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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 6540/2020
In the matter between:
MOKGADI MONYEMORATHO FIRST APPLICANT
JOSIAS SELEPE SECOND APPLICANT
ESTHER CHOKWE THIRD APPLICANT
and
POLOKWANE MUNICIPAL MANAGER FIRST RESPONDENT
POLOKWANE MUNICIPALITY SECOND RESPONDENT
JUDGMENT
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: NO
(3) REVISED.
DATE 27 OCTOBER 2025 SIGNATURE
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MORGAN AJ
INTRODUCTION
[1] This is a review application concerning the lawfulness and fairness of actions taken
by the Polokwane Municipal Manager and the Polokwane Municipality (“the
respondents”) on 8 October 2020, when the applicants’ informal trading structures
were demolished a nd their trading activities halted without prior notice. The three
applicants are long -standing informal traders in Polokwane who allege that the
respondents’ conduct on that day violated their right to just administrative action
under Section 33 of the Constitution and the Promotion of Administrative Justice Act
3 of 2000 (PAJA), as well as various constitutional rights including their rights to
dignity and to earn a livelihood.
[2] The applicants seek to review and set aside the respondents’ decision or conduct,
and they ask this Court to grant the relief set out in their draft order (which includes
the establishment of a dispute resolution committee for informal traders and an
appropriate cost order).
[3] The respondents oppose the application, maintaining that their officials acted lawfully
in an effort to enforce municipal by -laws, that the applicants were trading without
permits, and that “reasonable notice” to comply was given before the operation. The
central question is whether the respondents’ actions were lawful, reasonable and
procedurally fair as required by law, or whether the applicants’ constitutional and
statutory rights were unjustifiably infringed.
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[4] The application was launched in two parts. In Part A, the applicants obtained an
interim interdict on 22 October 2020, on an urgent basis, restraining the respondents
from interfering with the applicants’ trading pending finalisation of this review
(Part B), with the costs of Part A reserved. Part B – the present review – is now
before this Court for determination. The judgment that follows sets out the
background facts, the procedural history of the matter (including the Part A
proceedings), the issues for determination, the applicable legal framework, an
analysis of the respondents’ conduct against that legal framework, and finally the
order of the Court.
THE MATERIAL FACTS
[5] The applicants are individual informal traders who have been trading in the
Polokwane city area for many years. The first and second applicants have each been
trading for over 22 years in Polokwane. They, along with many others in the informal
trading sector (the majority of whom are women), rely on street trading as their
primary source of income to support their families and meet basic household needs.
The applicants operated small street stalls or structures in designated trading areas
in the Polokwane CBD, selling their wares to earn a modest living.
[6] It is common cause that prior to 8 October 2020, the applicants were known to the
municipal authorities as longstanding street traders operating in the city. It is also not
disputed that on 8 October 2020 the Polokwane Municipality – acting through its
officials or contractors and apparently at the direction of the first respondent (the
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Municipal Manager) – conducted an enforcement operation described as a “cleaning
campaign” in the Polokwane CBD.
[7] During this operation, officials ordered the applicants to cease trading immediately
and proceeded to demolish or dismantle the applicants’ trading stalls/structures
without warning. The ostensible reason given by the officials at the time was that the
applicants (and others) did not possess valid trading permits. As a direct result of the
operation on 8 October 2020, the applicants’ ability to trade was brought to an abrupt
halt – their structures and stalls were torn down and their means of earning a
livelihood effectively destroyed on the spot.
[8] The applicants describe the events of 8 October 2020 as having been done without
any prior notice to them and without affording them any opportunity to remove their
goods or remedy the alleged non-compliance. The respondents for their part contend
that traders who were “not compliant” with municipal requirements were targeted for
removal, and they aver that notice was given to traders to either “move out” or comply
with the by-laws before the operation was carried out.
[9] The applicants emphatically deny that any effective notice or warning was given to
them. Indeed, the respondents have provided no proof of any written or individual
notices given to these applicants prior to the demolition of their stalls. It appears that
whatever “notice” the respondents rely on may have been minimal or of a general
nature at best – falling far short of the kind of clear, personal notice one would expect
before evicting traders from their workplaces. In substance, the applicants were
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caught by surprise on 8 October 2020, with no chance to make representations or
avoid the harm.
