IN  THE  HIGH  COURT  of  SOUTH  AFRICA

Durban k Coast Local Division

Case No 16407/2005

In the matter between

PHOENIX PLAZA STREET TRADERS ASSOCIATION       First Applicant

PERUMAL NAIDOO                                                                    Second Applicant

and

eTHEKWINI MUNICIPALITY                                                       First Respondent

MEMBER of THE EXECUTIVE COUNCIL

FOR FINANCE & ECONOMIC

DEVELOPMENT, KWAZULU-NATAL                                          Second Respondent

MINISTER of TRADE & INDUSTRY                                             Third Respondent

F O U N D I N G     A F F I D A V I T

I the undersigned  P E R U M A L   N A I D O O  do hereby make oath and state:

 The Parties

1. I am an adult male, self-employed, 63 Spurside Rd, Caneside, Phoenix, Durban.  I am the chairman of the Phoenix Plaza Street Traders Association (‘the Association’), a voluntary association established to protect and promote the rights and interests of street traders, and enforce orderly and disciplined street trading, in the Phoenix Plaza area.

2. The Association is the first applicant and is established in terms of a constitution with inter alia the capacity to sue and be sued.  The Association brings this application for and on behalf of its members, who are street traders.  I have been authorised to do whatever is necessary to bring these proceedings, and in this regard I annex hereto marked A, a copy of the resolution of the Association.

3. As second applicant, I bring this application in my personal capacity on my own behalf, and as breadwinner for and on behalf of my three minor dependant children.  My eldest daughter does casual jobs when they are available, but the prime burden of keeping the home fires burning falls on me.

4. First respondent is the eTHEKWINI MUNICIPALITY (‘the Municipality’), care of the Municipal Manager, City Hall, West St, Durban.  I am advised that first respondent was established in terms of KwaZulu-Natal Provincial Gazette PN 343, 2000 of 19 September 2000 and that it is a municipality within the local sphere of government as contemplated in Chap 7 of the Constitution.

5. The Municipality implements within its metropolitan area the Businesses Act 71 of 1991 (‘the Act’) and possibly two sets of Street Trading Bylaws, viz KwaZulu-Natal Provincial Gazette MN 97, 1995 of 28 September 1995, being annexure B, and KwaZulu-Natal Provincial Gazette  MN 29,1998 of 23 April 1998, being annexure C hereto (‘the Bylaws’).  I am not sure which applies in this case, however nothing turns on this uncertainty because both sets of bylaws are identical.

6. Annexure B was made by the Central Transitional Metropolitan Substructure Council of the City of Durban, while annexure C by the North Local Council.  The Municipality is a successor to both these entities.

7. Second respondent is the MEMBER of THE EXECUTIVE COUNCIL FOR FINANCE & ECONOMIC DEVELOPMENT, KWAZULU-NATAL, Natalia, Longmarket St, Pietermaritzburg, care of the State Attorney (KwaZulu-Natal), Sangro House, Smith St, Durban.

8. Second respondent is cited because firstly, the Act was assigned to KwaZulu-Natal (by Proc 18, 1995 GG 16302 of 9 March 1995) and his office is presently tasked with administering it in the Province; and secondly, a previous incumbent of that office approved the Bylaws and sanctioned their publication in the Provincial Gazette.

9.  Third respondent is the national MINISTER of TRADE & INDUSTRY, Union Buildings, Pretoria, care of the State Attorney (KwaZulu-Natal), Sangro House, Smith St, Durban.  Third respondent is cited because in terms of s 1 of the Act his office performs certain functions in consultation with the provincial administration concerned.

The Issue

10.  In the past year, the Municipality has removed and impounded the goods of thousands of street traders including members of the Association in terms of Bylaw 7 of the Bylaws, because it considers them to be “illegal” street traders, but all they are doing – usually as sole breadwinners – is earn an honest living.  Many are not in a position to pay the fine, and have had to suffer their goods being forfeited to the Municipality.  Their interests are not protected because this predatory Bylaw does not contain any safeguards for a proper and judicially supervised attachment and sale in execution or disposal of the impounded goods.  The Municipality simply bypasses the courts in this regard.

