18 February 2020
Acting judge Daniel Thulare has slammed the City of Cape Town for not enforcing its own bylaws against the refugees who have occupied Greenmarket Square for months. He also had harsh words for the refugee leaders for their roles in the four-month occupation.
On Monday, Judge Thulare issued an order that the the City must, after a seven-day verification process by the Department of Home Affairs, begin to “enforce its bylaws” and crack down on the protesters who, since October last year, have taken over the popular city centre tourist destination and established a lawless “self-governing territory”.
In his judgment he criticised the City for not enforcing the bylaws months ago, using its own City police force.
Instead, Judge Thulare said, the City wanted SAPS to do the job. And it wanted the Department of Home Affairs (DHA) to deport any “illegal” immigrants, without any reference to refugee laws which require a probe into the circumstances of asylum seekers.
The judge notes that the protesters were living, sleeping, cooking, bathing, defecating and having public sex in the pedestrianised precinct — all of which are outlawed by bylaws.
“The affected area reportedly has the air thick with the stench of urine. The smell is unbearable.
“Property prices plummeted. Businesses were affected. European travel advisories were issued warning tourists against visiting Cape Town. Hotel guests were scared off. Hotel managers were threatened.”
Judge Thulare said about a third of local market traders, many of them refugees themselves who have permits from the City to trade on the square, had to shut shop. “And yet there is a deafening silence from the City — too loud — on the role played by the City police to police its bylaws.”
He questioned why the City, if it was unwilling to arrest the protesters, did not use a “less invasive method”, serving the protesters with bylaw contravention notices.
“Instead it wanted them arrested but not by its own police. The City wanted to eat but not from the sweat of the brows of its own officials. It wanted them arrested (by SAPS) and then dealt with by DHA in terms of the Immigration Act with no regard to the Refugee Act.
“Being a foreign national of its own does not translate into illegality. It is striking to note that the city expected DHA unarmed civilian personnel to walk where the city’s security forces feared to tread.”
The estimated 1,200 protestors moved into the square after their controversial eviction from a building in nearby St George’s Mall which housed the United Nations High Commissioner for Refugees (UNHCR).
They had begun their protest there following waves of xenophobic violence, saying they were too scared to return to their local communities. They demanded that they be relocated as a group to Canada or any European country.
The Central Methodist Church offered to provide them with temporary shelter but there were too many of them. Women and children were housed inside but the men moved their protest to the surrounding streets, pavements and sections of the square.
Their leaders - JP Balous and Papy Sukami - deceived the refugees, Judge Thulare said.
“They were aware that their demand to be resettled was unlikely to happen and yet they encouraged its indefinite sustenance. They were aware that their continued sit-in protest would also not miraculously translate into them being granted access to housing.
“Balous’s proficiency in English gave him an opportunity to distort perception.”
He said the leaders were “determined to feed on opportunistic bread, even though, through the passage of time, it had become stale and mouldy.”
The order states for the next seven days, before any bylaw enforcement, the City must make available a suitable venue at which the DHA can undertake a verification process of all protesters and probe any “well-founded fear of persecution or threat to their life should they try to return to their [homes] in SA”.
The matter will be back in court next month when the protesters will have an opportunity to oppose the finalisation of the order (the order is an interim one).
In a statement, the City conceded that the the situation in the central business district “has become untenable”.
“Action has been delayed as a result of the very complex nature of the situation. We now have a clearer mandate on the way forward, and appeal to businesses, informal traders and the general public to bear with us.”