While South Africa has a progressive Constitution that provides for equality and socio-economic rights, the Country is grappling with extreme levels of inequality and poverty. While experts have called for socio-economic and developmental solutions, such as affordable housing, social services, and community-based solutions, 257 municipalities across South Africa’s nine provinces enforce by-laws criminalising acts such as sleeping in public, begging, or informal trading without a permit.

Below are the relevant extracts of select by-laws taken from across the eight metropolitan municipalities[1] that constitute the largest metropolitan areas in South Africa (with approximately 22 million persons residing within them, combined).

[1] Buffalo City (EC), City of `Cape Town (WC), City of Ekurhuleni (GP), City of Johannesburg (GP), City of Tshwane (GP), eThekwini Metropolitan (KZN), Mangaung Metropolitan (FS) and Nelson Mandela Bay Metropolitan (EC)

• Nuisance-related: prohibit urination/defecation in public, sleeping in vehicles, making fires, bathing in rivers, or drying washing in public spaces. An example is the City of Cape Town Streets and Public Places By-Law 2007. Important sections include 2(3), 14 and 19.
• Vagrancy: cities like Johannesburg[1], Tshwane[2], and Mangaung[3] prohibit loitering, ‘leading the life of a loiterer’, or being without ‘legal refuge’. One example is the City of Johannesburg, Public Road and Miscellaneous By-law, 2004.
• Begging: Explicitly prohibited in multiple municipalities, including Cape Town, Johannesburg, Tshwane, eThekwini, and Mangaung. For example, the Mangaung Public Streets by-laws, 2016 prohibits loitering or lingering in a public amenity.
• Informal economic activity: Street trading without a permit or outside designated areas is prohibited. For example, see the eThekwini Informal Trading By-law, 2014.

[1] For example, the City of Johannesburg Public Roads and Miscellaneous By-Law 2004, prohibits loitering on public roads in a way that obstructs traffic within 20 meters of a public building or place of entertainment or in a way that harasses any person.

[2] Under the Tshwane By-Law relating to Public Amenities 2005 loitering or lingering in a public amenity is prohibited.

[3] Under the Public Street By-Law of 2016, loitering or lingering in a public amenity by any person in prohibited.

Penalties range from fines (R2,000-R40,000) to imprisonment (up to 6-12 months) for non-payment or repeat offences. Municipalities also routinely confiscate traders’ goods. In the City of Cape Town, 199 fines were issued over a period of 6 months in 2019 to individuals experiencing homelessness, and in 2017, eThekwini Municipality issued 3000 fines to people for begging.

Municipal police[1] disproportionately target street traders and people experiencing homelessness[2], particularly in wealthy or tourist areas. Human rights implications include police brutality, arbitrary arrest and detention, and entrenching economic hardship through the destruction of personal property, fines and legal fees. The current punitive approach is discriminatory, costly and counterproductive when compared with preventative strategies.

[1] Municipal Police or local police are law enforcement agencies that are under the control of local government. They are focused on enforcing by-laws, preventing crime and disorder and promoting community safety.

[2] Evidence shows that people experiencing homelessness in Cape Town are 11 time more likely to be arrested than the general population

• Homeless persons are one of the most affected groups when it comes to the enforcement of by-laws related to public space. 
• Informal traders, many of whom are women and migrants, face disproportionate enforcement.
• Foreign nationals, particularly refugees and migrants, are disproportionately affected by by-law enforcement due to xenophobic attitudes and discriminatory policing practices. 
• Gendered impacts are also evident, particularly for women working in the informal economy or sex workers.

Most laws relating to life-sustaining activities in public spaces are penalised by a fine. However, in some municipalities, such as Mangaung and Tshwane a term of imprisonment can be imposed as a default sanction, or as a result of a failure to pay the initial fine.

• 1995 – S v Makwanyane and Another [1995] ZACC 3
  Abolished the death penalty and established dignity, life, and equality as core constitutional values. This case set the tone for later rulings on the treatment of vulnerable groups, including people experiencing homelessness.
• 2000 – Government of the Republic of South Africa v Grootboom [2000] ZACC 19
  This is a landmark case on access to housing. The Court held that the state’s failure to provide adequate housing violated the right to dignity and access to housing, obliging government to create programmes for those in crisis situations.
• 2002 – S v Martin [2002] JOL 10316 (C). Considered the constitutionality of punitive measures against begging. Highlighted risks of infringing constitutional rights of economically marginalised people.
• 2002 – City of Johannesburg v Randburg Taxi Association [2002] 2 All SA 621 Stressed that enforcement of municipal by-laws must be reasonable, necessary, and proportionate, balancing public order with the rights of vulnerable groups.

