Makwickana v Ethekwini Municipality and Others (11662/13) [2015] ZAKZDHC 7; 2015 (3) SA 165 (KZD) (17 February 2015)

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[2015] ZAKZDHC 7
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Makwickana v Ethekwini Municipality and Others (11662/13) [2015] ZAKZDHC 7; 2015 (3) SA 165 (KZD) (17 February 2015)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION,
DURBAN
CASE
NO: 11662/13
In the matter
between:
JOHN
MPINI
MAKWICKANA
..................................................................................
APPLICANT
and
ETHEKWINI
MUNICIPALITY
..................................................................
FIRST
RESPONDENT
MEMBER OF THE
EXECUTIVE COUNCIL
FOR FINANCE AND
ECONOMIC
DEVELOPMENT
KWAZULU-NATAL
................................................
SECOND
RESPONDENT
MINISTER
OF TRADE AND
INDUSTRY
..............................................
THIRD
RESPONDENT
OFFICER
K
SCHONKEN
....................................................................
FOURTH
RESPONDENT
JUDGMENT
Date
of hearing: 26 November 2014
Date
of judgment: 17 February 2015
D.
PILLAY J
Introduction
[1]
The fourth respondent police officer
impounded the goods of the applicant, allegedly for failing to
produce a permit to trade as
a street trader. Neither she nor the
first respondent municipality account for the impounded goods. The
applicant had a permit
to trade on the street.
[2]
On the facts alone the matter can be
disposed of. However, the facts provide a convenient opportunity for
street traders as a group
in a poverty-stricken socio-economic class
to challenge the validity of the laws and practices prevailing in the
informal trading
sector.
[3]
The
Businesses Act 71 of 1991 (the
Businesses Act) and
the eThekwini
Municipality: Informal Trading By-law, 2014
[1]
(the By-law) pertaining to the removal and impoundment of the trading
goods of informal or street traders by the municipal police
is
scrutinised in this application. The applicant contends that the
removal and impoundment of the trading goods of a trader who
fails to
produce a licence to trade is
ultra
vires
and invalid
.
[4]
In relation to the By-law, the applicant
contends that
ss 35
and
39
are inconsistent with
s 9
(equality),
s 22
(freedom of trade occupation and profession),
s 25
(property) and
s
34
(access to courts) of the Constitution of the Republic of South
Africa, 1996. And the
Businesses Act, s
6A(1)(d) conflicts with the
principles of legality and the rule of law in s 1(c) of the
Constitution. The applicant also claims
compensation for the
impounded goods in the sum of R775.
The
Parties
[5]
The applicant aged 65 years is the sole
breadwinner of his family of eight dependants including his wife and
three grandchildren.
He is also the chairman of the Traders Against
Crime (TAC) a voluntary association of traders primarily from Warwick
Junction in
the central business district of Durban. TAC was formed
in 1996 to work with the Metropolitan Police in order to combat crime
frequently
encountered by traders and their customers. The applicant
is also the Deputy President of the Masibambasane Traders’
Association
(MTA) for street traders’ organisations whose aim
is to collectively advocate the rights of their members and concerns
on
matters affecting them and their businesses, including harassment
from the municipal officials. The Legal Resources Centre (LRC)

assists the applicant in these proceedings.
[6]
The applicant applies in his personal
capacity and as a representative in terms of s 38(c) and (d) of the
Constitution. He represents
the TAC, the MTA and street traders as a
class of persons. He also acts in the public interest. A party that
prefers litigation
as the means of social ordering instead of
resorting to use of power in a typically volatile economic sector
should be afforded
standing.
[7]
The first respondent is eThekwini
Municipality, an organ of state having executive and legislative
authority within its municipal
boundaries. It is responsible for
implementing its by-laws. The second respondent is the Member of the
Executive Council for Economic
Development and Tourism who is
responsible for the provincial administration of the
Businesses Act.
[8
]
The third respondent is the Minister of
Trade and Industry who is responsible for implementing the
Businesses
Act, the
enabling legislation that spawns the By-law. The third
respondent abides the decision of the court. The fourth respondent is
the
municipal police officer who impounded the applicant’s
goods. The legal representatives for the first respondent represent

her. She has not submitted an affidavit in her own right. Her
affidavit is merely confirmatory and in support of the affidavit

submitted for the first respondent.
[9]
The applicant issued a
rule 16
(A) notice
to the public setting out the grounds of its constitutional
challenge. Regrettably no
amicus
seeks to join the proceedings.
The
Evidence And Analysis
[10]
The applicant has worked in Bertha Mkhize
(formerly Victoria) Street since the 1990s.  Around 1996 he
secured a permit to trade
at the corner of Bertha Mkhize and Fish
Market Streets. The applicant sold plastic and rubber sandals for
adults and children.
Adult sandals cost him about R18 a pair. He sold
them for R25 to R30. Children’s sandals cost about R15 a pair.
He sold then
for about R20 to R25. He bought and sold the stock for
cash. Like most street traders he did not have credit facilities. His
profit
margin was small. In a week he earned approximately R300.
[11]
Traders have to pay a fee for their
permits. A street trading permit bears the photograph of the person
to whom it is issued. The
requirement that no one but the permit
holder may trade on the street inconvenienced the applicant and other
street traders seriously.
They were unable to leave their goods
unattended or attended by another person even temporarily whilst they
went out to purchase
new stock or even to feed and relieve
themselves. The indignity of this arrangement was addressed in some
ways when the first respondent
issued permits to assistants who
helped to manage the stall or table. Even though the By-law was
silent on the issue of assistant
permits the first respondent was
able to implement this arrangement as it implemented many other
initiatives favourable to street
traders.
[12]
On 6 August 2013 the applicant put out his
table as usual before 07h00 in order to attract business from the
commuters passing through
the station and the market. He left his
table to attend to matters on behalf of MTA. On his return his
assistant Mr Satalaza informed
him that he, Satalaza, was away
temporarily to purchase food from a supermarket about 20m away from
his table. He had left the
permits identifying the applicant and
himself with the neighbouring trader. The neighbour summoned him
urgently from the supermarket.
On returning to the table he found the
fourth respondent selecting sandals. She placed 25 pairs of new
sandals into a plastic bag.
She left behind old stock that had faded
as a result of exposure to the sun.
[13]
She
noted Satalaza’s details and issued him with a receipt for the
impounded goods. Although she had counted 25 pairs of sandals
the
receipt reflected ‘1 x b/bag of slops’. This receipt did
not inform Satalaza where the goods would be kept and
how he could
get them back as
s 35
of By-law prescribes.
[2]
She also issued Satalaza with a notice in terms of s 56 of the
Criminal Procedure Act 51 of 1977 (‘CPA’) informing
him
that he had contravened s 2 (h) of the eThekwini Metropolitan
Municipality (Central Transition of Metropolitan Substructure

Council) Street Trading By-law
[3]
(the
1995 By-law)
,
citing the offence as ‘illegal trading’. The notice
stated that he could pay a fine of R300 on or before 18 October
2013
or appear in the Durban Magistrates’ Court.
[14]
On learning that his goods had been
confiscated the applicant became extremely upset. As a law-abiding
citizen he struggled to earn
an honest living. He was aware of other
traders who had also had their goods confiscated. Traders used to
collect money from amongst
them or borrow from ‘loan sharks’
at exorbitant rates of interest to help the trader concerned to pay
the fine and
secure the return of his or her goods.
[15]
In support of the public interest nature of
the application the applicant cited other incidents in which the
first respondent’s
officials abused their powers. In
Veeron
Rambali
v
Ethekwini
Municipality
and
Others
case
no. 11162/09 (unreported) the first respondent was interdicted from
harassing, intimidating or otherwise interfering with informal
street
traders at the market and prevented officials from impounding goods
without an order of court.
[16]
Dhanraj
Puran, another informal trader in Bertha Mkhize Street, attested to
an affidavit
[4]
confirming that
on 20 June 2013 six pockets of his potatoes were impounded because he
traded at a table which extended beyond the
permitted trading area.
He was given a fine with the option of appearing in court on 12
September 2013. By that stage the potatoes
would have rotted. A fine
of R100 was more than he would have been able to outlay for the loss
of six pockets of potatoes. He ignored
the fine and did not attend
court. He was not informed as to what became of his potatoes. If they
were auctioned he was not informed
of what the proceeds were and what
happened to them.
[17]
The failure to account for impounded goods
opened the door to theft and corruption amongst police officers. In
about 2010 the LRC
reported a complaint of theft to the Broad Street
Police Station but heard nothing further about it since. Mostly,
attempts to
charge the police were unsuccessful as the police often
refused to accept such complaints against other policemen. So the
applicant
persisted.
[18]
On 25 June 2014 the applicant, assisted by
a candidate attorney of the LRC, noted the order of the Magistrates’
Court in which
it provisionally withdrew the prosecution at the
instance of the state and ordered that the impounded goods be
returned to the
accused (Satalaza/the applicant). The candidate
attorney attended with the applicant at the storage containers at the
Albert Park
Metro Police Station. She informed the attendant Maxine
Parry that the applicant wanted his goods that had been
‘confiscated’.
The attendant replied that she was ‘very
sorry’ as the goods had been ‘disposed of’. The
‘procedure’
followed was that all perishable goods
impounded from street traders were stored for two days and then
disposed of. Non-perishable
goods were stored for three or six months
and then sold on auction. As this time had elapsed the applicant’s
goods were no
longer available. Pressed she clarified that it was
disposed of in three months.
[19]
The first respondent denied that it
impounded the applicant’s goods unlawfully and in the manner
alleged by Satalaza. It relied
on the fourth respondent’s
evidence for its answering affidavit. In reply Satalaza produced an
affidavit attested to by the
fourth respondent in the criminal
prosecution against him as the applicant’s assistant. As
Satalaza pointed out, the two
versions of the fourth respondent
expatiated below differed materially as the underlined portions show.
[20]
In the opposing affidavit the evidence of
the fourth respondent was that on 6 August 2013 she was part of a
major operation by the
municipal police services. She was assigned to
the unit operating in Bertha Mkhize Street. When she got to the table
of the applicant
she found Satalaza manning the tables. She asked him
for the trader’s permit. Satalaza could not produce the permit.
He informed
the fourth respondent that the applicant had gone to the
toilet. The fourth respondent advised Satalaza that she would wait
for
the owner, the applicant. Satalaza left the table. After a while
a woman approached the fourth respondent to advise that the owner
had
gone to buy stock. The fourth respondent waited for about thirty
minutes for the owner who did not arrive. Satalaza returned
but was
unable to produce the permit. He asked the fourth respondent to wait
as the owner was on his way.
[21]
The fourth respondent had worked for the
first respondent for about two and a half years. During her time in
the unit dedicated
to the enforcement of the By-law she had learnt
some of the ‘tricks’ used by street traders to avoid law
enforcement,
e.g. claiming falsely that the owner had gone to buy
stock. Based on the conflicting explanations for the applicant’s
absence
from his table the fourth respondent decided to charge
Satalaza for contravening the By-law for illegal trading. After she
issued
the notice to appear in the magistrates’ court to
Satalaza the applicant emerged.
He
shouted at her. Others were aggressive towards her. As a result she
had to do whatever she could quickly to issue the receipt
for the
goods and impound them without listing each item, after ensuring that
Satalaza had counted them.
[22]
In her affidavit submitted in the criminal
prosecution of Satalaza, the fourth respondent stated that
she
had asked Satalaza to count and place the shoes in a black plastic
bag. Satalaza refused. She counted the shoes herself and
put them in
the plastic. About five to ten minutes after she wrote the summons
the owner arrived bearing the permit. However, as
she had already
issued the summons and as the Business Support Unit had directed that
if there was no permit at the table the person
there should be
charged even if the person bearing the permit came after the fine had
been issued.
[23]
Unsurprisingly,
the respondents produced no corroboration for the Business Support
Unit’s directive that is patently arbitrary.
The material
contradictions between the fourth respondent’s affidavits are
manifest. Was she intimidated or did she have
an opportunity to count
the goods? If she had been intimidated it would have been serious
enough for her to have mentioned it in
both her affidavits. In this
application she relied on the alleged intimidation as her explanation
for not issuing a detailed inventory
of the goods impounded.
[5]
[24]
In
contrast, Satalaza produced a detailed affidavit in reply, describing
fully how the impoundment occurred, even to the point of
specifying
where each person stood during the impoundment.
[6]
He specifically denied that the fourth respondent ‘ensured’
that he counted the impounded goods.
[7]
Additionally, Thokozani Lukhozi, a street trader herself,
corroborated him.
[8]
It was she
who produced the applicant’s permit to the fourth respondent.
[9]
In the result, even though
the fourth respondent was shown the permit, a fact she acknowledged
in her affidavit in the criminal
prosecution but denied in her
affidavit in this application, she nevertheless persisted in charging
Satalaza. Effectively, she
impounded the applicant’s goods even
though the applicant and Satalaza were trading lawfully. She failed
to account for the
goods she impounded. If it had been sold by public
auction as the applicant’s legal representative generously
speculated,
the applicant has not received the proceeds of the sale
less the impoundment fee as he is entitled to.
[10]
[25]
As a result of these contradictions the
fourth respondent’s evidence lacks credibility, is unreliable
and must be rejected
in so far as it conflicts with the evidence of
the applicant and Satalaza. Shockingly, she has said not a word about
what she did
with the applicant’s goods that she impounded.
Disappointingly, the first respondent did not disclose what steps, if
any,
it took to check her version and to get her to account for the
impounded goods. In view of her apparent mendacity and failure to

