SA by-laws can improve public safety but are often primarily used to finance municipalities

Municipalities in South Africa are constitutionally mandated to promote a safe and healthy environment through the administration of local affairs. By-laws are presumed to be the most effective way to do this as they are a municipality’s most accessible regulatory tool. They are arguably the best way to amplify municipalities’ power to address local safety threats and reduce crime levels.

But when are by-laws used to protect people, and when are they used to further political gains?

By-laws are local laws that regulate a range of issues, including land use, disaster management, parks and recreational facilities, street trading, begging, and waste management. In addition, clusters of by-laws address important safety issues, including fire prevention, food hygiene, and the unlawful occupation of land. 

While the language of many by-laws is ostensibly neutral, many have a disparate impact on the poor. This is because they fail to consider the extreme levels of poverty and inequality defining many South African communities.

In South Africa, some by-laws predate 1994 and are relics of apartheid and colonial times. Many were originally designed to exclude certain groups of people from public spaces and outlaw various life-sustaining activities, such as trading informally, sleeping in parks, and begging. Their enforcement often targeted the poor, many of whom were black or coloured, and already pushed to extreme levels of social, political and economic exclusion. 

Current approaches to by-law enforcement, like any other law, are not divorced from their history. They are also driven by, and contingent upon, the unique power dynamics, resource constraints and political agendas in a particular municipality. 

Furthermore, predominant beliefs about who commits crime and why — regardless of how classist, racist and xenophobic those beliefs may be — amplify these dynamics further. This often results in those with the least amount of power being subject to the harshest levels of enforcement. 

A recent Institute for Security Studies (ISS) report highlights the economic and political nature of by-laws, specifically regarding safety. The report found that by-laws don’t always strengthen safety in a neutral way. Municipalities’ pressure to generate their own revenue — particularly in metro municipalities — often compels city officials to prioritise ratepayers’ safety interests over those of people with less clout: the poor. 

For example, one senior official from the City of Tshwane told the ISS that most by-law complaints received in their metro were against poor people and informal street traders. Ward counsellors often found their offices under pressure and requested law enforcement to issue fines to appease ratepayers, even though this didn’t provide sustainable solutions to homelessness across the metro. 

This practice continues despite the revised Homelessness Policy approved by Tshwane’s city council in 2017, which aims to facilitate greater access to housing and economic opportunities for homeless people in Tshwane. 

The City of Cape Town has also been criticised for its rapid approach to destroying illegal structures erected on municipal land in violation of its unlawful occupation of land by-law. The City claims to offer people living on the street access to shelters before doing so, but whether it has sufficient services to cater for the 6,000 people living on the street is a different question.