[10] Following the incident, the applicants made multiple attempts to engage with the
municipal authorities to resolve the dispute administratively. They sought to negotiate
a restoration of their trading rights or some form of remedy for the sudden loss of
their stalls. Those attempts, however, proved fruitless – the respondents were not
willing to provide relief or an amicable solution at that stage. Left with no alternative,
the applicants approached this Court on an urgent basis. As noted, they initiated
Part A urgent proceedings shortly after the incident, in which they successfully
obtained an interim interdict to prevent further interference by the respondents and
to allow them to resume trading pending this review.
[11] The interim order granted on 2 0 October 2020 by Phatudi J (as he then was)
provided immediate, albeit temporary, relief to the applicants. The matter then
proceeded as a standard review application (Part B) under Rule 53, with the
applicants seeking final relief in the form of a review and setting aside of the
respondents’ decision/action of 8 October 2020 and ancillary relief. The respondents
delivered answering papers opposing the review, and the applicants filed replying
papers. The Part B application was argued before me (sitting as a review court) on
the merits.
PROCEDURAL HISTORY
[12] It is convenient to set out briefly the procedural history, including the Part A
proceedings, to understand how the matter reached this point. As mentioned, on
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22 October 2020 the applicants obtained an interim interdict in Part A. In that interim
order, the respondents were interdicted from preventing or obstructing the applicants
in conducting their informal trading at their usual sites, pending the final
determination of Part B. The effect was to restore the status quo ante (i.e. allowing
the applicants to continue trading) until the legality of the respondents’ actions could
be reviewed. The costs of Part A were reserved for later determination.
[13] Subsequent to the interim relief, the review (Part B) was prepared in the normal
course. The Municipal Manager (first respondent) provided a record of the decision
as required by Rule 53 (to the extent any formal record existed). The applicants
delivered a supplemented founding affidavit raising the substantive grounds on which
the 8 October 2020 decision is challenged. Broadly, the applicants’ review grounds
are that the respondents’ actions were ultra vires (beyond the authority of the
empowering provisions or not in compliance with the relevant prescripts),
procedurally unfair (taken without prior notice or hearing), u nreasonable and
irrational (especially given the respondents’ own role in preventing traders from
becoming compliant), and unconstitutional (infringing several rights in the Bill of
Rights).
[14] The relief sought in Part B (as set out in the Notice of Motion and the draft order)
includes: (a) reviewing and setting aside “the decision taken by the respondents on
or about 8 October 2020 in Polokwane to prohibit the applicants from trading by
demolishing their structures/stalls without notice or opportunity to remedy the alleged
non-compliance”; (b) directing the respondents to establish a dispute resolution
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committee to address issues affecting informal traders in Polokwane; and (c) a costs
order against the respondents on the scale as between party and party, including the
reserved costs of Part A.
[15] The respondents delivered an answering affidavit opposing the review. In essence,
the respondents did not dispute the factual occurrence of the 8 October 2020
operation, but they defended it as a lawful enforcement of municipal laws. They
raised two main p oints in opposition: first, that the applicants were allegedly not
specifically “targeted” in the operation (the respondents contend they were simply
enforcing the law generally against all illegal traders); and second, that the applicants
(and others) had been given reasonable notice beforehand to comply with the by -
law requirements (i.e. to obtain permits or cease trading) and thus cannot complain
of surprise.
[16] The respondents also suggested that because the applicants admittedly did not hold
valid permits at the time, they were trading unlawfully and the respondents were
entitled – if not obliged – to act against them. Some legal points were raised (for
example, a suggestion that the application might be defective or that the applicants
lacked a certain standing), but those were not pursued in oral argument and do not
merit attention here, as the focus of the hearing was squarely on the merits of the
review.
[17] The applicants filed a replying affidavit refuting the respondents’ factual assertions,
particularly disputing that any genuine notice was given. They maintain that neither
the applicants nor the vast majority of affected traders were personally informed prior
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to the crackdown. The stage was thus set for this Court to determine whether the
respondents’ decision and conduct on 8 October 2020 falls foul of the constitutional
and statutory standards for administrative action, and what relief should follow.
