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[2014] ZACC 8
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South African Informal Traders Forum and Others v City of Johannesburg and Others; South African National Traders Retail Association v City of Johannesburg and Others (CCT 173/13 ; CCT 174/14) [2014] ZACC 8; 2014 (6) BCLR 726 (CC); 2014 (4) SA 371 (CC) (4 April 2014)

Links to summary

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Cases
CCT 173/13 and CCT 174/13
In
the matter between:
SOUTH
AFRICAN INFORMAL TRADERS
FORUM
.................................................................................................................
First
Applicant
AYANDA
KELA
..............................................................................................
Second
Applicant
ROSEMARY
NDEBELE
..................................................................................
Third
Applicant
ONE
THOUSAND TWO HUNDRED AND
EIGHT
FURTHER APPLICANTS
.............................................
Fourth to 1211th Applicants
and
CITY
OF
JOHANNESBURG
.......................................................................
First
Respondent
JOHANNESBURG
METROPOLITAN
POLICE
DEPARTMENT
........................................................................
Second Respondent
EXECUTIVE
MAYOR OF THE
CITY
OF
JOHANNESBURG
......................................................................
Third
Respondent
CITY
MANAGER OF THE CITY OF
JOHANNESBURG
......................................................................................
Fourth
Respondent
CHIEF
OF THE JOHANNESBURG
METROPOLITAN
POLICE DEPARTMENT
..........................................
Fifth Respondent
SOUTH
AFRICAN NATIONAL TRADERS
RETAIL
ASSOCIATION
.............................................................................
Sixth
Respondent
CENTRAL
JOHANNESBURG PARTNERSHIP
..................................
Seventh
Respondent
And
in the matter between:
SOUTH
AFRICAN NATIONAL TRADERS
RETAIL
ASSOCIATION
.......................................................................................
Applicant
and
CITY
OF
JOHANNESBURG
...............................................................
First
Respondent
JOHANNESBURG
METROPOLITAN
POLICE
DEPARTMENT
................................................................
Second Respondent
EXECUTIVE
MAYOR OF THE
CITY
OF
JOHANNESBURG
............................................................
Third
Respondent
CITY
MANAGER OF THE CITY OF
JOHANNESBURG
..........................................................................
Fourth
Respondent
CHIEF
OF THE JOHANNESBURG
METROPOLITAN
POLICE DEPARTMENT
................................
Fifth
Respondent
CENTRAL
JOHANNESBURG PARTNERSHIP
..........................
Sixth Respondent
SOUTH
AFRICAN INFORMAL TRADERS FORUM
.............
Seventh Respondent
AYANDA
KELA
................................................................................
Eighth Respondent
ROSEMARY
NDEBELE
..................................................................
Ninth Respondent
ONE
THOUSAND TWO HUNDRED AND
EIGHT
FURTHER RESPONDENTS
.............................
Tenth
to 1217th Respondents
Neutral
citation:
South African Informal
Traders Forum and Others v City of Johannesburg and Others; South
African National Traders Retail Association
v City of Johannesburg
and Others
[2014] ZACC 8
Coram:
Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza
AJ, Froneman J, Jafta J, Madlanga J, Mhlantla AJ, Nkabinde J and
Zondo J
Heard
on:
5 December 2013
Order
granted:
5 December 2013
Judgment
on:
4 April 2014
Summary:
Urgent application –
appealability of interim orders – unlawful evictions –
interim relief – South African
Informal Trading By Laws
and Trading Policy
JUDGMENT
MOSENEKE
ACJ (Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J,
Madlanga J, Mhlantla AJ, Nkabinde J and Zondo J concurring):
Introduction
[1]
On
5 December 2013 this Court heard, as a matter of urgency, two
applications together.
[1]
Both
sought leave to appeal a decision of the South Gauteng High Court
(High Court), per Monama J. We made the following order:
“
1.
Leave to appeal directly to this Court on an urgent basis is granted.