11.  The main objective therefore of these proceedings is to set aside Bylaw 7 and if necessary, s 6A(1)(d)(ii) of the Act.  The former provides for the removal and impoundment of the goods of street traders, while the latter purports to authorise the making of a bylaw for this purpose.  Where reference is made in this affidavit simultaneously to both these offending provisions, they will, depending on the context, be referred to simply as “the laws in question”.

The Facts

12.  For purposes of this application, I set out my circumstances and experiences as a street trader.  I believe that these typify the circumstances and experiences of members of the Association in particular, and street traders in general.

13. Hundreds of street traders in Phoenix and elsewhere have been strong-armed out of their livelihood as a result of what is officially termed a “Clean Up Campaign”.  I may be a lowly street trader but I consider myself to be a clean, useful, productive and dignified member of society.  Hence I resent and emphatically reject the insinuation that I am deemed an appropriate target for “clean up”.  Be that as it may, I am aware that the deployment and abuse of Bylaw 7 is widespread, constituting as it does the chief weapon in the Municipality’s arsenal in the conduct of its hostilities against street traders.

14. Since 4 November 2005 the blitz on street traders has intensified, and hence the resolution of the issues raised in this matter has taken on a critical dimension.  (On 4 November 2005 this Court handed down a judgment in case number 7262/2005 in favour of the Municipality in a spoliation application brought by a street trader.)

15. I presently sell toys and cosmetics.  I have been the victim of raids by the Metro Police a number of times.  The most recent such raid was on 9 November 2005 when armed members of the Municipality’s Metro Police pounced on me and removed my goods valued at R1500.  I asked the police officer to indicate to me an alternative to street trading but he simply shrugged his shoulders.

16.  I was defenceless against the overpowering use of State might and police powers.  I annex hereto marked D a copy of the receipt issued to me.  The police officer refused to inventory the quantity of goods despite being requested to do so.  My attorney placed on record this irregular performance of duties by way of a fax directed to the Metro Police, being annexure E hereto.  I am advised that there was no response to that fax.

17. I proceeded thereafter to the Municipal offices and requested that my goods be returned to me.  My request was refused, and a fine was demanded before their return.  I was forced to pay this fine to ensure that my stock in trade was returned to me.

18.  I am aware that it is the responsibility of all levels of government to create economic opportunities for the unemployed, and respond to the needs of the poorest, but this case demonstrates the manner in which the Municipality is hounding those who are active at the lowest rungs of the economy.

19.  Members of the Metro Police are removing and impounding the goods of street traders on an ongoing basis and street traders live in constant fear of such removals and impoundments.

20. I took to street trading in 2000 because I had lost my employment through retrenchment.  I possess a minimal standard of education, no marketable skills to speak of, and little or no financial resources.  With no entitlement to social security, unemployment had far-reaching consequences for my family and me.  I went door to door seeking employment, but failed.  Some in my position turned to crime, but I stood firm in my resistance to it.

21. The hardship left me with no option but to become reliant on the charity of friends and relatives.  But they themselves were needy, and eventually their reservoir of goodwill dried up.  I dreaded the day when I would have to take to the streets as a beggar.  During this period of despondency, I heard President Mbeki on TV exhorting those like me to join the “second economy” (ie the informal sector) and be economically active rather that wait for handouts.  I took to street trading with gusto.  I am still not well off, but at least I have regained my dignity.

22.  I am aware of erstwhile street traders who have completely lost their meagre livelihoods and are today destitute directly as a result of the removal and impoundment of their goods.  They could not afford to pay the fine and as a result forfeited their goods.  They did not have the resources to re-capitalize, and hence will remain in the grip of poverty for the foreseeable future.

23. My own financial circumstances are still in dire straits: I am in arrears with my rent, water and electricity bills.  Given time and most importantly the opportunity, I am confident that I will leverage myself out of these difficulties.  I aspire to accumulating enough capital to venture into the formal sector.

