The City of Cape Town is applying for an urgent interdict to prevent a group of foreign nationals from continuing their "sit-in" at the Central Methodist Mission and allegedly flouting health and safety by-laws.
The City also wants the national and Western Cape police commissioners of police to use their powers of arrest in terms of the Criminal Procedure Act, and for the Department of Home Affairs to do its work in terms of the Immigration Act, including using its powers of arrest.
The papers, served at the church on Greenmarket Square on Monday, state the operation on October 30 to remove the group from their sit-in close to the Waldorf Arcade was a "failure".
This was because the department had not arrived at Cape Town Central police station to start the process of establishing the immigration status of 101 people arrested as expected.
According to pre-planning for that operation, the home affairs and social development departments would be present to assist where necessary.
The Department of Social Development was present, but when home affairs was called to work with foreign nationals, who had been arrested in the October 30 operation, they said they knocked off at 16:00, according to the interdict application.
The police released the group, which included children, from cells shortly before 21:00 on October 30.
The City asserted the police could have kept them detained for 48 hours to enable home affairs to assess the group.
The group had been sleeping and living in the corridors of the arcade in the hopes of getting the attention of the UN High Commissioner for Refugees (UNHCR) for almost a month.
They said they were afraid of being attacked by xenophobes, citing past experiences, and hoped to be moved out of South Africa to a third country that would have them.
They did not want to return to their country of origin because they had left due to safety fears in the first place.
After authorities moved in to remove them, they sought refuge at the Central Methodist Mission on Greenmarket Square, where they have been living since October 30.
The respondents cited directly in this case are three of the foreign nationals, and "the protesters occupying sections of Longmarket and Burg streets, including the pavements, and Greenmarket Square [as shown in an annexure]; people who associate themselves with the aims and or conduct of the protesters, and the three named respondents".
The national and provincial police commissioners and minister of home affairs are also cited as respondents.
While the leaders shuttle between different organisations, such as the SA Human Rights Commission (SAHRC), for talks towards a resolution, four children drowned at Rocklands Beach in Sea Point.
The church's Reverend Alan Storey indicated in a newsletter this week some of the funerals had been delayed, and the group was unable to leave on Tuesday or Thursday as planned.
"Every week that goes by, makes me worry more about the children and the mothers," Storey wrote in the newsletter. "There are around 100 children, many of them are babies, who are in the church. They have spent a month outside and now another month cooped up in an overcrowded church. All this continues to point to the urgent need for a way forward to be found for everyone's safety."
The group's spokespeople have indicated they wanted to walk to Namibia or Botswana and seek refuge there.
Unable to enforce by-laws
In its papers, the City said it had been unable to enforce by-laws, and even an attempt to do a head count was blocked.
Problems in the immediate surrounds include urinating and defecating in the streets, cooking over open fires, washing clothes and bathing around the church as well as fire risks.
It has received numerous complaints about the situation from businesses who say while they sympathise with the foreign nationals, they were fearing for their own safety.
They added business was dropping, with cancellations at hotels on the square on the rise, while Greenmarket Square traders said they were losing a third of their space but were still being expected to pay rent.
They are concerned about the strong smell of urination, rubbish lying on the pavements, alleged threats of violence by some in the group, taxis losing their paid leased spaces to foreign nationals' cars permanently parked there, and most importantly, children at the church not going to school.
Some were worried all control over the church and square by the authorities would be lost.
The Greenmarket Traders Association wrote to the City saying many in their ranks were also refugees and asylum seekers, and while it felt the group had legitimate demands, the situation could not continue.
The Market House Body Corporate wrote Greenmarket Square was "deteriorating into a cesspool with the smell of urine".
They pointed out that people, who were trying to work, could be fined R500 for parking in front of their building, while the refugees' vehicles took up parking spaces 24 hours a day and were not ticketed.
A spokesperson for the foreign nationals, Papy Sukami, told News24 they would counter the interdict.
They are also looking for alternative accommodation in line with Storey's request that they move due to fire hazards and difficult living conditions.
But Sukami was adamant he could not go back to the Democratic Republic of Congo for his own safety.
He said one family had gone to the border with Namibia by themselves to ask for asylum but were turned away.
The City hopes the application will be made in the Western Cape High Court on December 9.
The number of asylum seekers who actively extended their section 22 permits as at June 30, 2019, had reached 186 210, according to a recent parliamentary reply.