2.
The appeal is upheld.
3.
The order of the South Gauteng High Court, Johannesburg, made on
27 November 2013, under case number 43427/13, is set aside.
4.
The following order is made:
a)
Pending the determination of Part B of the application in the High
Court, the first to fifth respondents are interdicted from

interfering with the trading of the applicants listed in Annexures A
and B to this order at the locations they occupied immediately
before
their removal between 30 September and 31 October 2013.
b)
The first to fifth respondents are directed to pay the applicants’
costs in this Court and in the High Court including,
in each case,
the costs of two counsel.”
[2]
This Court now furnishes its reasons
for the order.
[3]
When women and men in government
disregard the law, their conduct may very well cause much hardship,
particularly for the vulnerable
amongst us. The facts of this case
show so and remind us of the words of our beloved and departed
President Nelson Rolihlahla Mandela:
“
Even
the most benevolent of governments are made up of people with all the
propensities for human failings. The rule of law as we
understand it
consists in the set of conventions and arrangements that ensure that
it is not left to the whims of individual rulers
to decide on what is
good for the populace. The administrative conduct of government and
authorities are subject to the scrutiny
of independent organs. This
is an essential element of good governance that we have sought to
have built into our new constitutional
order”.
[2]
Parties
[4]
The
first applicant in the first application
[3]
is the South African Informal Traders Forum (Traders Forum). The
second and further applicants (the traders) are 1 210 people

who, until October 2013, were trading lawfully on 24 street blocks in
the inner city of Johannesburg with the permission of
the City
of Johannesburg (City or first respondent). The applicant in the
second application
[4]
is the
South African National Traders Retail Association (Retail
Association). It represents 952 traders specified in an annexure
to
the application. They too trade in the inner city with the requisite
written permission of the City under its By Laws and
Trading
Policy.
[5]
[5]
The
City opposes the relief sought.  It has been cited together with
its other functionaries as the second to fifth respondents
(City
respondents).
[6]
Also
cited is the Central Johannesburg Partnership, as the seventh
respondent in the first application and the sixth respondent
in the
second application, which is a non governmental body that seeks
to advance the broad interest of trading and business
within the
inner city.  It supports informal trading but has made
submissions on what it considers to be in the best interests
of the
inner city trading and stops short of opposing the relief sought.
Background
[6]
During October 2013, officers of the
City’s Metro Police forcibly evicted the informal traders from
their trading stalls and
confiscated their goods. Amongst those
evicted were the applicants listed in an annexure to each of the
applications. The City
has granted to each of the listed applicants
written permission to trade in a manner consistent with its By-Laws
read with its
Trading Policy.  Most have traded there for many
years. Some as long as twenty years.
[7]
The last evictions and confiscations
took place on 30 October 2013. The Metro Police were acting on
the instructions of the
Mayor. From there, the City respondents named
the mass eviction of informal traders “the Mayoral Clean Sweep”
also
known as “Operation Clean Sweep”. According to the
City, the professed object of “Operation Clean Sweep”
was
to rid the City of unsightly and disorderly trading areas. These, it
alleged, gave rise to disorderliness, criminality and
obstruction of
citizens’ rights to the proper use and enjoyment of facilities
in and around trading areas. Although laudable,
these objectives
behind the City’s action are not in issue before us since the
City, on the undisputed facts and by its own
concession, had gone
about achieving its objectives in flagrant disregard of the traders’
rights. Even so the City respondents
have never suggested that any of
the traders in the two applications were trading illegally. The
startling feature of the mass
evictions was that the City did not
bother to distinguish between the traders who have always been doing
business legally, and
other informal traders who have not.
