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Treating the life-sustaining activities of street-based people as a criminal nuisance, in the manner that the City of Cape Town’s by-laws do, will perpetuate the stereotype that all people experiencing homelessness are criminals.

Western Cape High Court Judge Judith Cloete recently handed down judgment in the contentious matter between The Six building sectional title body corporate and the City of Cape Town relating to street-based people living in a vacant city-owned parking lot in District Six, Cape Town.

The essence of the dispute relates to the behaviour of street-based people, such as making fires, which allegedly amounts to criminal nuisance in contravention of several by-laws.

The body corporate’s gripe is an understandable one. It claims that the right of the building’s inhabitants to a healthy environment (protected in section 24 of the Constitution) is jeopardised by the city’s failure to enforce its own by-laws in relation to street-based people’s consumption of drugs; making open fires; screaming and shouting at all times of the day and night; public urination and defecation with the attendant foul odours; nudity and open sexual activity; abundant trash in overgrown grass and weeds; and harassment, assaults and intimidation of residents of the building.

The city was not able to put up a valid defence and Judge Cloete ordered it to curb “the criminal activities” on the site by enforcing the three by-laws in question (namely, the Environmental Health By-law, the Community Fire Safety By-law, and the Integrated Waste Management By-law) so that the street-based people’s occupation of the neighbouring parking lot does not pose a threat to the safety and wellbeing of the residents of The Six building.

Judge Cloete also ordered the city to report back by 13 November on steps it had taken to comply with the court order.

This case is a microcosm of a hundred other dynamics playing out across the city. Homed residents and businesses having to deal with homelessness on their doorstep feel helpless in addressing this complex socioeconomic and mental health issue.

A typical response is to think “Why me?” and “How can we remove vagrants from our area?”, on the assumption that life will return to “normal”. The knee-jerk reaction is somehow to assume that using the criminal justice system can resolve homelessness, but this is hardly ever effective in addressing the root causes.

It would be futile to deny that the above conduct does not occur. While Ndifuna Ukwazi Law Centre represented 46 of the same street-based occupiers in a separate matter in 2021, we are under no illusion that many people living on the street have to, as a matter of necessity, contravene local by-laws to live and perform life-sustaining activities.

Making a fire is essential for cooking and warmth. Consuming drugs is a coping mechanism for the harsh reality on the streets (not a condonable one but understandable, considering the odds stacked against street-based people). Public defecation and urination occur when there is no access to public toilets. Nudity is necessary to change one’s clothes. And sex is sex — we all need it.

A symptom of a bigger problem
No one wants homelessness on their doorstep, but the reality is that it is a symptom of a much bigger societal problem. If it is not happening in plain sight in established public places, it is a reality in informal settlements on the periphery of the city where the city does not enforce its by-laws.

Unless the levels of poverty and landlessness are addressed, homelessness will simmer on the surface as an ever-present crisis. And there are no shortcuts in addressing this crisis. It is also not possible or effective to focus on eradicating the symptoms, like making a fire, washing outside and taking drugs, without sustainable housing solutions.

Our concern is that because the SAPS and city law enforcement lack the intelligence capacity to combat crime effectively, they raid certain crime hotspots without proof that crimes have been committed. Not all street-based people are criminals and it is unfair to tarnish everyone living in one area indiscriminately.

Just last week, I was called by street-based people living on Strand Street to stop an illegal eviction by Prasa security guards. When I engaged with the security guards they revealed that their intention was to remove the “vagrants” from near their property because of increased criminality in the area.

Treating the life-sustaining activities of street-based people as a criminal nuisance, in the manner that the city by-laws do, will perpetuate the stereotype that all people experiencing homelessness are criminals.

Being homeless is not a crime. The enforcement of the by-laws results in a denial of human dignity and reinforces their further alienation from mainstream society. It reflects a deep-seated societal stigmatisation of homeless people as deviants and criminals.

This is deeply humiliating, dehumanising and significantly affects their sense of self-respect and self-worth. It is a dangerous vicious cycle that can never address the root causes of the crisis that we find ourselves in as a city.

Thus, while the reasons for launching the application against the city may be understandable (and we truly sympathise with the homed residents of The Six building), it is highly regrettable that once again, a small group of people (this time in one area of the city but no doubt repeated somewhere else) naïvely assume that the blunt instrument of criminal enforcement can ever address the complexities involved with living on the streets.

It would be remiss not to quote Tiffany Cabán, a New York City councillor. In response to the murder of Jordan Neely, a street-based person, by a fellow subway passenger on 1 May because he was yelling, she said: “If someone is starving, homeless, and mentally decompensating near me, I am not in danger, they are.”

Hating poverty and hating poor people are not the same thing, and we need to know the difference.

For more effective solutions, see our previous opinion piece, “Criminalisation will not resolve Cape Town’s broken housing system and the plight of the homeless”. Dr Jonty Cogger, Daily Maverick

Originally published by the Daily Maverick on 7 May 2023

Photo: Unplush/Jon Tyson