The Importance of the Informal Economy

24. In September 2005 the Municipality published its own “Quality of Life” Survey.  The most important finding is that 43% of the metropolitan population is poverty stricken insofar as they survive on less than R1500 per month.  In this regard I annex hereto marked F a copy of the relevant portion of the survey.  In the absence of any social security, it is evident that the informal economy is the only LAWFUL means for these impoverished persons to survive.  In this regard the following facts about the informal economy within the metropolis are relevant:

a.    It makes an important contribution to job creation;

b.  A great deal of money flows through the informal economy; 

c.   The informal economy contains great diversity; 

d.   Shopping in informal outlets is extremely convenient for thousands of commuters and residents; and

e.    Informal outlets trade in many goods that are important in the cultural and religious life of citizens of, and visitors to, Durban.

Historical Disadvantage Suffered by Street Traders in Durban

25. I am advised by my attorney that Professor Caroline Skinner in the School of Development Studies at the University of KwaZulu-Natal has done a study of the history of street trading in Durban, and I set out below the facts that have been gleaned from her research.  Her verifying affidavit is annexed to these papers.

26. I am advised that street trading was circumscribed from the early part of the 20th century in (the then) Natal in general, and in Durban in particular.  Laws against street trading were sharpened during the course of the century and in 1962 culminated in the Durban City Council outlawing street trading in the city altogether.

27. This loathing for street trading spread to other urban centres and South African cities gained notoriety as having fashioned some of the most sophisticated anti-street trading measures anywhere in the developing world.

28. Street traders were repressed, persecuted and prosecuted. Their goods were impounded and in many cases destroyed.  As for the fresh produce sellers they were even worse off.  Fruit, vegetables and wooden crates flew when the City Police (ie the forerunner of the Metro Police) closed in.  Goods were flung about and the roadside littered with broken crates and squashed fruit.  The poor street traders were systematically denuded of the little wealth they had.

29. Ord 11 of 1973 was enacted allowing limited street trading but its centrepiece was the intolerable ‘move-on’ law.  This meant that traders were only allowed to occupy a spot for a maximum of 15 minutes in any one day and provided further that the spot was not within 100m of a fixed formal business.  After 15 minutes they were compelled to move away to a spot at least 25m away.  No spot could be re-occupied on the same day.

30.  This Ordinance was applied in a demarcated restrictive area that was larger than that of any other large South African city.  During the period of apartheid, the Durban City Council, the predecessor of the Municipality, prided itself on its tough relentless police action against the wretched black offenders.

31. In the mid-nineties, the Bylaws, the subject of these proceedings, were enacted.

32. It is evident from this brief history of street trading in Durban, that it has been traditional to brutalise street traders with multitudes of disadvantages, victimisation, wrongs and injustices.  The new constitutional dispensation has brought no respite.  The Municipality continues to conduct itself as if it were at war with the poorest of its citizens.

33. It is also evident that the impoundment of our goods occurs in a complex setting of historical deprivation of economic opportunities to us black South Africans and our struggle for survival.  The anger on the streets and the continued deprivation of property and opportunities has the potential to spark divisive social conflict.  I respectfully request this Court to intervene and stop these excesses on the part of the Municipality.

The Laws in Question

34.  Bylaw 7 provides as follows:

              Removal and impoundment:                     

            (1) For the purposes of this bylaw "goods" includes any receptacle, vehicle or movable structure.

            (2) An officer may remove and impound any goods-

                                    (a) which he reasonably suspects are being used or are intended to be used or have been used in or in connection with the carrying on of any business of a street trader; and (b) which he finds at a place where the carrying on of such business is restricted in terms of bylaw 3(h) or bylaw 5 or prohibited in terms of bylaw 2(a) to (g) and which in his opinion constitutes an infringement of such provision,  whether or not such goods are in the possession or under the control of any person at the time of such removal or impoundment.

            (3) Any officer acting in terms of sub-bylaw (2) shall-

                                 (a) except in the case of goods which have been left or abandoned, issue to the person carrying on the business of street trader a receipt for any goods so removed and impounded; and

                                 (b) forthwith deliver any such goods to the authorised official.