[8]
Faced with indiscriminate evictions,
the applicants opened discussions with the City respondents to
negotiate a return to their
lawful trading activities. Prolonged
negotiations followed. On 2 November 2013, the City and the
applicants agreed to a process
of “verification”. This
meant that all the traders would submit to a process in which their
rights to ply their goods
would be verified and they would be
“re registered”. The parties also agreed that the
traders would be allowed
to return to their trading stalls once they
had been “verified” as lawful traders and had
“re registered”
themselves.
[9]
During the week of 4 November 2013,
the applicants were verified as lawful traders and re-registered
themselves, but contrary to
the arrangement of 2 November 2013,
they were not permitted to return to their stalls. Those who did so
were forcibly
removed by Metro Police who also dismantled the stalls
previously used by the traders.
[10]
Between
8 and 14 November 2013, the applicants again engaged the City
respondents in a further attempt to give effect to the agreement
of
2 November 2013. They say it became increasingly clear to them
that “Operation Clean Sweep” was not an attempt
to verify
and re-register the lawful informal traders in the inner city.
Instead, it was an initiative to remove them permanently
from their
trading stalls and relocate some or all of them to unknown
“alternative designated areas”, and prohibit
them from
trading in the interim. This is hardly in dispute between the
parties.  In fact, that design of the City is spelled
out
forthrightly in a letter from the City to the applicants’
attorneys.
[7]
Litigation
history
[11]
On
15 November 2013, the applicants started proceedings for urgent
interim relief.  They contended that they had permission
to
trade; that they have been prevented from trading since their
eviction; that their livelihood was and continued to be threatened
by
the City’s evictions; that they faced irreparable harm that
undermined their fundamental rights to trade and dignity;
and that
the balance of convenience favoured them.  They added that the
City’s new scheme to relocate the traders was,
in any event,
unlawful because it had not followed the steps required of it by
section 6A of the Businesses Act.
[8]
[12]
The applicants sought, as they did
in this Court, urgent interim relief, permitting them to trade at the
locations where they had
traded before “Operation Clean Sweep”
was implemented.  This relief was sought pending a review of
three decisions
of the City:
(a)
the decision taken during the week of 4
November 2013 not to allow the traders to return to their places of
business after they
had verified and re registered themselves;
(b)
the decision that came to the attention of
the applicants on 14 November 2013, to relocate them permanently
to undisclosed
alternative designated trading areas; and
(c)
the decision taken prior to 30 September
2013 to conduct a verification and re-registration process in respect
of the applicants
by first removing all of them from their trading
locations on the various blocks where they did business prior to
“Operation
Clean Sweep”.
[13]
Save
to deny that they had not consulted the applicants’
representatives, the City did not dispute the existence of “Operation

Clean Sweep” and the forcible eviction of the applicants.
The City resisted the application on the slim platform that
the
applicants had not shown that the relief they sought was urgent.
Monama J summarily struck the application off the roll, on
the
footing that it was not urgent.  He furnished no written reasons
for his decision.  The implication was that the
applicants would
have to re-enrol the matter on the ordinary court roll.
[9]
This meant that they would have to wait until February 2014 for
a possible hearing directed at final relief.
[14]
In this Court, the applicants argued
that the interests of justice pointed toward hearing the appeal and
granting them interim relief.
The City respondents did not
seriously dispute the facts put up by the applicants.  Instead,
they confined themselves to arguing
that it would not be in the
interests of justice to entertain the appeal because the impugned
order was interlocutory and not appealable;
that the High Court was
correct to strike off the application for lack of urgency; and that
the applicants failed to show that
they would suffer irreparable
harm, if interim relief were not granted.  The City respondents
added, in a somewhat muffled
tone, that granting interim relief would
trespass into the exclusive executive domain of the local government.
Issues
[15]
The issues in both applications were
identical, predictable and crisp.  They emerge readily from the
terms of our Court order.
They were (a) whether we should hear
the appeal against an interlocutory order of the High Court striking
the application from
the roll and thus refusing the interim
interdict; (b) whether, pending the High Court’s decision on
the merits, we should
grant interim relief; and (c) whether the
appeal deserves an urgent hearing.  Pithily stated, we have to
decide appealability,
merits of the interim relief and urgency.
