On both side of the homeless debate

TALI FEINBERG

On day three of the national lockdown, activist Caryn Gootkin said there still wasn’t enough clarity about where Cape Town’s homeless would be housed during the 21-day period. “Several spaces have been earmarked by the City of Cape Town, but they can’t accommodate the multitude of people on the streets. Many are homeless because of mental illness, addiction, and abuse, and forcing them all into a confined space during lockdown might be quite damaging.”

The challenges regarding the city’s treatment of homeless people came to a head in July last year, when seven homeless people took the City of Cape Town to court and won regarding several bylaws that are “anti-poor in their substance and execution”, said Gootkin. “These bylaws allowed law enforcement to harass homeless people and confiscate their personal property.”

Cape Town businessman Paul Jacobson said that in a sense, this case wasn’t “a big deal”. It focuses on just two clauses in the whole bylaw on public space, requiring the public to be mindful of what’s valuable to homeless people. In the past, cardboard and plastic were thrown away by law enforcement, but now, since the interdict granted in December 2019, they can be deemed personal property and kept.

However, the City of Cape Town is appealing this finding in the Constitutional Court. “The wider implications of this ruling are that the City of Cape Town’s law-enforcement divisions activities are quite severely curtailed,” said attorney Gary Trappler, who acted for and behalf of the amici (friend of the court who are on the side of the ratepayers, residents, neighbourhood watches, and City of Cape Town) during the case.

“The interdict, which was made final by acting Judge Bernard Martin in December 2019, has suspended the Public and Nuisance Bylaw (2007) as well as the Dumping Bylaw (2009) until it is taken before the Constitutional Court for review,” said Trappler. “This has left a vacuum in the system of overall law enforcement. It has the bizarre effect that law-enforcement provisions still apply to residents and ratepayers, but homeless people are exempt from any punitive action which otherwise may be taken against them by the South African Police Service or law-enforcement officers.

To Trappler’s mind, the ideal solution to the problem of homelessness in Cape Town and South Africa is that “the government and cities create safe spaces where street people can sleep, and build housing. This is in line with foreign jurisprudence such as in Canada and the United States, which regulate that if there are alternatives in place, then sleeping rough isn’t acceptable. There currently are alternatives, but most street people prefer to live on the streets as safe places don’t allow drugs and alcohol, which serves as a deterrent to street people to stay there.

“Street people deserve compassion, but the support must be correctly channelled towards city efforts to create more safe spaces, and not by tipping car guards or giving handouts,” Trappler said. “A fair balance must be struck between the interests of lawful residents, ratepayers, and the community at large. In our case, by confirming the interdict, the judge threw out a ‘blanket net’ favouring street people, and paid scant regard to the interests of residents and ratepayers.”

“It will be an absolute disaster if our bylaws aren’t respected,” said Jacobson. “We boast some of the most progressive bylaws in the world.”

Regarding the solution to homelessness, Jacobson strongly believes that we must show “tough love”. “There is never an excuse to keep someone on the street. No one survives the street – you live on the street, you die on the street. When we understand that, we must do everything in our power to enforce the law.”

But Gootkin believes that the homeless can survive – and even thrive – on the street with the right support. “Homeless people are one of most marginalised groups in society. If we don’t work with them to have their voices heard and their rights protected, chances are nobody will,” she said. She is a board member of Souper Troopers, an organisation that was started in 2016 by Kerry Hoffman to restore dignity to homeless people and reintegrate them into society.

Regarding the recent court case, she said that the interim order that the homeless got against the city simply confirmed that law enforcement couldn’t harass homeless people or “steal” their property. It doesn’t allow homeless people to break laws or commit crimes.

“I have met a lot of homeless people. If you treat them like a human being, with respect, they will treat you the same way. We aren’t deluded that some criminals are also homeless, or that criminals don’t hide amongst the homeless. But they are human before they are homeless. They are entitled to all of the same rights the rest of us have according to the Constitution.”

Her organisation would like to see South African Jews be part of the solution, and join it in setting up its vision of a “HumanHub”, a place that will be the first port of call for street people. They will be able to shower, receive a meal, and clean clothes, and have a full audit taken of their history and skills. It will be a place to run workshops and training. Souper Troopers has already arranged employment for some homeless people to make and sell jewellery, but it’s all done with no premises. “Such a space would allow us to help hundreds of ‘Troopers’ [street people] become productive members of society, which will help reduce anti-social behaviour.”

She points out that often it’s untenable for a person on the street to return home, which may be a violent or abusive environment. Even those who manage to do some kind of work can virtually never afford to put down a deposit to rent a flat. Finally, she said that the shelter system is problematic as it doesn’t allow the person to stay for an extended period, leading to a continuous cycle of dislocation.

“Troopers complain that the shelters are often places where sexual abuse, prejudice, and drug abuse are allowed to continue.” Therefore, being on the street is sometimes the only solution.

Gootkin said it is “hurtful” to see Jews calling for the city to treat the homeless more harshly and forcibly remove them. “Seeing a persecuted people persecuting another vulnerable minority makes no sense. For Kerry and I, our Jewish identity is what teaches us to treat people like human beings. Our South African identity reminds us that as beneficiaries of apartheid, it’s our duty to help this country to prosper. Our way is by helping homeless people to get their lives back on track.”