Criminal law should not be used to punish the poor for being poor. However, many by-laws across South Africa prohibit sleeping in public spaces, begging, loitering, and trading without a permit. Offenders may be fined, arrested and detained. Often their property is confiscated. Poor and vulnerable people are made into criminals for being poor and vulnerable. And although the extent of enforcement of these by-laws varies from municipality to municipality, the laws have the same goal: to sanitise public spaces in the name of security.

The homeless, beggars and other urban poor trying to eke out a living in difficult circumstances are viewed by many as criminals who should be removed from public space. To my knowledge there is no study that shows that the people who suffer as a result of these by-laws would be responsible for a higher degree of serious crimes than others in society. The legitimate purpose of legislation could, in my view, never be to sweep a societal problem under the carpet to make the elite feel better about themselves.

Public officials often reiterate the equating of vagrancy, loitering and begging with criminality. However, in a society that lacks a comprehensive social security system and does not provide sufficient shelter, there is simply not enough support for those who have fallen by the wayside. Provision of shelter also does not equal a livelihood; it is only part of the solution. Some officials, even those responsible for assisting the poor, demonstrate contempt for them and the difficulties they face. For instance, the then Gauteng MEC for Social Development said in 2014: “We are appealing to members of the community to refrain from giving money to beggars. If you continue giving out money, you are the one sending the message that, in Gauteng, it is easy to make money without going to work.” This statement reeks of insensitivity to the high unemployment rate and South Africa’s inadequate social security system.

Homelessness and social exclusion are social ills that need to be addressed. Various interventions are needed, such as provision of shelters, employment opportunities, grants, and social and psychological services. Criminal sanctions that are in direct contravention of the interests of these persons arguably have no effect on the situation they seek to address.

Some municipalities have revised their apartheid-era by-laws substantively. For example, Cape Town no longer prohibits loitering, a broadly defined offence used to remove ‘undesirables’ from the streets. Tshwane seemingly has removed the prohibition on sleeping overnight in a public space, which is prohibited by most other municipalities. A prohibition on sleeping, in the absence of sufficient shelter capacity, effectively prohibits the homeless from sleeping – a basic human necessity.

Under our Constitution, municipalities are autonomous in relation to their areas of competence, which include the control of public nuisances, local amenities, municipal roads, public places and street trading. There is no definition of these terms in the Constitution, or in national or provincial legislation adopted in the constitutional era. Municipalities may legislate as they deem fit within the areas indicated, as long as the by-laws do not conflict with the Constitution, national or provincial legislation. But this power comes with responsibility – and municipalities must seriously reflect on the consequences of by-laws that target the urban poor.

French Nobel laureate Anatole France wrote in the 1890s, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” This “majestic equality” is alive and well in South Africa 25 years into a hard-won freedom that came with a promise of a better future for all. To uphold many of the by-laws in their current form is to promote segregation and further entrench inequality.