Maverick Citizen

Opinionista

What’s worse, the 1951 Prevention of Illegal Squatting Act or the 2021 City of Cape Town Streets By-law?

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Dr Jonty Cogger is an attorney at Ndifuna Ukwazi Law Centre.

The 2021 City of Cape Town Streets, Public Places and Prevention of Noise Nuisances By-law traces its genesis back to British ‘vagrancy’ laws implemented in the Cape Colony in 1809 and which disproportionately affected the nomadic indigenous people of the Cape.

An enduring problem that both apartheid and current administrations have been unable to tackle effectively is that of unlawful occupation of land.

The problem of vacant buildings has garnered global interest in recent weeks following the heartbreaking loss of 77 lives in Marshalltown, Johannesburg. Following the devastating fire, we were astonished to witness politicians placing blame on NGOs for the catastrophe and taking the City of Johannesburg to court for previous illegal evictions.

Read more in Daily Maverick: Joburg’s heart of darkness: Inside the inner-city housing crisis

While there are numerous aspects to this discussion (with much yet to be explored), I’d like to centre attention on a specific facet, which is the instinctive tendency to resort to force as a response to the removal of unlawful occupiers.

The backdrop to this situation doesn’t involve unlawful occupation in Johannesburg, but homelessness in Cape Town. In essence, both situations revolve around the government’s approach to addressing unauthorised occupation of public land.

Some context: Past and recent past

The root cause of land occupations can be traced back to the two fundamental pillars of the migrant labour system and the forced removals inherent in successive colonial administrations. Colonial administrations grappled with a paradoxical challenge as they sought a cheap source of black labour while simultaneously desiring to keep these labourers at a distance from exclusively white urban areas. As Hendrick Verwoerd explained in 1958:

“Whites have their rightful home and there the Bantu is the temporary inhabitant and guest, whatever the reason for his presence may be… The Bantu residential area near the city is only a place where whites provide a temporary home in their part of the country for those who require it because they are employed by them and earn their living there.”

While this may have been sustainable for them for a while, in the 1980s, South Africa experienced rapid urbanisation, marked by significant population shifts from rural to urban areas. This led to the growth of informal settlements or squatter camps on the outskirts of major cities.

These areas lacked basic infrastructure, such as clean water, sanitation, and electricity. The government often bulldozed these settlements in an attempt to control urbanisation, leading to protests and further tensions. Urbanisation exacerbated social and economic inequality, ultimately playing a pivotal role in reshaping South Africa’s political environment and leading to the downfall of the apartheid regime.

The 1951 Prevention of Illegal Squatting Act

It is a misconception to believe that the use of force was not, in fact, devoid of legality. One such instrument used to effect racial segregation was the 1951 Prevention of Illegal Squatting Act (Pisa). This act was used as a legal tool to forcibly remove black, coloured and Indian classified communities from areas designated as “white” under apartheid policies.

Penalties for unlawful squatting included fines and imprisonment, further reinforcing the apartheid regime’s control over these populations. It granted authorities the power to evict and relocate people deemed to be unlawfully squatting in these areas. It worked in tandem with the Population Registration Act of 1950 where formal classification determined where individuals could live, work, and access services.

During this era, politicians too lashed out at NGOs for representing communities subject to forced removals. In a speech made to the House of Assembly in 1977, SJM Steyn of the National Party remarked that:

“It is clear that there are other forces at work, forces whose object it is to encourage and perpetuate squatting in order to foment racial dissatisfaction and racial hatred and to discredit the government and South Africa. How else does one explain the recent court cases which were aimed at thwarting the authorities when they wanted to take steps to put an end to illegal squatting, which constitutes a danger to society?”

Fast-forward to the post-apartheid-era

Post-apartheid South Africa introduced progressive legislation to protect the rights of unlawful occupiers and prevent illegal evictions. The Constitution of South Africa (1996) and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act) of 1998 set out legal procedures that must be followed for eviction. The PIE Act decriminalised “squatting” on private and public land, which was prohibited by Pisa.

Despite these legal safeguards, some landlords, property developers or government officials continue to flout the law and forcibly remove people from their homes. While there have been concerted attempts to evict communities outside of the PIE Act, it would be a mistake to assume that there isn’t also a deliberate effort to misuse laws for illegal evictions.

Which brings us to the 2021 City of Cape Town Streets, Public Places and Prevention of Noise Nuisances By-law (streets by-law).

This law traces its genesis back to British “vagrancy” laws which were implemented in the Cape Colony in 1809 and which disproportionately affected the nomadic indigenous people of the Cape, namely the Khoi and San.  

