South Africa
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OP-ED: Homelessness: Criminalisation will not resolve Cape Town’s broken housing system and the plight of the homeless

In the past 20 years, the City of Cape Town has failed to curb the unaffordability of homes in Cape Town, with rising property values and rentals. It has also failed to deliver state-subsidised housing in well-located areas that assist working-class people with access to good jobs, educational, and healthcare facilities.

It now wants to criminalise the very people it has failed to serve through the Streets, Public Places and Prevention of Noise Nuisances by-law and the Unlawful Occupation of Land by-law. It should, in time, become increasingly clear that the more the City enforces these by-laws, the worse poverty and homelessness will become.

As housing becomes less affordable and resources for community social support declines, homelessness and land occupation will increase. Quite alarmingly, rather than addressing the actual need for housing and social support, the City’s response is to use punitive measures — such as issuing fines, arrests, and confiscation of tents and personal belongings — to address homelessness, but these responses are not working. As a result, people living on the streets and in informal settlements become trapped in a cycle of homelessness and jail. A punitive, reactive response to homelessness is harmful to people enduring experiences of homelessness and fails to resolve the housing crisis in any meaningful way.

Street people are also more likely to interact with police as a result of living outside, increasing encounters with the criminal legal system. In fact, instead of solving the housing crisis, these costly, punitive responses are ineffective and can make homelessness worse for those experiencing it and for the communities in which they live.

Compared with people who experience homelessness in shelters or who lack housing security, individuals who live outside experience longer durations of homelessness, are more likely to experience physical and psychological trauma, and are less likely to be engaged in services. A person is only homeless as a last resort and not out of choice. To add insult to injury, enforcement of by-laws makes living conditions and related physical and psychological well-being intolerable to the point where recovery becomes a distant far-off possibility.

The City enforces the Streets by-law as a perverse incentive to encourage people to take up social development interventions, primarily offered by NPOs and private shelters. City field workers and/or law enforcement officers offer space at a safe space or shelter which is where people may access social assistance. An acceptance of one of these shelter options is a prerequisite to have access to any form of social assistance, like rehabilitation.

The City makes this offer under coercion that if not accepted, they will be arrested, their dwelling shelters and personal belongings will be confiscated, they will be fined and if convicted they will go to prison. The enforcement of the by-law relies on an unproven assumption that making people’s lives as intolerable as possible will somehow encourage street people to take up social assistance offered to ‘cure’ them.

The opposite is true. Enforcement will entrench poverty and the harsh conditions on the streets, and worse, result in higher levels of animosity and distrust between street people and city officials.

If the enforcement of the by-laws perpetuates the root causes of homelessness and poverty that undermines positive social development measures to assist people, what are some of the alternatives? How should we address these complex social, economic and mental health issues without resorting to the blunt instrument of criminal prosecution?  

Dignified and stable homes are needed to help people stay in housing and improve their quality of life and is a more cost-effective tool than fines, arrests, and imprisonment — 71% of the street people in Cape Town are “chronically homeless” which means that they have been on the street for more than a year, or repeatedly over several years.

Usually, these individuals have a mental illness, physical disability, addiction and a high level of trauma that prevents them from fighting their way out of homelessness. These individuals need safe, secure, affordable, supportive and permanent housing before they can work on other challenges.

Permanent and supportive homes would also not require abstinence as a condition for entry and would adopt a harm-reduction approach, which meets them where they are. In contrast, shelters are temporary and transient in nature (usually only six months, depending on funding from provincial Social Development). Shelters are a short-term solution and may be better suited to people experiencing transitional homelessness.

They also lock clients out during the day, making it difficult to escape the harsh realities and temptations on the streets. The City punts the safe spaces and Haven shelter model as a cookie-cutter response to homelessness, whereas the reality is that we need as many different shelter models as there are causes of homelessness. That is, the government needs to invest in a basket of options: for drug and alcohol rehabilitation, couples, families, womxn and LGBTQI+ individuals.  

Thus, what is required are different housing typologies with access to supportive services to ensure that street people feel safe enough to recover.

The state owns a considerable amount of land and vacant buildings, so options for this should be readily available. Rather than investing in positive long-term permanent interventions, like supportive/transitional housing and other housing options, it will waste public resources defending a broken and inefficient system.

Fully qualified social workers engaging with street people with one agenda — build trust and relationships — are essential. Living on the streets is traumatising and can seriously undermine a person’s ability to consciously decide to recover from substance abuse, psychological or sexual trauma. The City has “field workers” who it says engage with street people, but they are not professionally qualified social workers and are only dispatched when a homed resident or businesses lay a complaint.

A field worker will “offer” assistance at a safe space or Haven shelter but does not engage in social work. This is a reactionary approach that naïvely assumes anyone in this state of mind possesses the right mental capacity. When a street person “refuses” assistance, the City field worker will call law enforcement to evict the person, remove their tent, arrest them, and if convicted, be imprisoned. In many cases, engagement with the field worker and law enforcement happens within a few hours. It is unrealistic to expect anyone to trust the City when it adopts a senseless approach that undermines any trust and goodwill. Moreover, using coercion and force can never justify trying to help someone. It also seriously undermines any informed choice made under the circumstances.

Inclusive management of public spaces seeks to accommodate everyone’s needs within a public health framework, such as providing access to drinking water, public restrooms, and safe needle disposal. These practices regulate public space and manage conflict to ensure that all users have access, including street people. While this is not a long-term solution to prevent homelessness, it can act as an interim measure to mitigate against the harsh realities on the streets, prevent further deterioration of conditions and avoid chronic homelessness and the point of no return. 

Civil conflict resolution, like meaningful engagement or mediation, between homed residents and a street person, is an alternative model to explore in resolving issues of alleged “anti-social” behaviour. Most of the offences in the by-law relate to behaviour that homed residents may similarly be guilty of within their homes but without the risk of criminal prosecution. For instance, my neighbour could not be criminally prosecuted for loud noise, drunken behaviour, urinating or defecating in her garden, littering in her home, or having sex in view of others. At most, I would have a civil claim in neighbour law, but these wouldn’t be criminal.

It begs the question of why we treat these same activities as criminal nuisances for street people, just because they are homeless, and despite them being residents in an area. Even if we accept that there must be some rules to abide by in public, is it appropriate and necessary for these rules to be governed using the threat of criminal liability?

Experiencing homelessness, in and of itself, is punishment. Enforcing by-laws as a punitive response to homelessness adds to this inherent trauma. DM

Jonty Cogger and Danielle Louw are attorneys at Ndifuna Ukwazi Law Centre who represent 11 street people in the matter of Gelderbloem & 10 Others v City of Cape Town, which challenges the constitutionality and discriminatory impact of the Streets By-law and Waste By-law. They also represent two other street-based communities in two other cases in the High Court (Valencia Lewis & 21 Others v City of Cape Town and Ruwayda Davids & 55 Others v City of Cape Town) where the City’s use of the Streets By-law is being challenged.