account for her conduct the applicant seeks an order directing that
she pay a portion of the costs of the application personally.
[26]
The first respondent also contended that
the permit applicant produced did not have a valid licence for his
assistant. It alleged
that the assistant’s permit had the
photograph not of Satalaza but of a woman. It called on the applicant
to produce the
original licence.
[27]
Satalaza took issue with the first
respondent’s patronising claim that it ‘agreed to the
street traders request to have
assistants who would stand in for
them’. This was not a gratuitous benefit extended by the first
respondent. The traders
had to pay R50 for an assistant’s
permit. As for disputing the validity of the permits issued to the
applicant and Satalaza,
Satalaza confirmed that the current permit
issued on 1 October 2013 to which the first respondent erroneously
referred was issued
to a woman assistant. He attached a copy of her
permit. His permit issued for 1 October 2012 to 30 September 2013 was
valid when
the goods were impounded on 6 August 2013. On expiry, his
permit was handed in to the first respondent’s Business Support

Unit that retained it. Consequently, neither the applicant nor
Satalaza could produce the original permit requested by the first

respondent.
[28]
This
challenge to the permits is surprising considering that the validity
of any permit should have been as a matter of basic administration
on
the records of the first respondent and therefore within its
knowledge.
[11]
Clearly, it is
an afterthought. In so far as the first respondent does not have
records of the permits it issues then it is an
indication of its
incapacity to administer street traders efficiently, a consideration
that should inform any reform of the By-law
discussed below.
[29]
Given
the contradictions in the evidence of the fourth respondent in this
application with her version in the criminal prosecution,
the
applicant should succeed in his quest for recovering his goods or
compensation for them.
The
Context
[30]
The facts above typify the abuse that
street traders suffer at the hands of the first respondent’s
officials, as attested
to by Caroline Skinner in her report titled
Street Traders in Durban – A
Review of Evidence
. Both parties relied
on the article by Caroline Skinner. The applicant attached an
affidavit from Skinner confirming the contents
of her article and her
qualifications. She is an academic and the Director of Urban Policies
Programme for the global research
policy network Woman in Informal
Employment: Globalising and Organising (WIEGO), and a senior
researcher at the African Centre
for Cities at the University of Cape
Town. She has a Masters of Science in Town and Regional Planning
(Development Studies) and
a Social Science degree.
[31]
For
more than a decade she focused on Warwick Junction and the Durban
inner city, interrogating the nature of the informal economy
with a
view to informing appropriate policy responses. In view of her
qualifications, her experience and the fact that both parties
rely on
her article, the court has no difficulty in accepting her findings
and conclusions expressed in the article. The applicant
relied
particularly on the following facts:
[12]
a)
In 1997 the first respondent commissioned a
census which found that there were approximately 19 303 street
traders in the city,
10 000 of whom operated in the inner city.
b)
A 2003 survey found that 88 per cent of
street traders were the sole bread winners in their families.
c)
Following its 2009 – 2010 census the
first respondent estimated that there were 49 739 street traders in
the city, the majority
of who averaged a profit of R300 per week and
supported families of about four to five people.
d)
Street traders have been harassed for over
a century. The Group Areas Act and the Black (Urban Areas)
Consolidation Act had disallowed
African people from accessing viable
trading points in the city and restricted them from trading in
townships.
e)
The Natal Ordinance prevented informal
traders from being within 100km of a formal business and from
occupying the same spot for
more than 15 minutes, after which they
had to move at least 25 metres away.
f)
Skinner
endorsed the opinion of other academic social commentators that until
the 1980s South Africa ‘fashioned and refined
some of the most
sophisticated sets of anti-street trade measures anywhere in the
developing world’ with hawkers subjected
to ‘a
well-entrenched tradition of repression, persecution and
prosecution’.
[13]
[32]
The
first respondent relied on Skinner to support the following
facts:
[14]
a)
In 1995 and 1996 foundations were laid for
integrating street traders into the city plan at Warwick Junction
Urban Renewal Project
which has come to be recognised as a good
example of such integration.
b)
Due to deregulation traders flocked to the
area so that by the mid 1990’s more than 4 000 street traders
had occupied the
area causing real concerns and perceptions that the
place was a crime and grime hotspot.
c)
The Warwick Junction Project was mandated
to focus on safety, cleanliness, trading and employment opportunities
and the efficiency
of the public transport.
d)
The officials of the first respondent
worked with the street traders to design appropriate infrastructure
to deal with potentially
hazardous trade such as cooking in public
places.
e)
The first respondent’s police
officers trained members of the TAC to alert authorities whenever
action was needed and to patrol
the trading areas.
f)
In November 1999 a technical task team was
formed to formulate an effective, inclusive, informal economic
policy. The policy dealt
with the management of the informal economy
relating to registration, site allocation, fees for operating and the
By-law. The policy
anticipated the provision of basic skills
training, legal advice, health education and help with accessing
financial services.
[33]
Indisputably, the first and second
respondents have uplifted the conditions in which street traders
operate. Skinner emphasises
that the first respondent made great
strides in protecting informal traders and ensuring that crime is
eliminated in the areas
in which they operate. However, she also
observes that officials of the first respondent persist in harassing,
intimidating and
unlawfully impounding their goods. Support for the
first the view that the first respondent has a tougher stance towards
street
traders emerges from the apparent differences between the 1995
By-law and the By-law discussed below.
[34]
In this case, the context in which Satalaza
was charged and the applicant was deprived of his property trigger an
enquiry into s
35 to determine whether it is constitutionally
compliant. The case is also in the interest of street traders as a
vulnerable group
and in the public interest, raising important
questions of constitutional law and statutory interpretation. It is
to these questions
that I now turn.
Businesses
Act 71 of 1991
[34]
Section 6A(1)
of the
Businesses Act 71 of 1991
empowers local
authorities to make by-laws to regulate informal traders. The
applicant challenged the constitutionality of
s 6A(1)(d)
, which
provides:
‘
A
by-law made under this subsection –
(i) may, for any
contravention thereof or failure to comply therewith, prescribe a
penalty of a fine or imprisonment for a period
not exceeding three
months;
(ii) may provide for
the removal and impoundment by an officer of any goods, receptacle,
vehicle or moveable structure –
(aa) which he
reasonably suspects is being used or intended to be used or has been
used in or in connection with the carrying on
of the business of
street vendor, pedlar or hawker; and
(bb) which he finds
at a place of where in terms of a by-law under subsection (1)(a)(ii)
or (iii), the carrying on of such business
is restricted or
prohibited or which, in his opinion, constitutes an infringement of
such by-law,
whether
or not such goods, receptacle, vehicle or moveable structure is in
the possession or under the control of any person at
the time of such
removal or impoundment.’
[35]
The applicant pitched his challenge to the
Businesses Act at
two levels:
a)
Although sub-sec (i) limits the term of
imprisonment to a period not exceeding three months it imposes no
limit on the fine. Consequently,
police officers have an unfettered
discretion to determine the amount of the fine regardless of whether
it is proportional to the
infringement.
b)
Subsection (ii) proffers no guidelines
about how ‘confiscated’ goods should be dealt with.
It
gives unfair discretion to police officers to remove and impound
goods of street vendors.
[36]
The applicant contended that any discretion
given to officials must be accompanied by clear guidelines without
which
s 6A(1)(d)
of the
Businesses Act is
in conflict with s 1(c) of
the Constitution in that it is inconsistent with the rule of law.
He  relied on
Dawood
and Another
v Minister
of Home Affairs
and Others
;
Shalabi and Another
v Minister of
Home Affairs
and
Others
;
Thomas
and
Another
v
Minister
of
Home Affairs
and Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC) to submit that:
‘
(I)f
broad discretionary powers contain no express constraints, those who
are affected by the exercise of the broad discretionary
powers will
not know what is relevant to the exercise of those powers or in what
circumstances they are entitled to seek relief
from an adverse
decision. In the absence of any clear statement to that effect in the
legislation, it would not be obvious to a
potential applicant that
the exercise of the discretion conferred upon the … officials
… is constrained by the provisions
of the Bill of Rights and,
in particular, what factors are relevant to the decision … .
If rights are to be infringed without
redress,
the very purposes of the Constitution are defeated.
[15]
I
agree that the lower the position of the decision maker in the
hierarchy of the administration, the greater the need for specificity

