# COCT – Prevention of Noise Nuisances Amendment By-law

- Link: https://dearsouthafrica.co.za/coct-prevention-of-noise-nuisances-amendment-by-law/
- Published: 2020-04-23T12:39:53+02:00
- Author: dearSA

[ Browse the DearSA website](https://dearsouthafrica.co.za/pdps/)

The **City of Cape Town** has published new amendments to its streets, public places,
and the prevention of noise nuisances by-law for public comment.

The by-law allows for an authorised official to instruct a person to leave and remain
out of an area, and **without a warrant**, to stop, enter and search any vessel,
vehicle, premises or person.

### **22420** participants. [closed 17 May 2020]

[click to view summary of the amendments ](https://dearsouthafrica.co.za/coct-prevention-of-noise-nuisances-amendment-by-law/summary/)

![Cape Town without a warrant -by-law](https://cdn.dearsouthafrica.co.za/wp-content/
uploads/2020/05/20191054/CoCT-by-law.jpg "CoCT-by-law")

![Dear South Africa](https://cdn.dearsouthafrica.co.za/wp-content/uploads/2020/09/
02102235/DearSA-logo-s-100x31.jpg "DearSA-logo-s")

The by-law relates to the management of public places, noise levels and other incidental
matters on all properties within Cape Town, and specifically section 22 of the by-
law, which guides the City’s actions on transgressions and the recovery of costs
where applicable.

## Have your say – shape this policy.

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### DOWNLOAD DOCUMENTS

 * [PREVENTION OF NOISE NUISANCES AMENDMENT BY-LAW](https://www.scribd.com/document/457725260/Cape-Town-by-laws#from_embed)

### IN THE NEWS

 * News24 – [Amendments to City of Cape Town streets and public places by-law: Are they constitutional?](https://www.news24.com/SouthAfrica/News/amendments-to-city-of-cape-town-streets-and-public-places-by-law-are-they-constitutional-20200501)
 * IOL – [City of Cape Town slated over ‘questionable ethics’ of proposed by-law amendments](https://www.iol.co.za/capetimes/news/city-of-cape-town-slated-over-questionable-ethics-of-proposed-by-law-amendments-47072428)

The City of Cape Town has recently proposed amendments to its streets and public
places by-law, which empowers officials to conduct search and seizure without a 
warrant in certain circumstances. Is this constitutional?

The Streets, Public Places and Prevention of Noise Nuisances By-law regulates the
conduct of individuals in public spaces.

For example, it prohibits people from begging, spitting or urinating in public, 
or making loud noises from their cars.

The amendments relate to Section 22 of the by-law, which grants City officials certain
powers, including the issuing of compliance notices and recovery of costs from people.

The amendments to the by-law make provision for a premises, person or their property(
including a vehicle) to be searched without warrant.

This is permitted in two circumstances: first, where a “prima facie” offence has
been committed in terms of the by-law in the official’s presence and second, where
an officer has “reasonable grounds to believe” that an offence is being committed.

In the latter case, the official may only conduct the search if the person concerned
consents or if the official has reasonable grounds to believe that if he applies
for a warrant, it will be issued and the delay caused by obtaining a warrant would
defeat the object and purpose of the search.

The amendments also make provision for an official to obtain a warrant from a judge
and set out the process and criteria for this.

In addition, the amendments empower the City to impound a person’s property without
warrant where the official has reasonable grounds to believe that the property is
being used for the commission of an offence in terms of the by-law.

An official must provide a notice outlining the reason for the impoundment and the
impoundment fee.

## ‘Shortcut’

The amendments set out circumstances for the release of a person’s property and 
when the impounded goods become the property of the City.

The City has given the public until 17 May 2020 to make comments on the draft laws.
But some civil society organisations have already slammed the proposal.

Chumile Sali from the African Policing Civilian Oversight Forum says the amendments
are “criminalising poor and working-class people”.

