Residents question draft by-law

Mitchell’s Plain civic groups say the City of Cape Town’s Streets, Public Places and the Prevention of Noise Nuisances draft amendment by-law is unconstitutional.

Residents have until Sunday May 17 to comment on the by-law, which relates to the management of public places, noise levels and other incidental matters on all properties within Cape Town, and specifically Section 22 of the by-law, which guides the City’s actions on transgressions and the recovery of costs where applicable.

The streets and public places by-law covers offences like unbecoming conduct in public and street people are most likely to be fined under this by-law.

The amendments include inspections, instruction to leave, compliance notices, powers and functions of officials and impounding of items, goods, equipment, vessels or vehicles.

A person cannot be arrested for transgressing a by-law but can be issued a fine, which gives officers very little means to confirm whether the details they were given by a complainant were correct.

Mitchell’s Plain United Residents’ Association (MURA) chairman Norman Jantjes said he is shocked that the City would want to pass amendments during the national Covid-19 lockdown, when the most marginalised would not be meaningfully engaged.

“We feel that the draft amendments are draconian and unconstitutional.”

He said the definition of an “authorised officer” in the draft is still unclear.

“The amendments are poorly drafted as it refers to an ‘officer’ and later to an ‘official’.”

He said Mura, as a community organisation, is totally opposed to the amendments as it gives too much power to the “ authorised officer” to bypass the courts.

“We feel that it’s a crime to impound someone’s property without a court order.

“The issuing of compliance notices and illegal recovery of costs from people without following a judicial process is illegal,” Mr Jantjes said.

The draft allows an official to order a person to leave and or remain out of an area.

“So for example if a family has a picnic at the beach and another person complains about a noise, then the officer can order the family to leave and stay out of the area. It does not even allow the family to present their side of the story.

“It merely relies on the officer to make a subjective decision. It therefore gives the officer too much discretionary power and infringes on the individuals right to be heard.”

He said that the amendments infringe on the rights of parishioners at mosques and churches.

“Mura feels that this draft amendments should be scrapped in order to allow meaningful discussion. It should also be written in a way for ordinary people to understand,” Mr Jantjes said.

Jerimia Thuynsma, chairman of the Mitchell’s Plain Community Advice and Development Project management board, said the amendments were flashback to the apartheid era, when arbitrary search and seizures were the order of the day.

“Giving individuals such powers that they can even undermine your rights as enshrined in the Constitution, such as the right to human dignity as well as the right to be equal before the law, is very dangerous,” he said.

He recalled the noise complaint which reduced the athaan, the Muslim call to prayer, at Masjidus Sauligheen, in Seafarer Drive, in Bayview, Strandfontein, to a beep for more than a week (“Call-to-prayer petition”, Plainsman, December 12 2018).

Mr Thuynsma said an anonymous complaint had been used to enact this by-law.

He said the same will apply to open-air church services which could become the subject of an over zealous official or an official could have a particular bias against a community.

“It is even more worrying to think what will happen to the homeless people of our city should this by-law be passed,” he said.

“This by-law is too arbitrary and open for abuse by the general public who have axes to grind with neighbours or overzealous officials who have axes to grind with problematic residents.

“With no exclusions mentioned, this by-law can easily be described as anti-human rights as guaranteed by the Bill of Rights in our Constitution,” said Mr Thuynsma.

Comments, input or recommendations may be submitted by email to lawenforcement@capetown.gov.za and written submissions can be sent to Leon Wentzel, Law Enforcement Department, Omniforum Building, 94 Van Riebeeck Street, Kuils River, by Sunday May 17.