eThekwini’s discriminatory by-laws: criminalising homelessness

Abstract

The eThekwini Municipality’s Nuisances and Behaviour in Public Places By-Laws of 2015, and the Beaches By-Laws of 2015, seek to regulate and prohibit some of the life-sustaining activities of homeless persons in the city through petty offences. The article considers whether these measures indirectly discriminate against homeless persons, disproportionately impact on them, are contrary to the rule of law, and are an irrational extension of local government powers to develop and maintain law and order within municipal boundaries. Marius Pieterse’s concept of the “right to the city” is relied on to explain why immediate implementation of an adequate and sustainable policy and plan that will give teeth to the local government’s developmental mandate for the homeless, is needed. Lessons learned from advocacy and litigation by other marginalised groups, such as, sex workers and informal traders, are outlined. A short review of recent developments, including litigation, advocacy and local government approaches to homelessness in South Africa, including during the COVID-19 era, is provided. The repeal of the by-laws that effectively criminalise poverty and homelessness is called for.