Wiseman Khuzwayo

“When women and men in government disregard the law, their conduct may very well cause much hardship for the vulnerable amongst us.”

These are the opening words in the Constitutional Court (ConCourt) judgment delivered on Friday and penned by Acting Chief Justice Dikgang Moseneke, which set aside a high court order and allowed informal traders in Johannesburg to return to their inner city stalls.

Moseneke said the facts of the case “show so and remind us of the words of our beloved and departed president Nelson Rolihlahla Mandela” when he said even the most benevolent of governments were made up of people with all the propensities for human failings.

On December 5 last year, the ConCourt interdicted the City of Johannesburg and its metro police from interfering with the operations of street traders in Operation Clean Sweep.

The operation aimed to rid Johannesburg of unsightly and disorderly trading areas that gave rise to disorderliness, criminality and obstruction in and along trading areas.

In October last year, members of the SA Informal Traders Forum (SAITF) and the SA National Traders Retail Association (Santra), who were allegedly authorised to trade informally, were removed from their trading locations and officials impounded their goods.

The SAITF and Santra unsuccessfully instituted proceedings in the South Gauteng High Court seeking urgent interim relief permitting them to return to their trading locations, pending a review of the lawfulness of Johannesburg’s conduct.

Justice Moseneke said Judge Ramarumo Monama had summarily struck the application off the roll on the footing it was not urgent. He had furnished no written reasons for his decision.

This meant the SAITF and Santra had to wait until February for a possible hearing directed at final relief. The ConCourt granted the SAITF and Santra leave to appeal on the basis it was in the interests of justice to do so, holding that a refusal to grant leave to appeal would cause the traders to suffer irreparable harm.

The undisputed evidence showed the traders and their families’ livelihood depended on their trading in the inner city. At the time of the hearing, they had been rendered destitute and unable to provide for their families for over a month.

The court found the conduct of Johannesburg impaired the dignity of the traders.