Leave
to appeal
[16]
As always the starting point is our
Constitution.  Section 167(6) provides:
“
National
legislation or the rules of the Constitutional Court must allow a
person, when it is in the interests of justice and with
leave of the
Constitutional Court––
(a)
to bring a matter directly to the Constitutional Court; or
(b)
to appeal directly to the Constitutional Court from any other court.”
[17]
This
provision makes it plain that the Court has a wide appellate
jurisdiction on constitutional matters. It may decide whether
to hear
an appeal from any court on any constitutional dispute provided it
serves the interests of justice to do so.  There
is no
pre-ordained divide between appealable and non-appealable issues.
Provided a dispute relates to a constitutional matter,
there is no
general rule that prevents this Court from hearing an appeal against
an interlocutory decision such as the refusal
of an interim
interdict.
[10]
However,
it would be appealable only if the interests of justice so
demand.
[11]
Thus, this
Court would not without more agree to hear an appeal that impugns an
interlocutory decision, especially because
such a decision is open to
reconsideration by the court that has granted it.  Doing so
would be an exception rather than the
norm.
[18]
An even bigger exception would be to
hear an appeal against an interlocutory order on an urgent basis. In
Magidiwana
we warned:
“
This
Court is not well-equipped to deal with urgent matters in general.
Where an appeal relates to a temporary order, this
difficulty becomes
even more acute.”
[12]
(Footnote
omitted.)
[19]
It follows that, as a general rule,
an urgent appeal to this Court against an interim order should be
permitted as a last resort,
and when it has been shown, as was the
case here, that the High Court or the Supreme Court of Appeal system
does not provide a
proper urgent procedure which could result in the
relief pursued by an applicant.
[20]
The
question whether a particular interim order is appealable is not
novel.  This Court has considered the appealability of
interim
orders.  What was different, in each case, was the factual
setting.
[13]
The applicable
test is whether hearing the appeal serves the interests of justice.
In making this determination, the Court
must have regard to and
weigh carefully all relevant circumstances.  The factors that
are relevant, or decisive in a particular
instance, will vary from
case to case.  Even so, this Court has developed a collection of
factors that help it decide whether
to hear an appeal against an
interlocutory decision of another court. These include:
(a)
the
kind and importance of the constitutional issue raised;
[14]
(b)
whether
irreparable harm would result if leave to appeal is not granted;
[15]
(c)
whether
the interim order has a final effect or disposes of a substantial
portion of the relief sought in a pending review;
[16]
(d)
whether
there are prospects of success in the pending review;
[17]
(e)
whether,
in deciding an appeal against an interim order, the appellate court
would usurp the role of the review court;
[18]
(f)
whether
interim relief would unduly trespass on the exclusive terrain of the
other branches of government, before the final determination
of the
review grounds;
[19]
and
(g)
whether
allowing the appeal would lead to piecemeal adjudication and prolong
the litigation or lead to wasteful use of judicial
resources or legal
costs.
[20]
[21]
We weighed carefully these
considerations and concluded that it was in the interests of justice
to hear the appeal on an urgent
basis.  If leave to appeal were
not granted the applicants would have suffered severe irreparable
harm and yet the balance
of convenience favoured them.  About
these considerations, in
Machele
,
albeit in a slightly different context, Skweyiya J observed:
“
The
primary consideration in determining whether it is in the interests
of justice for a litigant to be granted leave to appeal
against an
interim order of execution is, therefore, whether irreparable harm
would result if leave to appeal is not granted.  The
applicant
would have to show that irreparable harm would result if the interim
order were to be granted.  A court will have
regard to the
possibility of irreparable harm and the balance of convenience.”
[21]
(Footnote omitted.)
[22]
Another
consideration is whether the interim relief would thwart the judicial
role of the review court.  The order sought by
the applicants
before this Court would not anticipate any part of the main
proceedings to be determined before the High Court
in Part B.
