Amendments to City of Cape Town by-law: Are they constitutional?

By Ohene Yaw Ampofo-Anti

1 May 2020

Proposed amendments would allow officials to conduct search and seizure without a warrant.

First published by GroundUp

The City of Cape Town has recently proposed amendments to its Streets and Public Places By-law, which empower officials to conduct search and seizure without a warrant in certain circumstances. Is this constitutional?

The by-law on Streets, Public Places and Prevention of Noise Nuisances regulates the conduct of individuals in public spaces. For example, it prohibits people begging, spitting or urinating in public, or making a loud noise from their car.

The amendments relate to section 22 of the by-Law, which grants City officials certain powers, including issuing compliance notices and recovering costs from people.

The amendments to the by-law make provision for a premises, person or their property (including a vehicle) to be searched without warrant. This is permitted in two circumstances. First, where a “prima facie” offence has been committed in terms of the by-law in the official’s presence. Second, where an officer has “reasonable grounds to believe” that an offence is being committed. In the latter case, the official may only conduct the search if the person concerned consents or if the official has reasonable grounds to believe that if he applies for a warrant it will be issued and the delay caused by obtaining a warrant would defeat the object and purpose of the search. The amendments also make provision for an official to obtain a warrant from a judge and set out the process and criteria for this.

In addition, the amendments empower the City to impound a person’s property without warrant where the official has reasonable grounds to believe that the property is being used for the commission of an offence in terms of the by-law. An official must provide a notice outlining the reason for the impoundment and the impoundment fee. The amendments set out circumstances for the release of a person’s property and when the impounded goods become the property of the City.

The City has given the public until 17 May 2020 to make comments on the draft laws. But some civil society organisations have already slammed the proposal. Chumile Sali from the African Policing Civilian Oversight Forum says the amendments are “criminalising poor and working-class people.” In his view, “the City of Cape Town wants a shortcut to deal with homelessness, remove hawkers, remove sex workers, and remove people who are occupying places in the Central Business District.” The Forum opposes the amendments because they confer discretionary powers on officials which, says the Forum, may be abused and will have a disproportionate impact on vulnerable groups. “If you are black walking around Camps Bay, traffic officers can tell you to leave,” Sali says.

Councillor Mzwakhe Nqavashe, chairperson of the City’s Safety and Security Portfolio Committee, says the purpose of the amendments is to provide additional powers to officers to enforce the by-law and to make it more in line with the Criminal Procedures Act. Also, he says the City hopes that “the amendments will allow our Law Enforcement staff to deal more decisively with serious crimes like the proliferation of drugs and gangs in some of our communities.”

Because the by-law provides for search and seizure without warrant, it may be attacked on constitutional grounds. This is because it may infringe the right to privacy and the constitutional prohibition against the arbitrary deprivation of property.

In terms of the South African Constitution, a constitutional right may be limited if this is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. In considering the lawfulness of a limitation a court will consider:

The nature of the right;

The importance of the purpose of the limitation;

The nature and extent of the limitation;

The relation between the limitation and its purpose; and

Less restrictive means to achieve the purpose.

In practice, a court will weigh up the objective the law seeks to achieve against the means employed to achieve it. So, even if the limitation serves a legitimate government purpose, a court will set aside the law if the impact on the right is too severe and less restrictive means could have been deployed.

The City’s by-laws ostensibly serve a legitimate aim: the preservation of public order in public spaces in the city. Conversely, the right to privacy is a fundamental right tied to the right to dignity. And the state should only be able to deprive you of your property for a sufficient reason.

It is questionable whether some of the provisions will survive constitutional scrutiny. For example, the amendments enable a search without warrant where a “prima facie” offence has been committed in the officer’s presence. What this means is not clear as the amendments do not define what is meant by a “prima facie offence”. There is a danger that this may confer wide discretionary power on City officials which may be abused, especially against vulnerable groups.

The clause suggesting that the official must have reasonable grounds to believe that an offence is being committed does at least mean that the official would have to believe objectively, as opposed to subjectively, that an offence has been committed. The provision also says the official must have reasonable grounds that if he applies for a warrant it will be issued and the delay caused by obtaining a warrant would defeat the object and purpose of the search. The City may defend this provision on the basis that it is very similar to Section 22 of the Criminal Procedure Act (CPA).

The City may also rely on the constitutional principle of “reading down” which requires courts to read legislation consistently with the Bill of Rights where the language permits this. Practically speaking, this means the City could argue that because the by-law requires officials to have “reasonable grounds” to believe an offence has been committed, this should be interpreted strictly in a way that is consistent with privacy rights. The same argument could be advanced for the impoundment of goods where there must be “reasonable grounds” to believe that it is linked to the commission of an offence.

However, critics may argue that the offences listed in the by-law are generally non-violent petty offences which do not justify these extensive powers. These municipal offences are different in nature than murder, robbery or other serious crimes which the Criminal Procedure Act targets Furthermore, it is questionable whether these offences impose the kind of urgency and risk to the safety of people or property that justify these extraordinary powers. So, less restrictive means could be employed here: the use of a warrant which specifies the time, place and manner of execution of a search.

Critics would also be correct in arguing that these by-laws may have a disproportionate impact on vulnerable groups such as street traders, homeless people and so on. South African courts have found that poverty can constitute unfair discrimination. Even if a law does not target specific groups but has a disproportionate impact on them, it can amount to discrimination. Homeless people and other vulnerable groups may be harassed by City officials and this would undermine their right to dignity as well. This would apply also if the amendments were used to seize the property of homeless people.

Members of the public have until 17 May 2020 to make submissions on the proposed amendments. DM

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