ISSUES FOR DETERMINATION
[18] The following key issues arise for determination in this review:
1. Did the respondents act within the scope of their lawful powers in dismantling
the applicants’ stalls and stopping their trading on 8 October 2020? In
particular, did the decision to “remove and demolish” the applicants’ trading
structures have a legal basis in any empowering provision (such as a municipal
by-law or statute), and if so, was it executed in accordance with the prescripts
of that law? This issue involves examining whether the respondents exceeded
their authority or failed to comply with applic able provisions of the Polokwane
Municipal Street Trading By -Laws and the Businesses Act 71 of 1991 (if
applicable), as well as the principle of legality under the Constitution.
2. Was the process by which the respondents acted (the manner and timing of
the decision and its implementation) procedurally fair as required by Section 33
of the Constitution and PAJA? This entails asking whether the applicants were
given adequate notice of the intended enforcement action and a meaningful
opportunity to make representations or to remedy any alleged non-compliance
before their stalls were torn down. If not, the question arises whether the
circumstances justified a departure from the ordinary requirements of
procedural fairness.
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3. Was the decision to summarily demolish the stalls and evict the applicants
without notice a reasonable and rational exercise of public power, proportionate
to the objectives sought? Here, I must consider the rationale offered by the
respondents – e.g. maintaining urban order and enforcing permit requirements
– against the impact on the applicants and the availability of less drastic means.
The inquiry is whether the respondents’ conduct was so unreasonable that no
reasonable decision-maker in their position would have taken the same course
of action, or whether it lacked a rational connection to legitimate governmental
purposes (such as regulating street trading).
4. Did the respondents’ actions infringe the applicants’ constitutional rights, and if
so, are such infringements justified under the general limitations clause
(Section 36 of the Constitution)? Rights implicated may include the right to just
administrative a ction (Section 33), the right to human dignity (Section 10) –
given that the manner of removal potentially affronted their dignity, the right to
freedom of trade, occupation and profession (Section 22) – as the ability to
work and earn a living was impeded, and the right not to be arbitrarily deprived
of property (Section 25) – since the applicants’ stalls and stock (their property)
were seized or destroyed without due process. The right of access to courts
(Section 34) is also relevant in light of the conc ern against “self -help” by
authorities. I must determine if the conduct breached these rights and, if so,
whether any law or justification permits such breach.
5. If the respondents’ conduct is found wanting on any of the above grounds, what
is the appropriate relief? Specifically, should the decision of 8 October 2020 be
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reviewed and set aside (and what the effect of such setting aside is), and should
ancillary relief be granted to ensure a fair resolution going forward (such as the
establishment of a dispute -resolution committee for informal trading issues)?
Additionally, the issue of costs – including the reserved costs of Part A – must
be decided, particularly whether a punitive or attorney -client costs order is
warranted or if standard party-and-party costs suffice.
[19] Each of these issues will be addressed in turn, though they are interconnected and
will be discussed together where appropriate under the legal analysis.
LAW AND APPLICATION
[20] It is uncontested that the respondents undertook an operation to enforce street
trading by-laws on 8 October 2020. The legality of their actions depends firstly on
whether they had the authority in law to do what they did, and secondly on whether
they exercised that authority properly. Under the Polokwane Street Trading By -Law
and the Businesses Act, the municipality does have powers to regulate and even
remove illegal traders or structures. For instance, as described above, an official may
impound goods of a trader who trades unlawfully.
[21] However, the manner in which the respondents acted here raises serious questions.
The decision essentially taken was to prohibit the applicants from trading, with
immediate effect, by demolishing their stalls. In substance, this was an administrative
decision to revoke or terminate the applicants’ ability to operate in that space. Even
if the applicants had no formal permits, the City in effect decided to eliminate their de
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facto right or permission to trade that had been tolerated for years. This kind of
decision – to exclude a person from a public trading space – is one that must be
made in accordance with both the empowering law and the Constitution.
