Being homeless is not a crime — conflating criminality and homelessness is a dangerous stereotype

Western Cape High Court Judge Judith Cloete recently handed down judgment in the contentious matter between The Six building sectional title body corporate and the City of Cape Town relating to street-based people living in a vacant city-owned parking lot in District Six, Cape Town.

The essence of the dispute relates to the behaviour of street-based people, such as making fires, which allegedly amounts to criminal nuisance in contravention of several by-laws.

The body corporate’s gripe is an understandable one. It claims that the right of the building’s inhabitants to a healthy environment (protected in section 24 of the Constitution) is jeopardised by the city’s failure to enforce its own by-laws in relation to street-based people’s consumption of drugs; making open fires; screaming and shouting at all times of the day and night; public urination and defecation with the attendant foul odours; nudity and open sexual activity; abundant trash in overgrown grass and weeds; and harassment, assaults and intimidation of residents of the building.

The city was not able to put up a valid defence and Judge Cloete ordered it to curb “the criminal activities” on the site by enforcing the three by-laws in question (namely, the Environmental Health By-law, the Community Fire Safety By-law, and the Integrated Waste Management By-law) so that the street-based people’s occupation of the neighbouring parking lot does not pose a threat to the safety and wellbeing of the residents of The Six building.

Judge Cloete also ordered the city to report back by 13 November on steps it had taken to comply with the court order.

This case is a microcosm of a hundred other dynamics playing out across the city. Homed residents and businesses having to deal with homelessness on their doorstep feel helpless in addressing this complex socioeconomic and mental health issue.

A typical response is to think “Why me?” and “How can we remove vagrants from our area?”, on the assumption that life will return to “normal”. The knee-jerk reaction is somehow to assume that using the criminal justice system can resolve homelessness, but this is hardly ever effective in addressing the root causes. 

It would be futile to deny that the above conduct does not occur. While Ndifuna Ukwazi Law Centre represented 46 of the same street-based occupiers in a separate matter in 2021, we are under no illusion that many people living on the street have to, as a matter of necessity, contravene local by-laws to live and perform life-sustaining activities.

Making a fire is essential for cooking and warmth. Consuming drugs is a coping mechanism for the harsh reality on the streets (not a condonable one but understandable, considering the odds stacked against street-based people). Public defecation and urination occur when there is no access to public toilets. Nudity is necessary to change one’s clothes. And sex is sex — we all need it.

A symptom of a bigger problem