              (4)   Neither the Council not any councillor, official, officer or employee of the Council shall be liable for any loss of or damage to any goods removed and impounded in terms of this section.

35. Section 6A(1)(d)(ii) of the Act provides as follows:

[A by-law made under this subsection] may provide for the removal and impoundment by an officer of any goods, receptacle, vehicle or movable structure –

                                                              i.      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

                                                           ii.      which he finds at a place where in terms of a by-law under subsection (1)(a)(ii) or (iii), the carrying on of such business is restricted or prohibited and which, in his opinion, constitutes an infringement of such by-law, whether or not such goods, receptacle, vehicle or movable structure is in the possession or under the control of any person at the time of such removal or impoundment.

36. Section 6(5)(a)(i) and (ii) of the Act provide as follows:

The provisions of any law which warrants the seizure of articles, including Chapter 2 of the Criminal Procedure Act, 1977 (Act 51 of 1977), shall not apply in respect of the seizure of anything –

(a)   which is concerned in or suspected to be concerned in the commission of an offence –

                                                                        i. in terms of this Act or in terms of a by-law contemplated in section 6A(1);

                                                                         ii. relating to the carrying on of the business of street vendor, pedlar or hawker;

37. In what follows, I make on advice received, a series of legal submissions on behalf of the Association and myself. These demonstrate that Bylaw 7 breaches provisions of the Constitution for its failure to incorporate effective safeguards and procedures.

38. Section 6A(1)(d)(ii) of the Act for its part is invalid because it confers wide, open-ended and unguided lawmaking powers on the Municipality.  The provision effectively grants carte blanche to the Municipality to trample on the rights of affected persons.  That these powers have been employed with relish is evident from an examination of Bylaw 7, and the manner of its relentless enforcement by its zealous Metro Police.

39. Sections 6(5)(a)(i) and (ii) of the Act are invalid because they exclude the operation of an important portion of the Criminal Procedure Act 51 of 1977 in relation to the seizure of the goods of street traders.  This exclusion deprives street traders of protection that even common criminals take for granted.  

Legal Submissions

Access to Court or Independent Tribunal

40. Section 34 of the Constitution provides that “everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum”.

41. I am advised that the protection of s 34 extends to all an any type of attachment, sale in execution and disposal of property.But Bylaw 7 prescribes a procedure that is self-initiated, self-driven and self-supervised. The Court’s judicial oversight or sanction is not sought at any stage of this process. This I am advised constitutes a substantial restriction or circumvention of the normal judicial execution process.

42. I submit accordingly that the laws in question are bad because they offend against s 34 of the Constitution.

Failure to Stipulate how Impounded Property to be Dealt with

43. The laws in question do not say how the Municipality is to deal with the impounded goods.

44. There is no procedure prescribed in Bylaw 7 for the lawful disposal of the goods, or how to reclaim them.  The Municipality has effectively arrogated to itself the power to deal with the property of others, shielded from the public view, in any manner it deems fit.  Conceivably the goods can be appropriated or stolen by unscrupulous officials for their personal use and benefit; sold off to anyone with or without a reserve price; or simply flung away, with impunity, as garbage.  If sold, there is nothing to indicate how the proceeds are to be applied.

45.  This tacit authorisation to the Municipality and its officials to act in an ad hoc, arbitrary, unstructured and haphazard manner – in complete disregard of the rights and views of the owner of the property concerned – is irregular and unlawful.

46. I have been advised and respectfully submit that the legislature and the Municipality are obliged to provide guidelines as to how the power to dispose is to be executed, with due regard to the rights of affected individuals under the Constitution.

47. In the circumstances I have been advised and do hereby submit that the laws in question are invalid.

Indemnification Contained in Bylaw 7(4)

48. Bylaw 7(4) provides for the Municipality to be indemnified in cases where the impounded goods are lost or damaged.

49. The exclusion of liability or ouster has the result that the Municipality is purporting to put itself beyond the reach of the law. This has the result that an aggrieved party, whose goods have been lost or damaged by the Municipality, is deprived of the right to have a justiciable dispute settled by a court of law or other independent tribunal as guaranteed by s 34 of the Constitution.