[22] The Street Trading By-Law does not explicitly authorize the demolition of structures
without notice. It permits removal and impoundment of goods, and if a trader fails to
remove an unlawful structure after due instruction, the Municipality may remove it
and perhaps even dispose of it (with certain procedures to follow).
[23] Crucially, such drastic action is ordinarily preceded by an order or notice to the trader
to relocate or cease the unlawful conduct. In the present case, no evidence was
presented that any individual compliance notice or order was served on the
applicants ahead of 8 October 2020. The respondents’ claim that “reasonable notice”
was given remains unsubstantiated. The applicants’ version – that they were caught
unawares – is more credible and consistent with the chronology (they scrambled to
court immediately afterwards, which suggests genuine shock at being summarily
evicted).
[24] Even assuming arguendo that the respondents had some general plan or
announcement of a crackdown (for example, a public notice that unpermitted traders
must vacate by a certain date), such general notice would still fall short of the specific,
procedurally adequate notice required before depriving individuals of their livelihood.
Proper notice in administrative law means giving affected persons sufficient
information about the proposed action and a reasonable opportunity to respond or
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correct course. The lack of any clear prior warning to these traders renders the action
procedurally irregular. It violated the express duty to act fairly. The disposal or
destruction of a person’s trading goods or structures without giving them a hearing
is in breach of Section 6(2)(c) of PAJA (procedural unfairness).
[25] Moreover, the respondents’ own conduct prior to the incident undermines the
lawfulness and fairness of the enforcement. The evidence shows that the Polokwane
Municipality had ceased processing any applications for trading permits as of
January 2020. The re spondents concede in their papers that “They stopped
processing the permit application [on] 17th January 2020.”
[26] This moratorium (or administrative paralysis) lasted for many months – in fact, the
applicants allege it had been going on for 3–4 years, a claim the respondents do not
effectively refute. The upshot is that even if an informal trader wanted to comply with
the by-law and obtain a valid permit during 2020, the City had closed that door. There
was “no legal and administrative way” for the applicants to regularize their status.
[27] This is a classic bureaucratic Catch -22: the traders are told they are non -compliant
by not having permits, yet the municipality’s own decision not to process permit
applications ensured that non-compliance was inevitable. In these circumstances, to
suddenly descend upon traders and punish them for lacking permits (permits the City
itself refused to issue) is palpably irrational and unfair. It smacks of entrapment or at
least a failure by the City to consider a obviously relevant fact – namely, that the
usual pathway to compliance was blocked by the City’s own administrative choices.
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An elementary principle of administrative justice is that an authority must take into
account the material circumstances surrounding its action. Here, a material
consideration was that traders could not obtain permits at that time because the City
had suspended the issuance or renewal process.
[28] The respondents have not offered any satisfactory explanation for halting permit
processing (perhaps it was due to COVID-19 lockdown complications or an internal
policy shift), but whatever the reason, they cannot then blithely treat all unpermitted
traders as willful criminals and summarily demolish their stalls.
[29] he unreasonableness of the respondents’ conduct is evident when balancing their
stated purpose against the means employed. The respondents’ aim, presumably,
was to enforce compliance with trading regulations and to keep the city clean and
orderly – a legit imate objective in the public interest. Noble ends do not justify
unconstitutional means.
[30] In this Polokwane operation, the means chosen were drastic: an unannounced blitz
that instantly deprived traders of their workplaces and stock. This was not a case of
a carefully calibrated enforcement (such as issuing fines or notices, or engaging with
trader leadership to find solutions); it was a shock -and-awe tactic. The harm to the
traders was not merely theoretical – it was immediate and extensive: the applicants
lost their only source of income overnight.
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[31] Our law requires that when an administrative action will significantly affect someone’s
rights or livelihood, the administrator should consider less invasive alternatives and
only resort to extreme measures if no other avenue is effective and lawful. Here,
alternatives certainly existed: the City could have given written compliance notices
with a deadline, called the traders (who were known to them) to a meeting, or even
sought a court order if necessary to enforce the by-law. The fact that the respondents
chose to proceed unilaterally without due process suggests an unreasonable
disregard for the applicants’ rights. It was, in a word, disproportionate.