of the mandate because
‘
Officials
are often extremely busy and have to respond quickly and efficiently
to many requests or applications. The nature of their
work does not
permit considered reflection on the scope of constitutional rights or
the circumstances in which a limitation of
such rights is
justifiable.’
[16]
[37]
As
a general principle of legislative drafting the principal aim of
penal provisions must be to fix an appropriate maximum penalty
having
regard to the social implications of the offence, the profit to be
made from it, the possible need to impose a deterrent
sentence, the
likelihood of persons charged with such an offence being able to pay
a fine, and the reform potential of likely offenders.
Habitually
providing for imprisonment in all circumstances may be unnecessary
and unsuitable.
[17]
[38]
Another
principle is that statutory powers enabling officials to remedy
contraventions, remove hazards, or ameliorate disturbing
or dangerous
situations should state precisely the extent of the powers and the
circumstances in which they may be exercised. If
it is not practical
to particularise then the statute should specify that the powers
should be exercised consistently with the
purposes of the
legislation.
[18]
[39]
Similarly
legislation should also specify entry, search and seizure powers to
facilitate trouble-free exercise of such powers. Legislation
must
enable members of the public to understand the extent and conditions
of the powers so that they can assess whether officials
act within
the scope of the powers.
[19]
[40]
Legislation
permitting seizure of property should also provide for the return of
the property and payment of compensation in certain
circumstances. An
obvious circumstance will be if the seizure is
unreasonable
or the prosecution is discontinued
.
[20]
[41]
Manifestly
s 6A(1)(d)
of the
Businesses Act
does
not conform to these prescripts. The fact that it is deficient
in this regard does not necessarily render it unconstitutional if
the
deficiency is cured in subordinate legislation.
[42]
I
agree with the respondents that the provisions of
s 6(A)(1)(d)(i)
of
the
Businesses Act are
simply enabling and empowering,
[21]
a framework for further legislation. The wording of the subsection is
permissive and not peremptory.
[22]
It differs from s 25 of the Aliens Control Act 96 of 1991 at issue in
Dawood.
[43]
The
applicant’s concerns about sub-sec (i) not prescribing a
maximum fine can be addressed adequately in a constitutionally

compliant by-law. The imprisonment for up to three months indicates
what the amount of the fine should be. Not stipulating the
amount of
the fine finds precedent under ‘Offences and Penalties’
in
s 89
of the
National Road Traffic Act 93 of 1996
.
[23]
Whether there should be a term of imprisonment at all was not an
issue for the court to decide.
[44]
Regarding guidelines about the disposal of
goods impounded under s
6A(1)(d)(ii)
,
s 6(1)(b)
enables the Administrator of the
province to make regulations for this purpose. Therefore the two
grounds on which the applicant
challenges the legality of s
6A(1)(d)
of the
Businesses Act are
unfounded.
[45]
However,
a point
not taken by the applicant is that
s 6A(1)(d)
does
not provide specifically
for the return of
the property and payment of compensation. Nor does it enable
subordinate legislation to so provide. By stipulating
that disposal
and not the return of impounded property should be regulated the
Businesses Act might
be tipping the balance disproportionately in
favour of the administration and first respondent. Having regard to
the authorities
above it might also explain the lack of
accountability on the part of the first respondent and its officials
especially as the
1995 By-law was also silent on the return of
property. However, the By-law now provides for the return of
impounded goods. Whether
the By-law cures the deficit in the
Businesses Act is
a discussion for another day. As the applicant did
not raise this ground of challenge I take it no further for now.
[46]
Accordingly, on the submissions of the
applicant I find no flaw in
s 6(A)(1)(d)
of the
Businesses Act.
Section
7(2)(b) read with
s 2
of the 1995 By-law
[47]
Initially the applicant’s
constitutional challenge targeted the 1995 By-law, which applied when
his goods were impounded.
On 27 June 2014 the By-law was promulgated.
The applicant persisted with its constitutional challenge to
corresponding sections
in the By-law. Without objection it
successfully amended its pleadings accordingly.
[48]
The 1995 Bylaw enacted pursuant to
s 6(A)
of the
Businesses Act provides
for impoundment for certain
restrictions and prohibitions. It lists nine prohibitions against
street traders in
s 2(a)
to (i). Roughly, sub-secs (a) to (g) can be
grouped as absolute prohibitions against trading. Sub-sections (h)
and (i) prohibit
trading that fails to comply with legal formalities.
Sub-section (h)
prohibits a street trader from carrying on business as such without
being in possession of proof that he has hired
the stand or that the
second respondent has allocated it to him. Similarly, sub-sec (i)
prohibits trading in contravention of the
terms and conditions of the
lease or allocation of a stand.
[49]
The
distinction between absolute prohibitions against trading and
contraventions for failing to comply with legal formalities
originates
in
s 6A(1)(d)(ii)
which, in sub-sec (aa) above authorises
impoundment by an officer who reasonably suspects the goods are used
in carrying on the
business of a street vendor. Subsection (bb)
provides additionally that such business is restricted or prohibited
under sub-sec
(1)(a)(ii) or (iii). Subsection (ii) lists various
places at which the
Businesses Act prohibits
street trading
absolutely, e.g. in public parks, on verges contiguous to state
buildings, churches and monuments where, applying
sub-sec (iii),
trading causes obstruction to traffic and pedestrians; or, if the
goods sold on the verge contiguous to a building
in which goods sold
are of the same nature as the goods sold by the street vendor without
having obtained the consent of such business,
[24]
or the owner or occupier of a building used as residence objects.
[25]
None of these prohibitions and restrictions in the
Businesses Act
authorise
impoundment for non-compliance with the legal formalities
of street trading.
[50]
Section
7
of the 1995 By-Law provided for removal and impoundment for
carrying on a business prohibited in terms of
s 2(a)
to (g).
Impoundment under the 1995 By-law targeted only absolute prohibitions
against street trading.  As one of many contraventions
or the
failure to comply with the By-law, trading without proof of
permission to trade fell to be an offence, punishable on conviction

not with impoundment but by a fine or imprisonment not exceeding
three months
[26]
consistent
with the enabling
s 6A(1)(d)(i)
of the
Businesses Act.
[51
]
Other than issuing a receipt for the
impounded goods and delivering them to the ‘authorised
official’, the 1995 By-law
was silent on what should happen to
impounded goods.
Section 7(4)
indemnified officials against liability
for loss or damage to impounded goods.
Sections
35
and
39
of the By-law
[52]
Section
35(1)
of the By-law empowers officers to remove and impound goods of
an informal trader that the officer reasonably suspects is used in

informal trading which is in contravention of the By-law.
[27]
Section 11
of the By-law enabled by
s 6A(1)(c)
of the
Businesses Act
prohibits
as an offence informal trading on municipal property
without a permit. Topping the list of offences is trading without a
permit
specifically,
[28]
which
was neither a restriction or prohibition, nor an offence under the
1995 By-law. The By-law does not distinguish between trading
without
a permit and trading without being in possession of proof of a permit
as
s 2(h)
of the 1995 By-law did. The distinction between absolute
prohibitions and non-compliance with formalities is lost in the
By-Law.
All contraventions can result in impoundment.
[53]
Unlike
the 1995 By-law, the By-law specifies what should happen to impounded
goods. They must be kept at an address provided in
the receipt issued
itemising them.
[29]
They
may be released after proof of ownership is produced in the form of
the receipt issued by the officer when the goods
were impounded, and
upon payment of the impoundment fee.
[30]
Significantly the first respondent may at any time after the
impoundment sell, destroy or otherwise dispose of perishable goods
if
they represent a health risk or nuisance.
[31]
The municipality may sell non-perishable goods if the owner does not
pay the impoundment fee within one month from the date of

impoundment.
[32]
If the first
respondent sells the impounded goods then it must, on presentation of
receipt issued as proof of ownership, pay the
proceeds of the sale,
less the impoundment fee.
[33]
[54]
The
By-law distinguishes between impoundment and confiscation. If an
authorised official reasonably suspects an informal trader
is trading
in illegal goods then those goods may be confiscated immediately. The
authorised official must surrender the confiscated
goods to the South
African Police Service.
[34]
[55]
Section 39
provides that the first
respondent shall not be liable for damages arising from anything
lawfully done in good faith by its officials
in terms of the By-law.
[56]
Inconsistently
with
s 6A(1)(d)(ii)
s 35
of the By-law does not distinguish between
absolute prohibitions against street trading and contraventions
arising from non-compliance
with legal formalities. In contrast to
the 1995 By-law, which permits impoundment for contravening certain
restrictions and prohibitions,
[35]
s 35(1)
permits impoundment for all contraventions of the By-law and
any other law. The power to impound all the trader’s goods for

all contraventions could result in the By-law being harsher than the
1995 By-law which avoided impoundment for street traders who
did not
comply with the legal formalities for street trading.
[57]
As mentioned above, for contraventions for
which impoundment is permitted
s 6A(1)(d)(i)
of the
Businesses Act
imposes
a fine or imprisonment not exceeding three months, or both
such fine and imprisonment. Penalties for other contraventions are
marginally
higher. For instance,
s 5(1)
imposes a fine not exceeding
R1000 or imprisonment not exceeding three months or both such fine
and imprisonment for trading without
certain licences stipulated in
s
2(3)
of the
Businesses Act. Section
6(3) of the
Businesses Act
permits
regulations to prescribe penalties not exceeding a fine of
R1000 or imprisonment for three months for any contravention or
failure
to comply with the regulations.
[58]
Inconsistently
with
s 6A(1)(d)(i)
and the tenor of
ss 5(1)
and
6
(3) of the
Businesses Act, s
38 of the By-law imposes penalties of a fine not
exceeding R5 000 or imprisonment not exceeding 1 year, or both such
fine and imprisonment
for trading without a permit.
[36]
All other offences under
s 37(1)
of the By-law attract a lesser
penalty of a fine not exceeding R1 000 or six months imprisonment, or
both such fine and imprisonment.
[37]
A continuing offence attracts an additional fine of R150 or
imprisonment not exceeding 10 days, for each day on which such
offence
continues or both such fine and imprisonment.
[38]
None of these penalties are foreshadowed in the
Businesses Act, which
prescribes only a fine or imprisonment not exceeding three months for
all contraventions for which impoundment is authorised including

