A Group of Homeless People Are Suing a City Over Its Treatment of Rough Sleepers

On a recent evening, in violation of the COVID curfew, Xolani Siboxi left his tent at about 2AM to clear his head after an argument with his girlfriend. Moments later, he was bundled into a police van and taken to the station, where, as a punitive punishment made up on the spot, he claimed that he was forced to clean 18 police vehicles in the cold of early winter.

Siboxi is now one of 11 homeless people suing the authorities of Cape Town – a city home to around 430,000 people and one of the most expensive cities to call home on the continent – in order to push for an overhaul of its treatment of rough sleepers. In April, the group launched proceedings at the Western Cape High Court and the Equalities Court to challenge the constitutionality and discriminatory impact of by-laws that routinely punish the homeless for being homeless. 

Siboxi let out an audible sigh as the rain hammered down the side of his shelter, which sits opposite a fenced-off abandoned hospital packed with dozens of empty rooms. The 51-year-old has lost count of the number of times law enforcement officers have arrived in the dead of night in conditions like these and ripped off the plastic covers he uses to waterproof his tent.  

“People are out here getting killed,” he told VICE World News. “Kids are getting raped. So why is the government employing law enforcement to abuse the street people?” 

Last month, one of Siboxi’s best friends, a 62-year-old man named Romeo, died on the street. “He was vomiting blood,” Siboxi remembered. “The police were driving up and down for hours. We asked for help. But they were not helping.”

Life for Cape Town’s homeless is particularly difficult. Archaic by-laws make it difficult for homeless people to live their lives, with restrictions on where they can sleep or sit, or even keep personal belongings in a public space. They can be fined up to R2,000 (about £104) for breaking any of these rules. In the past, Siboxi has spent 90 days in prison following the non-payment of such fines.

An acute shortage of affordable housing means that the city’s estimated 14,000 homeless people have little choice but to sleep rough. Each year, the city of Cape Town spends more than £17 million on law enforcement and punitive measures against the homeless – and just £6 million on social development programmes.

The applicants hope their legal challenge will change that.

“I want people to be free,” Siboxi said. “I don’t think it should be a crime to live on the street.”

The applications were lodged at the Western Cape High Court and Equality court in March and pit the homeless community against the municipal government, which has declared its intention to oppose the challenge. 

“It is no crime to be poor or down on your luck, but every single resident has to comply with by-laws, and the law in general,” wrote Mayor Dan Plato in an open letter in March. 

Last month, the city doubled down, proposing an amendment to the by-laws, allowing police to arrest homeless people for refusing to move out of an area. “It is a huge regression,” said Jonty Cogger, a lawyer for Ndifuna Ukwazi, a non-profit organisation representing the applicants. 

“I am just flabbergasted that they would do this in response to a constitutional challenge,” he added. “It is an increase of the police state in reaction to people upholding and exercising their human rights. I can’t believe this is happening.”

The case also pits the homeless applicants against ratepayers’ organisations and other civic groups. Lawyer Gary Trappler represents nine residents associations, neighbourhood watches and private security companies, and has received instructions to oppose the challenge to the by-laws. Trappler’s clients are worried that a scrapping of the by-laws would see more homeless people on the street, which would devalue their properties and lead to a “spike in crime”. 

“If we get to the point where shelters are allowed to be erected, they will then be asking for electricity, water and sewage,” Trappler told VICE World News. “The question arises, ‘who pays for this?’. The ratepayers in some of these areas are already paying huge amounts. The ratepayers in these established areas are cross-subsidising poorer areas.” 

Trappler believes that the case is a politically motivated attempt to oust the DA, South Africa’s main opposition party, which runs the City Council.

City authorities argue that Cape Town has the most liberal approach to homelessness in the entire country. It provides jobs to the homeless through public works programmes and sensitivity training to law enforcement officers. As part of its official COVID Recovery Plan, the Western Cape provincial government had allocated R25 million (about £1.3 million) for food relief and R10 million (about £520,000) for other projects, such as the construction of homeless shelters. As of March 2021, it had created 2,500 spaces in shelters.

While the number of beds available is expanding, it is clearly not enough to accommodate the 8,000-14,000 homeless people estimated to be living on the streets. 

In court documents, Lauren Fredericks, one of the homeless people challenging the by-laws, testified that the shelters themselves were unsafe. “When I was younger, I temporarily stayed at one of the homeless shelters in the CBD, where I realised how the housemother sent some of the girls living there away at night with unknown and strange young men,” Fredericks testified. “When I realised what was going on, I immediately left. I also do not use the Safe Space shelter in the City because there are criminals and gangsters sleeping there.”

Her experience is common for women on the street. Carin Gelderbloem, another applicant in this case, told VICE World News that she left one shelter after repeated sexual harassment from one of its supervisors. 

The City emphasises that shelters must not be a permanent solution, and also pours funding into family reunification efforts geared at the homeless. For many, though, returning home is simply not an option. 

Siboxi moved to Nyanga in the 1980s to work in his uncle’s mechanic shop. The name of this informal settlement just outside of Cape Town translates as “Moon” in Xhosa – but is known locally as South Africa’s murder capital. Having lost his job, he moved into the city centre 15 years ago to try to find work and has lived on the street ever since. 

He does not dare return to Nyanga or to his parents’ residence in Khayelitsha, another informal settlement. He prefers to stay on the streets, eking out an existence through odd jobs like painting and cleaning. “You don’t want to depend on anyone,” he said. “You just have to do your hustling.”

The economic fall-out from COVID-19 has seen levels of homelessness rise exponentially in Cape Town. Before the first lockdown, there were three tented camps in the city. Now there are around 140. 

“From a systemic perspective, a lack of affordable housing is a key driver,” said Jon Hopkins, the Chief Operating Officer of U-Turn Homeless Ministries, a Cape Town-based homeless organisation. 

“We need to change the way we approach homelessness. We need to stop taking a reactive or punitive response. Instead, a planned, developmental, long term rehabilitative approach is needed that treats each person living on the street as a human being, finds out why they are in the situation they are in, and provides the right support at the right time,” he said. 

Fredericks agrees. During her seven years living in an abandoned car park on the corner of Hope Street, she said she’s been pepper-sprayed and threatened with a firearm by law enforcement. She also alleges that she has had multiple ID cards, her parents’ death certificates and employment contracts confiscated during raids on her tent. 

“They need to see that street people are humans, not animals.”