[32] The respondents’ argument that the applicants “were not targeted” specifically, but
just happened to fall among those removed for non -compliance, is neither here nor
there. Whether or not the respondents intended to single out these particular
applicants is irrelevant to the legal analysis. What matters is the effect of the conduct
and whether due process was afforded. By the respondents’ own admission, those
traders “not compliant” (i.e. without permits) were the ones removed. Given that the
City had made it impossible to be compliant, this category likely included all informal
traders operating at that time.
[33] The applicants were thus part of a class of people effectively purged from the city
streets that day. Even if one accepts that the motive was to enforce a rule uniformly,
the execution was arbitrary in the sense that it made no distinctions – it did not
consider individual circumstances, nor did it give individuals a chance to say, for
example, “I have applied for a permit and am waiting” or “I trade here with permission
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from an official” or any other representation. Therefore, the decision-making process
failed to accommodate the “balancing act” that administrative law demands.
[34] As the applicants’ heads of argument correctly pointed out, “There must be [a]
balancing act between the intention of the respondent and the actions taken. In the
absence of same, such act or conduct is not justified in law.” Here, the respondents’
intentions (enforcing the law) and their actions (demolition without notice) were not
properly balanced; the latter overshot what was necessary to achieve the former,
especially without attempts at voluntary compliance.
[35] I am of the view that the respondents did not comply with the requirements of
procedural fairness. No credible notice was given to the applicants prior to stripping
them of their trading sites. There was also no opportunity to be heard – not before,
not during, and not even after the fact (until the court intervened). PAJA Section 3(2)
stipulates that “administrative action which materially and adversely affects the rights
or legitimate expectations of any person must be procedurally fair.”
[36] At minimum, fairness requires notice of the nature and purpose of the proposed
action, a chance to make representations, and a clear statement of the administrative
decision afterwards (with reasons on request). None of these hallmarks are present
in what transpired on 8 October 2020. The respondents’ operation was a textbook
case of procedural unfairness. As one learned author put it, procedural fairness is
concerned with “the manner in which a decision is taken”, and its essence is that
people should be told what is proposed and given a chance to have their say before
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decisions affecting them are made. By ambushing the applicants, the respondents
denied them this entitlement.
[37] This failing alone is enough to set aside the decision under PAJA (Section 6(2)(c)).
Indeed, our courts have consistently set aside administrative actions for want of fair
procedure, even if the administrator believed the underlying merits justified
immediate action. Only in truly urgent, exceptional circumstances (such as imminent
danger to life or property) could skipping notice possibly be excused, and even then
there is usually a post -deprivation hearing required. In the present case, the
respondents never suggested that an urgent danger existed – the justification was
routine enforcement, not an emergency. Thus, there was no valid reason to dispense
with fair procedure.
[38] Having established the lack of lawfulness and fairness in the process, it follows that
the applicants’ constitutional rights were infringed. The right to just administrative
action (Section 33) was breached in its procedural aspect and arguably its
substantive aspect (since the decision was not reasonable). The right to human
dignity (Section 10) is also implicated. The applicants were treated in a manner that
showed little regard for their dignity – being evicted and having one’s means of
livelihood destro yed in public, without dignified engagement, can reasonably be
inferred to impair one’s sense of self-worth. The same can be said here.
[39] The right to freedom of trade, occupation and profession (Section 22), while subject
to regulation by law, does not countenance arbitrary or irrational regulation. The
respondents’ actions effectively amounted to an absolute ban (at least temporarily)
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on the applicants carrying on their chosen trade, at least in that location, without due
process. This was an infringement not justified by any law of general application
properly applied – rather it was a result of an improper application of a valid law. The
right to property (Section 25) is relevant in that the applicants’ stalls/structures (and
possibly goods) were their property, and these were either destroyed or confiscated
without compensation or a court order.
[40] Section 25 prohibits arbitrary deprivation of property. While the State can impound
or remove property under lawful authority (such as a by-law) for valid reasons, doing
so arbitrarily (i.e. without following the law’s own procedures or without a hearing)
renders the deprivation “arbitrary” in the constitutional sense.
