Authors: Dan Plato
The City’s Executive Mayor
29 September 2021
Cape Town has just approved this controversial by-law
The Cape Town City Council has on Wednesday (29 September) approved the new Unlawful Occupation by-law, alongside updates to the Streets, Public Places and Prevention of Noise Nuisances by-law.
The council’s approval of these by-laws follows the Mayoral Committee’s green light and the unanimous support of the Safety and Security Portfolio Committee earlier this month.
“These crucial by-laws will help us to protect land and buildings from unlawful occupation. We are a caring city seeking to uphold the rule of law. That is why, once gazetted, it will officially be law in Cape Town that an offer of social assistance first be made, including shelter, to ensure the constitutional enforcement of the prohibition on sleeping in public places,” said the city’s executive mayor, Dan Plato.
“The city has a constitutional 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 equally to all residents at the same time.”
Streets, Public Places and Prevention of Noise Nuisances by-law
The city’s by-law relating to Streets, Public Places and the Prevention of Noise Nuisances has been in existence since 2007, and aligns with similar pieces of legislation in other metros around the country.
By-law amendments are designed to help resolve public complaints more effectively, by ensuring enforcement actions are supported by legislation, the city said. There are currently over 350 hotspots for public complaints around by-law violations relating to people living on the streets.
To ensure the prohibition on sleeping in public places 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 first be issued with a compliance notice;
- They will be offered alternative shelter;
- Such a person only commits an offence if they refuse a reasonable offer of alternative shelter;
- In sentencing, a court will give a guilty person the option to pay a fine.
Existing powers are conferred on law enforcement officers under the Criminal Procedure Act. The by-law now limits and explicitly states that law enforcement can:
- 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.
- Require identification.
“The city proceeds from the principled position that no person should be living on the street. It is not a place for any human being to live. Every action of the city is directed towards assisting people to be able to leave the streets and reintegrate with their families and communities.
“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,” said the city’s mayoral committee member for Safety and Security, JP Smith.
“It is imperative that the city manages our public spaces in a manner that makes them usable by all, and ensures that our city continues to create jobs, attract investment, and drive urban regeneration.”
Going beyond its municipal mandate
While shelters and social welfare is the constitutional mandate of national and provincial government, Cape Town is the only metro with a social development budget aimed at assisting people to get off the streets sustainably, it said.
The city said it is “going above and beyond” its mandate by assisting people to rebuild their lives off the streets, through:
- 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.
Unlawful Occupation by-law
Unlawful occupation is already illegal, but national legislation does not create effective prohibitions against the actions involved in coordinated illegal land occupation attempts, the city said.
There are large gaps in the Prevention of Illegal Evictions and Unlawful Occupation of Land (PIE) Act due to national government’s failure to pass regulations to support this legislation, it added.
“Apart from the health and safety hazards of settling on unsuitable land, unlawful occupation hampers planned projects and programmes, disrupts basic services and infrastructure, and impacts on environmental health.”
The objectives of the Unlawful Occupation by-law 2021 are to:
- Prevent the unlawful occupation of land and buildings; and
- Monitor, control, and regulate the growth of informal settlements within the city.
The city said that the by-law explicitly sets out existing powers of law enforcement to protect land and buildings from unlawful occupation but does not grant new powers nor sanctions, other than what already exists in law.
“In fact, this by-law is pioneering in that it emphasises the fundamental rights of people, and imposes a duty on officers to intervene in situations where abuse of power is evident.”
The by-law also supports the city’s discretion to act on behalf of private landowners and other entities when unlawful land occupation attempts occur and imposes certain obligations on landowners, both private and public, to protect their land.
The by-law further provides for the city to monitor, control, and regulate informal settlements. These are all necessary measures to protect the viability of the Managed Settlements Programme, and associated plans for settlement upgrading, basic services, access routes, and social infrastructure, it said.
“The city will always act to protect municipal land from unlawful occupation attempts, and to prevent the hazards and hardships that come with occupying unsafe land. With this by-law, we are also laying the foundation for enhanced informal settlement upgrading, through closer management of settlement growth and protection of upgrade plans. In this way, we will improve living conditions for more people, and protect land for future generations and community needs.
“We now have a new Human Settlements Strategy, Unlawful Occupation Framework, and related by-law that are all aligned for the greater good,” said the city’s mayoral committee member for Human Settlements, councillor Malusi Booi.
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