Abstract

HOLNESS, Willene. eThekwini's discriminatory bylaws: criminalising homelessness. Law democr. Dev. [online]. 2020, vol.24, pp.468-511. ISSN 2077-4907.  http://dx.doi.org/10.17159/2077-4907/2020/ldd.v24.19.

The eThekwini Municipality's Nuisances and Behaviour in PubIic PIaces By-Laws of 2015, and the Beaches By-Laws of 2015, seek to reguIate and prohibit some of the Iife-sustaining activities of homeIess persons in the city through petty offences. The articIe considers whether these measures indirectIy discriminate against homeIess persons, disproportionateIy impact on them, are contrary to the ruIe of Iaw, and are an irrationaI extension of IocaI government powers to deveIop and maintain Iaw and order within municipaI boundaries. Marius Pieterse's concept of the "right to the city" is relied on to explain why immediate impIementation of an adequate and sustainabIe poIicy and pIan that will give teeth to the local government's developmental mandate for the homeless, is needed. Lessons learned from advocacy and litigation by other marginalised groups, such as, sex workers and informal traders, are outlined. A short review of recent developments, including litigation, advocacy and local government approaches to homelessness in South Africa, including during the COVID-19 era, is provided. The repeal of the by-laws that effectively criminalise poverty and homelessness is called for.

Keywords : Petty offences; begging; homelessness; right to the city.

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