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In
the HIGH
COURT
of SOUTH
AFRICA
Durban
k
Coast Local Division
Case
Nº
11364/2006
In
the matter between
KHEHLA
HEZEKIEL
VILAKAZI
Applicant
eTHEKWINI
MUNICIPALITY
Respondent
F O U N D I N G A
F F I D A V I T
I
the undersigned KHEHLA
HEZEKIEL
VILAKAZI
do hereby make oath and state:
The
Parties
1
I am an adult male, photographer and handyman,
residing in the rural area of Umgababa, near Zamokuhle Trading Store, KwaZulu-Natal.
I am the applicant.
2
The respondent is eTHEKWINI
MUNICIPALITY
(‘the Municipality’), of care of the Municipal Manager, City Hall,
West St, Durban, care of Municipal Legal Services Department, 12th
floor, 221 Smith St, Durban. I am
advised that respondent was established in terms of KwaZulu-Natal Provincial
Gazette PN 343, 2000 of 19 September 2000 and that it is a government in the
local sphere as contemplated in Chap 7 of the Constitution.
3
The Municipality implements the following
legislation within its area:
a.
The Sea-Shore Act 21 of 1935 (‘the
Sea-Shore Act’) and regulations ostensibly made in terms thereof, and
published in Prentice-Hall’s By-Laws of the City of Durban (‘the
Regulations’). (Despite
diligent search my attorney has been unable to locate the Government Gazette
in which the Regulations may have been published.
I annex hereto marked A
only reg 19(o), being the law that I question.)
b.
The Businesses Act 71 of 1991 (‘the
Businesses Act’) and the Street Trading Bylaws ostensibly made in terms
thereof, and published in KwaZulu-Natal Provincial Gazette MN 97, 1995 of
28 September 1995 (‘the Bylaws’, annexed hereto marked B).
(The Municipality inherited both the Regulations and
the Bylaws from its lawful predecessor the City Council of the City of Durban.)
The
Problem
4
I simply seek to take care of my family to the
best of my ability by employing the only skill I know – photography – but
the Municipality is thwarting me at every turn.
I ask this Court to put a stop to these excesses on the part of the
Municipality.
The
Facts
5
I am married and have 5 children, one of whom
is disabled. Except for the latter
who does not attend school because no school is prepared to take her, all the
others attend school.
6
I support and maintain my family as best I can
through the part-time work I perform as a handyman at a high school.
However the paltry amount I earn is barely enough to take care of the
needs of my family.
7
I took up photography in 1978, and have since
taken pictures all over this Province. Since
2000 however I have concentrated my efforts on the Durban beach mainly during
school holidays. This trade has
enabled me to supplement my meagre income.
8
My clients are mainly tourists who request me
to take pictures of them frolicking in the water.
I wade into the water myself to take the best pictures.
9
I have been conducting my trade undisturbed
since 2000 but in the past year I have been warned a number of times by law
enforcement officers of the Municipality to stop taking pictures until I had an
official permit, failing which I risked the confiscation of my valuable
equipment. I made various inquiries
about where to apply for the permit, was given the run-around, and ended up with
conflicting information about which department in the Municipality dealt with
the issue. Thoroughly confused and
frustrated, I decided to engage the services of an attorney.
10
I consulted Sipho L Mkhize Attorneys in June
2006. The said attorney attempted
to resolve the problem on my behalf but his efforts were in vain.
I do not wish to burden these papers unnecessarily but I have in my
possession copies of 10 letters and faxes he sent to the Municipality on my
behalf. These will be made
available to this Court if necessary at the appropriate time.
11
I was thereafter referred to my present
attorney in the LEGAL
RESOURCES
CENTRE
in October 2006. He telephoned the
Business Support Unit (Informal Trade) and was advised that I must submit an
application in accordance with a pamphlet issued by that office.
On 6 October 2006 I fetched the pamphlet (‘the Pamphlet’)
headed “Information on how to apply for Vending Permit” (annexure C).
It purports to provide information for those who seek to engage in street
trading. No application forms are
provided for this purpose, but aspirant informal traders are invited to apply by
furnishing certain particulars.
12
I handed the Pamphlet to the attorney, who
expressed the view that it was inapplicable to my situation both from a legal or
practical perspective. I
nevertheless instructed him to prepare an application in conformity with the
requirements of the Pamphlet.