Developing Dignity in Housing and Evictions

• 2008 – Occupiers of 51 Olivia Road v City of Johannesburg [2008] ZACC 1
  The Court required meaningful engagement between city authorities and occupiers before eviction, emphasising the need to provide alternative accommodation to safeguard dignity.
• 2011 – Blue Moonlight Properties v Occupiers of Saratoga Avenue [2011] ZACC 33
  Reinforced that the state has a constitutional duty to provide emergency housing when evicting people from private property.
• 2014 – South African Informal Traders Forum v City of Johannesburg [2014] ZACC 8
  Struck down “Operation Clean Sweep” as unlawful and unconstitutional, affirming traders’ rights to dignity, livelihood, and fair administrative action.

Recent Protections Against Arbitrary Enforcement (2019–present)

• 2019 – Ngomane and Others v City of Johannesburg [2019] 3 All SA 69
  Held that confiscating and destroying homeless people’s belongings without notice violated dignity and constitutional protections.
• 2021 – Residents of Industry House v Minister of Police [2021] ZACC 37
  Found the eviction of homeless individuals without a court order unlawful, affirming the right to housing and due process.
• 2022 – Mkhize and Others v City of Cape Town (2022)
  Interim order prevented the City from evicting or confiscating homeless individuals’ belongings without a court order. 

Overall, the jurisprudence demonstrates a growing recognition that criminalising poverty through by-law enforcement is incompatible with constitutional norms[1].

[1] Responses to homelessness and informal trade must be rights based, lawful and proportionate

South Africa has no dedicated national homelessness policy, though the National Development Plan (NDP) sets broader goals to reduce poverty and brutality by 2030. The NDP advocates for an integrated approach to homelessness, focusing on affordable housing, social protection, coordinated services, and research-based policy. The Department of Social Development was preparing a Green Paper on Homelessness (expected in 2024) to advance a multi-sectoral policy.

Municipal level reforms have been uneven:

• Cape Town has amended its Streets and Public Places By-law (2022) to recognise that sleeping in public is not an offence if no alternative shelter exists. In 2024 it released a draft ‘Strategy to Reduce Rough Sleeping’, aiming to shift away from punitive enforcement towards rights-based solutions.
• Johannesburg clarified that fining homeless people is not an official policy, noting the impracticality of fines and instead focusing on relocation to shelters in unsafe situations. However, the by-laws that allow for fining of homeless people remain in force.
• Gauteng Province adopted a Regional Homelessness Strategy, which recommends decriminalisation of street homelessness and prioritises integrated services, housing solutions, and partnerships. However, the by-laws criminalising homelessness remain in force.
• eThewkini, following a 2016 study with the Human Sciences Research Council, acknowledged that by-laws criminalising homelessness are harmful, and recommended affordable housing, better access to services, and decriminalisation. However, the by-laws remain in force.

On informal trade, municipalities favour regulation over criminalisation. Cape Town’s Informal Trading Policy sets designated trading areas, permit systems, health and safety regulations, trader support, and participatory dispute resolution mechanisms. While enforcement (which includes fines, confiscations and removal) still occur, the policy emphasises fair regulation.

Civil society has led litigation, awareness campaigns and advocacy. A network of CSOs, under the banner of the Campaign to Decriminalise Petty By-Laws, was established in 2019 to promote implementation of the Principles on the Decriminalisation of Petty Offences in Africa. The Campaign has written op-eds and appeared on radio, as well as conducted research, suggested new policy approaches, held conferences and webinars (including in partnership with the South African Human Rights Commission (SAHRC)), made various submissions (see A, B, C, and D, for example), launched strategic litigation (as attorneys and in amicus), and direct advocacy with relevant government agencies.

The SAHRC has also undertaken a number of recent initiatives:

• 2018 National Consultation on the Principles on the Decriminalisation of Petty Offences.
• 2023 National Dialogue on Homelessness from a law enforcement perspective.
• Inputs on UN study on the criminalisation of homelessness.

• Criminalising Homelessness and survival strategies through municipal by-laws: colonial legacy and constitutionality
• Study into the cost of homelessness in Cape Town
• ‘eThewkini’s discriminatory bylaws: criminalising homelessness’
• Decriminalising public space governance: The role of the police
• Poverty is Not a Crime: Decriminalising Petty By-Laws in South Africa
• Punished for Being Poor: Evidence and Arguments for the Decriminalisation and Declassification of Petty Offences’
• Public Spaces and Informal Work: Principles and approaches to law and policy making.