Bully City of Johannesburg dealt a blow by ConCourt

The Constitutional Court on 4 April 2014 delivered a victory for the registered street traders who were illegally removed from their designated stands by the City of Johannesburg late last year.

It is unclear why the City of Johannesburg saw fit to illegally remove and relocate the traders (as was its plan) to unknown locations despite the traders being registered and operating legally at their designated stands. In the 21-page, the ConCourt found that the City, led by Parks Tau, ignored the fact that its action resulted in families of the registered left destitute, especially children.

That some businesses closed down as a result of these trading, cannot be disputed. It however makes no sense how registered traders who complied with the laws (including by-laws administrated by the City) deserved to be entirely and solely blamed for this when it is not they who register themselves to trade but the City.

One wonders, therefore, whether the City ought not to have known how many traders it wanted trading on a particular designated area to avoid any unnecessary congestion, etc. Had the City kept the number low of traders to have at a particular area (and thereby keeping the congestion to a minimum as it now wants to do by moving registered ones to “unspecified” locations, which was another concern raised by the traders), there would not have been a need to even have gone to court in the first place.

The Court further indicated that there “[was] no dispute over the entitlement of the applicants to trade in the stalls the City has allocated to them.” It said the traders “have clear, undisputed rights under section 4 of the By-Laws to do business in the locations where they traded before they were removed.” This is another matter that favoured the traders especially on their prospects of success.

As noted by the Court, while the City was “intended to relocate informal traders to “alternative designated [trading] areas” – it was however unfortunate that Section 6A(3) of the Businesses Act which prescribes the steps the City must follow to designate a trading area for informal trading were not followed. This, said the Court, was “readily conceded, correctly so [by the City]… in its papers and during the hearing before this Court that it had not met the prescripts of the statutory provision. “The decision to relocate the traders appears flawed,” found the Concourt.

The Court said the City’s decision to declare certain areas as prohibited or restricted “was not made in accordance with the procedure in section 6A(2)(a) of the Businesses Act” and that, again, it did confess to this flaw, claiming it would “cure the defects in the process it followed while offering an interim arrangement.” However, the court said this “interim arrangement” by this City was unfair because it still wanted the eviction of the traders to “unspecified areas or stalls” to continue (emphasis). “The City has not identified any lawful ground that permits it to frustrate the enjoyment of these rights. The City does not dispute the unlawfulness of its officials’ conduct. Counsel for the City expressly submitted that the City acted unlawfully, but that doing so had been “convenient”. These concessions were so extensive that it even seemed conceivable that this Court might grant final relief. The relief sought in the pending review in Part B of the notice of motion is likely to be granted and thus bears prospects of success,” said the Concourt on why it chose to hear the matter on an urgent basis, among others.

Another crucial fact recorded by the court is that “the undisputed evidence showed that the applicants and their families’ livelihood depended on their trading in the inner city. They had been rendered destitute and unable to provide for their families for over a month and they would have been precluded from providing for their families for at least another two and a half months until mid-February 2014 at the very earliest.”

In considering the matter, the ConCourt said “[it] weighed carefully these considerations and concluded that it was in the interests of justice to hear the appeal on an urgent basis” and that “If leave to appeal were not granted the applicants [traders] would have suffered severe irreparable harm and yet the balance of convenience favoured them.”

According to the court ruling, the eviction of traders “involved constitutional issues of considerable significance”, that the “ability of people to earn money and support themselves and their families is an important component of the right to human dignity. Without it they faced “humiliation and degradation”. “Most traders, we were told, have dependants. Many of these dependants are children, who also have suffered hardship as the City denied their breadwinners’ lawful entitlement to conduct their businesses. The City has not disputed this. The City’s conduct has a direct and on going bearing on the rights of children, including their direct rights to basic nutrition, shelter and basic health care services. The harm the traders were facing was immediate and irreversible.”

The Court also indicated that the City’s response to the traders’ claim mentioned above (of irreparable harm and the balance of convenience) favoured them in that:

1)      First, it readily and correctly conceded the traders would suffer prejudice or harm but qualified the admission by arguing that the harm would be temporary, and

2)      Second, it contended that if the traders were allowed to return to their trading stalls, the inner city would be “chaotic, uncontrolled and illegal trading with its concomitant crime and grime [will] be permitted to return to the streets of Johannesburg.”

The City, according to the Court, referred to the prejudice to be suffered by its residents “who no longer have access to ATMs, walk-in banks, cinemas, departmental stores, restaurants and other amenities because of criminality that hides among the illegal hawkers.”

It said the City was “conflating the position of illegal traders with that of the applicant traders” but acknowledged that it was “open to the City to use all lawful means to combat illegal trading and other criminal conduct” while warning that it “has no entitlement to cause harm to lawful, if not vulnerable, traders”. The court further observed that: “even so, the City argued in the alternative that if the Court were minded to grant the relief sought, the order should return verified lawful traders it evicted in the first instance. It said the City “again… missed the point” that “it may not remove or evict traders who have a right to trade without observing requirements of its By-Laws.”

When the court pointed this out, the City could not point out “any irreversible harm or palpable inconvenience the City might face by acting in accordance with the prescripts of the law in its bid to evict the applicants”. The City did not say irreparable harm would be suffered by the residents, should the traders be left to continue trading while the City conducts its expeditious verification process.

“The prejudice allegedly suffered by the residents, if any, was temporary as compared to the severe irreparable harm the applicants suffered and would have suffered. The City was content to argue, that at the end of the review proceedings, the traders may claim damages suffered, if any. This is no answer to the pressing and urgent temporary relief the applicants asked for. The evidence showed that informal traders were people on limited earnings derived from their street trading. A promise of possible future recompense may well border on the cynical,” said the Court.

The court was dismayed that the City of Johannesburg contended that the urgency the traders “relied on was self-created and ought not to be entertained” (emphasis). But even if is accepted that such an urgency arose as early as October 2013, the ConCourt found “it was only prudent and salutary that the [traders] first sought to engage the City before they rushed off to Court… [and] that engagement, as mentioned above, produced the agreement of 2 November 2013 [which the still, still, failed to comply with]”.

In conclusion, the ConCourt judge said: “I find nothing dilatory in the efforts of the [traders] to engage the City and persuade it to restore them to their trading positions in the inner city. Their [traders’] return to their trading stalls remained urgent throughout the engagements or negotiations attempted before an urgent application was launched. Even by the time they approached this Court, their claims were self-evidently urgent and so we concluded.”

The judgement has showed how bully the City of Johannesburg was and that despite its requested verification and an agreement that followed, it still failed to honour that agreement. How bully!

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