13
That application was prepared (annexure D
hereto) and I attempted delivery thereof by hand at the offices of the
Municipality on 9 October 2006. One
Thandi Mncwabe attended upon me. She
read annexure D,
but refused to accept delivery thereof, stating that no further applications can
be accepted as “the beaches are full”.
14
I retreated to the attorney’s office.
He faxed the application to the Municipality.
A response by email was received (annexure E
hereto) on 10 October 2006 from one Thulani Nzama, who claimed to be the manager
of informal trade in the Municipality. He
advised that the matter did not fall within the jurisdiction of his office, but
of one Andreas Makhoba in the department of recreation in the Municipality.
15
My attorney held a meeting with Makhoba that
same day at the latter’s office where he advised my attorney inter alia
that there were no rules and regulations dealing with the conduct of the
business of photography for reward on the beach; that applications to engage in
the trade must be made not to the Municipality but to a private body called the
Durban Beach Freelancers Association (‘the Association’); that the
maximum number of photographers permitted was 30; and that I must complete the
application form (annexure F
hereto) and return it to his office for processing.
16
My attorney attempted, but failed to confirm,
the above by way of fax (annexure G
hereto) at a number – 031-337 2373 – furnished by Makhoba himself.
He did however succeed in sending it to a general fax number in
Makhoba’s department. The next
day (ie 11 October 2006), he sent the contents of that fax by email to Makhoba
directly. My attorney also placed
on record that his investigations revealed that the Association’s phone number
and email address did not exist; and that it did not even occupy the premises
indicated on annexure F.
Finally, a copy of the rules, regulations and constitution of the
Association was requested.
17
On 18 October 2006 Makhoba responded to the
email (annexure H
hereto). He disputed that the
Municipality did not have rules or regulations dealing with this issue; and
further that he did not advise my attorney that I had to join the Association.
But he did indicate that the Municipality managed the process jointly
with the Association.
18
The following was not disputed by
Makhoba:
a.
That 30 is the maximum number of photographers
permitted;
b.
That applications intended for the Association
must be submitted to his office;
c.
That the Association’s telephone number and
email address do not exist; and
d.
That the premises advertised on its application
form are in fact occupied by an unrelated entity.
19
Makhoba furthermore did not respond my
attorney’s request to be furnished with a copy of the Association’s
constitution, rules and regulations.
20
The only inference I can draw from the above is
that the Association is a bogus body and that Makhoba required that I apply to
such a body. (It is also evident
that Makhoba was abdicating his function, if he had such authority, to issue the
permit to the Association.)
21
Be that as it may, and having regard to the
Constitution and other relevant laws, my attorney advised me that the
Municipality could not lawfully prohibit the conduct of photography for gain on
the beach or sea-shore. I
nevertheless instructed him to persist and seek a permit from the Municipality
through the director or head of its department of parks, recreation, leisure,
cemeteries and culture. This was
after my attorney was led to believe, after various inquiries, that the beaches
were administered by that department. A
fax was sent to the director or head of that office on 11 October 2006 (annexure
J
hereto) seeking permission from that functionary, alternatively reasons for a
refusal.
22
I am advised that there has been no response to
that communication. I assume that
the application has been refused because annexure J
stipulated that if there was no response within 7 days it would be assumed that
the application has been refused.
23
I have set out the facts at some length to
illustrate how my legal representatives and I have all been pushed from pillar
to post by the different departments in the Municipality.
I am also aware from media reports that the Municipality has recently
acted with extraordinary ferocity against defenceless informal traders and
confiscated their goods. I am
therefore not sure whether there is a conspiracy within the Municipality against
informal traders, or simply whether its organisational structures are in
disarray. Either way, I now proceed
to contend below that the interference with my fundamental right to conduct my
trade must be set aside, and that I should be granted interim relief in the
meanwhile.
The
Law & My Submissions
24
I am advised that the Municipality’s power to
regulate activities on the sea-shore (also referred to as the beach) is
different to its power to do so in other public areas of the Municipality.
The former is governed by the Sea-Shore Act and the Regulations; while
the other public areas are regulated by the Businesses Act and the Bylaws.
I conduct my trade exclusively on the sea-shore and hence the legislation
that applies to my trade is the Sea-Shore Act and the Regulations.
The Municipality’s functionaries however have a faulty understanding of
these legal niceties and hence I set out below, out of the abundance of caution,
the situation that pertains to both the sea-shore and other public areas.
Fundamental
Right to Trade
25
The Constitution provides in s 22 that “Every
citizen has the right to choose their trade, occupation or profession freely.
