Statement from lawyers acting for 7 homeless against City of Cape Town

Cape homeless rights upheld in court decision

Cape Town, 13 December 2019 -- Yesterday the Western Cape High Court extended the interim interdict preventing the City of Cape Town from confiscating the personal property of the homeless, or harassing or abusing homeless persons in the City.

The seven homeless applicants had approached the court to prevent the City from continuing to prosecute compliance notices, fines and summonses already issued to the them (and potentially other homeless persons) in terms of the City’s waste management and public nuisance by-laws, and to prevent the continued confiscation of personal items belonging to, and the harassment of homeless persons within the City of Cape Town, in ostensible reliance on these by-laws.

Lucien Lewin, the attorney from Dingley Marshall Inc, who is acting for the seven homeless, says, “This is an important case, and we are happy that the rights of the homeless are being protected and their grievances heard. The homeless are perhaps the most marginalised in our society and given that the City only has enough shelter space for 42% of all homeless people, it is imperative that they are treated with dignity and receive the necessary protection.

“Our next step will be to begin preparing the review application, whereby we will be challenging the constitutionality of these by-laws.”

Summary of court proceedings:

On Thursday, 12 December 2019, lawyers for the 7 homeless applicants, the City of Cape Town, and various ratepayers’ associations argued their respective clients’ legal positions before Acting Judge Bernard Martin. The applicants’ lawyers are Nick de Jager, Adiel Nacerodien (as counsel) and Lucien Lewin as instructing attorney of Dingley Marshall Inc. All lawyers for the applicants are acting on a pro bono basis.

At the outset, Judge Martin addressed the litigants on the “rules of engagement” for approximately 20 minutes, and advised them that the Constitution of South Africa demands of the court to work towards a just and caring society. He then allowed the advocates for each party to argue the merits of the matter.

While arguing, the City of Cape Town’s advocate advised the court that the City would be prepared to agree to an order where only the 7 applicants would derive the benefit from the order, as opposed to all homeless persons living in the City of Cape Town. Notwithstanding various proposals of settlement by the applicants to the City over the course of the litigation, this was the first time that the City made a formal proposal of settlement to the applicants. The counsel for the applicants asked for a brief adjournment so that instructions could be taken from their clients.

The applicants rejected this offer by the City on the basis that it did not apply to all homeless persons. Ultimately, however, the following agreement was reached in regard to the City’s engagement with homeless persons:

1.    Pending the determination of the review proceedings relating to the constitutionality of the below mentioned By-Laws and the City’s conduct in enforcing them, the City undertakes to desist and refrain from -

1.1. Taking any further steps pursuant to compliance notices, fines and summonses that have been issued to the Applicants pursuant to -

1.1.1. the By-Law Relating to Streets, Public Places and the Prevention of Noise Nuisances (Provincial Gazette 6469 of 2007) (“the Streets By-law”); and

1.1.2. the Integrated Waste Management By-Law 2009 (Provincial Gazette 6651 of 2009) (“the Waste By-law”); (“the By-Laws”)

1.2. Confiscating the personal property of the Applicants (and any other homeless people in the City of Cape Town) in ostensible reliance on the By-Laws. (For the avoidance of any doubt, it is recorded that the Respondent shall be entitled to act in accordance with section 22 of the Streets By-law and section 15 of the Waste By-law); and

1.3. Harassing or abusing the Applicants (and any other homeless people in the City of Cape Town) in ostensible reliance on the By-Laws.

The agreement also provided for a timetable for the conduct of the review proceedings, culminating in a hearing in June 2020.

Final outcome

However, the judge refused to make this agreement an order of court, and reverted to the original interim order which was granted by Judge Bozalek in September 2019, which is essentially very similar to the agreement recorded above, save that it does not provide for a timetable for the conduct of the review proceedings.

The City has indicated that they are considering appealing the order granted by Judge Martin.

In the interim, the applicants’ lawyers are preparing the review application.

Statement issued by Dani Cohen, Prolog Consulting, 13 December 2019