In his view, “the City of Cape Town wants a shortcut to deal with homelessness, 
remove hawkers, remove sex workers, and remove people who are occupying places in
the Central Business District”.

The forum opposes the amendments because they confer discretionary powers on officials
which, says the forum, may be abused and will have a disproportionate impact on 
vulnerable groups.

“If you are black walking around Camps Bay, traffic officers can tell you to leave,”
Sali says.

Councillor Mzwakhe Nqavashe, chairperson of the City’s Safety and Security Portfolio
Committee, says the purpose of the amendments is to provide additional powers to
officers to enforce the by-law and to make it more in line with the Criminal Procedure
Act.

Also, he says the City hopes that “the amendments will allow our law enforcement
staff to deal more decisively with serious crimes, like the proliferation of drugs
and gangs in some of our communities”.

Because the by-law provides for search and seizure without a warrant, it may be 
attacked on constitutional grounds. This is because it may infringe the right to
privacy and the constitutional prohibition against the arbitrary deprivation of 
property.

In terms of the South African Constitution, a constitutional right may be limited
if this is reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom. In considering the lawfulness of a limitation
a court will consider:

 * the nature of the right;
 * the importance of the purpose of the limitation;
 * the nature and extent of the limitation;
 * the relation between the limitation and its purpose; and
 * less restrictive means to achieve the purpose.

In practice, a court will weigh up the objective the law seeks to achieve against
the means employed to achieve it.

So, even if the limitation serves a legitimate government purpose, a court will 
set aside the law if the impact on the right is too severe and less restrictive 
means could have been deployed.

## Right to privacy, dignity

The City’s by-laws ostensibly serve a legitimate aim: the preservation of public
order in public spaces in the city.

Conversely, the right to privacy is a fundamental right tied to the right to dignity.
And the state should only be able to deprive you of your property for a sufficient
reason.

It is questionable whether some of the provisions will survive constitutional scrutiny.

For example, the amendments enable a search without warrant where a “prima facie”
offence has been committed in the officer’s presence.

What this means is not clear as the amendments do not define what is meant by a “
prima facie offence”.

There is a danger that this may confer wide discretionary power on City officials
which may be abused, especially against vulnerable groups.

The clause suggesting that the official must have reasonable grounds to believe 
that an offence is being committed does at least mean that the official would have
to believe objectively, as opposed to subjectively, that an offence has been committed.

The provision also says the official must have reasonable grounds that if he applies
for a warrant it will be issued and the delay caused by obtaining a warrant would
defeat the object and purpose of the search.

The City may defend this provision on the basis that it is very similar to Section
22 of the Criminal Procedure Act.

## Reasonable grounds

The City may also rely on the constitutional principle of “reading down” which requires
courts to read legislation consistently with the Bill of Rights where the language
permits this.

Practically speaking, this means the City could argue that because the by-law requires
officials to have “reasonable grounds” to believe an offence has been committed,
this should be interpreted strictly in a way that is consistent with privacy rights.

The same argument could be advanced for the impoundment of goods where there must
be “reasonable grounds” to believe that it is linked to the commission of an offence.

However, critics may argue that the offences listed in the by-law are generally 
non-violent, petty offences which do not justify these extensive powers.

These municipal offences are different in nature than murder, robbery or other serious
crimes which the Criminal Procedure Act targets.

Furthermore, it is questionable whether these offences impose the kind of urgency
and risk to the safety of people or property that justify these extraordinary powers.

So, less restrictive means could be employed here: the use of a warrant which specifies
the time, place and manner of execution of a search.

Critics would also be correct in arguing that these by-laws may have a disproportionate
impact on vulnerable groups such as street traders, homeless people and so on.

South African courts have found that poverty can constitute unfair discrimination.

Even if a law does not target specific groups but has a disproportionate impact 
on them, it can amount to discrimination.

Homeless people and other vulnerable groups may be harassed by City officials and
this would undermine their right to dignity as well.

This would apply also if the amendments were used to seize the property of homeless
people.