The practice of a trade, occupation or profession may be regulated by law.”
26
It is evident that the Constitution gives me
permission and entitles me as of right to engage in my chosen
trade – photography – subject to it being regulated by law.
I am content to be subject to regulation by law, but regrettably there is
no regulatory law.
27
I show below that the Municipality is
attempting to take away not only my fundamental right to continue to practice my
trade, but is actually regulating it – irregularly – outside the boundaries
of the law.
The
Sea-Shore Act and the Regulations
28
Section 22 of the Constitution and s 10 of the
Sea-Shore Act read together provide that the Municipality has the power to regulate
various activities on the sea-shore. Regulation
19(o) (ostensibly made in terms of the Sea-Shore Act) however provides that “A
person commits an offence if, on the sea-shore or in the sea or in any other
place to which these regulations apply, he – without the prior written consent
of the Director take photographs or makes portraits or other life-like
impressions for gain”.
29
It is submitted that reg 19(o) is of no force
and effect for one or more of the following reasons:
a.
It is ultra vires the Sea-Shore Act
because –
i.
No power is given in s 10 of that Act to
prohibit trade;
ii.
The conduct of photography for reward is not
inconsistent with any right of the Municipality as contemplated in s 13(c) of
that Act;
b.
It is invalid and void because –
i.
It does not serve any legitimate governmental
purpose;
ii.
It prohibits and criminalizes
photography rather than regulating it;
c.
It has been abrogated by disuse because
photography for reward has been conducted without let or hindrance for many
decades on the sea-shore;
d.
The evidence shows that Makhoba, alternatively
the Municipality, in fact allows photography for reward on the sea-shore,
and hence, reg 19(o) is being actively subverted by the Municipality;
e.
Insofar as the Municipality seeks to enforce
reg 19(o) against me, I submit that this action on the part of the Municipality
betrays unfair discrimination because other types of commercial activities on
the sea-shore are expressly or impliedly permitted;
f.
The Municipality is being partial and unequal
in enforcing reg 19(o) despite the widespread publicity having been afforded to
its failure or refusal to enforce on the sea-shore over many years the
Regulations dealing with inter alia, the exposure of private parts (reg
10(2)); the presence of dogs (reg 12); the discarding of waste or litter (reg
19(k)); begging (reg 19(p)); drinking of liquor (reg 19(r)); making of fires (reg
19(z)); discharging of fireworks (reg 19(z)(aa)); urinating or defecating in
public (reg 19(z)(ee)); fighting or the use of offensive language (reg
10(z)(ff)); and, shouting or the use of loudspeakers so as to cause a
disturbance (reg 19(z)(ii)).
30
I deal below, under the heading Promotion of
Administrative Justice Act 3 of 2000 with the legal consequences of the
Municipality’s failure to approve my application to practice my trade.
The
Businesses Act
31
I now proceed to deal with the Businesses Act,
on the advice of my attorney. This
Act is intended to regulate inter alia the practice of street trading.
It is in keeping with the Constitution insofar as s 6A(1)(c)(i) thereof
specifically provides that informal traders are not required to hold a licence,
permit, authority, certificate or approval in respect of their business, and
that no bylaws may be made for this purpose.
Despite that, if one has regard to the Pamphlet, the Municipality is
compelling me to obtain a permit, which requirement I submit is irregular,
unlawful, and ultra vires.
The
Bylaws
32
The Bylaws (annexure B
hereto) define “street trading” to mean “the selling of any goods
(including a living thing) or the supply or offering to supply any service for
reward, as a street vendor, peddlar or hawker in a public road or public place
but does not include the sale of newspapers only”.
33
I am a street trader within the meaning of the
above definition insofar as I supply a service for reward in a public place.
Bylaw 2 sets out the places where street trading is prohibited.
None of these prohibitions applies to me insofar as I offer my services
on the sea-shore.
Prohibition
in terms of s 6A(2)(a) of the Businesses Act
34
However the Municipality is given the
additional power by s 6A(2)(a) of the Businesses Act to declare that street
trading is prohibited at places in addition to those set out in the Bylaws.
The Municipality’s lawful predecessor exercised this power and
published MN 96,1995 in the KwaZulu-Natal Provincial Gazette on 28
September 1995 (‘the Municipal Notice’, annexure K
hereto).
35
The relevant portion of the Municipal Notice is
paragraph 1.2 dealing with the Durban beachfront, and it prohibits informal
trading within the area enclosed by certain named streets.
