Quote of the week

Universal adult suffrage on a common voters roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity.

Justice Albie Sachs
August and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3
10 December 2009

The dark side of the Fifa World Cup?

When Adv Geoff Budlender stood up to argue the Grootboom case on behalf of the amicus curiae in front of the eleven judges of the Constitutional Court, they leaned forward in their seats, eager to fire sharp questions at the former Director General of Land Affairs.

By the time Budlender sat down, the judges looked subdued. Budlender had made a brilliant case for the enforcement of the right of access to housing protected in section 26 of the Constitution and when a unanimous court handed down judgment, it finally gave some substance to the social and economic rights contained in the Constitution.

Although many of us felt that the court did not go far enough, the Grootboom judgement nevertheless provided a powerful legal tool later used to great effect by the Treatment Action Campaign in its fight against the irrational and dangerous HIV policy of the then government.

For me the most powerful moment of Budlender’s performance came when one of the judges (I forget which one) asked him whether the court would not be encouraging homeless people to take the law into their own hands if it ruled in favor of the Grootboom community. Would such a ruling not in effect encourage criminality?

Budlender looked the judge straight in the eye and said that the law as it stood already criminalized the homeless merely for not having a home because every single night homeless persons were forced to trespass by sleeping on someone’s property. It was exactly a policy that ignored the plight of the homeless that encouraged criminality, as it forced the homeless to break the law merely to survive.

I was reminded of this fact when I heard that the City of Cape Town has been taking steps to remove the homeless from the streets of the mother city  for the Fifa World Cup draw and were also making plans to ensure that there would be no homeless people in the streets for the actual world cup.

It is unclear what exactly is taking place. I have received reports that the City used a new bylaw to lock up homeless persons during the draw and that it was also forcing homeless persons to sign a letter promising that they would leave Cape Town for the duration of the World Cup. If they refuse to sign, they are threatened with arrest.

I have been unable to confirm these allegations, but if it is true, it would mean that the rights of a particularly poor and marginalized section of our community are being abused in the most flagrant manner by the City. Recently, the Legal Resources Centre lodged papers to challenge similar loitering bylaws in Johannesburg as such bylaws infringes on the right to freedom of movement and in effect criminalizes poverty.

Perhaps officials from the City could clarify their stance towards the homeless. An undertaking that the City would not lock up anyone merely for not having a roof over their heads would be a good start.

Some might argue that the authorities (whether in Cape Town or Johannesburg) have a legitimate reason for locking up the homeless or for taking steps to clear them off the streets for the World Cup. After all, we would not want Sepp Blatter to be confronted by a homeless person when he steps out of his fancy car to enter a Restaurant where he might spend more than a few thousands Rand on a meal.

It seems to me that such a view fails to take cognizance of the fact that our constitution is premised on the idea that every single individual has equal moral worth and must be treated as an equal human being. Steps to clear the streets of homeless people that involve any form of coercion will clearly limit the rights of the homeless. Not unlike the sodomy law, which the Constitutional Court said was so deeply offensive because it criminalized a class of people for doing no more than trying to live a life of dignity and respect, bylaws that in effect criminalize homelessness cannot be squared with the ethos of our Constitution.

I cannot see how such a drastic infringement of the rights of fellow citizens could ever be justified merely on the grounds that South African cities want to present a good image to foreign visitors.

Although I will probably cheer along with everyone else when the World Cup finally starts (despite having misgivings about the morality of spending billions of Rands on Soccer Stadiums that are not needed while many South Africans have no food to eat, no houses to stay in and no access to proper medical care), the rumors about the mistreatment of the homeless reminds me again of the dark side of the Fifa World Cup.

But maybe these rumors are completely false. If they are, I am sure the City of Cape Town will immediately reassure us that they are not planning to force homeless people off the streets to impress rich foreigners who will be visiting for the World Cup. If the city does not reassure us, we will know that it endorses the criminalization of poverty. Anyone with more information, please let us know what is going on.

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