Last week, I suggested on Twitter that Capetonians might want to comment on the City’s “management of public spaces” by-law amendments before the deadline of May 17, but didn’t say why, hoping that people would read the amendments and decide for themselves.
But in case it’s useful, here is a short summary of my concerns. You are free to copy and paste them into your responses if you choose, or to submit a version of them under your own name.
Comments, input or recommendations may be submitted by:
- Email to lawenforcement@capetown.gov.za
- Written submission to Leon Wentzel, Law Enforcement Department, Omniforum Building, 94 Van Riebeeck Street, Kuilsriver 7580
- Online at www.capetown.gov.za/haveyoursay [note: the text below is too long for the online submission form to accept, so you’ll need to trim it, or submit via email]
The old bill is available here, and as you’ll see, Section 22 used to be very short. The new amendments are all additions to Section 22, and contrary to the City’s claim (made on their page announcing the public participation phase, and included as this post’s image) that they are “minor” changes, they don’t seem at all minor to me.
(Some of) The issues
- When presented with an invitation to comment on “minor changes”, few readers would expect a mere two clauses (in the old by-law) to have become six pages of changes (in the amendments). In fact, one could be concerned that presenting them as “minor changes” would result in fewer people reading the changes in question, and therefore not even noticing their extent. The City’s understanding of “minor” is in question here, or worse, their sincerity in seeking public participation at all.
- The first point is especially salient during a time of Covid-19 lockdown, where not only do we already have concerns about an over-reach of authority on the part of government, alongside reports of police and army violence against citizens, but where we are also quite distracted, making this an easy time to quietly pass worrying legislation.
- Section 22(1) seems to leave it entirely to the discretion of an “authorised official” to determine whether the by-law is being violated based on “reasonable grounds” or “allegations”. While it is obvious that some discretion needs to be afforded to officials, “reasonable grounds” can be motivated by prejudice, and “allegations” can be motivated by personal animus as well as prejudice. Allowing officials to both “enter” and “inspect” any premises or vehicles without any further authorisation grants excessive power to those officials.
- Section 22(2)(1) expands on this authority, but again without requiring any further authorisations, or even verification of the “reasonable grounds” and/or “allegations”. Officials can also instruct a person “to leave and remain out of an area where a contravention of the By-law has commenced, or is taking place”. This is a clause which we can expect to be weaponised against the poor, in that it’s now simply a matter of discretion to, for example, claim that someone is dealing drugs, or intending to burglarise a property, and where the people who are instructed to leave would typically have no or little access to legal representation.
- Section 22(2)(2) does not offer reassurance in saying that “the authorised official must give the person an opportunity to provide reasons why they should not be instructed to leave and remain out of an area”. We have no reason to believe that this opportunity will be fairly granted, in part because of the closing point in #4 above, and also because no mention is made of an oversight system for ensuring fair treatment of citizens.
- Section 22(3)(3) describes how those violating the above clauses (again, based on discretion) are guilty of an offence, and can therefore be issued with a compliance notice which could include measures such as the City proceeding to “eliminate or remove an impact or activity leading to a contravention of this by-law” – which, alongside the powers to enter and search described above – seems to allow for property seizure. This clause requires reassurance on the process and oversight involved in the generation of these compliance notices, in order that these powers are less likely to be abused.
- Further to the point above, 22(3)(5) allows for the City to recover its costs in enforcing the compliance notice, putting the burden of funding the enforcement of compliance on the complainee. This would not necessarily be unreasonable, if we have assurances regarding the process for generating and auditing of the compliance notices.
- Section 22(4)(2) tells us that “Without a warrant, an officer may stop, enter and search any vessel, vehicle, premises or person for a prima facie offence in terms of this By-law occurring in his/her presence”, and 22(4)(3) limits this in cases of suspicion on “reasonable grounds” (rather than prima facie evidence) to require either consent, or (again!) “reasonable grounds” for the official to expect that a warrant would be issued. Again, while officials must have some discretion, these clauses are framed in such a way as to create a default assumption of relatively unfettered authority, and hence they may conduce to potential violations of citizens’ rights to privacy, free movement, property, and so forth.
- Section 22(4)(9) reassures us that “an officer must exercise their powers and functions with strict regard for decency and order, and with regard for each person’s right to dignity, freedom, security and privacy”. In light of existing concerns regarding the City’s treatment of poor populations in general, can we trust that they will in fact do so?
- Section 22(8) deals with impoundment, and how the proceeds of sale following impoundment will be handled. The amendments state that first, the City’s costs for impoundment are covered, and then impoundment fees, fines, costs and damages are attended to. Only after those costs are paid is the lawful owner given the balance of proceeds. On the face of it, this suggests that if my property is stolen and impounded, the first two costs would effectively be for my account. While I understand that 22(5)(6)(b) requires that the City first take all “reasonable steps” to contact me before selling said car, are those steps also purely discretionary, or can we be given some guidance as to what they are, and how compliance with them will be ensured?
In summary, the proposed amendments are on the face of it rather authoritarian, open to being deployed in a prejudiced manner, and subject to limited oversight in their room for both discretionary application as well as the lack of clear oversight mechanisms.