50. Bylaw 7(4) is not authorised by the Act. In any event it is at odds with the Constitution, and is therefore invalid.
    

Imposition of Fine & Retrieval of Impounded Goods made Conditional  on Payment of  Fine

51. As illustrated by my experiences, the Municipality has contrived a practice whereby it routinely imposes fines and makes the retrieval of impounded goods conditional on the payment of those fines. I am advised that this practice is not authorised by the Act or the Bylaws. (Non-payment of this ransom results in the permanent forfeiture of the impounded goods.)

52.  If however it is authorised by the Act or the Bylaws, then it is inconsistent with the Constitution.  I submit that the Municipality is not permitted to confiscate my goods as a private penalty/execution by invoking this hybrid criminal/civil procedure, and say that it will return them to me only if I admit guilt by paying the fine.  

53. It is therefore inconsistent with a number of rights under the Constitution including the right of access to courts under s 34; the property rights clause in s 25; and the right to a fair trial in s 35(3).  This practice also makes the Municipality the prosecutor, judge and executioner, insofar as it puts undue pressure on an ‘accused’ to plead guilty in order to get his or her own property back.  

54. I personally entertain doubts about the bona fides of the Municipality insofar as it purports to invoke the criminal process by issuing “tickets” (ie s 56 notices to appear in court) to alleged offenders.  It is my submission that this process is intended simply to frighten and harass street traders and to induce them to desist from street trading.  I make this submission having regard to my personal experience with this process.  For example in December 2004 sweets exceeding R100 in value were removed from my possession and impounded.  I resolved to defend the matter and appeared in the municipal court in March 2005 in the Verulam Magistrates Court.  The matter was not enrolled for hearing and I was told to go home.  I could not afford the fine of R1100 and had to suffer the forfeiture of my goods.

55. My own investigations reveal that this form of abuse of street traders by the Municipality is widespread.  In this regard I attach hereto 26 such tickets, marked G1 – G26, not one of which was pursued further by the Municipality, even though the fines indicated therein were not paid.

56.  For each of these reasons, I respectfully ask this Court to declare that this practice is not authorised by the Act or the Bylaws, and if authorised, to declare that the Act and the Bylaws are to that extent inconsistent with the Constitution.

    Arbitrary Deprivation & Unconstitutional Expropriation of Property

57. Section 25(1) of the Constitution provides that “no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property”.  While s 25(2)(a) provides that property may only be expropriated for a public purpose or in the public interest, subject to the payment of compensation.  

58.  It is evident that the laws in question provide for the arbitrary termination and erasure of all the incidents of ownership in property without any due process or compelling reason.

59. I have been advised and respectfully submit that if the Act and Bylaw 7 mean that the impounded goods are to be confiscated and not returned to their owner, then they purportedly authorise an expropriation that is inconsistent with the Constitution.  The expropriation is neither in the public interest nor for public purposes, and the Act and the Bylaws do not provide for the payment of compensation to the owner.

60.  Even if the Bylaws mean that in due course the impounded goods have to be returned, the Act and the Bylaws do not require that a fair, non-arbitrary, and proportionate procedure be followed before the goods are removed from the possession of their owner: there is no sufficient reason to justify the blanket or dragnet approach of removing and impounding the goods of all “illegal” street traders.

61.   That the absence of such due procedure has far reaching consequences for the rights and interests of street traders is evident if one has regard to Bylaw 7(1) which provides for “goods” to include any receptacle, vehicle or movable structure.

62. It is my respectful submission that the removal and impoundment of goods of street traders is nothing more than theft on a grand scale from the poor.  The law is being brandished simply to punish them for being poor, and doing what the poor the world over must do: survive.

63.  I submit accordingly that the laws in question are inconsistent with the Constitution.

    Seizure of Property

64.  The laws in question authorise the Municipality to seize the property of street traders without a warrant.  I am aware that s 14 of the Constitution states that everyone has the right not to have their property seized.

