“In the long term we are looking at the constitutionality of the City of Cape Town’s enforcing of the by-laws,” Lucien Lewin of Dingley Marshall told News24 on Monday.
“We would like to say to the court that its [the City’s] interpretation of the by-laws is such that it is unconstitutional,” said Lewin, who took on the case after attending a community meeting during a furore over the fines.
In the alternative, if the City had interpreted its by-laws correctly, Lewin explained the argument would be the by-laws themselves were therefore unconstitutional.
The application is on behalf of Carin Theresa Rhoode Gelderblom, Emily Smith, Vuyo Mbozi, Beulah Meyer, Natasha Persent, Xolani Siboxo and Patricia Geyser and the papers ask for relief for anybody else who was fined or issued with compliance notices.
Alleged sexual harassment
Gelderblom, for example, lost her home after not being able to pay her bond after a divorce, and after trying to make a living as a hairdresser with intermittent work, finally found herself sleeping in the Company’s Garden in Cape Town.
She lived at a shelter too but left after alleged sexual harassment, according to her affidavit.
Gelderblom was also told she needed a permit to sell the beadwork she made to support herself through collecting dropped beads at tourist spot Greenmarket Square, where souvenirs and art works are sold.
News24 previously quoted law enforcement spokesperson Wayne Dyason as saying the operations and fines directed at people living in public places were as a result of complaints the City had received.
“In many cases, guys go out and quite a few homeless people are putting up structures, obstructing pavements and lighting fires. That’s what we deal with,” he said.
“I wouldn’t say we are targeting the homeless. We are enforcing provisions of the by-law.”
In July, the City said in a joint statement many homeless people were not accepting the myriad interventions already in place.
Dynamics on the streets have also changed, leading to the City to change tact and “find a better balance between by-law enforcement and our social development basket of services”.
Fines ranged from R1 500 for keeping or starting a fire in a public place, R300 for obstructing pedestrian traffic on a sidewalk with any object or motor vehicle or sleeping in a stationary vehicle in a public place.
Small-scale littering or dumping attracted a fine of up to R500 in terms of the integrated waste management plan by-law.
“We do understand that the by-laws have got a legitimate purpose,” Lewin told News24 on Monday. “But the way that they are being applied to homeless people is problematic.”
He explained he had attended a meeting arranged by the Community Chest to discuss the municipality’s controversial move.
By the end of the meeting, he and the law firm had decided to volunteer their services to assist with a legal challenge on behalf of people who had already been fined.
They had hoped the case would begin on Monday with an urgent application to suspend prosecution of fines already issued, but Lewin said the City was not ready to proceed yet.
The City’s director of safety and security, Richard Bosman, told News24 the parties were hoping that the matter would be heard on November 4.
“The City of Cape Town … was served with an urgent High Court application on August 22, 2019. The matter was set down for hearing [on Monday] when both parties agreed to postpone the hearing to November 4, 2019,” said Bosman.
“According to the City’s attorneys, the order postponing the matter to November 4, 2019, must be endorsed by the judge president. That has not taken place yet.”
The applicants want the City to:
– Stop enforcing or further prosecuting the compliance notices, fines and summonses issued to the applicants (and other homeless people who may not be cited);
– Stop interfering with or confiscating the personal property of the applicants (and any other homeless people in the City of Cape Town);
– Stop allegedly harassing or abusing the applicants (and any other homeless people in the City of Cape Town) in ostensible reliance on the by-laws.
The applicants also want to bring a bring a review application of the by-law relating to streets, public places and prevention of noise nuisances and integrated waste management by-law, the fines and compliance notices, within 20 court days if the court agrees to suspend prosecuting the fines.
The SA Human Rights Commission is also investigating the matter, saying the current way of sheltering homeless people is inadequate and does not take the complexities of their situations into account.