“The Commission is of the view that based on the information it has, these measures cause social division, dysfunctional cities and lead to the further polarisation of our society”
HRC Executive Summary on Road Closures/Boom Gates
The issue of road closures, security booms and such related measures are without doubt matters close to the heart of the many who came before the Commission. The matters raised however are also significant to many others who ordinarily use and have access to public roads and places.
In weighing up the various arguments we have to be mindful to locate them within the constitutional and legal framework created by the Constitution, which in brief requires that all conduct and action by both State and non-State actors conform to the requirements set out in the Constitution. In addition, we need to recognise that even after 10 years of democracy we still face considerable challenges in transforming our society from one predicated on race and exclusion, to one where the full dignity and worth of each person is recognised – and where we can live united in our diversity.
Human rights by their very nature, subject to some limited exceptions, are capable of limitation. The onus would be on the party seeking the limitation to make a proper case for limitation. It would have to be shown that the limitation was ‘reasonable and justifiable in an open and democratic society’.
It was agreed that boom gates were restrictive and even those who argued in favour of them saw them as a short-term intervention. However, the reality is that they have been with us for almost 10 years now. There are various types of access restrictions that could be utilised, including monitoring measures such as guards and guardhouses, traffic calming measures and of course boom gates and closures. The more severe the measure, the greater the likelihood of it resulting in the restriction or violation of other people’s rights.
As an institution responsible for the promotion, protection and observance of human rights, the Commission cannot condone conduct which resembles past discriminatory practices or denies people their fundamental human dignity. A key point for consideration is whether the existence and operation of boom gates and closures makes inroads into the rights of others, which are of such a nature that they are not capable of being constitutionally justified or sanctioned.
The operation of security access restriction points should not have the effect of denying or hindering public access to public spaces, including roads, nor should they require certain categories of persons to furnish private information (for example, destination, purpose of visit and identity document ). Such conduct does indeed violate the rights of those affected. While such practices are not supported or encouraged by the legislation regulating these gated communities, in many instances however, evidence indicated that such practices were common at particular closures with little or no possibility of corrective measures being taken.
It was argued that the existence of booms and the closure of roads had a positive effect in bringing down crime while not prejudicing road users and other members of the community, yet the evidence presented at the hearings fundamentally challenged this proposition and accordingly presented the Commission with considerable difficulties.
The first difficulty that presents itself is that there is a dispute and there is generally no reliable evidence to suggest conclusively that the erection of booms and the closure of roads enhance safety and security. Under such circumstances the approval of any closure on the general assumption that it enhances safety and security would be problematic in the Commission’s view.
Secondly, the effect and impact of closures materially affects issues of urban mobility and functionality, and militates against the original idea of a city as a place where people could move around freely, engaging in business, social activity and recreation as part of a collective. Given our own history of exclusion and separation we should be extremely careful, even if our motives are otherwise commendable, in embarking on an urban design that works against the notion of a united society. There was considerable evidence that booms and closures do indeed exclude and separate in a manner inconsistent with the idea of an open city.
Thirdly, we should continue to encourage the efforts of communities to become proactive and act as concerned citizens, and in this regard explore measures that fit into the general functions of the city, encourage collective solutions and restrict other rights in the least restrictive manner possible.
On the information and the evidence made available to the Commission, it was not convinced that the least restrictive means were always considered. The Commission remains concerned with the spectre of a multitude of neighbourhoods becoming closed areas. In this regard the Commission takes seriously the concern of the JRA – that even the most stringent conditions that may apply to a closure are difficult to monitor and that the risk of closed, ‘no go areas’ is a real one.
Of course crime and violence remain an ongoing and visible threat to many of our people, and the challenge is how the State and communities can work together in fighting crime. There was evidence of this happening successfully in many communities.We need to encourage initiatives such as community policing, sector policing and greater police visibility.
After proper consideration of all the arguments and submissions, the Commission makes the following findings and recommendations.
Findings and Recommendations
The Commission accordingly makes the following findings and recommendations: 1. The Commission does not generally support the use of boom gates and gated communities. The Commission is of the view that based on the information it has, these measures cause social division, dysfunctional cities and lead to the further polarisation of our society. In addition, the proposed benefits they bring by way of enhanced safety and security are in doubt and the subject of considerable debate.
- The Commission finds that the use of road closures/boom gates has the potential to and does indeed in practice violate a number of rights as indicated in the Report. While such infringement of rights in most instances occurs in violation of the policy of the local authority, there was little recourse for those whose rights had been violated. Evidence remains inconclusive that the use of alternative measures for safety and security had been sufficiently explored.
- The Commission takes cognisance of the fact that legislation such as the Gauteng Local Rationailsation of Government Affairs Act 10 of 1998 does indeed provide for access restrictions, including road closures. It also notes with concern that notwithstanding the existence of relatively strict conditions normally attached to an approved closure (eg. a commitment to free and unhindered access) there was considerable evidence of non-compliance with such conditions coupled with an inability, due mainly to capacity and practical difficulties, to effectively monitor compliance. The consequence accordingly was that a breach or non-compliance with such conditions was not visited with any sanction or adverse consequence.
- Responding effectively to the phenomena of crime and violence does indeed require closer cooperation between the State and citizens, and therefore the Commission encourages continued community efforts in liaison with the authorities, to make communities safer. More resources for policing, greater police presence and visibility, effective community police forums and effective police response to the needs of the community will all contribute to making a difference.
- The Commission, even though satisfied that a legal basis does exist for security access restrictions, including boom gates and road closures, urges local authorities and communities to consider and exhaust alternate access restrictions, including guards and guard houses, traffic calming measures and closed circuit television.
This is an executive summary of a report produced by the HRC in 2005 after public consultation on Road Closures/Boom Gates. The full report can be accessed here:Human Right Commission Report on Road Closures Boomgates