65.  I am further advised that Chap 2 of the Criminal Procedure Act 51 of 1977 limits the right to seize property, and that it contains a number of procedural and substantive safeguards in this regard.  It is a law of general application.

66.  However ss 6(5)(a)(i) and (ii) of the Act exclude the application of Chap 2 in relation to seizures in terms of s 6A of the Act and Bylaw 7.  This exclusion deprives me of the protection that is the right of everyone else, including those who have committed serious crimes.  To the extent that these provisions do not introduce an alternative protection, it is my submission that they are inconsistent with the Constitution and invalid.

67.  I respectfully submit that if the intention of the legislature was that the Bylaws provide such protection, then ss 6(5)(a)(i) and (ii) of the Act are invalid because they do not direct that the Municipality enact such protection, having regard to the interest of the street traders in the ownership of their property.  For this reason ss 6(5)(a)(i) and (ii) are inconsistent with the Constitution.

68.  Bylaw 7 is invalid for a similar reason: it authorises the seizure of my property and fails to provide any or adequate safeguards in the exercise of the power of seizure.  Neither the Act nor the Bylaws adequately define the scope of the power to seize property nor do they require prior authorisation by an independent authority.

69. In addition, the Metro police officer is authorised, in terms of the laws in question, to seize when he is of the opinion that an offence has been committed.  His opinion is the sole requirement for the seizure.  On a plain reading of the laws in question therefore, he would be authorised to seize even if there is no infringement of the bylaw, or even if his opinion is untenable.

70. I submit for these reasons that the laws in question, and ss 6(5)(a)(i) and (ii) of the Act are inconsistent with the Constitution.

    Equal Protection & Unfair Discrimination

71. Section 9(1) of the Constitution provides that everyone is equal before the law and has the right to equal protection of the law.
72.  The Act was enacted to regulate the licensing and carrying on of both formal and informal businesses.  It provides for the imposition of penalties and criminal sanctions against formal businesses for non-compliance, but none of these sanctions includes the removal and impoundment of the goods of such businesses.
73.  The fact that street traders are subjected to the removal and impoundment penalty is evidence of unfair discrimination, and the failure of the Act to treat all entrepreneurs, whether formal and informal, equally.
74.  It also constitutes unfair discrimination against street traders within the meaning of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 on the following grounds:

     a.    The fact that we as street traders have suffered historical disadvantage as illustrated in paras 25 to 32 above.  In order to promote the achievement of equality, the Municipality has a duty to design and promote measures to protect and advance street traders, as a historically disadvantaged class of persons; and

      b.   The fact that we engage in street trading only because of our disadvantaged socio-economic status due to poverty, low employment status or lack of or low-level educational qualifications.

75.  In the circumstances it is my submission that s 6A(1)(d)(ii) of the Act is unconstitutional and invalid.

    Conclusion

76. It is clear from the foregoing that Bylaw 7 is seriously deficient in a number of respects.  This deficiency has its origin in s 6A(1)(d)(ii) of the Act.  Having regard to the widespread abuse of the Bylaw by the Metro Police, it is imperative that this Court curb these excesses by having both these laws, and ss 6(5)(a)(i) and (ii) of the Act, stricken from the statute book.  Members of the Association are constantly under threat from these laws and it is imperative that this Court affords us protection against these gratuitous, self-serving, oppressive and punitive procedures.  

     WHEREFORE I pray that it may please this Honourable Court to grant the relief contained in the notice of motion to which this affidavit and other documents are annexed, or such other relief as this Honourable Court deems just and equitable.

      ___________________________

    Deponent  

    I HEREBY CERTIFY that the Deponent has acknowledged that s/he knows and understands the contents of this affidavit which was sworn to and signed before me at DURBAN this 22^nd day of NOVEMBER 2005 in compliance with the regulations contained in Government Notice R.1258 dated 21 July 1972, as amended.

     

    _______________________________

    Commissioner of Oaths

    Name, Address, Capacity & Area

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