While the municipal elections will shuffle the political players in councils, residents are often controlled by less visible and more enduring mechanisms of public authority.
Cape Town has a by-law for almost everything in its parks. Plant a shrub without the City Parks director’s written permission and you are breaking section 10 of the Public Parks By-law. Nail a poster to a tree and you have broken it twice.
Nobody is prosecuted for guerrilla gardening, of course. Every city writes more rules than it can enforce, so the real law of a public space is not what the by-law says. It is what officers choose to act on, where and against whom. In Cape Town, that choice increasingly depends on who has paid for it and on who has taken over local mechanisms of enforcement.
Since 2004 Cape Town has let property owners vote to tax themselves extra. Under section 22 of the Municipal Property Rates Act, if the owners of a majority of properties in an area agree, the council levies an additional rate and passes it to a nonprofit company that runs a special rating area (SRA), sometimes known as a city improvement district (CID). The money buys “top-up” services, such as cleaners, private security patrols and dedicated city law enforcement officers (or “rent-a-cops”).
That last item matters because private guards have limited powers. The Central City Improvement District funds a dozen law enforcement officers to give it fining and arrest powers, and some local SRAs are following suit.
The by-laws are the same across the metro, but enforcement is not. In a CID, a complaint about someone sleeping on a bench results in the dispatch of an officer. SRAs with cynophobic board members can threaten to enforce moribund by-laws against neighbourhood dogs. Elsewhere in the city such complaints are often ignored.
A study by Paasche, Yarwood and Sidaway, geographers who have studied private policing in Cape Town’s CIDs, offers the sharpest account of what this produces. They note that private security serves small, bounded patches of the city, while the police must answer for the city as a whole.
The rational strategy for a CID is therefore not to solve a problem but to displace it. This applies, above all, to the people and activities city managers and SRA boards regard as “undesirable”.
This results in “a patchworked public space” stitched around private enclaves of abundance. A man moved on from a CID-patrolled square does not vanish; he reappears in a suburb where no-one has paid for enforcement.
The stakes are highest for people with nowhere else to go. Estimates of the number of people living on Cape Town’s streets are typically multiples of available shelter beds. A fine for sleeping rough houses no-one, and nor does being “moved on”. It only decides which neighbourhood that person sleeps in next.
None of this requires bad faith. SRAs are answerable to the city, a councillor sits in on their board meetings, and they pay for real cleaning, security and social work. Owners who pay twice for services are entitled to expect results. But the cumulative effect is a city where “equality before the law” has become equality only on paper.
Three changes would help. First, the city should publish enforcement data by ward and by by-law, so residents can see where fines are issued and where complaints die.
Second, CIDs should report how many people their officers move on, and where they believe they go.
Third, park and public space by-laws should be pruned of rules nobody means to enforce. What remains after consultation should be applied evenly and fairly. A by-law enforced only where someone pushes for it and pays for it is not really a law. It is a private service.
• Butler teaches public policy at the University of Cape Town.
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