The area described in paragraph 1.2 clearly does not seek to impose a
prohibition on the sea-shore proper insofar as it prohibits informal
trading only on “both sides of the streets so named”. I
do not offer my services anywhere except along the water’s edge on the
sea-shore and then only to those enjoying the sun and the sea.
36
In any event even if it is deemed that the
sea-shore proper falls within the ambit of this prohibition, then paragraphs
1.2.1 and 1.2.3 specifically provide that itinerant traders (ie persons
such as myself) are excluded from this prohibition.
37
In the circumstances it is submitted that the
imposition by the Municipality of the requirement that I obtain a permit is
irregular, unlawful and ultra vires.
Rule
of Law Not Observed by Municipality
38
The Municipality is not empowered to require
that informal traders have permits. That
much is apparent from the Constitution and s 6A(1)(c)(i) of the Businesses Act.
But even if it is empowered to provide for permits, whether in terms of
the Sea-Shore Act or the Businesses Act, the Rule of Law requires that such
procedure, if any, be prescribed by law. There
is no evidence that the Municipality has made any such law.
Despite this it is evident that it enforces its own extra-legal or
internal procedures. This
“gate-keeping” has the effect that many impoverished people are kept from
earning a lawful income simply because their appearance or the activity they
seek to engage in, is out of sync with the image that the city fathers seek to
portray of Durban as a glamorous first world “fun in the sun” city.
39
The evidence reveals that the Municipality has
effectively cobbled together with the Association, behind closed doors, some or
other ramshackle administrative and regulatory procedure to restrict the entry
of those seeking to engage in informal trade.
In this regard I ask the Court to take cognisance of inter alia
the following:
a.
The contents of the Pamphlet (annexure C);
b.
The response of Thandi Mncwabe that “the
beaches are full”;
c.
That applications to trade on the sea-shore are
jointly managed by the Municipality and the bogus Association (annexure H);
and
d.
The failure or refusal by the director of the
recreation department to even respond to my application.
40
Informal traders, whether on the sea-shore or
elsewhere, simply do not know how applications for permits are dealt with by the
Municipality. My attorney has been
advised by Patricia Horn (co-ordinator of StreetNet International, an eminent
street trader organisation), that she has in the past requested information and
transparency about these issues but on each occasion she is given different
explanations. She
has failed to obtain a comprehensive and consistent official written version of
the requirements and procedures informal traders are expected to comply with.
It follows that the Municipality is performing functions in accordance with
arcane, opaque and unknown informal procedures and criteria.
41
Street traders are generally recognised as a
vulnerable class of persons and the creation of such obstacles robs them of the
protection they would enjoy had the Municipality designed appropriate pro-poor
laws and structures.
42
This failure on the part of the Municipality
has the effect that it is exercising extremely wide, unfettered, and unguided
powers in determining who can or cannot engage in informal trading whether on
the sea-shore or elsewhere. Uncertainty,
lack of knowledge or clear rules, about how one can engage in street trading, or
how the Municipality performs these critical functions and duties does not, in
my submission, advance the public interest, or the imperatives of the
Constitution which requires in sections 153 and 195 that the Municipality
respond to and give priority to the basic needs of the community, and promote
its social and economic development.
43
It is clear that this failure to prescribe
proper procedures, requirements and criteria, is manifestly causing the
Municipality to perform its functions and duties –
a.
In an ad-hoc, haphazard, flawed, unstructured
or muddled fashion;
b.
With nothing governing the exercise of its
discretion, it is at large to act arbitrarily and randomly on its own notion,
whim, and caprice, without any constraint or adequate determining principle;
c.
In an unpredictable manner, as it is
conceivably determining matters for different, unconnected and irrelevant
reasons, all things being equal;
d.
Based on incomplete or distorted information;
e.
By ignoring relevant facts, or taking
extraneous considerations into account;
f.
Without full consideration of the merits of an
application; and
g.
Without its functionaries having any conception
of how to consider an application.
44
It is also entirely and wholly plausible
accordingly that applications are not being considered in a fair, consistent,
coherent or uniform manner.
Failure
to Implement the Businesses Act, Sea-Shore Act, and the Constitution Reasonably
45
I am advised that if the Municipality is
genuine and sincere about poverty alleviation, as it incessantly claims, it
would have devised a pro-poor informal trader programme that was reasonable in
its conception and implementation. I
am not aware of the Municipality having devised any such programme.
