An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
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.BACK TO TOP