Public law centre Ndifuna Ukwazi says the proposed amendments by Cape Town to the Streets, Public Places and Prevention of Noise Nuisance bylaw will not pass constitutional muster as they would permit eviction without interference by the court.
The law centre also called for the postponement of the public comment period which ended on Sunday, to a time when meaningful public participation through appropriate mechanisms would be possible.
It said those most affected by the proposed amendments, including the homeless, sex workers and informal traders, would not have an opportunity to engage with issues directly affecting them.
The proposed amendments seek to allow for search and seizure by the city's law- enforcement officers without any warrant. The proposed amendments would also allow officials to remove and forcefully evict homeless people.
“It is clear that the city cannot criminalise homelessness out of existence and that criminalisation is an extreme measure to address socio-economic and sustainable development issues,” Ndifuna Ukwazi said.
The centre said the causes of homelessness were multiple and complex and required a co-ordinated and comprehensive social developmental-based approach from the city.
The law centre said the remnants of vagrancy laws, which were used during apartheid to remove black and poor people from public spaces, were repeated in municipal bylaws and remained in force in the democratic era.
“The draft amendment would cement the lasting effects of the vagrancy and pass laws, in a time when municipalities should be working towards a departure from this legacy,” the law centre said in its submissions dated May 17.
Ndifuna Ukwazi said the proposed amendment conferred on to authorised officials the power to remove people from public places where they ordinarily resided.
“Section 26(3) of the constitution entrenches the right not to be arbitrarily evicted and provides that it is only through an order of court, made after a consideration of all the relevant circumstances, that someone may be evicted.”
The centre said should the proposed draft amendment be enacted, authorised officials would be given extensive powers to circumvent the constitution, the law that governs eviction and international human rights law.
International human rights law states that eviction from a habitual place of residence is only permissible if it is done in full consultation with the affected community, with plans in place to ensure access to alternative housing in which to live.
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