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The FXI responded to a proposal by the Cape Town Metropolitan Council for a by-law on "public nuisances" with a submission to the Council, specifically relating to the section on gatherings. The response to the FXI submission by JP Morgan (DA), the chair of the Safety and Security Portfolio Committee of the Council, prompted the following media release from the FXI. See also:
The Freedom of Expression Institute was pleased to read the following comment from JP Smith (DA), the chair of the Safety and Security Portfolio Committee of the Cape Town Unicity, in referring to the FXI’s submission on the city’s proposed new “nuisance” by-law. The FXI’s submission focussed on the unconstitutionality of the section of the By-Law that dealt with public gatherings and the fact that it was ultra vires the Regulation of Gatherings Act. (The submission is available on our website or through our office.) Smith said, in a Safety and Security Portfolio Committee meeting on the 10 October 2006: “…This is a lesson in humiliation. The worst part of the By-Law is probably our thinking on the public gatherings. We did not have an acute awareness on the Gatherings Act… Criticism has been made that this By-law works from the assumption that people are not entitled to the gathering, but we realise that in the Gatherings Act the assumption is that they do have the right.” Further, Smith said, “…the insertion of 30 days [as a notice period before a gathering is due to take place] – I do not know what we were thinking. It should be 7 days… In this respect, there is a very useful submission from [the FXI] on pp31-42 [the legal opinion attached to the FXI submission].” It is not often that we hear politicians publicly admitting that they were wrong and that they feel humiliated by their mistakes. Smith certainly has our respect for this admission. However, we believe that his admission should cause him and the Cape Town City Council to look anew at the entire proposed By-Law. When the Council meets today to decide on the proposal, it should realise that if it had committed such a serious error on an issue related to the constitution and a law of parliament, then there must be a good chance that it might be committing an even bigger error in respect of the rights more generally of a large number of the people of Cape Town, of the violation of their dignity and of the seriousness of their life circumstances and their being forced to eke out a survival on the streets of that city. Their freedom to express themselves in the only forms that poor people are able to, will be made illegal by this proposal if it passes as a By-Law. We concluded our submission on the By-law with the following: “While our main focus in this submission has been the issue of gatherings, we find the By-Law in general to be antithetical to notions of freedom of expression of various sectors of Cape Town society. The tone, indeed, is draconian. While some of the objectives of the By-Law (facilitating traffic, preventing dumping of waste in public places, etc) are laudable, the inclusion of aspects that clearly discriminate against poor people will inevitably cause various sections of our society to call for the entire by-law to be scrapped. We would urge a complete redrafting of the By-Law in a manner that avoids the problematic points raised here and by others. “The proposed by-law is completely ignorant of the reality of what it means to live and survive in South Africa. The Council, with due respect, seems to be totally out of touch with the socio-economic conditions of the vast majority of South Africans and seems to address the needs of councillors more than the needs of the majority of the city’s population. As one observer was quoted in a newspaper as saying: ‘It’s not the rich and middle class who have to bathe themselves under a tap or stand by a fire.’… That the issue of beggars and homeless people is lumped into a by-law that deals with the dumping of toxic waste says a lot about manner in which the Council views the people that make up the city.” While we are pleased that the Council has decided to see sense as far as the section on gatherings is concerned, we urge them to see sense too in the huge body of opinion on the streets of Cape Town and in civil society organisations that want the entire proposed by-law to be scrapped or to be radically reworked into a form that does not disadvantage and discriminate against Cape Town’s poor. The proposal, as it stands, is anti-poor, culturally dislocated from the experiences of the vast majority of Capetonians and, quite simply, antithetical to various clauses of the Constitution on socio-economic rights. It is this large body of Capetonians that has not properly been consulted by the council. The public consultation on the proposal has been grossly inadequate in that the people of the city that will be most affected by such a by-law (the poor, the street children, the refugees, the homeless, the unemployed, etc) have not spoken. There were 115 submissions received by the Council on the proposal; 32 were from organisations and the rest from individuals. Only eight of the organisational submissions – seven from ratepayers’ associations and one from a school principal – support the proposed by-law. Thus, 25 organisations that responded are against the proposal. The ratepayers associations supporting it are from suburbs of privileged citizens such as Tableview, Marina da Gama and Gordons Bay. The By-Law, even if its objectives of having a “clean city” might be laudable, will serve mainly the wealthy and will serve to protect them behind a deception of what the city really is like. It will create a gated psychological suburb for the elite and even more misery for the poor. That is why a range of NGOs, journalists, other social commentators and organisations of the poor are concerned about the proposal and its implications. There cannot be a place for such a By-Law in a South African city where we are battling poverty and disadvantage. The Council should, today, make the right decision and admit that it needs to rethink this whole issue. It does not necessarily have to be humiliated, but it should be humbled by the concern expressed across the board by Capetonians and other South Africans. One person has commented on this article. 1. Marina Residents Not Consulted
Marina da Gama Resident, Unregistered Marina Da Gama residents were not consulted. I think you'll find most don't support this By-Law. |