Nor would it prejudice such proceedings.  On the contrary,
without an order from this Court, the damage in
the interim would be
so severe that the applicants’ ability to obtain relief from
the High Court in Part B would substantially
be rendered nugatory.
The order sought now is thus no more than a “status quo order”
granted in the interests
of justice “to prevent what might
otherwise be substantial prejudice.”
[22]
[23]
The discussion of the merits will
show that the High Court’s refusal to grant interim relief is
final in effect. There remains
no doubt that we had to hear the
appeal.
Interim
interdict
[24]
Once
we grant leave to appeal our immediate concern becomes whether we
should grant temporary relief.  Foremost is whether
the
applicant has shown a prima facie right that is likely to lead
to the relief sought in the main dispute.  This requirement
is
weighed up along with the irreparable and imminent harm to the right
if an interdict is not granted and whether the balance
of convenience
favours the granting of the interdict.  Lastly, the applicant
must have no other effective remedy.
[23]
A
prima facie right?
[25]
A
prima facie right may be established by demonstrating prospects of
success in the review.
[24]
There is no dispute over the entitlement of the applicants to
trade in the stalls the City has allocated to them.  The
traders
have clear, undisputed rights under section 4 of the By-Laws to do
business in the locations where they traded before they
were removed.
[26]
The
City’s case is that it intended to relocate informal traders to
“alternative designated [trading] areas.”
Section
6A(3) of the Businesses Act prescribes the steps the City must follow
to designate a trading area for informal trading.
[25]
None of these requirements have been followed.  The City readily
conceded, correctly so, in its papers and during the
hearing before
this Court that it had not met the prescripts of the statutory
provision.  The decision to relocate the traders
appears flawed.
[27]
The
City’s decision to declare certain areas as prohibited or
restricted was not made in accordance with the procedure in
section
6A(2)(a) of the Businesses Act.
[26]
The City confesses to this flaw.  It offered to cure the defects
in the process it followed while offering an interim
arrangement.
But the interim solution offered by the City is that the
evictions must persist and the traders must settle
for relocation to
yet unspecified areas or stalls.
[28]
The City has not identified any
lawful ground that permits it to frustrate the enjoyment of these
rights. The City does not dispute
the unlawfulness of its officials’
conduct.  Counsel for the City expressly submitted that the City
acted unlawfully,
but that doing so had been “convenient”.
These concessions were so extensive that it even seemed
conceivable
that this Court might grant final relief.  The
relief sought in the pending review in Part B of the notice of motion
is likely
to be granted and thus bears prospects of success.
Imminent
irreparable harm and balance of convenience
[29]
The undisputed evidence showed that
the applicants and their families’ livelihood depended on their
trading in the inner city.
They had been rendered destitute and
unable to provide for their families for over a month and they would
have been precluded from
providing for their families for at least
another two and a half months until mid-February 2014 at the very
earliest.
[30]
That, we were told by counsel of
both sides, was the earliest date an application for leave to appeal
could possibly be heard by
the High Court.  This is because that
application would have to be enrolled in the ordinary course as it
had already been
adjudged as not urgent.  Obviously so, the
order striking the application off the roll had a final effect in
relation to the
possibility of accessing interim relief of trading in
the inner city.  This meant the financially perilous condition
of the
traders would have had to remain so until the opposed
application for review of the decisions of the City was finalised and
possibly
until the final appellate stage.  It is hard to imagine
how any destitute street vendor would survive a ruinous delay of that

kind.
[31]
It
must be added that the eviction of the traders involved
constitutional issues of considerable significance. The ability of
people
to earn money and support themselves and their families is an
important component of the right to human dignity.  Without it

they faced “humiliation and degradation”.
[27]
Most traders, we were told, have dependants.  Many of
these dependants are children, who also have suffered hardship
as the
City denied their breadwinners’ lawful entitlement to conduct
their businesses.  The City has not disputed this.
