Municipality impounding informal traders’ goods ‘unlawful’

An important ruling for informal street traders was made on Tuesday in the Durban high court, where the court held that the eThekwini municipality’s power to impound and confiscate the goods belonging to these traders under the 2014 Informal Trading Bylaw is unconstitutional, invalid and unlawful.

The court also ruled that metro officers, who could not account for goods confiscated from street trader John Makwicana, were liable to pay him compensation. The court further held that the city’s exemption from liability for the loss of goods in terms of the bylaw was also unconstitutional, unlawful and invalid. 

The case was brought by Legal Resources Centre (LRC) advocate Faathima Mahomed on behalf of Makwicana, whose 25 pairs of rubber and plastic sandals were confiscated in August 2014 by metro police. A detailed inventory was not taken and two affidavits were filed by a female metro police officer. 

The court said “as a result of these contradictions, the [metro police officer’s] evidence lacks credibility, is unreliable and must be rejected in so far as it conflicts with the evidence of the applicant and [his assistant].

“Shockingly, she has not said a word about what she did with the applicant’s goods that she impounded. Disappointingly the [city] did not disclose what steps, if any, it took to check her version and to get her to account for the impounded goods.”

The court found that impoundment, which is sanctioned by section 35 of the bylaw, amounts to “self-help”. In the court’s view, “self-help and abuse of power do not justify the limitations” on the constitutional rights in sections 34, 25, 22 and 9.

Despite a magistrate’s court ordering the return of the goods to Makwicana in June 2014, the LRC said the city was unable to return the goods. When the [court order] was shown to a city official, she “simply indicated that the she was “very sorry” as the goods had been “disposed of”. At no stage was Makwicana given notice that his goods were to be “disposed of” by the city. 

When the matter was argued in the high court in November 2014, the city still had no explanation for what had happened to Makwicana’s goods.

Failure to account, as the [metro police officer] did, and contradicting herself on affidavit, must be treated as misconduct and possibly criminal offences – such as perjury and theft of the impounded goods – the court found. It ruled that the officers involved should pay back Makwincana for the goods taken. 

The LRC said in a statement that the case impacts upon a street trader’s right to practice his trade, and to earn a living on the proceeds of daily sales. The protection of the informal trader’s rights is inextricably bound up with the efforts to alleviate poverty and to earn a living. 

The judgment requires that the city take steps to ensure that accounting and adequate reporting takes place. This has significant implications for the rule of law and deepening the culture of accountability, responsiveness and openness, said the LRC.

Subscribe to the M&G

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years, and we’ve survived right from day one thanks to the support of readers who value fiercely independent journalism that is beholden to no-one. To help us continue for another 35 future years with the same proud values, please consider taking out a subscription.

Related stories

Not all of Jo’burg’s street traders can sell their wares under lockdown

Street traders are central to food security in Johannesburg. But since being declared an essential service under lockdown, street trade in South Africa’s biggest city has returned to uneven ground

Covid-19: ‘Unemployment benefits will not be extended to the informal sector’

Almost three million workers are not covered by measures implemented by the department of employment and labour to lessen the economic effects of the coronavirus

The informal economy is necessary to deal with the unemployment crisis

It is more connected to the broader economy than we realise and should be supported

Kigali’s trade-off: Sell and be arrested or starve

At first glimpse, Rwanda’s capital is a model African city: clean, organised, beautiful. But behind the gleaming facade, not all is well

Rent owed to City goes from R3,400 to R260,000 in one month

Mayco Member says “bureaucratic error” was behind massive increase for Grand Parade vendors

Used clothing industry oils the informal economy

Johannesburg’s hub of second-hand garment traders - run under the leadership of the African Traders Organisation - woos trendy and indigent customers.

Vaccine trial results due in December

If successful, it will then have to be manufactured and distributed

White men still rule and earn more

Women and black people occupy only a few seats at the JSE table, the latest PwC report has found

The PPE scandal that the Treasury hasn’t touched

Many government officials have been talking tough about dealing with rampant corruption in PPE procurement but the majority won't even release names of who has benefited from the R10-billion spend

ANC still at odds over how to tackle leaders facing...

The ANC’s top six has been mandated to work closely with its integrity committee to tackle claims of corruption against senior party members

press releases

Loading latest Press Releases…

The best local and international journalism

handpicked and in your inbox every weekday