CITY OF CAPE TOWN PROPOSES NEW POWERS DURING LOCKDOWN
Category April Newsletter 2020
As we sit in our respective homes on Freedom Day during a lockdown that has imposed previously unimaginable limitations on our lives, it seems that our City is seeking to impose further limits on us and limits that have nothing to do with the State of Disaster.
In our February piece in our series on people, property and problems, we looked at noise nuisance and how the City of Cape Town's By-Law Relating to Streets, Public Places and the Prevention of Noise Nuisances offered solutions to those suffering noise nuisance and disturbance. However the City has seen fit during these difficult times to draft a substantial amendment to this by-law giving its authorised officials entrenched powers to conduct searches without warrants, to impound property, and to disperse people and order them to leave areas.
In its current form, Section 22 of the by-law is two paragraphs and provides simply that the City may direct compliance with any contravention of the by-law and in cases of failure to comply, the City may take steps to enforce compliance and recover any costs from the offender. The draft for comment by 17 May 2020 comprises five sub-sections over six pages (yes, it's a lot to read but read it here https://resource.capetown.gov.za/documentcentre/Documents/Bylaws%20and%20policies/Streets_Pub)
The City has issued a statement that "the amendments are proposed to ensure more effective resolution of complaints from the public. It also takes into account the amended powers that have been afforded to law enforcement officers and expands ways in the City can recover costs where need be. No other amendments are planned for now."
In brief, the following are proposed:
Inspections
- An authorised official may enter any premises or business;
- An authorised official may inspect any premises, or any vehicle used for the business or anything on the premises or in the vehicle; and
- An authorised official may question any person either presently or recently on the premises of in the vehicle.
Instruction to Leave an Area
- An authorised official may instruct any person contravening the by-law to leave and remain out of an area; and
- Failure to leave on instruction is an offence.
Search and Seizure Without a Warrant
- An authorised official may without any warrant, stop, enter and search any vessel, vehicle, premises or person for any offence at face value in terms of the by-law;
- An authorised official may examine or remove for examining any article and article is defined as "anything including a structure, object, document, book, record or electronic information"; and
- An officer may without a warrant arrest any person in contravention of the by-law.
Impounding of items, goods, equipment, vessels or vehicles
- An officer may without a warrant seize and impound any property including any item, goods, equipment, vessel or vehicle concerned with the commission of any offence in terms of the by-law; and
- The City may sell, donate or dispose of the impounded items if they are forfeited as a result of criminal proceedings or are unclaimed.
It is worth quoting Chapter 2 Section 14 of the Constitution of the Republic of South Africa in full at this point:
"Everyone has the right to privacy, which includes the right not to have
- their person or home searched;
- their property searched;
- their possessions searched; or
- the privacy of their communications infringed."
The proposed powers of City officials undermine those rights vested in us as citizens. Clearly though there is a tension in policing society between public good and individual rights and it is finding the balance between limiting individual rights in return for the protection of all that is important. For example, the Police Service Act allows for searches without warrants within 10 kilometres of a border or airport with the aim of controlling illegal movement of people of goods across our borders. The Criminal Procedure Act recognises that a search of either person or property is an invasion of privacy and an infringement of individual dignity and details specifically when a warrantless search may be conducted. The City by its own admission seeks "to expand ways in which the City can recover costs where need be" and the proposed impounding of goods appears to be how the City will achieve this aim. Asset forfeiture is generally viewed as a draconian power in the fight against organised crime and in the motto of the Asset Forfeiture Unit of the National Prosecuting Authority, it is "Taking the Profit Out of Crime".
It is perhaps useful at this stage to recall that some of the offences covered by the City's by-law include begging, urinating in public, being drunk, causing a disturbance by shouting or making any other loud noise, noise from a residence or business to be audible in a public place, door-to-door collections or trees on a property causing an interference or obstruction.
Comments and recommendations may be made to the committee before 17 May 2020
- email lawenforecement@capetown.gov.za
- online www.capetown.gov.za/haveyoursay
- in writing Leon Wentzel, Law Enforcement Department, Omniforum Building, 94 Van Riebeeck Street, Kuilsriver, 7580
Author: Bronwen Woodward
