Johannesburg - The Constitutional Court gave back the streets of Johannesburg to 2 000 licensed informal traders yesterday, ruling that they were free to trade in their stalls, after the city had evicted them in October as part of its crime-and-grime fighting Operation Clean Sweep.
During argument, some of the judges said that the city had violated the rights of the traders to trade freely and their right to dignity.
The traders, who are members of the SA Informal Traders Forum (SAITF) and the SA National Traders Retail Association (Santra), made an urgent application for leave to appeal to the highest court for interim relief after their application was struck off the urgent roll of the South Gauteng High Court last Wednesday.
Judge Ramarumo Monama ruled last week that their application lacked urgency.
The Constitutional Court set his ruling aside, pending the determination of a review of the judgment in the South Gauteng High Court.
The city removed all street traders from the central business district in October as part of Operation Clean Sweep, pending the verification of the legality of hawkers.
This was aimed at cleaning the inner city of crime and grime and halting illegal trading. The city said it had issued only 800 trading permits yet there were 8 000 people trading on the streets.
Senior advocate Gcina Malindi, for the city, was given a rough ride by the judges from the moment he started arguing his case. As in the high court, he argued that there was no urgency in the application.
Malindi said it had to go back to the high court to be enrolled for argument on the merits of the applicants’ case.
He said the argument put forward by Paul Kennedy, a senior advocate for the members of SAITF, that the application was urgent because his clients were destitute, was not valid.
“The prejudice suffered by the street traders is not different from other protected rights like dismissal,” Malindi said.
He disputed that financial destitution was appealable to the Constitutional Court. He was responding to Kennedy’s argument that it was appropriate for the court to intervene in the interests of justice.
The thrust of Malindi’s argument was that the city had not acted unlawfully by halting street trading in the CBD, including by those traders who had valid permits, subject to the verification process.
This was when five judges, including Acting Chief Justice Dikgang Moseneke, came down on him like a ton of bricks Moseneke repeatedly asked him to concede that the City of Johannesburg had acted unlawfully against its by-laws by interfering with lawful traders.
As Kennedy outlined his case, the judges showed their displeasure with the city when agreeing with his argument.
“What has crime got to do with lawful trading? How do they bundle the legal street traders with those trading illegally? Isn’t every street trader entitled to be heard?” Moseneke asked of Kennedy.
Justice Chris Jafta asked: “What was the legal basis to adopt this strange approach?”
Kennedy and Chris Georgiades, for Santra, argued that their clients should be allowed to return to the stalls from which they traded before Operation Clean Sweep.
Malindi said the city would allow those who had been verified to go back to trading but not necessarily in the same stall.
Judge Nambitha Dambuza asked if that meant returning to where they traded before the eviction. “Return in our circumstances does not mean a return to where you were trading,” Malindi responded.
But the judgment said traders could return to their original stalls.
An ecstatic Thandi Langa, who trades at the corner of Polly and President streets, said she planned to resume business today. “I am very much in debt because of the city,” Langa said.
The City of Johannesburg said it would do everything in its power to ensure the court’s order was implemented, but would continue to enforce its by-laws by ensuring no illegal trading happened in its streets.
Santra and SAITF were not available for comment. - Business Report