Criminalising homelessness and survival strategies through municipal by-laws: colonial legacy and constitutionality

Abstract

The by-laws of South African municipalities are full of provisions criminalising the poor. For example, begging and sleeping in the open is prohibited in many cities. Hawking goods or providing services is restricted. Many of these by-laws are rarely enforced while others are enforced to provide a sense of security among the privileged by removing undesirable persons from the streets. Action against the poor is often presented as being taken in their interest; the homeless should live in shelters, beggars should find employment. But it is through the action against them that many lose their livelihood and what little they own. Clearly more could be done to assist the vulnerable. However, criminalisation is not a solution. The paper traces the colonial history of vagrancy laws and their relationship to by-laws criminalising outside living and survival strategies of poor persons in the four largest metropolitan areas in South Africa: Johannesburg, Tshwane (Pretoria), eThekwini (Durban) and Cape Town. It shows how vagrancy legislation and related by-laws have been, and are being, used for social control of the poor, who have throughout history been viewed as a threat to the elite. The article further explores the constitutionality of anti-poor by-laws and the prospects of a constitutional challenge before the courts.