints regarding the impact that these by-laws have had on the poor and homeless.
The by-law, which has been enforced for some months now under a veil of secrecy, prohibits people from erecting a shelter or sleeping overnight in certain areas. It prohibits anyone from ‘in any way’ from obstructing the pedestrian traffic on a sidewalk or depositing, packing, unpacking or leaving any goods in a public place. This could attract a fine up to R 300,00. The poor can be charged and fined up to R 1500,00 for lighting a fire in a public place during the harsh winter that we are currently experiencing.
The poor have become the target of these by-laws, which are reminiscent of tyrannical colonial and apartheid style attacks on the most vulnerable people in society. These by-laws, which have lost their context and place in a democratic constitutional society like South Africa, affect street vendors, street children, beggars and homeless people.
Nadel believes that since we are a developing country with severe levels of poverty, it is irrational, counter-intuitive and oppressive to enact and enforce such by-laws in our legal system. The rationale that these laws are there to maintain public order; public safety and prevent crime holds no weight in our current constitutional order.
The offences created by these by-laws have severe arbitrary consequences and open to abuse, because minor ‘offences’ could potentially attract disproportionate penalties for the homeless and poor. These by-laws undoubtedly target a specific class of people because of their status, poverty and their homelessness. It segregates us and undermines the dignity of people.
NADEL has put together a team of its attorneys and advocates who will challenge the validity, relevance and constitutionality of these by-laws and the related consequences for our constitutional dispensation.
NADEL will also be applying to be admitted as Amicus Curiae, a friend of the court, in the case of undocumented children to have the right to access to education.
An application has been made by the Centre for Child Law against the Minister of Basic Education in 2017. In order for children to access the right to basic education children have to have the necessary legal documentation that must be submitted to the school for admission, birth certificates and identity documents need to be submitted and in the case of asylum seekers, refugees or migrants further legal documentation is required. In many instances’ children do not have the necessary documentation.
A lack of documentation cannot be a barrier to access fundamental rights especially considering that statistics show that 43% of births in Sub-Saharan Africa are unregistered. It unfairly prejudices rural children whose families are unable to access services in rural areas.
NADEL is firmly committed to the realisation of an egalitarian society based on the principles in our Constitution. It will continue to play an active role in all matters that go to the heart of the realisation of fundamental human rights for all South Africans.
Issued by Ugeshnee Naicker on behalf of the National Association of Democratic Lawyers (NADEL), South Africa, 9 July 2019