The
City’s conduct has a direct and on going bearing on the
rights of children, including their direct rights to basic
nutrition,
shelter and basic health care services.
[28]
The harm the traders were facing was immediate and irreversible.
[32]
The City’s response to the
applicants’ claim of irreparable harm and that the balance of
convenience favours them was
twofold.  First, it readily and
correctly conceded the applicants would suffer prejudice or harm but
qualified the admission
by arguing that the harm would be temporary.
Second, the City contended that if the applicants were allowed to
return to
their trading stalls, the inner city would be “chaotic,
uncontrolled and illegal trading with its concomitant crime and grime

[will] be permitted to return to the streets of Johannesburg.”
It referred to the prejudice to be suffered by residents of
the City
“who no longer have access to ATMs, walk-in banks, cinemas,
departmental stores, restaurants and other amenities
because of
criminality that hides among the illegal hawkers.”
[33]
Clearly, the City was conflating the
position of illegal traders with that of the applicant traders.  It
is open to the City
to use all lawful means to combat illegal trading
and other criminal conduct.  But it has no entitlement to cause
harm to
lawful, if not vulnerable, traders. Even so, the City argued
in the alternative that if the Court were minded to grant the relief

sought, the order should return verified lawful traders it evicted in
the first instance.  Again the City missed the point.
It may not
remove or evict traders who have a right to trade without observing
requirements of its By-Laws.
[34]
We
were not pointed to any irreversible harm or palpable inconvenience
the City might face by acting in accordance with the prescripts
of
the law in its bid to evict the applicants.  The City did not
say irreparable harm would be suffered by the residents,
should the
traders be left to continue trading while the City conducts its
expeditious verification process.  The prejudice
allegedly
suffered by the residents, if any, was temporary as compared to the
severe irreparable harm the applicants suffered and
would have
suffered.
[29]
The City
was content to argue, that at the end of the review proceedings, the
traders may claim damages suffered, if any.
This is no answer
to the pressing and urgent temporary relief the applicants asked for.
The evidence showed that informal
traders were people on
limited earnings derived from their street trading.  A promise
of possible future recompense may well
border on the cynical.
Urgency
[35]
At the urging of the City, the High
Court struck off the roll the application for interim relief on the
ground that it was not urgent.
In this Court too, the City
placed much store by the urgency contention.  Even if the matter
was urgent, the argument ran,
the applicants could have applied for
leave to appeal to the High Court and later petitioned the Supreme
Court of Appeal.
[36]
We have already said much that shows
that the application for interim relief was manifestly urgent. The
City had evicted the applicants
from their trading areas or stalls
and refused to allow them back, even though they had been verified
and re registered at
the behest of the City.  Although the
City admittedly failed to follow the processes in the Businesses Act,
it forcibly evicted
the applicant traders.  Its conduct spawned
immediate and acute hardship that left the applicant traders
destitute.
It was never disputed that they were unable to feed
or house themselves or their families.  The situation would have
only
worsened if it persisted.
[37]
Another
of the City’s contentions was that the urgency the applicants
relied on was self-created and ought not to be entertained.
Even
if it is accepted that urgency arose as early as October 2013, it was
only prudent and salutary that the applicants
first sought to engage
the City before they rushed off to Court.
[30]
That engagement, as mentioned above, produced the agreement of
2 November 2013.
[38]
I find nothing dilatory in the
efforts of the applicants to engage the City and persuade it to
restore them to their trading positions
in the inner city.  Their
return to their trading stalls remained urgent throughout the
engagements or negotiations attempted
before an urgent application
was launched. Even by the time they approached this Court, their
claims were self-evidently urgent
and so we concluded.
Costs
[39]
No cogent reason was placed before
us, nor could we find any, why costs should not follow the event. We
ordered the City respondents
to pay the costs of the applicants in
the High Court and in this Court.
