GELDERBLOM AND OTHERS VERSUS THE CITY

LIVING IN A STATE OF ENTITLEMENT: WHERE TO FROM HERE? 

Dear Community,

Working in the criminal courts and witnessing the many matters I have over the years, I have often wondered what it is which makes some people – let’s bluntly call them what they are, criminals – believe that the ordinary norms and laws to which the rest of society adheres do not apply to them. And I mean criminals across the gamut of crime, from people tossing into the streets cigarette butts which will end up in the sea and kill the planet’s marine life to people living on the streets, using those streets and other public spaces as urinals, breaking into cars, robbing and murdering people or setting up shacks, cooking and defecating wherever they feel like it.

Walking through the corridors of the Magistrates Court in Cape Town recently I overheard an elderly man tell a group of younger people of a ‘born–free’ age group, all witnesses waiting to testify in a matter, that ‘This government we voted for wanted to make the country ungovernable and they have succeeded. That is why we are we where we are in South Africa today. The criminals feel entitled’.

In thinking about what to write as an update in this matter I have been struggling for some weeks now with lawyer’s / writer’s block of how to walk the delicate line between conflicting viewpoints as I read, hear and see what is happening around us in all parts of the City. I have been feeling totally overwhelmed by the increasing influx of street people and the erection of shack by encroaching shack in the suburbs of the metro. I am constantly astonished at the thoughtless, ill-considered actions of those individuals and organisations which support this lawless behaviour, be it handing out tents to enable living on the street or giving cash at a robot to assuage a conscience before driving away to a suburb where your children or elderly parents are not affected by the actions, (including stepping into the discarded drug needles and faeces) of those you are enabling. I am saddened and horrified by the increasing, senseless violence around us, much, where I live at least, emanating from those living on the street who have no interest in doing an honest day’s work and who prey on those who do.

For us is not unusual to hear the shrieks of a hard-working domestic worker trying to earn her family’s daily bread being attacked and robbed on her way to or from her employer’s home. It is not unusual for students, women or the elderly to be likewise attacked and violently robbed. My neighbours have been attacked and stabbed by people living on and around the park, which perpetrators have simply been released on bail to return to their shacks there, in the sea of filth they create. Our streets and parks are littered with these shacks, smashed glass, stolen wallets and their plastic contents. District Six was set alight again this last week by people making fires in the veld - in the teeth of a raging South Easter. Our WhattsApp groups are abuzz with warnings of suspicious people prowling the streets, breaking into homes and cars and attacking innocent citizens. We spend an inordinate amount of time in a state of stress, distress and combating or reacting to crime.

And this is a story we hear repeated in communities from to Lavender Hill to Seapoint, from Gardens to Khayelitsha to Woodstock to Mitchells Plain to Milnerton and Tableview.

My household, like many others in our community, is particularly distressed by the cold-blooded murder on Saturday 22 February 2020 of one of our nicest, most dedicated security officers in the city bowl, our Selvyn Jonas, a family man with a wife and five children gunned down whilst responding to yet another armed robbery at Roeland Square by criminals who obviously feel entitled to attack and kill.

I have wondered how, without giving offence to one or other group, to verbalise what is right, what should be done in light of the conflict between what is deemed socially fair, equitable, reasonable and just by those members of society who work hard, pay their taxes and respect the rule of law versus the beliefs of those pushing for the rights of a certain sector of society who feel they are entitled to do as they damn well please and to hang with the consequences for the rest of us. The latter are those that say: Like it in this public space? Want to stay? Want to sell and take drugs on the streets? Shame, poor you, let me give you a free tent and bedding and clothe and feed you, you are entitled to do as you like. You are entitled to totally disregard the rights of other people who want to work and who are trying to place food on the table for their children. You are entitled to ignore the rights and concerns of property and business owners and working people who care about and depend on the economy being healthy and attractive to investors.

You are entitled.