trading without producing a permit.
[59]
A
provision in a by-law that exceeds the powers of its authorising
statute is invalid.
[39]
In
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and
Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC) para 54 the Constitutional Court (CC) reminded:
‘
It
seems central to the conception of our constitutional order that the
legislature and executive in every sphere are constrained
by the
principle and they may exercise no power and perform no function
beyond that conferred upon them by law. At least in this
sense, then,
the principle of legality is implied within the terms of the interim
Constitution.’
[60]
Underpinning and supplementing where
necessary the common law principle of
ultra
vires
is the constitutional principle
of legality:
‘
In
relation to legislative and to executive acts that do not constitute
“administrative action”, the principle of legality
is
necessarily implicit in the Constitution.
[40]
[61]
The exercise of all public power must be
authorised by law. In
Democratic
Alliance
v
Ethekwini Municipality
2012 (2) SA 151
(SCA) the Supreme Court of Appeal remarked that the
act of a municipality in changing street names was executive action.
Although
not administrative action it nevertheless was not immune
from judicial review. Unequivocally the SCA pronounced:
‘
The
fundamental principle, deriving from the rule of law itself, is that
the exercise of all public power, be it legislative, executive
or
administrative – is only legitimate when lawful … This
tenet of constitutional law which admits of no exception
has become
known as the principle of legality.
[41]
[62]
Prima facie
s
35(1) of the By-law exceeds the mandate in
s 6A(1)(d)(ii)
of the
Businesses Act at
least in so far as it imposes impoundment for
non-compliance with legal formalities of street trading, in this
instance the alleged
failure to produce a permit or licence. Omitting
to distinguish between absolute prohibitions and non-compliance with
legal formalities
may result in
s 35(1)
of the By-law being
ultra
vires
s 6A(1)(d)(ii)
of the
Businesses
Act. Compounding
the prejudice resulting from the apparent
over-breadth of
s 35(1)
is the higher penalties imposed by
s 38
of
the By-law relative to
s 6A(1)(d)(i).
[63]
Section 38
of the By-law seems to exceed
the mandate in
s 6A(1)(d)(i)
of the
Businesses Act. Considerably
higher fines and terms of imprisonment may be imposed for
non-compliance with the legal formalities of street trading.
Potentially
s 38
may also conflict with of
ss 5(1)
and
6
(3) of the
Businesses Act.
[64
]
A finding that
s 35(1)
is
ultra
vires
s 6A(1)(d)
of the
Businesses Act
necessarily
leads to the further finding that anything done pursuant
to
s 35(1)
will automatically also be
ultra
vires
. All the subsections of
s 35
concerning impoundment (excluding sub-sec (9) dealing with
confiscation) will also be
ultra vires
.
[65]
Confirmation
of my
prima
facie
findings above can be dispositive of the entire application, but for
the fact that the applicant did not challenge the By-law on
the
ground that it was
ultra
vires
its empowering statute.  He attacked impoundment as a penalty
for failing to produce a licence on various constitutional grounds

discussed below. He cited
Fedsure
and
Democratic
Alliance
in the context of his legality challenge within the 1995 By-law
itself.
[42]
He did not
challenge the validity of
s 38
of the By-law. Nor did he shore up
differences between the 1995 By-law and the By-law. These
observations came to light after the
matter was argued. Hence none of
the parties debated the validity of the By-law as against the
Businesses Act. Neither
has the first respondent had an opportunity
to justify abandoning its distinction between absolute prohibitions
and non-compliance
with formalities, and the shift towards treating
street traders more harshly post 2014 than post 1995.
[66]
The validity of
s 35(1)
was always up for
determination. Not so in the case of
s 38.
Although I may decide the
validity of
s 35(1)
albeit for reasons not canvassed by the parties,
s 35(1)
links inextricably into
s 38.
Unavoidably the validity of
s
38
also has to be decided.
The
participation of the parties in deciding these issues is
indispensable to a properly reasoned outcome. Hence I take my
prima
facie
my findings no further.
Applicant’s
Rule of Law/ Principle of Legality Challenge
[67]
The fourth respondent issued Satalaza
(indirectly the applicant as his employer) with a written notice to
appear in the magistrates’
court under
s 56
of the CPA for
contravening
s 2(h)
of the 1995 By-law for the alleged offence of
‘illegal trading’ and imposed a fine of R300. As
discussed above,
s 7(2)(b)
expressly confined the power to remove and
impound street traders’ goods to sub-secs (a) to (g). A
contravention of sub-sec
2(h) fell beyond the powers of officers to
remove and impound the goods of a street trader.
[68]
Typically
a challenge to administrative action (which impoundment of street
vendors’ property is
[43]
)
would have to follow the procedure prescribed in
s 7
of Promotion of
Administrative Justice Act 3 of 2000 (‘PAJA’).
[44]
That procedure was dispensable in this case because all the
information relevant for determining the powers of the first and
fourth
respondents and whether they exceeded them were fully pleaded,
documented and common cause. To insist on the applicant complying

with s 7 would amount to preferring form to substance.
[69]
The same may not necessarily apply to the
applicant’s remaining administrative law challenge to the right
to a hearing before
administrative action is taken. Because the
applicant did not launch the review in accordance with s 7 of PAJA,
the respondents
did not plead to this challenge and objected to it
being raised. The applicant capitulated.
[70]
Like
the Pound Ordinance in
Zondi
,
s 35 is similarly silent about notice and hearing to the owner of the
removal and disposal of the property.
Zondi
applied
Transvaal
Agricultural Union v
Minister
of
Land
Affairs
and
Another
[1996] ZACC 22
;
1997
(2) SA 621
(CC) (1996) (12) BCLR (1573) which held that a right to
notice can be construed from the text of the statute.
[45]
The CC reminded of the relevance of notice as a prerequisite for
fairness before adverse decisions are made.
[46]
[71]
Although
s 35 does not expressly state the right to be heard before property
is impounded, such a right is implicit in any administrative

action.
[47]
Importantly, the
right to fair procedure is intrinsic to the limitation or deprivation
of all constitutional rights.
Zondi
observes:
‘
It is a
fundamental element of fairness that adverse decisions should not be
made without affording the person to be affected by
the decision a
reasonable opportunity to make representations.’
[48]
[72]
Deciding what form that hearing should take
requires the respondents’ participation. That the applicant did
not specifically
invite through s 7 of PAJA. Whether the interaction
before impoundment amounted to a hearing cannot be decided without
the respondents
having an opportunity to respond to the applicant’s
challenge that he was not heard.
[73]
The position after impoundment and before
the applicant’s property was disposed of is different. Whatever
form the hearing
should have been is of no moment if no hearing of
any kind was given to the applicant. It is common cause or not
disputed that
he was not afforded any hearing at that stage. The only
hearing occurred in the magistrates’ court in relation to his
criminal
prosecution after the property was disposed of.
[74]
Accordingly, I find that removing and
impounding the goods of the applicant was manifestly
ultra
vires
the powers of the first and
fourth respondents. The fourth respondent was not authorised by the
empowering provision in s 7(2)(b)
of the 1995 By-law to impound the
goods. Consequently, she violated s 6(2)(a)(i) of PAJA and the
principle of legality embedded
in s 1(c) of the Constitution. The
disposal of the applicant’s property without a hearing was
procedurally unfair and in
breach of s 6(2)(c) of PAJA.
The
Constitutional Challenges
[75]
My
task is infinitely easier following
Zondi
and
the cases cited there.
[49]
Zondi
was
an interdict to declare unlawful an ordinance that permitted straying
livestock to be impounded. The law on impoundment of street
trader’s
goods operates similarly as the ordinance did. In both instances, the
impoundment impacted on predominantly poor
landless Africans
[50]
whose only asset was their stock.
[51]
The impoundment was immediate.
[52]
At no stage was there intervention of a court or any independent
tribunal before the property could be impounded or disposed of.
Any
balance remaining after fees and expenses were paid had to be paid
over to the owner of the property or forfeited to the state.
[53]
The decision to impound and dispose of the property involved the
exercise of public power constituting administrative action.
[54]
The context, the impoundment law and the constitutional provisions
implicated in
Zondi
are similar to this case. Accordingly, I intend to apply
Zondi
to assess whether the By-law complies with ss 34, 25 and 9 of the
Constitution. Section 22 of the Constitution and those issues
not
covered in
Zondi
find adequate authority in other decisions of the CC.
[76]
Notwithstanding the similarities with
Zondi
justification for the By-law must be considered in the context of the
informal trade sector. If any conflict arises between the
By-law and
the Constitution and rights are limited the court will consider
justification at the end after all four constitutional
rights are
analysed. Although the applicant seeks orders regarding s 35 of the
By-law the main thrust of his challenge relates
to the impoundment
provisions of s 35 (1) to (8). Accordingly, I focus on impoundment.
Subsection (9) which permits confiscation
of illegal goods, is
similarly though not identically implicated. My findings and
conclusions will have to be appropriately adapted
to subsection (9).
Section
34: Access to Court
[77]
In
Zondi
the MEC raised the defence that the impugned provisions did not
prevent the owner of the impounded animals from approaching a court

at any stage during the removal and impoundment to secure the release
of the animals impounded unlawfully.
[55]
Furthermore the impugned provisions amounted to a justifiable
limitation under s 36(1) of the Constitution.
[56]
The CC struck down this defence unanimously declaring
[57]
that impoundment amounted to self-help of the kind that it had
already deprecated in
Chief
Lesapo
v
North
West Agricultural Bank
and
Another
[1999] ZACC 16
;
2000
(1) SA 409
;
1999 (12) BCLR 1420
(CC) in which the court stated the
following:
‘
The
effect of this underlying principle on the provision of
s
34
is that any
constraint upon a person or property shall be exercised by another
only after recourse to a court recognised in terms
of the law of the
land.
.
. .
Respect
for the rule of law is crucial for a defensible and sustainable
democracy. In a modern constitutional State like ours, there
is no
room for legislation which, as in this case, is inimical to a
fundamental principle such as that against self-help. This
is
particularly so when the tendency for aggrieved persons to take the
law into their own hands is a constant threat.
This
rule against self-help is necessary for the protection of the
individual against arbitrary and subjective decisions and conduct
of
an adversary. It is a guarantee against partiality and the consequent
injustice that may arise.’
[58]
[78]
Lesapo
and
Zondi
were
not the only cases in which the CC struck down self-help as bypassing
and usurping the powers and functions of the Court
.
[59]
Zondi
reiterated
the CC’s stance on s 34 of the Constitution as follows:
‘
Section
34 is an express constitutional recognition of the importance of the
fair resolution of social conflict by impartial and
independent
institutions. The sharper the potential for social conflict, the more
important it is, if our constitutional order
is to flourish, that
disputes are resolved by courts. As this Court said in
Lesapo
:
“
The
right of access to court is indeed foundational to the stability of
an orderly society. It ensures the peaceful, regulated and

institutionalised mechanisms to resolve disputes without resorting to
self-help. The right of access to court is a bulwark against

vigilantism, and the chaos and anarchy which it causes. Construed in
this context of the rule of law and the principle against
self-help
in particular, access to court is indeed of cardinal importance.”
’
[60]
[79]
The
CC found that on its own the power to impound was not a problem. The
problem arose when the power combined with other sections
to
‘effectively prevent disputes that could give rise to social
conflict from reaching the courts.’
[61]
[80]
In
this case s 35(1) of the By-law has a similar effect on its own and
when it combines with the power to remove and dispose of
the
impounded goods.
[62]
Section
35(1) permits an official to remove and impound goods upon the mere
suspicion, reasonably held, that the informal trader
has contravened
a provision in the By-law. Effectively, the street trader suffers
punishment and deprivation of her property before
a court of law has
determined her guilt.  As invasive as s 35(1) is impoundment may
nevertheless be a necessary measure in
the informal sector to curb
some contraventions. However, the difference between s 35(1) and the
impoundment of livestock is that
whereas trespassing livestock almost
always pose a physical threat necessitating impoundment immediately
to prevent harm, not all
infringements of the By-law harm the public
in a way that requires impoundment immediately or at all.
[63]
Section 35(1) is over-broad in that it permits impoundment for all
contraventions without differentiating between serious absolute

contraventions and less serious, formal non-compliances such as
trading without producing proof of a permit that do not pose a
threat
to the public.
[81]
What
happens after the impoundment contaminates s 35(1) further.
Compounding the prejudice of removing the street traders’

