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.