In light of this stance and what has happened to date in the matter of Gelderblom and Others versus the City (case nr 14669/2019), I, like many other people, have been feeling helplessly caught up in an increasing total onslaught of lawless behaviour, crime and grime.

And the more I think about it, the more I agree with that elderly man at the court: it comes down to a misplaced sense of entitlement by the miscreants and their supporters.

So perhaps the time for worrying about political correctness is past. It is quite simple really: if you engage in antisocial behaviour you are a criminal and should be named and treated as one, by law enforcement agencies and by society as a large. Because it is abundantly clear that, just as we as individuals are overwhelmed, so are our law enforcement agencies. They are buckling and unable to cope with the deluge of antisocial behaviour on their own.

Without intervention from every single civic-minded citizen, actively working together, including placing our concerns before our legislative bodies and the courts to support what is right and lawful, we may as well all add our houses to the glut of ‘for sale’ properties at bargain-basement prices, leave our families, abandon our communities, learn a foreign tongue and set up from scratch again in a strange land where we hope to be safe and secure. The only viable alternative, for those of us who love this beautiful land and want to continue building a strong nation in it, is to choose to stand together, unify as communities, watches and organisations across the metro, the province and the country and fight for a society in which the strong Rule of Law is held sacrosanct and no exceptions are made for the anarchical, beginning with those who choose to live their lives on the streets in a way which interferes with the rights of the rest of society, or those who support them.

In Greenmarket Square on Friday, 21 February 2020, I watched in astonishment the people living, cooking and copiously urinating on the street in front of all and sundry in blatant disregard of the rest of society and their rights to use this space, let alone the City by-laws prohibiting such antisocial behaviour. It looks just like the shacklands burgeoning in District Six, Jutland Park, McKenzie Street Park and other suburbs wherever I look. Imagine anyone trying that stunt in New York’s Central Park or outside the White House or Buckingham Palace.

But I felt a spark of hope when reading the judgment of Thulani AJ, who, in granting an interim interdict against these same individuals in Greenmarket Square in the matter of The City of Cape Town versus JB, PS and other protesters (21616/2019), stated that ‘unless the court intervenes, the conduct of the respondents (who have) no regard for authority, the rights of others and the law will continue indefinitely’.

This application by the City was supported by severely affected business owners, including traders who are losing or who have already lost their businesses at the market. It succeeded because the City, businesses and individuals acted in placing their concerns before the court and the Court intervened.

Unfortunately, in the matter of Gelderblom and others in which so many affected residents have also supported the City in its attempt to uphold the law contravened by the conduct of other people living on the streets, people who similarly have no regard for authority, the court did not intervene. Instead, as we know, Acting Judge Martin, without having heard any argument by either side in the matter, simply refused to grant the draft order which was agreed to between the parties, an order which would have paved the way for the allegedly homeless to challenge the City’s by-laws in a structured way, including setting out a timetable to which each side must adhere in order to bring the matter to finality.

The City almost immediately announced its decision to appeal this order.

But in order to appeal the City’s legal team first requires the Acting Judge’s written reasons for his decision. Whilst they have repeatedly asked the acting judge to provide these reasons, to date, more than two months later, he has simply failed to do so, leaving the matter and the citizens of this City in limbo, without the possibility of any intervention. As a result the conduct of those people choosing to live on the streets who have no regard for authority, the rights of others and the law now appears set to continue indefinitely. And heaven alone knows what will happen in our communities when the Greenmarket occupants disperse from there. Will they be re-integrated from where they came or will they too decide to simply stay on elsewhere in the City?

At this point it is probably also important to note that, in addition to the decision and order of the acting judge, the lawyers/organisations/ individuals supporting and bankrolling the street people have still not yet launched their constitutional challenge, as they have alleged for months now they want to do, although they are apparently preparing to do so.
So what now? What do our many communities affected by this state of affairs do?

Certainly part of the answer lies in my husband’s belief in ‘a hand up not a hand out’, in the small kindnesses and considerations which build up, don’t break down, in the soup kitchens and vegetable gardens and social projects set up to help people who find themselves living on the street who do want to be contributing members of society reintegrate and who strive to do so through the many community projects and varied NGO’s which do such sterling work in our communities.