In
CCT 173/13:
For
the Applicants:
Advocate
P Kennedy SC, Advocate S Budlender, Advocate S Wilson and
Advocate N Muvangua instructed by SERI Law Clinic.
For
the First to Fifth Respondents:
Advocate
G Malindi SC, Advocate T Machaba and Advocate J Bleazard
instructed by Mchunu Attorneys.
For
the Seventh Respondent:
Advocate
J Raff instructed by Mervyn J Smith Attorneys.
In
CCT 174/13:
For
the Applicant:
Advocate
C Georgiades and Advocate M Augustine instructed by Routledge Modise
Inc.
For
the First to Fifth Respondents:
Advocate
G Malindi SC, Advocate T Machaba and Advocate J Bleazard
instructed by Mchunu Attorneys.
[1]
One
brought by the South African Informal Traders Forum under CCT 173/13
and another by the South African National Traders Retail
Association
under CCT 174/13.
[2]
Address
at the International Ombudsman Institute VIIth
International
Conference on Balancing the Exercise of Governmental Power and its
Accountability, delivered at Durban, 2000.
[3]
CCT
173/13.
[4]
CCT
174/13.
[5]
Published
in City of Johannesburg Metropolitan Municipality Informal Trading
By-Laws,
Provincial
Gazette
66
of 14 March 2012 (By-Laws).  See also the Informal Trading
Policy of the City of Johannesburg (Trading Policy).
Each
member is reflected in the City’s database of licensed
traders.  213 have been issued smartcards.  111 trade

in the City’s Urban Genesis City Improvement District (CID).
Urban Genesis maintains a database, sourced from the
City’s
database of authorised traders, of those traders who trade within
the Urban Genesis CID, and those traders are not
issued with letters
or smartcards.  The remaining 628 trade in demarcated areas;
some have letters to trade; all 628 are
in any event reflected in
the City’s database of licensed traders.
[6]
The
second respondent is the Johannesburg Metropolitan Police Department
(Metro Police), a municipal entity controlled by the
City.  The
third respondent is Councillor Mpho Parks Tau, the Executive Mayor
of the City cited in his official capacity.
The fourth
respondent is Trevor Fowler, the City Manager, cited in his official
capacity as the head of administration of the
City.  The fifth
respondent is Brigadier Zwelibanzi Nyanda.  He is cited in his
official capacity as the chief of the
Metro Police.
[7]
The
letter dated 13 November 2013 reads in part as follows:
“
Our
client has since agreed with the representative of the traders that
upon finalisation of the verification process, all traders
who meet
the requirements for legal trading will be accommodated in
alternative designated areas, in compliance with applicable

legislation.”
[8]
71
of 1991.
[9]
See
Commissioner,
South African Revenue Service v Hawker Air Services (Pty) Ltd;
Commissioner, South African Revenue Service v Hawker
Aviation
Partnership and Others
[2006] ZASCA 51
;
2006 (4) SA 292
(SCA) at para 9.
[10]
See
Knox
D’Arcy Ltd and Others v Jamieson and Others
[1996] ZASCA 58
;
1996 (4) SA 348
(A) at 356H 359E.
[11]
See
Magidiwana
and Others v President of the Republic of South Africa and Others
[2013] ZACC 27
;
2013 (11) BCLR 1251
(CC) (
Magidiwana
)
at paras 6-11 and 17;
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others
[2012] ZACC 18
;
2012 (6) SA 223
(CC);
2012 (11) BCLR 1148
(CC)
(
OUTA
)
at paras 22-30; and
lnternational
Trade Administration Commission v SCAW South Africa (Pty) Ltd
[2010] ZACC 6
;
2012 (4) SA 618
(CC);
2010 (5) BCLR 457
(CC) (
ITAC
)
at paras 47-59
.
[12]
Magidiwana
above
n 11 at para 8.
