The City of Jo'burg has admitted that lawful informal traders were removed along with alleged illegal traders during the city's controversial "Operation Clean Sweep", currently before the Constitutional Court.
Counsel for the city argued on Thursday that it was "convenient" for the city to remove both categories of traders, so that it could establish which traders were trading illegally.
Deputy chief justice Dikgang Mosekene intervened: "Did counsel really just say 'convenient'? … Can we just stick to what was lawful, not what was convenient."
The South African Informal Traders Forum (SAITF) and the South African National Traders Retail Association (Santra) approached the court on Thursday, seeking leave to appeal against a high court judgment that ruled their application for relief from Operation Clean Sweep was not urgent.
The applicants told the Constitutional Court that their main relief application would not be heard in the high court before February, by which time "irreparable" harm would have been caused to the thousands of traders who have been evicted from the inner city.
They want to be allowed to return to their trading stalls until their main relief application is heard.
But the city argued that the court should not intervene. The city argued that any prejudice against the traders was temporary, and would only last as long as it took to verify the traders operating legally.
Paul Kennedy, SC, for the SAITF, argued that although it was unusual for the Constitutional Court to intervene in a case such as this, the circumstances were exceptional, and it was not unlawful or improper for the court to do so.
In its application, the SAITF argued that the applicants were trading "lawfully, peacefully and with the [city's] consent" until they were evicted and had their goods confiscated by the city and the Johannesburg Metro Police Department (JMPD) during October 2013.
"They [the city] say the clean sweep is necessary to deal with illegal traders, but the respondents have never suggested that any of the traders in this application were trading illegally.
"Indeed, Operation Clean Sweep made no attempt whatsoever to distinguish between the traders, who have always been doing business legally, and other informal traders who may not have been."
The traders say that, after "extensive" negotiations with the city, they agreed to a process of "verification", when all the traders would re-register as lawful traders. They would then be allowed to return to their stalls.
The traders say they re-registered themselves, as agreed, during the week of November 4, but when they tried to return to their stalls, they were assaulted by JMPD officers, who also dismantled their stalls.
Now the city has told the traders that it wants to "relocate" the traders, but the traders say the city has not complied with any of the requirements in section 6A of the Business Act, which says that the city must consult before informal traders are relocated.