Cape Town’s Unlawful Occupation By-Law is not only unconstitutional, but cruel

City of Cape Town staff cleaning sites where displaced people built shelters in the Central Business District on 22 October, 2020 in Durbanville. South Africa has a Gini coefficient of 63 out of 100, indicating severe income disparity. (Photo: Gallo Images / Jacques Stander)

By Tanveer Jeewa and Sfiso Nxumalo

28 Jul 2024

There are multiple reports of how homeless people’s personal belongings are confiscated, including identification documents and HIV medication. This occurs despite South Africa’s Constitution guaranteeing that no one may be deprived of their property without a legitimate reason.

In the cold embrace of the night, where Cape Town urban lights offer no warmth, the plight of homelessness reveals itself in every weary gaze and shivering form, stirring a profound empathy that compels us to confront this enduring tragedy.

Western Cape Premier Alan Winde has declared the province a disaster area after recent floods and disruptive winds. Compared to the existing 3,500 shelter beds, 14,000 homeless people face heavy storms.

And since 3 July, more than 47,000 homes have been damaged, worsening the housing crisis in the province. In the absence of more shelter beds in the rising face of homelessness, people with no homes have no choice but to use personal property such as tents, wooden pallets, plastic sheets and other such materials to protect themselves against the elements. However, their attempts at protecting themselves are at risk of being undermined.

What they own, sustains them and protects them against the elements.

According to the Unlawful Occupation By-Law 2021 promulgated by the City of Cape Town, the City can seize homeless people’s private property. In fact, there are multiple reports of homeless people’s personal belongings being confiscated, including identification documents and HIV medication. This occurs despite section 25(1) of South Africa’s Constitution, which guarantees that no one may be deprived of their property without a legitimate reason.

No distinction

Section 25’s use of “no one” suggests that no distinction should exist between homeless people and others regarding property rights — at least, not on the basis that someone has property of less economic value. Is this (mis)treatment of homeless people’s property due to a misreading of the Constitution, or is it because homeless people’s property is considered unworthy of constitutional protection due to its meagre nature?

This raises questions about the constitutional promise of equality before the law and equal protection of the law, as entrenched in section 9 of the Constitution.

South Africa is widely recognised as the most unequal country in the world, with a Gini coefficient of 63 out of 100, indicating severe income disparity. While this is disheartening, promoting equality and treating individuals with dignity and respect can be done without financial resources.

Treating people equally and with respect costs nothing. Thus, at the very least, equality before the law ought to be achievable, even in the world’s most unequal country. However, this is not the case.

In our recent paper, we contend that property relations in capitalist “post”-apartheid South Africa operate and exist within a hierarchy of property interests, resulting in more protection being afforded to certain forms of property interests, and less (and sometimes no) protection given to other forms of property interests.

Thus, certain forms of property — what we call “formal property”, such as houses — enjoy more protection than “informal property”, such as homeless people’s tents. This is offensive to section 25(1) of the Constitution because both are “property” as envisaged under this section. Homeless people’s property is property, regardless of its economic value.

‘Property appropriation is deprivation’

We argue that property under section 25(1) cannot merely refer to certain forms of property but also extends to the materials that shelter homeless people. Thus, law enforcement agencies’ appropriation of homeless people’s belongings constitutes an arbitrary deprivation of property, as referred to in section 25(1). Law enforcement agencies, including the City of Cape Town, tend to prioritise “formal” property over “informal” property, which is unconstitutional.

Even worse, this difference in treatment of, and protection afforded to, informal property also constitutes discrimination on the grounds of poverty. Although the phrasing of the Unlawful Occupation By-Law is neutral, the act of impounding the belongings of “intending” occupiers indirectly disadvantages homeless people by withholding the protection of section 25(1) to their property because of their poverty, and exposing them to the risk of harsh conditions with no shelter.

Indirect discrimination occurs when the conduct, practice or, in this case, application of legislation, seems innocuous and neutral, but results in differential treatment, the impact of which is discriminatory. But that is not all.

The by-law also offends the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Pepuda) and violates the equality clause under section 9(3) of the Constitution. As explained, at the very least, homeless people are entitled to property rights over the little they have. What they own, sustains them and protects them against the elements.

Read more: Cold reality – many of us are closer to living on the street than we think

There is no question that what they have constitutes property. However, they are treated as if they do not have property, and the law does not protect them. There lies the rub. Homeless people are perceived as a nuisance, drug addicts, and criminals instead of property owners.

Section 25(1) does not apply only to a specific class of right-holders; the provision uses the term “no one”. Furthermore, the provision does not apply only to a category of property interests or a particular economic value of a thing.

Yet, a study conducted by the Human Sciences Research Council on homelessness found that 68% of persons living on the streets reported one of their main challenges to be victimisation and harassment by police. The definition of violence included “personal property confiscation, inappropriate arrests, and violently dislocating them outside the environments where they often access services”.

Confiscation of personal private property can surely not be the first means that municipalities and law enforcement seek to adopt — at least, not in a society that prizes private ownership as highly as South Africa does.

Rights to move property elsewhere

Homeless people should be allowed to move their property elsewhere, should they be found to have unlawfully occupied land. Of course, there should also be many more shelters available, and adequate access to housing should be provided to prevent unlawful occupation.

The Unlawful Occupation By-Law dismally fails the proportionality test as its intended purpose of public regulation of land ought not to outweigh a right protected under the Bill of Rights, namely section 25(1) of the Constitution. This different treatment between formal and informal property owners clearly shows differentiation based on poverty.

The by-law speaks about the “intending occupier”, thus referring to the power of the City official to identify an individual as possessing the intention to occupy a piece of land.

It is clear from the language of the by-law that the City of Cape Town has broad discretion in determining who is capable of holding the intention to occupy land unlawfully. Such assessment by law enforcement officials will likely require consideration of who fits the stereotype of an unlawful occupier. This requires even more stereotyping, humiliation, and denigration towards impoverished people.

This by-law cannot be allowed to stand. Homelessness is not as far away as we would like to believe, as reported in Daily Maverick: “Many of us are closer to living on the street than we think”.

Read more: City of Cape Town’s understanding of homelessness crisis is sorely lacking

The by-law in Cape Town exposes the deep-seated inequalities in property rights protection for homeless individuals. It allows for confiscating their personal belongings, thus violating section 25(1) of the Constitution. By treating informal property such as tents and personal items of homeless people as less deserving of protection than formal property, the by-law perpetuates discrimination based on poverty. It undermines the constitutional guarantee of equality before the law.

To address this injustice, it is crucial to reform the Unlawful Occupation By-Law to ensure that all property, regardless of its form and its owner, is equally protected. Upholding the dignity and rights of every individual, particularly the most vulnerable, is essential for a just society.

Committing to these principles can rectify systemic inequalities and move towards a more equitable future for all who live in South Africa. DM

Tanveer Jeewa is a junior lecturer and LLD candidate in the Department of Public Law at Stellenbosch University. Sfiso Nxumalo is a stipendiary lecturer and a DPhil Candidate at the Faculty of Law at the University of Oxford. This article is based on their paper “(In)equality in Property Ownership: The Rhetoric of Homelessness”, published in Obiter.

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South Africa

No distinction

‘Property appropriation is deprivation’

Rights to move property elsewhere