Attorney Jonty Cogger, of activist organisation and law centre Ndifuna Ukwazi, said the City had appealed every judgment against it in which the court declared the dispossession of tents and makeshift structures unlawful.: Armand Hough/African News Agency(ANA)
Attorney Jonty Cogger, of activist organisation and law centre Ndifuna Ukwazi, said the City had appealed every judgment against it in which the court declared the dispossession of tents and makeshift structures unlawful.: Armand Hough/African News Agency(ANA)

City of Cape Town files court papers in a bid to defend its by-laws which affect the homeless

By Mthuthuzeli Ntseku Time of article published Oct 20, 2021

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Cape Town - The City of Cape Town has filed its answering affidavit with the Western Cape High Court disputing that its by-laws are infringing on constitutional rights.

Earlier this year, 11 homeless people launched applications in the Western Cape High Court and the Equality Court to challenge the constitutionality and the discriminatory impact of the by-law relating to streets, public places and the prevention of noise nuisances and the Integrated Waste Management by-law (2009).

This while the City appealed a recent high court judgment which ordered that the use of municipal by-laws to evict homeless people occupying a parking lot in Sydney Street, District Six, was unlawful.

The City said the streets, public places, and noise nuisances by-law protected the dignity, health, and well-being of “homeless” people by enshrining in law the offer of alternative shelter and solutions to help people off the streets sustainably.

It said the by-laws only criminalised conduct and not human beings. It said close to 30 000 complaints relating to people living on the street from 2019 to date were received.

Attorney Jonty Cogger, of activist organisation and law centre Ndifuna Ukwazi, said it had taken the City six months to file its answering affidavit in the case, which was launched in March.

He said Ndifuna Ukwazi had to obtain a court order to compel the City to file its answering affidavit.

“What I find quite disingenuous is that while they were taking time to deliver their answering affidavit, which would have resolved the issue that a lot of homeless people have to deal with the by-laws, the City has continued enforcing the contested by-laws against homeless people which led to the two cases, in Green Point and District Six.

“While the recent high court judgment ordered the City to return all tents, materials and property of the District Six occupiers within five days, which was last Thursday, we have noted that the City has not returned any of the homeless people’s property, and instead is appealing the judgment,” he said.

Cogger said the City had appealed every judgment against it in which the court declared the dispossession of tents and makeshift structures unlawful. He said there were seven other cases in which the Western Cape High Court had declared the removal, dispossession and confiscation of the structures and tents of homeless people unconstitutional.

He said the City could not address homelessness through a primitive response but needed to address the many reasons people ended up on the streets through positive social development interventions.

Good Party mayoral candidate Brett Herron said the City’s leadership must be asked to account for its defiance of the law as it had a number of judgments against it that had found it to have acted unlawfully.

“It is increasingly obvious that they have adopted an attitude that they do not intend to respect the court judgments or that the rule of law applies to them. Instead of adjusting their approach to homelessness, they are continuing with the same approach – unlawful enforcement. This is costing the public a lot of money in litigation and costs orders. At some point a personal costs order should be obtained against the City leaders who have become frequent offenders,” he said.

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