But for us as a society and as a country to succeed in the long term we need to build a culture based on self-respect, integrity, a good work ethic and working towards a common goal, no easy task when the goal of so many living on the streets, the gangsters and layabouts and drug users and common criminals, is not to accept the hands up but to keep right on living in public spaces, aided and abetted by hand-outs and the indiscriminate giving which enables them to continue their antisocial conduct.

At this juncture it is important to note that, when the City drafted the current by-laws back in 2006 there was very little public participation as communities at the time were not as affected by the levels of antisocial behaviour which we are now experiencing. As a result the proposed by-laws were met with opposition really only from certain 'progressive' forces (including certain legal academics and NGOs) which had the misplaced notion that antisocial behaviour should not be challenged. As a result Cape Town already has some of the most lenient by-laws in the Republic. But times have changed and if we do not rise to meet the change, well: hello, complete anarchy, because we have no doubt that the by-law detractors too will once again gather their forces and funds to voice their objections.

The good news is that, when those who choose lives on the street do eventually launch their application, our legal team intends to be ready to support the Rule of Law. And, if the challenge is for some reason not timeously brought, the time for the review of the City’s by-laws is in any event coming up. As part of the process the proposals of the law enforcements agencies will be considered, and public participation will be essential. Your participation will be essential.

As with adding your voice to the legislative process, I cannot stress enough how a lack of public participation, which could result in an adverse judgement against the City, is likely to have a ripple effect throughout the entire local government legal system, resulting in similar by-law provisions in other cities and towns also being challenged and declared unlawful if the Gelderblom matter is not supported.

Gardens Watch, the Atlantic Seaboard Action Group, the Camps Bay Business Forum and the Sea Point, Fresnaye, Bantry Bay Ratepayers Association, which have all applied to be admitted as amicae curiae (friends of the court) in the Gelderblom Matter, supported by so many other watches and community organisations, including OH Watch, DPV Watch, Tamboerskloof Watch, Camps Bay Watch and the Sea Point & Green Point Watches, intend to do all we can to continue supporting the City in adopting by-laws in line with those Constitutional entitlements of safety, security and health which protect, uphold and enforce the Rule of Law, including before the courts.

We believe that what is needed now is a civil think tank of representatives of local civic organizations, neighbourhood watches and like-minded individuals to come into being and to begin preparing comments to meet any constitutional challenge and on any draft by-law amendments which will be released for comment and we encourage all other watches and community organisations across the metro who share our experiences and concerns to join us in our applications because the broader the consensus, the support base and the spectrum the better. Please stand up and add your voices.

Should you, your neighbours, your family, your organisation, your business and your community wish to participate in the Gelderblom matter and be a part of this nation-building process, part of standing up to enforce those socially-acceptable rights and responsibilities to which law-abiding citizens who fund and support our beautiful country and don’t just leech off it are also entitled, please do also consider donating to the community fund towards the legal fees*. Because we are all, in the best sense of the word, entitled to live in communities which are safe, secure and clean.

(*Tanya Nockler Attorneys Trust Account
ABSA cheque: 407 494 3165
Ref.: ‘CITY. FRIENDS’
Email: tanya@nocklerlaw.co.za
or
Gary Trappler Attorneys Trust Account
FNB cheque: 5026 0121 097
Ref.: ‘CITY. FRIENDS’
Email: gary@trappler.com .)


Kind regards

Tanya Nöckler

Tanya Nöckler Attorneys
Cellular Tel: + 27 (0)74 107 1977
Tel: +27 (0)21 4611 563
Email: tanya@nocklerlaw.co.za
PO Box 5357, Cape Town, 8000

Service address: c/o Broekmanns Attorneys,
3rd Floor,
The Piazza on Church Square,
39 Adderley Street,
Cape Town,
8000
Tel: + 27 (0)21 465 7474