By-laws need to support safety in a way that recognises the poverty and inequality defining South African communities.
Municipalities in South Africa are constitutionally mandated to promote a safe and healthy environment through the administration of local affairs. By-laws are presumed to be the most effective way to do this as they are a municipality's most accessible regulatory tool. They are arguably the best way to amplify municipalities' power to address local safety threats and reduce crime levels.
But when are by-laws used to protect people, and when are they used to further political gains?
By-laws are local laws that regulate a range of issues, including land use, disaster management, parks and recreational facilities, street trading, begging, and waste management. In addition, clusters of by-laws address important safety issues, including fire prevention, food hygiene, and the unlawful occupation of land.
While the language of many by-laws is ostensibly neutral, many have a disparate impact on the poor. This is because they fail to consider the extreme levels of poverty and inequality defining many South African communities.
In South Africa, some by-laws predate 1994 and are relics of apartheid and colonial times. Many were originally designed to exclude certain groups of people from public spaces and outlaw various life-sustaining activities, such as trading informally, sleeping in parks, and begging. Their enforcement often targeted the poor, many of whom were black or coloured, and already pushed to extreme levels of social, political and economic exclusion.
Current approaches to by-law enforcement, like any other law, are not divorced from their history. They are also driven by, and contingent upon, the unique power dynamics, resource constraints and political agendas in a particular municipality.
By-laws are arguably the best way to amplify municipalities' power to address local safety threats
Furthermore, predominant beliefs about who commits crime and why - regardless of how classist, racist and xenophobic those beliefs may be - amplify these dynamics further. This often results in those with the least amount of power being subject to the harshest levels of enforcement.
A recent Institute for Security Studies (ISS) report highlights the economic and political nature of by-laws, specifically regarding safety. The report found that by-laws don't always strengthen safety in a neutral way. Municipalities' pressure to generate their own revenue - particularly in metro municipalities - often compels city officials to prioritise ratepayers' safety interests over those of people with less clout: the poor.
For example, one senior official from the City of Tshwane told the ISS that most by-law complaints received in their metro were against poor people and informal street traders. Ward counsellors often found their offices under pressure and requested law enforcement to issue fines to appease ratepayers, even though this didn't provide sustainable solutions to homelessness across the metro.
This practice continues despite the revised Homelessness Policy approved by Tshwane's city council in 2017, which aims to facilitate greater access to housing and economic opportunities for homeless people in Tshwane.
The City of Cape Town has also been criticised for its rapid approach to destroying illegal structures erected on municipal land in violation of its unlawful occupation of land by-law. The City claims to offer people living on the street access to shelters before doing so, but whether it has sufficient services to cater for the 6 000 people living on the street is a different question.
Many by-laws fail to consider the extreme levels of poverty and inequality defining South African communities
Practices such as these raise questions about the effectiveness of by-laws as tools for safety. This is especially the case when their enforcement is driven by ratepayer complaints and demands, rather than by data about where the greatest risks lie and are administered in a procedurally fair and just way. In this case, by-laws aren't necessarily there to improve safety. Instead, they may be used for political gain with ratepayers while amplifying social and economic exclusion of marginalised groups, such as those without houses and those making a living in the informal economy.
While it's tempting, and certainly legitimate, to criticise municipalities for prioritising the safety interests of ratepayers over those of poor people, the reality of municipal governance is a bit more complex.
As mentioned, municipalities are responsible for generating their own revenue through two primary sources. The first is income generated by the municipality itself, via property rates, service charges, traffic fines and penalties for contraventions of by-laws. The second is fiscal transfers from other spheres of government, often in the form of grants and subsidies. On average, metros generate 83% of income themselves, while district and local municipalities raise about 18% and 64% of their own income, respectively.
Consequently, keeping ratepayers happy and having a semblance of law and order helps keep property rates up, secure foreign direct investment, and attract tourists, all of which contribute to a vibrant local economy. It's essential to financing services in the metro and maintaining the political power of those in charge.
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Therefore, if by-laws enable cities and towns to function properly and serve the needs of residents, is it possible for them to support safety in a neutral way?
It's time to consider more progressive approaches to local law enforcement and municipal governance
Well, there doesn't seem to be widespread agreement among municipalities on which by-laws are most effective at promoting safety, or whether they offer appropriate responses to poverty and inequality.
Further, each municipality is responsible for making its own by-laws - but their development is a complex process. Many smaller municipalities don't have the legal skills and resources to do so effectively. This has resulted in significant variance in the scope and application of by-laws depending on the size, location and political leadership of a given municipality.
Developing a model by-law on community safety has been suggested as a way to standardise their enforcement and de-politicise the process. But will that change the income-generating nature of by-law enforcement and their targeted enforcement against the poor?
Probably not, which may mean it's time to consider more progressive approaches to local law enforcement and municipal governance.
Dr Kelly E Stone, Senior Consultant, Justice and Violence Prevention, ISS Pretoria
