Convenor’s Thoughts: how freedom and private property can render a person’s very existence illegal

It’s seems impossible that two of the most fundamental human rights enshrined in the SA Constitution could combine to create an unintended problem for those left on the streets of our society. To be sure, it’s not really the rights that are at fault but rather the application of those rights by local authorities, specifically the prejudicial view that favours property owners rights as more valuable than other citizens.

Jeremy Waldron, a law and philosophy academic in the US, currently at New York University, wrote an essay for the UCLA Law Review in 1991 (Vol 39:395). I found a copy of it online here. It’s worth a read if you have the time, especially if you work with vulnerable people. For those who don’t have the time, I hope my very brief précis below will be good enough. Waldron was addressing the US context, but I’ve taken the liberty of directing my understanding of his argument to our South African context:

All space that South African citizens can use is either private or public. Since freedom is a freedom to do something somewhere, freedom is always constrained by the space in which any action is performed. Freedom thus has spacial implications.

For instance, there are many things which I may do in my own private space which I may not do in yours without your permission, such as sleeping or eating. And I may exercise my right to freedom in public spaces so long as my actions are permitted by laws governing such places in the interest of communal use. My personal right to freedom is therefore constrained by your right to freedom. Private space and public space are an essential way in which our individual rights to freedom are balanced against each other.

One of the basic pillars of a democracy such as South Africa is the right to individual property ownership.  While most South Africans don’t own property they can at least lay claim to some form of private space through various forms of lease or rent or tenure, however informal or formal that arrangement. South Africans are thus able to exercise some level of ownership to a greater or lesser extent. We might all have the (technical) opportunity to arrive at a position of enjoying such ownership, but that technical opportunity is for the street-based person rarely, if ever, a substantive opportunity.

Street-based people do not have private space. They are, for various reasons, dependent on public spaces. Making it illegal to urinate, eat or sleep in such public spaces not only pushes vulnerable people into public spaces not yet regulated, but it in principle makes the very act of being, illegal. To render a person’s existence effectively illegal is an unpardonable sin in a liberal democracy.

Arguments about the presence of street-based people usually revolve around their nuisance or even criminality. Appeals against punitive measures aimed at street-based people are seen as frustrating the pragmatic and reasonable expectations of a city’s need to be economically viable.

No pragmatism or economic interest is worth us trading our humanity for and criminalising people for being homeless is a crime itself. There are no excuses.

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