‘David versus Goliath’: Being homeless in the City of Cape Town
Eleven homeless people have launched court proceedings to challenge the constitutionality of archaic bylaws in South Africa.
Cape Town, South Africa – Carin Gelderbloem was woken in the early hours by a large rock crashing down on her tent. A group of high school students had been drinking all day in Company’s Garden, just down the road from the South African Parliament.
They were now terrorising its homeless.
When Gelderbloem’s boyfriend, Rameez Kemp, went outside to protest, he was beaten and stabbed repeatedly. Colon hanging out, he managed to stagger to the park entrance. Having lost a lot of blood, he was eventually taken by ambulance to Somerset Hospital two hours later, within an inch of his life.
When she reported the incident at the Cape Town Central police station, Gelderbloem says officials told her it was her boyfriend’s fault for choosing to sleep rough in the first place. This was October 2018 – one of her first encounters with the city’s police.
“When you stand up to law enforcement, you are David and they are Goliath,” she said. “They told us we don’t have any rights.”
Over the phone, Andre Trout, a spokesperson for the South African Police Service in Cape Town, declined to provide Al Jazeera with a comment on the alleged incident. “If she was turned away, she must lodge an official complaint with police management. We don’t take this kind of thing lightly,” he said.
During her nine years on and off the street, Gelderbloem, 51, alleges that law enforcement officers confiscated clothes, sleeping bags, dentures and even the beads that she used to make and sell jewellery. On multiple occasions, in the dead of night, she says city authorities would rip away the cardboard and plastic sheeting that she used to shelter from the elements.
Gelderbloem says such incidents were often accompanied by torrents of verbal abuse. “They have never spoken to me like a decent human being,” she said. “I ask them, ‘Do you speak to your mother like that?’ Don’t think that this can never happen to you. Homelessness can happen to anybody in the blink of an eye.”
Archaic bylaws, rooted in colonial-era vagrancy and “pass laws” exported by the Dutch and British to subjugate the Indigenous population, essentially criminalise homelessness in municipalities throughout South Africa. In Cape Town, those lying down, sitting or standing in public spaces have been fined up to 2,000 South African rands ($146). While these bylaws technically apply to everyone, they disproportionately affect the homeless who often have nowhere else to go. An amendment to the bylaws, currently under public review, would allow law enforcement to physically remove homeless people from an area and arrest them on the spot if they refuse an offer of alternative shelter and seize tents.
In the United Kingdom, MPs are calling for the government to repeal the 1824 Vagrancy Act, which criminalises rough sleeping. In Cape Town, Gelderbloem and 10 other homeless Capetonians are calling for an overhaul of their own.
In March, they lodged two applications – one at the Western Cape High Court and another at the Equality Court – to challenge the constitutionality and alleged discriminatory effect of the bylaws. The applicants have all been fined for contravening these laws and variously testify in their applications and to Al Jazeera that they have had ID documents, blankets and other personal possessions confiscated by law enforcement. Since launching the case, the lawyer representing the applicants said one of them alleged they have had HIV medicine taken away by law enforcement during a recent raid on Hope Street.
The applicants want the bylaws to be scrapped and are demanding constitutional damages of 5,000 rands ($360) each, as well as a formal apology from the city authorities.
Last week, the City of Cape Town issued a press release shared on Facebook by multiple city councillors from the Democratic Alliance, South Africa’s main opposition group which controls the Western Cape province, declaring that it was preparing to oppose the challenge to the bylaws.
“Law Enforcement officers are duty-bound to apply the law equally, and to respond to the hundreds of complaints from residents each month about anti-social behavior, breaking of by-laws, and crime committed by some people living on the street,” it noted.
“When all offers of social assistance are rejected, only then does the City issue compliance notices and fines – the key legal mechanisms available to enforce by-laws.”
City councillors from the Democratic Alliance also sent out a mass email, with a template form for sending in complaints about the homeless in an effort to build its legal case.
Jonty Cogger, a lawyer for Ndifuna Ukwazi, the activist organisation representing the homeless applicants, said the City’s response was “despicable” and “tantamount to inciting hatred towards homeless people”.
“Soliciting complaints from ratepayers, residents and businesses – people with privilege – is a dangerous and divisive legal strategy that will only exacerbate street people’s vulnerability and marginalisation in society,” he added.
In 2019, there were 4,862 homeless people living in Cape Town, according to figures by the Western Cape provincial government.
A more recent study released in November 2020 by three non-profit organisations, U-Turn, Khulisa Streetscapes and MES, claimed that the real number is in excess of 14,000.
JP Smith, the city’s mayoral committee member for safety and security, said there had likely been some “double counting” because multiple organisations were involved in compiling the data. He conceded though that the situation had been “dramatically aggravated”, following the country’s first coronavirus lockdown last year. The NGO survey drew mainly on data from before the first lockdown.
The three groups also estimated that the City of Cape Town spends more than 335.2 million rands ($24.4m) on law enforcement and punitive measures against the homeless – and just 121.9 million rands ($8.9m) on social development programmes.
“That is absolute nonsense and a grotesque misrepresentation of the figures,” said Smith, who among other things accuses the authors of treating law enforcement budgets as if they were used exclusively to target the homeless. In reality, these calculations of the money spent on policing the city’s homeless were made based on a survey of 350 homeless people, government reports, and interviews with officials.
Smith added that Cape Town had the most liberal policy towards the homeless of any city in South Africa and that similar bylaws exist all over the world.
For Gelderbloem though, this is inconsequential. “We must win this case. The City must realise that homeless people are people,” she said.
It could be months before a ruling is delivered.