John Makwickana sells plastic shoes in town.Picture Zanele Zulu.17/02/2015

Durban - Durban street trader John Makwicana, who lost R775 when his goods were confiscated 18 months ago, has secured a massive victory for informal traders in the city, with a Durban High Court judge ruling that by-laws which give officials unfettered power to impound and confiscate their property are unconstitutional.

Judge Dhaya Pillay ordered the municipality to compensate Makwicana for the 25 pairs of plastic sandals which were impounded and later “disappeared”, and said the responsible official from the business support enforcement unit should personally pay a portion of his legal costs.

Makwicana, 65 – who was assisted in his court application by Durban’s Legal Resources Centre – has been trading legally since 1996, earning about R300 a week.

In August 2013, Makwicana had gone to a street traders’ meeting, leaving his assistant in charge. The assistant left his post to get something to eat and while he was just 20m away, and in spite of protests of a neighbour who had Makwicana’s permits, the city official confiscated the goods.

Almost a year later charges of illegal trading were withdrawn, but when Makwicana went to fetch his impounded goods he was told they had been sold.

In her judgment, Judge Pillay noted an affidavit from another trader, Dhanraj Puran, who recounted how six pockets of potatoes were impounded because he was trading outside the permitted area.

He was given a fine, with an option of appearing in court three months later, but by then the potatoes would have rotted.

“He could not afford the fine. He did not pay it, he did not go to court. He never found out what became of his potatoes,” the judge said, adding that the failure to account for impounded goods opened the door to theft and corruption.

She pointed to the fact that the impounding officer had given conflicting versions of why she had impounded Makwicana’s sandals.

“Her evidence lacks credibility… shockingly, she has not said a word about what she did with the impounded goods and the city did not disclose what steps, if any, it took to check her version,” she said.

Regarding the constitutionality of the by-laws, she said this case typified the abuse street traders suffered at the hands of city enforcement officers and, while conditions had improved, they still adopted a “rough stance” and the law effectively allowed them to punish traders before a court of law had determined guilt.

“Although the by-laws confer power to impound only, this is effective confiscation. The right to a refund or a return of the goods remains theoretical for as long as court proceedings are not finalised before the goods rot or are disposed of.

“The right of access to court is theoretical and illusionary for street traders generally. They are required to be at their stands for three to five days in a week, according to an arbitrary municipal rule. Being away also means loss of income.”

The judge ruled that the by-laws violated the right to access property and trade, and amounted to discrimination, and said the city needed to bring them into line and “remedy the attitude of officials” who needed to be empathetic to street trading.

“Without a firm hand on officials who misbehave, conflict with street traders will persist as respect for law enforcers wanes. Their powers need to be curtailed and impoundments substituted with fines.”

The judge urged the city, in its reform of the by-laws – which she ordered must be done by the end of May – to consider “meaningful engagement” with traders.

Legal Resources Centre director Faathima Mahomed said the judgment had significant implications for the rule of law and deepening the culture of accountability, responsiveness and openness as mandated by the constitution.

“The impoundment and confiscation of goods directly impacts upon a street trader’s right to practise his trade and to eke out a meagre living.”

The Mercury