The most common response of cities and of their metropolitan police forces is to treat homeless people – and others who ply their trade or live on the streets – as criminals. A fundamental shift in policy and law is needed to ensure cities extend these rights to all who live in them.

Willene Holness and Janine Hicks, of the Navi Pillay Research Group (NPRG) in the School of Law, University of KZN, note that the SCA – in Ngomane & Others v City of Johannesburg Metropolitan Municipality & Another – has brought new hope to SA’s ‘dispossessed’.

In an analysis on the Daily Maverick site, the authors point out that the SCA censured the City of Johannesburg for its treatment of homeless people during a raid, where their property – primarily materials to construct shelters – was confiscated. The court declared the conduct of the Metropolitan Police unlawful and inconsistent with the Constitution, and upheld homeless people’s right to dignity, privacy and not to be deprived of their property.

It said ‘the conduct of the respondents’ personnel was not only a violation of the applicants’ property rights to their belongings, but also disrespectful and demeaning. This obviously caused them distress and was a breach of their right to have their inherent dignity respected and protected’.

Holness and Hicks argue that the SCA decision should not be surprising, considering that courts have consistently found similar conduct unlawful. In Makwickana v Ethekwini Municipality and Others, the KZN High Court (Durban) declared the metro police’s confiscation of traders’ goods under the eThekwini by-laws as unconstitutional.

However, despite the ruling, the eThekwini municipality continues ‘to use irrational and vaguely termed municipal by-laws’ to victimise and unfairly discriminate against homeless people.

‘Municipal by-laws, policies and actions that perpetuate discrimination against vulnerable groups such as homeless people are simply unconstitutional,’ they say.

‘The state is obliged by the Constitution and international conventions to prioritise communities’ needs, particularly those of the most vulnerable groups of people.’

This principle, they say, has been successfully tested and upheld in the Constitutional Court ruling in Dladla and Another v City of Johannesburg.

That ruling obliged municipalities to give effect to their development mandate, respond to the needs of the most vulnerable groups, and afford homeless people ‘sufficient care, respect and dignity’.

Full analysis on the Daily Maverick site

Ngomane & others v City of Johannesburg Metropolitan Municipality & another

Makwickana v Ethekwini Municipality and Others

Dladla and Another v City of Johannesburg and Others