property without a hearing is the power of the first respondent’s
officials to sell, destroy or otherwise dispose of perishable
goods
and foodstuff not fit for human consumption.
[64]
Like
impounded livestock,
[65]
the
property of street traders is sold without notice to the owners and
the street traders and without a reserve price.
Non-perishable
goods are sold by the first respondent if the owner does not or
cannot pay the impoundment fee within one month of
the date of
impoundment.
[66]
Wastefully,
goods not sold are destroyed.
[67]
[82]
Concerning
the sale of a debtor’s property,
Zondi
reminds:
[68]
‘
This
protection [in s 34 of the Constitution] was held to extend to cases
where there is no dispute over the underlying obligation
giving rise
to attachment and execution. As the Court held, “[t]hat
protection extends to the circumstances in which property
may be
seized and sold in execution and includes the control that is
exercised over sales in execution.” This protection
is
necessary to ensure that the sale is conducted in a manner that
enables the debtor to recover the value of the property sold.
’
[83]
Although s 35(8)
entitles owners to the proceeds of the sale of goods less the
impoundment fee, the first respondent failed to give
notice of the
sale to the applicant and to inform him when the goods were sold and
that he was entitled to a refund. The applicant
was entitled to an
accounting if not a refund for his goods. But the attendant in charge
of the impounded goods did not make even
a pretence of checking any
records to ascertain what happened to his goods.
[84]
Although s 35(1)
confers a power to impound only, the first respondent’s
officials effectively confiscate the impounded goods.
The right to a
refund and to the return of the goods remains merely theoretical for
as long as the court proceedings are not finalised
before the goods
are disposed of. Even though the applicant was entitled to the return
of his goods after the magistrates’
court had directed the
first respondent to release them to him and such release became
impossible once the first respondent had
disposed of them, the first
respondent tendered no compensation for the goods to the applicant.
Only as a result of access to the
court via this application did the
applicant eventually elicit from the first respondent at the hearing
a possible tender of compensation.
The luxury of litigation is
not an option for every street trader whose property is impounded.
[85]
The impracticality of the scheme emerges
from the delays in finalising the criminal prosecution. The
magistrate withdrew the charges
against Satalaza on 25 June 2014
about ten months after the goods were impounded. By that time the
first respondent had disposed
of them. If they had been perishable
goods they would have been disposed of after two days.
Notwithstanding our constellation of
constitutional rights the
systemic obstacles in the dispute system design deprived the
applicant of an opportunity to recover his
goods before they were
disposed of. Having legal representation (unusual for street traders)
to recover the goods did not improve
his position either once the
goods were disposed of.
[86]
Similar
delays are foreseeable if a street trader pursues an internal appeal
and review in terms of s 62 of the Municipal Systems
Act 32 of 2000,
to which the first respondent pointed. Assuming that she is literate
and knowledgeable about s 62, she lodges her
appeal within the
prescribed 21 days
[69]
and the
Municipal Manager ‘promptly’ submits it to the appeal
authority.
[70]
The latter must
commence the appeal within six weeks and decide it within ‘a
reasonable period’.
[71]
By that time perishable and non-perishable goods would have been
disposed of. If a review were to follow, the resolution of the

dispute could be delayed further.
[87]
But for the assistance of the LRC and
similar aid organisations, this right of access to courts is
theoretical and illusionary for
street traders generally. Puran could
not pay the fine of R100 let alone engage legal representation to
refute the charges. Street
traders are required to be at their stands
for three to five days in a week according to an arbitrary rule of
the first respondent.
Being away also means loss of income. The
meagre income they generate goes to sustaining their large families.
Employing legal
assistance is not realistic. Reform of the dispute
system design in the informal sector should take this into account.
[88]
Just
as in
Zondi
,
the scheme of the impoundment provisions in the By-law precludes
judicial intervention from start to finish.
[72]
Such a scheme ‘
remove(s)
from the court’s scrutiny one of the sharpest and most divisive
conflicts of our society.’
[73]
Street
traders are similarly situated to the African owners of livestock and
all other Africans whose systematic impoverishment
and powerlessness
are traceable to their loss of land before and after 1913. Skinner
contextualises street trading historically
with land deprivation;
apartheid finally perfected deprivation under the Group Areas Act and
the Black (Urban Areas) Consolidation
Act.
[74]
[89]
Disappointingly
therefore the first and second respondents resurrected the same
defence against the breach of s 34 challenge in
this case as the MEC
did in
Zondi
.
The first respondent pointed to the offences in s 37 and the penalty
provisions in s 38 for access to the courts via the CPA and
the
internal appeal in s 62 of the Municipal Systems Act above. Street
vendors are not precluded from approaching a court at any
stage of
the removal and the impoundment process to secure the release of the
goods as Satalaza did to secure the release of the
applicant’s
impounded goods, the respondents persisted disingenuously.
[75]
[90]
Impoundment is a necessary measure for
absolute prohibitions against street trading, that is, those that are
a direct and immediate
threat to the public. Not all contraventions
of the By-law can validly result in impoundment, as the 1995 By-law
and the
Businesses Act recognise
.
[91]
Accordingly,
I
find that
s 35
of the By-law limit the right of access to courts in s
34 of the Constitution in so far as:
a)
the impoundment and disposal of the
street traders’ property for alleged non-compliance with the
legal formality of producing
a licence or permit to trade; and
b)
indiscriminate disposal of the
street traders’ property for non-compliance with any
restriction or prohibition or contravention
are not supervised by a
judicial officer or any other independent, impartial tribunal whose
function includes resolving disputes
between street traders and the
first respondent.
Section
25 of the Constitution
[92]
Two cases relied on by the applicant
namely,
First National Bank of SA t/a
Wesbank
v
Commissioner of
South African Revenue Service
and
Another
[2002] ZACC 5
;
2002
(4) SA 768
(CC) para 61 reaffirmed in
Mkontwana
v
Nelson Mandela Municipality
2005
(1) SA 530
(CC)
,
assist in interpreting and applying s 25 of the Constitution, which
provides:
‘
No
one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation of

property.’
[93]
First
National Bank
considered
the definition of ‘deprived’, ‘deprivation’
and ‘arbitrary’ in section 25(1). Deprivation
means
dispossessing an owner of all its rights, use and benefit to and of
corporeal moveable goods.
[76]
Threats of expropriation and ‘forceful bargaining’ do not
amount to deprivation.
[77]
[94]
An
extensive survey of foreign jurisdictions in
First
National Bank
showed
that deprivation of property depended for its validity upon there
being an ‘appropriate relationship between means
and ends’,
a relationship that is ‘not limited to an enquiry into mere
rationality, but is less strict than a full
and exacting
proportionality examination’.
[78]
Fortified by foreign law the CC concluded that a law of general
application is ‘arbitrary’ if it does not provide
sufficient reason for the deprivation or is procedurally unfair.
[79]
Rationality calls for an evaluation of the purpose of the
legislation, the nature of the property and the reason for the
deprivation.
[80]
In some
cases it might be no more than a mere rational relationship between
means and ends; in others it might only be established
by a
proportionality analysis akin to s 36(1) of the Constitution.
[81]
Mkontwana
expatiates:
‘
A
mere rational connection between means and ends could be sufficient
for a minimal deprivation. However, the greater the extent
of the
deprivation the more compelling the purpose and the closer the
relationship between means and ends must be.’
[82]
[95]
The
instrumentality of property in the commission of an offence is not
sufficient to justify deprivation of property.
[83]
The deprivation must also be proportional taking into account the
nature of the property, the effect of deprivation on its owner
and
the nature and extent of other penalities.
[84]
Removing goods from street traders and placing them with the first
respondent without the consent of the owners constitutes deprivation

of property. Is the deprivation by impoundment arbitrary?
[96]
To
deprive street traders of their property permanently, s 35 of the
By-law has to overcome additional hurdles of fair procedure,

rationality and proportionality to be valid
.
[85]
In the context of street
traders procedural fairness would require notification to the owners
that they are accused of a breach
of the By-law before their goods
are impounded and disposed of. As shown in the discussion on s 34 of
the Constitution above, s
35 of the By-law does not impose any
obligation upon the police to give any notice. None of the
respondents pointed to any measures
in place to afford street traders
a hearing other than litigation after the property is impounded and
usually after it is disposed
of. If notice is not practical prior to
impoundment, this is not so as regards notice before disposing of
property. Furthermore,
because notice before impoundment may not
always be practical and because it is so invasive it should be
reserved for the most
serious violations. Whatever the purpose is if
the deprivation is permanent, there must be procedural fairness
however attenuated.
[86]
Manifestly the dispute system design in s 35 is incapable of giving
effect to the right to procedural fairness before a street
trader is
deprived of her property permanently.
[97]
The
purpose of the deprivation should also be compelling. The purpose of
the deprivation, in this instance to compel the applicant
to produce
a licence or permit, is not sufficiently compelling to render the
deprivation rational in the constitutional sense of
the means being
proportional to the ends.
A
‘restricted proportionality’ standard balances the public
interest with the property interests of the street traders.
[87]
Deprivation of their property is so invasive of their property
rights that it impacts on the welfare of the street traders
and their
large families. For most the impounded goods are their only assets
and means to a meal. Impoundment is therefore serious
irrespective of
the commercial value of the goods.
Deprivation
also impacts on their identity and dignity as people with property,
however little that is.
On
the facts of this case the deprivation was permanent, without notice
and without compensation even though the charges against
Satalaza
were withdrawn. For Puran, recovering his six pockets of potatoes was
not possible because they would have perished and
been disposed of in
a few days.
[98]
However,
I
found above that s 35 of the By-law violates s 34 of the
Constitution. As will be shown below it violates other rights in the