[41] Here, the applicants were deprived of their trading infrastructure and possibly stock
without a prior or contemporaneous judicial oversight or opportunity to challenge the
deprivation – which offends the principle in Section 34 that disputes should be
resolved by law and not brute force. The right of access to courts (Section 34) ties
into the earlier discussion on self-help: by acting unilaterally, the respondents denied
the applicants any chance to approach a court to contest the a lleged by -law
infractions before punishment was meted out. The respondents effectively usurped
the judicial function by becoming the accuser, adjudicator, and enforcer all at once
on the street.
[42] The respondents did not seriously attempt to justify these rights limitations under
Section 36 of the Constitution. Had they done so, they would need to show that the
law authorizing their conduct (the by -law) and its implementation satisfied the tests
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of reasonableness and necessity in an open and democratic society. Given the
availability of less restrictive means (notice, fines, engagement, court orders, etc.),
such a justification would likely have failed. In truth, this case is less about lawful
limitation of rights and more about unlawful conduct not sanctioned by the law in the
manner it was carried out. Th us, I am of the view that the applicants’ constitutional
rights to fair administrative action and dignity (at least) were unjustifiably infringed by
the respondents’ actions on 8 October 2020.
[43] The respondents have not pointed to any internal remedy that the applicants failed
to exhaust. There was no suggestion of an internal appeal or review within the
municipal structure that was available. Indeed, it is hard to imagine an “internal
remedy” for a situation where one’s stall has been demolished – aside from
requesting the Municipality to undo what it did, which the applicants tried to do
informally, to no avail. The applicants promptly approached the Court for urgent relief,
which was appropriate under the circumstances. PAJA Section 7(2) requires
exhaustion of internal remedies only if those remedies exist; here, none were shown
to exist for this kind of grievance. The applicants cannot be faulted for coming to
court. On the contrary, they acted within their rights to seek judicial protection against
what they perceived (correctly) as an unlawful deprivation. Their swift resort to legal
action in Part A also mitigated their damages to some extent (allowing them to
resume trading under court protection). It underscores that the courts are the refuge
for those who are subjected to governmental self-help. The public interest is served
by the courts affirming that disputes must be resolved through proper channels, not
by might.
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[44] In light of all the above, I find that the respondents’ conduct on 8 October 2020 was
unlawful, unconstitutional and invalid. It was unlawful because it was not authorized
(in that form) by any empowering provision and violated the precepts of PAJA; it was
unconstitutional because it breached the applicants’ fundamental rights and the rule
of law principle.
[45] The respondents’ conduct exhibited a lack of procedural fairness, a lack of
reasonable decision -making, and an indifference to the rights and welfare of the
applicants. The Court’s disapproval of this conduct is not just a technical legal finding
but a substantive one: officials of the City must understand that they are servants of
the law and must act within the constraints of the law, even when dealing with those
who themselves may be in breach of a regulation. Respect for the dignity and rights
of all persons, including informal traders, is a constitutional value. The applicants in
this case deserved to be treated as human beings with whom the City could engage,
not as a nuisance to be summarily swept away.
Order
[46] In the result, the following order is made:
1. The decision taken by the first and second respondents to prohibit the Applicants
to trade instantly by demolishing their structures or stalls without any form of notice
and provided a reasonable opportunity to redress the alleged non-compliance or
prohibition is declared unlawful and is thus reviewed and set aside.
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2. The first and second respondent are directed to forthwith establish and/or take
steps to establish a dispute resolution committee to deal specifically and
adequately with matters pertaining to informal traders within its area of jurisdiction,
as is permissible in law and not adequately dealt with in its bylaws.
3. The first and second respondents are ordered, jointly and severally, one paying to
absolve the other, to pay cost of the review application (Part A and B thereof) on
party and party scale B.
M MORGAN
Acting Judge of the High Court of South Africa,
Limpopo Division, Polokwane
PARTIES REPRESENTATIVES
FOR THE APPLICANTS
Mr T E Buthane instructed by Buthane Rasemana Attorneys
FOR THE RESPONDENTS
Adv L C Nemukula instructed by Kgatla Incorporated
Date Heard: 9 September 2024
Judgment Delivered: 27 October 2025