The City of Johannesburg (the City) launched Operation Ke Molao (‘It’s the Law’) on 11 February. The goal of the operation is to secure the safety of the city streets after a reported spike in street crimes. Beggars, hawkers, vagrants, informal traders and window washers are being targeted by the operation for arrest or removal.

Since the operation started, Johannesburg Metro Police Department (JMPD) officials (in what have been dubbed “ghost squads”) have arrested 168 people. During the first week of the operation 36 street traders, beggars and window-washers were arrested on the streets of the inner city, and a further 53 traders and window washers were removed from other parts of the city.

According to the City, “the operation is aimed at dealing with lawlessness in various problematic intersections and bridges”. The illegal activities the operation has been implemented to curb, such smash and grabs, clearly constitute unacceptable conduct.

But the City is also trying to criminalise and eliminate basic survival strategies, such as “window washing, vending and begging”. The City points out that their bylaws proclaim these kinds of activities on public roads illegal. For instance, the Public Decency section in the Public Road and Miscellaneous Bylaws, under which some of the traders, window washers, traders, and beggars are being arrested, states, “No person may on any public road in any way loiter or solicit or inconvenience or harass any other person for the purpose of begging”.

Broad scale operations against crime, rooted in the removal of people from the streets, are a persistent theme in Johannesburg’s recent history. Little over a year ago, the dust settled on the newly empty Joburg inner city streets after a month of forced evictions of traders as part of Operation Clean Sweep. The justifications for Clean Sweep, which left over 6,000 people unable to make a living for months, are now chillingly echoed in the fledgling Ke Molao. The City has justified both as efforts to stop crime. According to the City’s logic, crime goes hand in hand with people using public space to make a living in the informal economy.

In 2013 traders from the South African Informal Traders Forum (SAITF) and the South African National Traders‘ Retail Alliance (Santra) took the City to the Constitutional Court over Operation Clean Sweep, where the City was lambasted for its actions. Their removal was ostensibly to put an end to the ‘crime and grime’ of informal trade, but this intention was soon exposed as a façade for the City’s actual motive of removing informal trade from Joburg’s streets. The City removed unregistered and registered traders alike, which they later blithely justified as an act of “convenience”.

The Court condemned Clean Sweep as an act of “humiliation and degradation” that rendered thousands of people, and their children, destitute. The Court expressed concern that the City had described the eviction of several thousand informal traders as “convenient” and instead characterised Clean Sweep as “indiscriminate” and “flawed”, finding that the City had “gone about achieving its objectives in flagrant disregard of the traders’ rights”.

The City has since started a process of consultation with stakeholders on how to relocate traders. However, it persists in putting the cart before the horse in terms of the consultation processes required by the Businesses Act. The Act stipulates that the City must consider the effects that relocation might have on the businesses of traders before resolving to relocate them.

The aftermath of Clean Sweep sharply highlighted the City’s approach as one characterised by limiting the space available for people to make a living, despite its own progressive policies – like the Inner City Transformation Roadmap – which clearly favour an inclusive model of urban development. When it comes to implementation, the City’s approach has consistently reflected a failure to accommodate informal economic activity.

In practice an exclusionary law-enforcement approach, rather than an inclusive urban management one, is pursued. By-law enforcement is used as the means to solve problems in the city, instead of effective urban management that includes in its DNA dialogue with the people who live and work here.

Similar criminalisation of poor people happens in cities elsewhere in the world as the interests of the formal economy are further established and protected. Courts in the United States (where the legal framework for human rights falls well behind ours) have invalidated similar arrests as undertaken by Ke Molao because they criminalise certain activities and the justifications tend to be too broad. These arrests have also been overturned on the grounds of being unconstitutional – “begging” is protected under freedom of expression in the First Amendment.

As far as the constitutionality of begging and window washing in South Africa goes, section 22 of the Constitution states, “Every citizen has a right to choose their trade, occupation or profession freely.”

In an economy characterised by its failure to create jobs, and a stuttering state industrial policy, the informal economy represents a dynamic sphere of income opportunities. However the City acts in such a way as to criminalise these ways of making a living. In the case of Clean Sweep, these actions were taken in disregard of the relevant by-laws. Ke Molao, on the other hand, is supported by by-laws that stand in the way of people realising their constitutional right to earn their living. The City has used these by-laws to conflate window washing and street vending with smash and grabs, and to brand them as illegal acts of public indecency on the city’s roads.

The real similarity between Clean Sweep and Ke Molao is not the grounds given for their implementation, but the City’s recurring anti-poor attitude and approach. The City is out of touch with the lives of people struggling in the informal economy. During Clean Sweep, it conflated informal livelihood strategies with impermanence. In Ke Molao it characterises the strategies employed by people on public roads, specifically at busy intersections, as criminal. That criminal acts occur in these spaces is not in question. They occur in the formal economy too, in the boardrooms of corporations and banks.

The City of Johannesburg must radically re-conceive what it means to earn a living in an economic climate where access to jobs is severely limited. Central to this must be accommodating economic activity that happens beyond the purviews of the large-scale bureaucracies of the formal economy. DM