Bill of Rights. R
ationality,
which requires at a minimum that s 35 of the By-law be capable of
achieving its intended objectives
[88]
is
not even engaged.
[99]
Accordingly, I find that s 35 of the By-law limits the right of
access to property in s 25 of the Constitution in that:
a)
the impoundment and disposal of the
street traders’ property for alleged non-compliance with the
legal formality of producing
a licence or permit to trade; and
b)
the indiscriminate disposal of the
street traders’ property for non-compliance with any
restriction or prohibition or contravention
are irrational and give
rise to arbitrary, deprivation of property of street traders.
Section
22: Freedom of trade, occupation and profession
[100]
The applicant contended that impounding goods for failing to produce
a permit violated s 22 of the Constitution, which accords
to every
citizen the right to choose their trade, occupation or profession
freely. A limitation of this right was spelt out in
S
v
Lawrence
,
S
v
Negal
,
S
v
Solberg
1997 (4) SA 1176
(CC) para 34.  Implicit in this right is the
obligation upon traders to act lawfully.
[89]
Regulators and law enforcers also have obligations to pass and
enforce laws that are rational and justified. Are the impoundment

provisions in
s
35 of the By-law consistent with the right to freedom of trade in s
22 of the Constitution?
[101]
Having found that s 35 arbitrarily deprived
street traders of their property it follows that such deprivation
also impairs their
right to trade. When goods are impounded and the
impoundment becomes permanent, as it does when the goods are
destroyed, perished
or sold on auction, the right of informal traders
to exercise their freedom to trade is annihilated temporarily and
even permanently
if they have no other resources to resurrect their
trade. Confiscation can result in shutting down trade altogether and
not merely
regulating it.
[102]
Accordingly, I find that s 35
of the By-law
limits the right to trade in s 22 of the
Constitution.
Section
9 of the Constitution: Equality
[103]
The applicant contended that s 35
constitutes discrimination under s 9(3) of the Constitution on the
listed ground of race and the
analogous ground of socio-economic
status. The purpose and effect of allowing the goods of street
traders to be impounded and confiscated
is particularly harsh on
black people who eke out a living through trading in the streets.
Street traders historically have
been a vulnerable group as evidenced by the report of Skinner.
Furthermore, the state ‘confiscates’
the goods of
informal traders who trade without a licence but not the goods of
other traders.  So it was submitted for the
applicant.
[104]
The first respondent’s heads of
arguments and supplementary heads of argument do not address the two
grounds of discrimination
relied on by the applicant. Instead, it
denied that section 35 of the By-law was discriminatory because
differentiating in legislation
and administration is common practice
in a modern state; differentiation is an element at the heart of
equality jurisprudence.
Counsel for the first respondent criticised
the applicant for making the bald allegation that section 35 of the
By-law differentiates
informal traders from other forms of trading
without permits without laying a factual or legal basis for a
comparison between the
informal and formal traders without permits.
[105]
Comparison
between formal and informal traders was not the main thrust of the
applicant’s discrimination complaint. Race and
socio-economic
status were his chosen grounds of discrimination. Implicitly the
comparators were poor mainly African people compared
to all others
who were not poor. He singled out formal trading to show that the
authorities favour mainstream enterprises over
informal traders.
Mainstream enterprises were the ‘haves’; street traders
were the ‘have nots’, a distinction
made in
Zondi
[90]
.
The applicant was less concerned about comparators. He relied more on
the impact of s 35 on historically disadvantaged black,
mainly
African people marginalised to the fringes of society.
[106]
Comparison and the choice of comparators
are tools employed in discrimination analysis. However, a cursory
survey or the cases shows
that
the
CC is selective about whether, when and what comparators it relies
on.
[107]
Harksen
set
up the three-stage test for discrimination in our jurisprudence.
[91]
The test begins with establishing difference.
Not
every differentiation amounts to discrimination.
[92]
Establishing
difference, choosing grounds of discrimination and identifying
comparators conduce to the outcome in discrimination
analysis.
[93]
For instance, the choice of the ground of discrimination determines
where the onus lies. The minority
in
Harksen
who
identified marital status as the ground of discrimination
when
it was not listed as such in the 1993 Constitution and therefore not
presumed to be unfair would have enjoyed an advantage
under the 1996
Constitution when marital status was listed as a ground of
discrimination and presumed to be automatically unfair,
thus shifting
the onus to the other party to prove that it is fair.
[108]
In
Larbi-Odam
and Others v Member of the Executive Council for Education
(North-West Province) and Another
[1997] ZACC 16
;
1998 (1) SA 745
(CC) para 19 the CC used comparison to diagonose the
ground of discrimination to be citizenship.
Van
Der Merwe v Road Accident Fund and Another (Women's Legal Centre
Trust as Amicus Curiae)
[2006] ZACC 4
;
2006
(4) SA 230
(CC) was decided by the CC declining to choose marital
status or any other ground of discrimination. It focused on the
unfair impact
of the impugned law on the affected group.
[94]
President
of the Republic of South Africa and Another v Hugo
1997
(4) SA 1
(CC) reinforced impact as follows:
‘
To
determine whether that impact was unfair it is necessary to look not
only at the group who has been disadvantaged but at the
nature of the
power in terms of which the discrimination was effected and, also at
the nature of the interests which have been
affected by the
discrimination.’
[95]
[109]
MEC
for Education, Kwazulu-Natal, and Others v Pillay
[2007] ZACC 21
;
2008
(1) SA 474
(CC) raised for the first time in the CC the question
whether comparators are dispensable. As it happened, the CC found a
comparator
and so avoided answering the question.
[96]
Differentiation reared its head in the LAC in
South
African Police Service v Solidarity obo Barnard
[2013]
1 BLLR 1
(LAC)
at
para 22. Even though the LAC found no evidence of overt
differentiation in the conventional sense of
Harksen
it accepted without deciding that it is possible to discriminate when
differentiation is not in issue.
[97]
[110]
The affirmative
action analysis introduced in
Minister
of Finance and Another v Van Heerden
2004 (6)SA p139
para
39 reminds:
‘
The
starting point of equality analysis is almost always a comparison
between affected classes. However, often it is difficult,

impractical or undesirable to devise a legislative scheme with
'pure' differentiation demarcating precisely the affected
classes.
[111]
Zondi
at
para 90-91
acknowledged the interconnectedness
of
purpose and effect:
‘
A
statute can be held to be invalid either because its purpose or its
effect is inconsistent with the Constitution. … The
effect of
legislation is relevant to show that although the statute is facially
neutral, its effect is unconstitutional. This will
be the case where,
for example, the legislation has a discriminatory impact on a
particular racial group.
Of
course purpose and effect are interrelated.’
[112]
Harksen
[98]
concluded:
'The
test of unfairness focuses primarily on the impact of the
discrimination on the complainant and others in his or her
situation.'
[99]
Impact
analysis applied in
Hoffmann v South
African Airways
2001 (1) SA 1
(CC)
2001
(1) SA p1
and
Moseneke And Others v The
Master And Another
2001 (2) SA 18
(CC)
without mentioning comparison or comparators.
[113]
In
short, the CC selectivity about whether, when and what comparators it
relies on injects flexibility in the nascent stages of
our
jurisprudence, a welcome difference from Canada.
[100]
In its formative jurisprudence the Supreme Court of Canada used
comparators as an indispensable tool, at times with unsatisfactory

results.
Withler
v Canada
2011 (1) SCR 396
para 54-66 responded to the critics and weaknesses
inherent in insisting on comparing the claimant group with a mirror
comparator
group by abandoning this approach in favour of a flexible
approach to conclude:
‘
A
rigid template risks consideration of irrelevant matters … or
overlooking relevant considerations...’
[101]
[114]
Particularly pertinent to this case is
Pretoria City Council v Walker
[1998] ZACC 1
;
1998 (2) SA 363
(CC).  Race was the listed ground of
discrimination thus shifting the onus to the Council to prove that
the discrimination
was not unfair. The Council had used different
utility tariffs for black and white residents and exempted black
defaulters from
legal action for non-payment of utilities. Arising
from the choice of race as the ground of discrimination the
comparators were,
on the one hand, mainly black residents of
historically black townships, and on the other hand, mainly white
residents in historically
white municipalities. The minority
persisted that the differentiation was based on
‘
objectively
determinable characteristics of different geographical areas, and not
on race.
’
[102]
The
majority disagreed saying:
‘
To
ignore the racial impact of the differentiation is to place form
above substance.’
[103]
In
the South African context race discrimination, often indirect as in
Walker
and in this case, cannot be ignored. The CC had to respond to race as
the chosen ground of discrimination.
[104]
Another ground of discrimination the CC could have recognised was the
relative socio-economic status of the black townships
to the white
suburbs.
[115]
Street
traders are such because of their socio-economic status. Not only
Africans and other black people are street traders. White
street
traders may also be discriminated on the ground of their
socio-economic status. Facially the By-law is racially neutral.

However, apartheid layered poverty over race. The degree of
coincidence or intersectionality of race with socio-economic status

results in the greatest impact being on Africans.
[105]
As the population group with the largest component of poor people the
impact is deeper and more expansive than on any other race
group.
Race and socio-economic status are cemented together tightly though
not inextricably.  Democracy and affirmative measures
have
helped to unravel the bond progressively. However, race and
socio-economic status continue to intersect. As street traders
their
discrimination is ostensible and direct on the grounds of their
socio-economic status. However, subversively and indirectly
race
remains an additional ground of discrimination in appropriate
instances. Recognising socio-economic status as the direct and

primary ground includes everyone who is poor and a street trader,
irrespective of race, gender, ethnic origin, age or any other

potential ground of discrimination. Recognising race acknowledges
that for black people and Africans in particular discrimination
is
doubly compounded.
[116]
In
Zondi
the CC found the provisions entitling landowners and voters to access
to damages for trespassing was ‘manifestly and fundamentally

racist in its purpose and effect
’
;
they amounted to discrimination on the listed ground of race.
[106]
With this finding it did not go further to consider whether the
impoundment itself also had a discriminatory purpose and effect,

which is an issue this court has to decide in this case.
[117]
Against these
authorities the impact of s 35 of the By-law must be investigated to
determine whether it discriminates against street
traders on the
pleaded grounds of race and socio-economic status as a result of
their historical disadvantage as poor black people.
[118]
The By-law aims
specifically to regulate street traders differently from other
traders. The preamble reads:
‘
Whereas
the council recognises the key role that informal trading plays in
poverty alleviation, income generation and entrepreneurial