The little that one can gather from the Pamphlet (being the only document
that it puts out to supposedly assist informal traders), a programme, if it
exists, is flawed and deficient. The
most obvious is the assumption that all informal traders wish to occupy a space
on a pavement. Itinerants such as
myself are impliedly excluded. This
exclusion of itinerants, then, has the following consequences:
a.
It does not alleviate in any meaningful way the
chronic unemployment;
b.
It does not prioritise the needs of the most
desperate, marginalized, and vulnerable. For
example, the Pamphlet only requires the most rudimentary details to be furnished
in support of an application. If
care and thought had gone into designing the Pamphlet, then the socio-economic
circumstances and needs of an applicant would have ranked high on the list of
details to be furnished, and these would then have informed the decision maker
in a meaningful way;
c.
No rational governmental objective is being
served by the exclusion of itinerants. It
is irrational;
d.
If I am not allowed to resume my trade, then it
will have a devastating impact on me. I
depend on this income during the festive season to supplement my meagre income,
and prepare for the new year when school fees have to be paid, books and
uniforms bought, and a host of other expenses paid.
46
In all the circumstances it is submitted that
the obstacles and difficulties that the Municipality has devised to guard
against informal trading do not pass the test set out in s 36 of the
Constitution because they are unreasonable and unjustifiable.
They fall to be struck down and set aside.
Promotion
of Administrative Justice Act 3 of 2000 (‘PAJA’)
47
The refusal of my application only has the appearance
of “administrative action” within the meaning of that term in PAJA.
In reality it constitutes the abuse of public power because it is being
exercised not in terms of any legislation or “empowering provision”.
48
The failure by the Municipality to communicate
its decision, or furnish reasons means that in terms of s 5(3) of PAJA, the
decision was taken without good reason. This
failure or refusal to take a decision constitutes a “decision” as
defined in PAJA read together with the definition of “failure”
therein.
49
In addition the Municipality is attempting to
limit without due process a right that I am already exercising, and have
exercised for many years.
50
In the circumstances the decision to refuse me
a permit to engage in photography on the beach must be set aside.
Other
Constitutional Rights Implicated
51
Section 25 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.
52
As I have attempted to show above, there is in
fact no law that is being applied in my case, and as such the threat by the
Municipality’s officers to confiscate my equipment is in flagrant defiance of
the Constitution.
53
In terms of sections 27 and 28 read together,
my children are entitled to food, water, shelter and basic health care.
Denial of the permit will imperil their right to these basic necessities.
54
Section 29 provides for the right of everyone
to an education. Likewise, this
right is threatened.
Entitlement
to Interdict & Urgency
55
Having regard to the above it is evident that
–
a.
I have a right to trade under the Constitution.
As such I am entitled to the interdict as the issues I bring up in these
papers raise serious doubt about the constitutionality, legality, regularity or bona
fides of the modus operandi of the Municipality;
b.
I have a well-grounded apprehension of
irreparable harm if the interdict is not granted and the ultimate relief is
eventually granted: my valuable equipment may be confiscated, and my earning
capacity severely compromised. In
addition my children may be prejudiced insofar as their rights are concerned;
c.
The balance of convenience favours the granting
of the interdict. Should I not be
granted interim relief, my family and I will suffer irreparable loss.
The Municipality on the other hand will suffer no prejudice if an
interdict stays in force pending the resolution of these proceedings.
In any event my prospects of success are stronger than those of the
Municipality; and
d.
I have exhausted all other avenues.
I have no other satisfactory remedy.
56
The coming festive season, is the only time of
the year when there is the possibility to earn a fair sum of money.
That season is already upon us. Hence
it is imperative and urgent that this Court removes without further delay the
shackles that have been placed upon me by the Municipality, as each passing
weekend brings with it further loss and prejudice to me and my family.
Conclusion
57
Poverty alleviation is an issue that is
constantly being bandied about by those in power, but I have yet to see anyone
knocking at my door asking whether I need help.
I do not ask the government for anything, nor do I seek any concession or
charity. I do not beg, borrow or
steal. The modest rations that I
put on the table every evening are earned through the slog and sweat of my
brows. I only ask that I be left
alone to earn a few pennies.
H E
R E
F O
R E
I pray that it may please this Honourable Court to grant the relief
contained in the notice of motion 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 20th day of OCTOBER 2006 in
compliance with the regulations contained in Government Notice R.1258 dated 21
July 1972, as amended.
_____________________________
COMMISSIONER
OF OATHS
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