The streets bylaw regulates various aspects of public behaviour and the use of public spaces. This can include rules about street vending, public gatherings, cleanliness, and more, which aim to ensure the orderly and safe use of public areas. One such rule is a prohibition against camping or sleeping overnight that is applicable across urban areas, curiously except for informal settlements. In short, it’s a prohibition against homelessness enforced only in urban centres and affluent suburbs.

In terms of the streets bylaw, if found contravening this rule and a homeless person refuses to move to a homeless shelter, law enforcement can impose a fine, effect an arrest, and impound the material used to make an informal structure.

So, what is worse: the 1951 Pisa Act or the 2021 Streets By-law? Here is a table that provides a direct comparison:

In my evaluation, it appears that, while somewhat similar, the repealed 1951 Pisa included provisions for greater judicial supervision, the option to have legal representation during eviction proceedings, the necessity of formal notice before an eviction order can be issued (three days as opposed to no notice), and is less severe in terms of the criminal penalty imposed (three months as opposed to six months).

The irony lies in the fact that at the peak of apartheid, the impoverished had more legal safeguards than they currently possess in the post-apartheid democratic era. While the Western Cape administration emphasises its commitment to the rule of law, this situation bears a resemblance to the apartheid regime, which was essentially built on institutionalised segregation and racism.

Although these laws may not overtly target specific racial groups, the punishment of poverty inevitably harms the most economically disadvantaged members of our society, who have historically been black, coloured and Indian, dating back to colonial times. DM

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Comments - Please in order to comment.

  • Pet Bug says:

    Lordy lord.
    Have you offered your Street and pavement, front garden or kiddies play park for the squatters to use as they wish, including defecation, hurling obscenities and shooting up and in full view of your children?
    If you have, I hope you’re feeling better.
    However, that’s not how safe and well-run cities should be.
    Hopefully the courts will soon overturn earlier hare-brained judgements and take into account that everyone has rights, and responsibilities.
    The latter requirement totally lacking in this pearl-clutching writing.

    • David Mark says:

      Haha, spot on!

    • Either this article was written under pure pressure or it was written to test the waters. Sad that this is what journalism has become. Daily Maverick claim to have a community of readers who place a high premium on the truth. Shouldn’t that truth start with you. We encourage you to think twice before writing untested claims. “quote unquote” journalism should only be based on neutral facts only.

  • Wendy Dewberry says:

    I agree with the writer on the point that we need to take care of people on the fringes of our (chosen) economic regime. This is the mandate of every government across the world. And yes, our past regime robbed people of equity on every level. And the suffering still continues.

    However, this trend of people setting up makeshift shelters on public access goes against every requirement for good society management. Besides the obvious health issues, this is a thin edge of the wedge. If people are allowed to squat in public access areas, things will escalate until Cape Town City will lose its economic tourist value. Tourists have never been fond of shitty dirty crime den cities. And thats what I saw on my last visit to CT. Filthy, shitty, dry, unamenable areas in the centre of town, where people have set up shelters on pavements.
    The racialisation of bylaws (some rules for some and other rules for others) is obfuscating basic modern world governance. I have the perception that if I do something against the law, I will face appropriate consequences which will escalate until I am coerced to comply. Surely that’s a given in modern society?

    Or perhaps I will be enlightened to aspects I have not yet considered ?

  • Janeen Van Heerden says:

    Interesting article, but it still misses the point or points. 1. The rights of law abiding rate paying citizens to freedom of movement in the area they have invested the majority if their assets and 2. The reason why we have homelessness. Alhough many NGO’s tries to assist with creating safe spaces and work opportunities the government has still not been able to create significant jobs. This is a social issue that results in a criminal issue and the cause is not addressed. The solution is definitely not to force or bully residents to accept (with guilt) the erection of illegal structures.

    • Jane Crankshaw says:

      I agree whole heartedly with this comment.
      Rate payers have rights too. And the blame for joblessness, disinvestment in our country and economic collapse can be laid at the door of the ANC and their prohibitive BEE policies.
      Then of course there’s the political angle – certain parties encourage shelter building in areas that are visible to tourists and visitors to Cape Town – to embarrass the DA municipality and snub a nose at the rate and tax payers who are trying desperately to retain some decency and pride.

  • Carsten Rasch says:

    It’s all good and well to remind us of those unjust times and the laws that enforced it, but, we have a problem, a very big problem, that needs solving. That problem is the occupation of available bits and snippets of land all over the city, including parks, curbs, verges and even the spaces between highway lanes. This is the result of a failure of the State to provide, as promised, for the people, and presents a health hazard, among other hazards, not only for those people themselves, but for all of us. It would be far more useful than the reminder above to try and find a solution for this disaster.

