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Pretoria - More than 170 foreign nationals in Limpopo whose spaza shops have been closed by police in the past few months - as they do not have trading licences or say they have found it impossible to obtain these from local authorities - have failed in their bid to get the Pretoria High Court to come to their aid.
Judge Natvarlal Ranchod turned down the application by the Somali Association of South Africa and the Ethiopian Community of South Africa and others for an order against the Limpopo Department of Economic Development and the SAPS.
They had asked the court, with the help of Lawyers for Human Rights, to order the department to issue them with trading permits and to interdict the police from raiding and closing their shops. They said they were being unfairly discriminated against.
Judge Ranchod said the core of their application was whether refugees and asylum seekers, who were legally in South Africa, were entitled to trade and operate businesses when they had no other means of earning a livelihood.
The refugees has argued that jobs were scarce, so the only means to support themselves was through self-employment by running tuck shops in townships. The court heard that shops run by foreigners provoked hostility from South African competitors. As a result, traders were vulnerable to xenophobic attacks, often instigated by business forums.
The applicants asked the court to declare that they had the right to apply for the renewal of business licences and permits, and that “Operation Hardstick”, in which the police raided their shops, was unlawful.
They said their shops were closed regardless of whether they had valid permits. They had applied for permits, but these had been refused. In many instances they were told that they should go back home.
The police denied they were targeting foreigners and said Operation Hardstick was aimed at rooting out crime. Checking whether shops were run legally was part of their mandate. The Department of Economic Development said trading licences were granted to foreigners in deserving cases.
The judge said he was not satisfied that the refugees or asylum seekers had been denied a right to apply for permits to run tuck shops. He also could not find that the police were targeting foreigners – they were fulfilling their mandate in combating crime. A restriction on the right to trade, limiting it in some instances to citizens of a country, had been recognised internationally and by the Constitutional and appeal courts. The issues raised fell within the executive sphere of government, which had to decide on policy matters.