development and, in particular, the positive impact that informal
trading has on historically disadvantaged individuals and
communities’.
[119]
It
outlines its altruistic aim of promoting social and economic
development. To this extent the By-law amounts to a remedial
measure
[107]
to facilitate
opportunities that street traders would not otherwise have in the
conventional commercial world. However, countervailing
considerations
of public health and safety compel the first respondent to restrict
street trading in various ways. Issuing licences
to street traders is
the primary means of controlling street trading. Prescribing when,
where and what may be traded are also standard
means of regulating
the sector.
[120]
The social context in which the
scheme of the By-law applies is one in which:
‘
poverty
and illiteracy abound, where most persons who have been injured are
either unaware of or poorly informed about their legal
rights and
what they should do in order to enforce those and where access to the
professional advice and assistance that they need
so sorely is often
difficult for financial or geographical reasons.’
[108]
[121]
Although
the CC had made these observations in 1996 and earlier in
Zondi
,
[109]
Skinner’s account in
Street
Traders in Durban – A Review of Evidence
confirm that they remain valid today. According to Skinner street
traders in the Durban Metropolitan area are primarily indigent
black
Africans. They often face harassment and victimisation at the hands
of the police. The police take away their permits, steal
their stock
and sometimes teargas and physically abuse them. Policy improvements
after 1994 have since regressed as a result of
the failure to pass
constitutionally sound policies.
[110]
[122]
Self-evidently my findings above in
relation to other contraventions of the Constitution and my reasons
for them inform my discrimination
analysis. The effect of s 35 is to
deny street traders access to courts in terms of s 34 of the
Constitution, to deprive them of
their property permanently without
compensation or accounting in contravention of s 25 of the
Constitution, and to prevent and
impede them in exercising their
right to trade in terms of s 22 of the Constitution. Cumulatively and
individually the limitation
of these rights compounds the prejudice
upon a race and socio-economic group already adversely impacted by
poverty.
[123]
It
was submitted that s 35 of the By-law imposed fines for a criminal
act and was therefore no different from fines imposed under
the
National Road Traffic Act 93 of 1996
.
[111]
The obvious difference between drivers and owners of vehicles on the
one hand and street traders on the other hand is that the
former are
not usually acknowledged as being economically vulnerable as the
latter are. Furthermore, drivers do not have their
vehicles impounded
for failing to produce their licences. They are merely issued with a
fine. Contrary to the respondents’
expectations this comparison
goes to support the applicant’s stance that issuing a fine and
not impoundment is a more appropriate
remedy.
[124]
The power of the
first respondent to remove, impound and dispose of informal traders’
goods in
s 35
of the By-law discriminate against street traders as
members of
a depressed
socio-economic class
and
not any other group. Street traders are such because their
socio-economic status or race or both are barriers to better
opportunities.
Effectively, the impoundment provisions compound their
historical disadvantages.
Notwithstanding
the altruistic aims of
s 35
of the By-law and although it is facially
neutral its effect is to discriminate directly and indirectly against
poor and mainly
African people.
[125]
Accordingly, I find that
s 35
of
the By-law
amounts to discrimination
under s 9 (3) of the Constitution.
Applicant’s
section 39 attack
[126]
Section 39 of the By-law reads:
‘
The
municipality shall not be liable for damages or compensation arising
from anything lawfully done in good faith by it or any
authorised
official or employee thereof in terms of this By-law.
’
This
indemnity is similar to others that usually feature in legislation
involving state action.
[112]
It is a necessary provision to enable the State to perform its
functions without the risk of liability under the common law.
However,
Carmichele
urged
that the Constitution imposes obligations on the courts to develop
the common law.
[113]
[127]
In passing I note that s 39 appears to be
another instance of the By-law being more austere than its
predecessor. The 1995 By-law
which read as follows, was limited to
loss arising from impoundment:
‘
Clause
7(4) neither the council nor a councillor, official, officer or
employee of the council shall be liable for any loss or any
damage to
any goods removed or impounded in terms of this section.’
Accordingly,
I find that s 39 of the By-law is a limitation on constitutional
rights
such as the s 11 right to
life, the s 12 right to security of person, the freedom to trade, the
right to property and possibly even
the right to equality.
Justification
[128]
Given
the intersectionality of constitutional rights, justification of
limitations on all the rights is considered together. Are
the
impoundment provisions justifiable limitations
[114]
of the rights in ss 34, 25, 22 and 9 of the Constitution?
[129]
Zondi
pointed
out that once the livestock was impounde
d
the need for immediate action
passed.
[115]
Consequently
there was no reason why the courts should not supervise the
execution.
[116]
[130]
On the question of whether execution and
disposal of the stock amounted to a justifiable limitation under s
36(1) of the Constitution
Zondi
again emphasised:
‘
The
right of access to courts is an aspect of the rule of law. …
[which] is one of the foundational values on which our constitutional

democracy has been established. In a constitutional democracy founded
on the rule of law, disputes between the State and its subjects,
and
amongst its subjects themselves, should be adjudicated upon in
accordance with law. The more potentially divisive the conflict
is,
the more important that it be adjudicated upon in court. That is why
a constitutional democracy assigns the resolution of disputes
to “a
court or, where appropriate, another independent and impartial
tribunal or forum”.
’
[117]
[131]
Street traders should not be as restricted
as the owners of trespassing livestock. Unlike trespassing animals
that are an inherent
danger to humans and other property,
non-compliance with the legal formalities of street trading such as
trading without producing
a permit are not such immediate threats.
There is no justification for impounding the goods of street traders
for non-compliance
with the legal formalities of street trading.
[132]
Just
as impounding of livestock is open to abuse by landowners and works
hardships against African stock owners
[118]
so too does the impoundment of street traders’ stock. Neither
control the price at which their stock is sold on auction.
For both,
in most cases, the property is their only asset or livelihood. Access
to cash and credit from banks to pay impoundment
fees and exorbitant
fines is non-existent or not available on affordable terms. And so
the cycle of poverty continues throughout
the generations.
[119]
[133]
Impoundment in s 35 of the By-law amounts
to self-help by the first respondent’s officials. Self-help and
abuse of power do
not justify the limitations on the rights in ss 34,
25, 22 and 9 of the Constitution of the street traders specifically
of those
who fail to produce a licence. Whilst impoundment may be
justified in the circumstances recognised in
s 6A(1)(a)(ii)
and (iii)
of the
Businesses Act, disposing
of the impounded goods without
notice and accounting cannot be so. Impoundment could also trigger
self-help by the street traders
if the dysfunctionality of the
dispute system design frustrates their attempts at peaceful means of
resolving conflict.
[134]
Impounding the goods is not the only way in
which street traders can be compelled to trade lawfully. There are
less restrictive
measures to limit the rights of street traders such
as imposing fines, progressively heavier for repeat offenders,
without annihilating
their rights altogether.  The limitations
in
s 35
of
the By-law are disproportionately harsh in relation to the nature of
offences that amount to non-compliance with legal formalities.
[135]
Provisions
similar to
s 39
of the By-law are premised on officials acting
honourably and in the public interest. Anything done by the state
must be lawful
and in good faith for the indemnity to operate.
[120]
The
conduct of the fourth respondent with the first respondent apparently
endorsing her lack of accountability does not inspire
confidence that
the first respondent’s officials act honourably at all times
towards street traders. Proving bad faith and
unlawfulness on the
part of the impounding officer is a near impossibility when the
police refuse to even accept complaints against
their colleagues. The
nature of the sector is such that unless officials are oriented to be
empathetic towards street traders,
the risk of powerful officials
mistreating powerless poor people is real. Under these conditions an
exemption from liability for
damages and compensation is an unhealthy
disincentive to act fairly, reasonably and empathetically towards
street traders. Notwithstanding
the flagrant violation of s 195 of
the Constitution, which obliges public services to be professional,
ethical and accountable
the first respondent remained inert. If the
respondents wish to retain s 39 of the By-law they must not only
bring s 35 in line
with the
Businesses Act but
also remedy the
attitude of the first respondent’s officials to eliminate flaws
in the implementation of the By-law.
[136]
Individually and cumulatively the
limitations on constitutional rights have the effect of repressing
street traders to remain a
poor and an economically oppressed class.
This discriminatory effect is inconsistent with the altruistic aims
articulated in the
preamble to the By-law, the
Businesses Act and
the
constitutional values of dignity, equality and freedom.
[137]
Accordingly, I find that:
a)
s 35
By-law
unjustifiably limits ss 9, 22, 25
and 34 of the Constitution.
b)
s 39 of the By-law is unjustified and
unlawful for as long as s 35 remains unjustified and unlawful.
The
remedy
[138]
Our dispute system design is such that it
proffers only litigation as the state sponsored means of resolving
disputes about constitutional
matters, leaving it to the courts in
cases like
Port Elizabeth Municipality
v
Various
Occupiers
2004 (12) BCLR 1268
(CC) and
Occupiers
of 51
Olivia Road
,
Berea Township and
Others
v
City of Johannesburg and Others
[2008] ZACC 1
;
2008
(5) BCLR 475
(CC) to direct litigants to ‘engage meaningfully’.
Engagement occurs after much costs and acrimony has been incurred.

This application is a consequence and reflection of the deficiency in
our dispute systems design. It exposes the scheme of the
By-law as
being incapable of giving effect to important constitutional rights
and values.
[139]
Compelling
a different dispute system design is the nature of the informal
sector.
In
the light of binding precedents from the CC in
Zondi
and
other cases compulsory facilitation or mediation could have resolved
the applicant’s claim for compensation and kick-started
a
process of meaningful engagement about the impoundment provisions. In
Occupiers
of
51
Olivia
Road
the CC encouraged meaningful engagement
before
litigation.
[121]
After
litigation commenced it remained the best option for the parties to
address the dysfunctional aspects of impoundment and
the legitimacy
of the penalties. Why no meaningful engagement occurred in this
dispute must have its roots in our adversarialism
cultivated by
litigation being the only form of state sponsored dispute
resolution.
[122]
[140]
The dispute
system design should also seek to reduce the administrative burden of
preserving, disposing and accounting for impounded
goods.
In
the case of the applicant’s goods the first and fourth
respondents failed to account for them altogether.  This raises

questions not only about the purpose and effect of the impoundment
provisions but also about the first respondent’s capacity
to
administer them in a constitutionally compliant way.
[141]
Counsel
for the first respondent included in his bundle of authorities the
London Local Authorities Act 2012 (the London Act) to
support his
submission that street trading is similarly regulated in London. This
is not accurate. The London Act provides in elaborate
detail for
notice and hearings before a court of law before property seized is
disposed of or returned.
[123]
In the case of street traders in eThekwini the first respondent has
to determine what form the notice and hearing in each instance
would
take. Notice and a hearing (if any) before impoundment will
predictably be considerably more attenuated than notice and a
hearing
before execution.
[142]
Although my
findings and conclusions pertain to impoundment specifically in s
35(1) to (8), they also implicate confiscation of
illegal goods in
subsection (9) in some respects. However, trading in illegal goods is
an absolute prohibition. Whether goods are
illegal could be an issue
for which access to court should be allowed before a street trader is
permanently deprived of his property
and the right to trade. Any
reform of the By-law should adapt my findings and conclusions
appropriately to apply to the confiscation
of goods.
[143]
Any reform of the By-law towards a
functional dispute system design should factor in capacity
constraints.
The
applicant’s proposal that for the contravention of failing to
produce a licence or permit and other less serious, formal

infractions the impoundment provisions be deleted and substituted
with a fine could reduce the administrative burden of removing,

preserving and disposing of impounded goods. Capacity constraints on
street traders to secure legal representation and to litigate
before
their goods are disposed of, compels a more accessible and
expeditious dispute system design.
[144]
The facts in
this case show that the remedy for eliminating the flaws in the
implementation of s 39 of the By-law lies in the first
respondent
managing its officials effectively. Failing to account as the fourth
respondent did and contradicting herself on affidavit
must be treated
as misconduct and possibly criminal offences such as perjury and
theft of the impounded goods. Without a firm hand
on officials who
misbehave, conflict with street traders will persist as respect for
law enforcers wanes.
[145]
The order I make aims at
facilitating meaningful engagement and enabling the parties to return
to the court for assistance to overcome
deadlocks during their
engagement on the issues raised in this judgment.
Amending
the By-law to curtail the power of officials to impound and
confiscate property, to substitute impoundment with fines and
to
bring judicial or similar independent scrutiny to bear on the conduct
of officials soonest could prevent abuse of power.
[146]
Regarding
costs, the applicant sought costs against all the respondents who
opposed the application. Costs fall within the discretion
of the
court.
[124]
Usually in a
constitutional matter no order for costs ensues.
[125]
However, the nature of the defences and the conduct of the fourth
respondent call for a special order for costs. Notwithstanding
the
obvious violation of s 6(2)(a)(i) of PAJA the first and fourth
respondents opposed the order for the return of the applicant’s

goods firstly on the ground that the release of the goods was moot
once the magistrate had directed that it be returned to the