  • Sydney Kaye says:

    Your premise is false. The byelaw makes no mention of race. It is to deal with the problem of those who prefer to occupy the streets and refuse to take alternate accomodation and thereby risk the sustainibility of the city, regardless of race.

  • Karl Sittlinger says:

    Most activist written articles and opinions on homelessness are so heavily biased, they make no concessions at all to the citizens that adhere to the law and pay taxes. It is due to this heavy bias that doesn’t even attempt to find solutions or common ground that I simply ignore such articles most of the time. I understand that the downtrodden and homeless people are not necessarily criminal or vagrants by choice and that they need protection in our society, but I also understand that their rights cannot and should not trump the rights of ordinary lawful and contributing citizens. Do you have any solutions that also protects the citizens in any way? Do you have any suggestions how we do deal with homeless people that repeatedly contravene the law without any worry of consequences? Any ideas how we can make our city attractive for the much needed income of tourists while tents are popping up with no regard? Thoughts on the sqautters building houses on train tracks thereby ruining public transport which mostly impacts those tjat are poor already? Any ideas about the indisputable rise of crime when more homeless people are in the neighborhood beyond blaming others and history?
    Until a solution can be found for both parties, opinions like this are absolutely useless and will probably increase negative perceptions about homelessness rather decrease them. Yes, I am saying that writing such articles as this one is part of the problem, not the solution.

  • William Dryden says:

    This article misses some important facts, whether deliberate or not. When Zuma was made president he told all of Africa to come to south Africa as you helped us during apartheid. And so they came in their millions (not thousands) I was amazed to see a squatter camp evolving outside Hermanus in the hillside, what was most notable was that all the materials (sheeting) were brand new? I believe the ANC provided the materials to increase their voter count in the area. Bearing in mind, prior to 1994 we had some 10million people in South Africa (might not be exactly the correct amount) now we have some 60million people, can’t be all births.?

  • Gerrit Marais says:

    Have you been to Vancouver, San Fransisco, Portland, etc., recently? Also, show me a modern healthy city anywhere in the world where working-class people share space with those that can afford to pay the accommodation rates required in the inner and sometimes not-so-inner city. South Africa is no different.

  • David McCormick says:

    The City requires rates to pay for, among other things, providing shelter to the homeless. Once an area becomes a squatter camp, the rates become zero. So do property values – most home-owner’s biggest retirement asset. Just step over to the the Castle at Cape Town and query how tourism has declined since the Goverment-owned land turned into an informal housing settlement. Waste from the settlement has caused premature road failure next to the Castle and litter abounds. No law equals chaos.

  • Katharine Ambrose says:

    In central Somerset West which is respectable but not wealthy we have lost 4 properties to vagrants. Ie they have been destroyed utterly first by fire then by scavenging for metals and materials until there is nothing left of a perfectly good brick home. The vagrants continue to camp in the area keeping us awake with noise and costing a fortune in security improvements. We are ratepayers helping keep the town decent and this destructive element seem more protected than we are. The city pays a fortune trying to deal with them by providing accommodation and social services but is hamstrung by laws favoring the vagrants. While I feel sympathy for the Homeless it doesn’t extend to these criminals.

  • Unlawful is the operative word Mr Clogger. You get locked up for it and so do I. What excempts the homeless? The City offers them shelter, but they would rather be on the street harrasing, begging and cajoling for money. Bread is not good enough anymore…..now it is milkshakes, burgers and KFC. If you cannot fend for yourself. You have no place in society.

  • Vincent Britz says:

    Nothing but a Bad & uninformed journalist that doesn’t have a clue of what is really happening in SA.

  • Zed Buchler says:

    As mentioned in previous comments, this is not a well thought out opinion. Every body can have one but to blame a political party and local goverment in a thinly disguised pro ANC piece. Really Jonty we get more than enough of these opinion pieces. With respect maybe you should rather write an article about our broken and captured judicial system seeing that you are an attorney .

  • Martin Engelbrecht says:

    Every homeless person is filled with anger and hatred of every person who hurt them. Homeless people who want to change need a chance, those who provide the opportunity should be able the frame the opportunity. To force society into becoming a pigsty to save the homeless is noble but stupid. To encourage people to this demonstrates deep guilt. Every homeless person needs to be removed from the streets, as soon as possible, the streets are owned by those paying taxes. Crowning a homeless people as the major will definitely result in total destruction of society. Daily Maverick stop publishing this nonsense.

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