[13]
Ramakatsa
and Others v Magashule and Others
[2012]
ZACC 31
;
2013 (2) BCLR 202
(CC) at paras 20-36;
Albutt
v Centre for the Study of Violence and Reconciliation, and Others
[2010] ZACC 4
;
2010 (3) SA 293
(CC);
2010 (5) BCLR 391
(CC) at paras
21-5;
Machele
and Others v Mailula and Others
[2009]
ZACC
7
;
2010
(2)
SA
257
(CC);
2009
(8)
BCLR
767
(CC) (
Machele
)
at paras 22-4;
United
Democratic Movement v President of the Republic of South Africa and
Others (African Christian Democratic Party and Others
Intervening;
Institute for Democracy in South Africa and Another as Amici Curiae)
(No 1)
[2002]
ZACC 33
;
2003 (1) SA 488
(CC);
2002 (11) BCLR 1213
(CC) at paras
4-7; and
Minister
of Health and Others v Treatment Action Campaign and Others (1)
[2002]
ZACC 16
;
2002 (5) SA 703
(CC);
2002 (10) BCLR 1033
(CC) at paras
5-14.  See also
Magidiwan
a
above n 11 at paras 6-10;
OUTA
above
n 11 at paras 23-30; and
ITAC
above n 11 at paras 47-55.
[14]
ITAC
above
n 11 at para 55
.
[15]
See
Machele
above n 13 at paras 23-8.
[16]
See
OUTA
above n 11 at para 25.
[17]
Id
at para 26.
[18]
Id.
[19]
Id.
[20]
ITAC
above
n 11 at para 50.
[21]
Machele
above
n 13 at para 24.
[22]
United
Democratic Movement
above
n 13 at para 12.
[23]
See
OUTA
above n 11 at para 41.
[24]
Eriksen
Motors (Welkom) Ltd v Protea Motors, Warrenton and Another
1973 (3) SA 685
(A) at 691C-G, explained in
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
1995 (2) SA 813
(W) at 832D-833H.  See also
Johannesburg
Municipal Pension Fund and Others v City of Johannesburg and Others
2005
(6) SA 273
(W) at para 8.
[25]
Section
6A(3) provides:
“
Notwithstanding
the provisions of any other law, a local authority may—
(a)
by resolution, after compliance
mutatis mutandis
with the
provisions of subsection (2)(b) up to and including (h), lease
any verge as defined in section 1 of the Road Traffic
Act, 1989, or
any portion thereof, to the owner or occupier of the contiguous land
on the condition that such owner or occupier
shall admit a specified
number of street vendors, pedlars or hawkers in stands or places on
such verge designated by such owner
or occupier;
(b) (i) set apart
by resolution and demarcate stands or areas for the purposes of the
carrying on of the business of street vendor,
pedlar or hawker on
any public road the ownership or management of which is vested in
the local authority or on any other property
in the occupation and
under the control of the local authority; and
(ii)
in like manner extend, reduce or disestablish any such stand or
area;
(c)
by agreement let or otherwise allocate any stand or area demarcated
under paragraph (b)(i) or otherwise established for
such
purposes.”
[26]
Section
6A(2)(a) provides:
“
A
local authority may, subject to the provisions of paragraphs (b) up
to and including (j), by resolution declare any place in
its area of
jurisdiction to be an area in which the carrying on of the business
of street vendors, pedlar or hawker may be restricted
or
prohibited.”
[27]
Minister
of Home Affairs and Others v Watchenuka and Another
[2003]
ZASCA 142
;
2004 (4) SA 326
(SCA);
2004 (2) BCLR 120
(SCA) at para
32.
[28]
Section
28(1)(c) of the Constitution.
[29]
As mentioned in [31] above.
[30]
See
Nelson
Mandela Metropolitan Municipality v Greyvenouw CC
and
Others
[2003]
ZAECHC 5
;
2004 (2) SA 81
(SECLD) at para 34.