Challenging the Treatment of Homeless People
Today, UKZNdaba launches UKZN VOICES, a monthly column that replaces The Griot. Although The Griot was highly popular, a decision was taken for the creation of a new column that will include diverse voices from within UKZN; this year’s focus being transformation - one of the key strategic focus areas for the University in 2019 and beyond. We look forward to insightful opinion pieces from all our writers who are well versed in the areas they will delve into.
By Willene Holness and Janine Hicks
On 3 April 2019, the Supreme Court of Appeal in Ngomane & others v City of Johannesburg Metropolitan Municipality & another (734/2017)  ZASCA 57 (03 April 2019) censured the City of Johannesburg for its treatment of homeless persons. A group of people had been living under a bridge in the city for four years, and keeping their possessions and sleeping materials stashed there during the day. The City, alleging the site was obstructing the pavement and enabling crime, conducted a clean-up raid, confiscating and destroying the property of the homeless people living here.
The court declared the conduct of the metropolitan police and their destruction of the homeless people’s property unlawful and unconstitutional. The court upheld homeless people’s right to dignity, privacy and not to be deprived of their property. The court stated that ‘the conduct of the respondents’ personnel was not only a violation of the applicants’ property rights in their belongings, but also disrespectful and demeaning. This obviously caused them distress and was a breach of their right to have their inherent dignity respected and protected.’
The decision should not be surprising considering that courts have consistently found similar conduct unlawful. For example in Makwickana v Ethekwini Municipality and Others 2015 (3) SA 165 (KZD), the Durban High Court declared the Metro Police’s confiscation of traders’ goods under the eThekwini bylaws as unconstitutional. In 2009, the Durban High Court granted an interdict against the enforcement of permit requirements for barrow operators in Warwick junction under municipal bylaws, when the vaunted Early Morning Market was earmarked for redevelopment as a mall. Fortunately, litigation halted the development and consequent displacing and threat to the livelihood of thousands of informal traders and approximately 70 000 households.
These rulings indicate the clear need for transformation in municipalities’ approach to and policing of homelessness and informal trade, enforced through in many instances, apartheid-era municipal bylaws that are at best no longer fit for an entirely different socio-economic set of stakeholders and contexts, and at worst, simply unconstitutional.
The Navi Pillay Research Group (NPRG) at UKZN’s School of Law is concerned that the eThekwini Municipality continues to use irrational and vaguely termed municipal bylaws to victimise and unfairly discriminate against homeless people. This is evidenced through recent research undertaken by the Human Sciences Research Council, investigative journalism in newspaper reports and Carte Blanche, and allegations raised through the outreach work of the Denis Hurley Centre, a local project addressing homelessness.
The framing of municipal bylaws leaves it to the discretion of officials and metro police to determine what action constitutes the promotion of “public order”, and what behaviour constitutes “loitering” or “vagrancy” – for instance urinating, bathing or sleeping in public. As a result, allegations and reported instances have emerged of officials’ unlawful arresting, detaining, harassing, extorting and abusing vulnerable groups of people such as the homeless, sex workers, informal traders and street children, and confiscating and destroying their property without following the due, fair procedure extended to other citizens – simply because they can get away with it, with impunity.
The NPRG is particularly concerned to note so-called “clean-up” operations prior to international conferences and events, and allegations of abduction and dumping of homeless people and street children. What the Court’s decision in the Ngomane matter tells us is that such actions are tantamount to unlawful discrimination, and are a violation of the constitutional rights to equality and dignity - to which all people are entitled, regardless of race or class. Municipal bylaws, policies and actions that perpetuate discrimination against vulnerable groups of people, such as the homeless, are simply unconstitutional.
We clearly need a transformative approach in dealing with social ills and the diverse categories of citizens and people who live and work in our cities. The current approach, embedded in municipal bylaws, reflects a criminal justice and policing response to essentially socio-economic issues. Such an approach has the effect of criminalising and stigmatising poverty and homelessness through the prohibition on begging and loitering, and adopting “anti-vagrancy” measures. The question remains: How do cities accommodate diverse categories of citizens, residents and economic activities, and respect the rights of those involved, and particularly vulnerable categories such as informal traders, homeless people, street children and sex workers?
The NPRG calls for the development of a rights-based response, and not a criminal justice, or even a welfare response. The State is obliged by the Constitution and numerous international conventions to prioritise communities’ needs, particularly the most vulnerable groups of people, and enact positive measures to address for instance, causes of homelessness, and ensure the progressive attainment of socio-economic rights, such as the rights to housing, food, water, sanitation, health care services, social security and education. This principle has been successfully tested and upheld in our courts, which have obliged municipalities to give effect to their development mandate, respond to the needs of the most vulnerable groups, and afford them “sufficient care, respect and dignity”, as in the case of Dladla v City of Johannesburg  ZACC 42.
In eThekwini and other urban centres, provision of adequate shelters and the regulation of private shelters are an imperative. The narrative of the social-ills of homelessness has to change; people do not choose to live without a roof over their head, in abject poverty or to be denied their right to dignity.
That narrative, we argue, includes suburban businesses and families who often bemoan the criminal element of ‘vagrants’, seeking to remove these ‘undesirable elements’ from their neighbourhoods. In the Ngomane case, it was complaints from business owners that instigated the raid.
We call for affording all who live within the limits of our cities the dignity to which they are entitled to under the Constitution. This will require a fundamental shift in policy and law. It will also require developing an acute awareness on the part of city officials, including the police, and the public, that the right to the city extends to all those who live in it.
Willene Holness is a senior lecturer and Janine Hicks a lecturer in UKZN’s School of Law. The above is written in their personal capacities and as members of the Navi Pillay Research Group (NPRG). The NPRG, comprising academics from the School of Law, seeks to address critical emergent issues of race, class, gender and disability in post-apartheid South Africa through research, law and policy reform.
*Picture of Janine Hicks courtesy of Independent Newspapers