applicant. Secondly, they raised the technical defence that the
applicant was using a process in aid
[126]
without laying a foundation for enforcing a judgment of another
court.
[127]
Thirdly,
notwithstanding the precedents emanating from the CC the first
respondent persisted in regurgitating defences that the
CC had struck
down previously. These defences arise against a backdrop of officials
failing to account for the impounded property
of a poor street trader
in breach of their public accountability obligations under s 195 of
the Constitution.
Inaction
against the fourth respondent makes the first respondent complicit.
[147]
Although the respondents were partially
successful the applicant succeeded in its main challenge, which was
not the validity of
s 6A(1)(d)
of the
Businesses Act but
s 35
and
39
of the By-law.
The
Order
[148]
In the result the following order ensues:
a)
The decision and act of the fourth
respondent as representative of the first respondent of removing and
impounding the applicant’s
goods on 6 August 2013 was unlawful
and is set aside.
b)
Compensation in the sum of R775.00 (seven
hundred and seventy five rand) being the value of the impounded goods
plus interest at
the prescribed rate is awarded to the applicant to
be paid jointly and severally by the first and fourth respondents,
the one paying
the other to be absolved.
c)
Section 35 of the eThekwini Municipality:
Informal Trading By-law 2014 promulgated in Government Gazette 1173
notice number 70 dated
27 June 2014 (the By-law) is declared
unconstitutional, invalid and unlawful.
d)
Section 39 of the By-law is declared
unconstitutional, invalid and unlawful.
e)
The declarations of unlawfulness in (c) and
(d) above are suspended until 31 May 2015 or such further date as the
parties may agree,
pending the reform of the By-law.
f)
The parties are given leave to apply on the
same papers, supplemented in so far as is necessary, for further
relief consequent upon
any matter arising from this judgment.
g)
The first and fourth respondents shall pay
the applicant’s costs jointly and severally, the one paying the
other to be absolved.
h)
The second respondent shall bear its own
costs.
_____________
D.
Pillay J
APPEARANCES
Counsel
for the Plaintiff: T. Ngcukaitibi
Instructed
by : Legal Resources Centre
Ref: MRC/MS/1090913D
Tel: (031) 301
7572
Fax:
(031) 304 8283
Counsel
for the First Respondent : W.S Kuboni
Instructed
by : Gcolotela & Peter Attorney
Ref: Mr Peter/nr/ETH
167
Tel: (031) 312 0036
Fax:
(031) 303 6312
Counsel
for the Second & third Respondent: T. Norman SC, R Naidu
Instructed
by : State Attorney, KZN
Ref:
410/000145/13/M/P/13
Tel: (031) 365 2542
Fax:
(031) 306 2448
[1]
Government
Gazette 1173 notice number 70 dated 27 June 2014.
[2]
discussed
below.
[3]
Published under NN97 in Kwazulu-Natal Provincial Gazette 5076 of 28
September 1995.
[4]
Pleadings at 21 ; 202-203.
[5]
Pleadings at 107.
[6]
Pleadings at 168-169.
[7]
Pleadings at 175.
[8]
Pleadings at 194-195.
[9]
Pleadings at 176-177.
[10]
Section
35(8) of the By-law.
[11]
The
Regulations which seem to be applicable in KwaZulu-Natal as
stipulated in
s 6(1)(b)
of the
Businesses Act are
those in terms of
the repealed Licences and Business Hours Ordinance 11 of 1973.
Regulation 30 of Regulations in terms of the
Licences and Businesses
Hours Ordinance No. 11 of 1973 provides: ‘The issuing
authority shall . . . retain the control
certificate and duplicate
letter in its records’.
[12]
Pleadings at 15.
[13]
Pleadings at 35.
[14]
Pleadings at 32-50; 98-100.
[15]
Dawood
para 47.
[16]
Dawood
para 46.
[17]
G.C. Thornton
Legislative
Drafting
fourth edition (Butterworths) at 372.
[18]
Ibid at 234.
[19]
Ibid at 238.
[20]
Ibid at 239-240.
[21]
SRHOA at 7.
[22]
Second Respondent’s Heads of Argument (SRHOA) para 7.1.
[23]
Second Respondent’s Heads of Argument (SRHOA)
para
14.3.
[24]
Section 6A(1)(a)(iii)(ee)
of the
Businesses Act.
[25
]
Section 6A(1)(a)(iii)(ff)
of the
Businesses Act.
[26
]
S 8(1)(a)
read with 2(h) of 1995 By-law.
[27]
Section 35
(1).
[28]
Section 37(1)(a).
[29]
Section 35
(3)(a) and (b).
[30]
Section 35
(5).
[31]
Section 35
(6).
[32]
Section 35
(7).
[33]
Section 35
(8).
[34]
Section 35
(9).
[35]
Section 7(2)(b)
of the 1995 By-Law.
[36]
Section 38(1)
read with
s 37(1)(a).
[37]
Section 38(2)
read with
s 37(1).
[38]
Section 38(3)
read with
s 37(1).
[39]
Cf
S
v Mngadi and Others
1986 (1) SA 526 (N).
[40]
Fedsure
para 59.
[41]
Democratic
Alliance
Para
21.
[42]
Para 35, discussed below.
[43]
Zondi
para
105.
[44]
South
African Police Service v Solidarity obo Barnard (Police and Prisons
Civil Rights Union as Amicus Curiae)
2014 (6) SA 123
;
2014 (10) BCLR 1195
(CC) para 60.
[45]
Zondi
para 108 – 109.
[46]
Zondi
para 112 and 113.
[47]
Zondi
at
98.
[48]
Zond
i
para 112.
[49]
Zondi
v
MEC for Traditional Local Government Affairs and others
2005
(3) SA 589 (CC).
[50]
Ibid
para 38-42.
[51]
Ibid
para 76.
[52]
Ibid
para 45.
[53]
Ibid
para 49.
[54]
Ibid
para 105.
[55]
Ibid
para 57.
[56]
Ibid
para 57.
[57]
Ibid
para 59.
[58]
Chief
Lesapo
para
16 – 18.
[59]
See
also
First
National Bank
of
South
Africa Limited
v
Land
and
Agricultural
Bank of
South
Africa
and
Others;
Sheard v Land and Agricultural Bank of South Africa and another
2000
(3) SA 626; 2000 (8) BCLR 876 (CC).
[60]
Zondi
para 61.
[61]
Ibid
para 68.
[62]
Ibid
para 69.
[63]
The
difference acknowledged in the
s 6A(1)(d)
and the 1995 By-law
between absolute prohibitions and contraventions that do not comply
with legal formalities, appears not to
be emulated in the By-law.
[64]
Section 35(6)
of
the By-law.
[65]
Zondi
para 70, 45.
[66]
Section 35(7)
of
the By-law.
[67]
Zondi
para 71;
s 35(7)
of the By-law.
[68]
Zondi
para
72 (footnotes omitted).
[69]
Section 62(1).
[70]
Section 62(2).
[71]
Section 62(5).
[72]
Zondi
at para 74 – 75.
[73]
Ibid
para 76.
[74]
Skinner
at 3.
[75]
Second Respondent’s Heads of Argument para 12.
[76]
First
National Bank
para 61.
[77]
Offit
Enterprises (Pty) Ltd and Another v Coega Development Corporation
(Pty) Ltd and Others
2011 (1) SA 293
(CC) para 43-44; 2011 (2) BCLR 189.
[78]
First
National Bank
para 65, 98.
[79]
First
National Bank
para 65.
[80]
First
National Bank
para 65.
[81]
First
National Bank
para 100(h).
[82]
Mkontwana
para 35.
[83]
Mohunram
and Another v National Director of Public Prosecutions and Another
(Law Review Project as Amicus Curiae
)
[2006] ZASCA 12
;
2007 (4) SA 222
(CC) para 48-55.
[84]
Mohunram
para 63-65.
[85]
First
National Bank
para 100;
Mkontwana
para 65.
[86]
Sibiya
and Others v Director of Public Prosecutions, Johannesburg, and
Others
2005
(5) 315 (CC) para 32.
[87]
First
National Bank
para 98.
[88]
Khosa
and Others v Minister of Social Development and Others; Mahlaule and
Others v Minister of Social Development and Others
[2004] ZACC 11
;
2004 (6) SA 505
(CC) para 67; 2004 (6) BCLR 597.
[89]
[90]
Zondi
para
41.
[91]
Harksen
v Lane NO and Others
[1997] ZACC 12
;
1998 (1) SA 300
(SCA) para 53.
[92]
Prinsloo
v Van der Linde and Another
[1997] ZACC 5
;
1997 (6) BCLR 759
(CC) para 25-27.
[93]
Chris McConnachie
What
Is Unfair Discrimination? –A study of the South African
Constitutional Court’s Unfair Discrimination Jurisprudence
unpublished DPhil Thesis (2014) at 53, 103.
[94]
Van
Der Merwe v Road Accident Fund and Another (Women's Legal Centre
Trust as Amicus Curiae)
[2006] ZACC 4
;
2006 (4) SA 230
(CC) paras 24; 27
[95]
Hugo
para
43.
[96]
Paras 164-165.
[97]
Barnard
at para 22.
[98]
Harksen
v Lane NO and Others
1998
(1) SA 300 (SCA).
[99]
Harkse
n
para 54.
[100]
Catherine
Albertyn
Substantive
equality and transformation in South Africa
2007
SAJHR 253
;
Chris
McConnachie above
.
[101]
Withler
para 66.
[102]
Walker
para 105.
[103]
Walker
para 33.
[104]
Walker
para 6.
[105]
Joanne
Conaghan
Intersectionality
and UK equality initiatives
2007
SAJHR 317;
[106]
Zondi
para
96.
[107]
Ibid at 30.
[108]
Mohlomi
v Minister
of
Defence
[1996] ZACC 20
;
1997 (1) SA 124
CC para 14.
[109]
Zondi para 51.
[110]
Skinner at 16-17.
[111]
Second
Respondent Heads of Argument (
SRHOA)
at 19.3.
[112]
Van
Eeden v Minister of Safety and Security (Women’s Legal Centre
Trust, as Amicus Curiae)
2003 (1) SA 389
(SCA) para 20;
Carmichele
v Minister Of Safety And Security And Another (Centre For Applied
Legal Studies Intervening)
[2001] ZACC 22
;
2001
(4) SA 938
(CC) para 42-49.
[113]
Carmichele
para
33-41.
[114]
Section 36 of the Constitution.
[115]
Zondi
para 81.
[116]
Zondi
para 83.
[117]
Zondi
para 82.
[118]
Zondi
para
84.
[119]
Zondi
para 84.
[120]
Carmichele
para 49.
[121]
Para 53.
[122]
Jerold
S Auerbach
Justice
Without Law Resolving Disputes Without Lawyers
at 4:
‘
In
every society there is a wide range of alternatives for coping with
the conflict stirred by personal disputes. Litigation is
only one
choice among many possibilities, ranging from avoidance to violence.
The varieties of disputes settlement, and the socially
sanctioned
choices in any culture, communicate the ideals people cherish, their
perceptions of themselves, and the quality of
their relationships
with others. They indicate whether people wished to avoid or
encourage conflict, supress it, or resolve it
amicably. Ultimately
the most basic values of society are revealed in its dispute
settlement procedures’
[123]
See e.g. ss 10, 14, 15, 16 of the London Act.
[124]
Zondi
para 133.
[125]
Affordable
Medicines Trust and Others v Minister of Health and Others
2006 (3) SA 247 (CC).
[126]
Dreyer
v
Wiebols and
Others
2013 (4) SA 498 (GSJ).
[127]
First Respondent’s Heads of Argument (FRHOA) para 1-4.