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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 

 

 

  

N O T I C E     O F     M O T I O N

 

TAKE NOTICE that PHOENIX PLAZA STREET TRADERS ASSOCIATION and PERUMAL NAIDOO (‘the applicants’) intend to make application to this Court on Friday 20 JANUARY 2006 at 09h30 or so soon thereafter as the matter may be heard for an order in the following terms:

 

  1.  Bylaw 7 of the eThekwini Municipality’s Street Trading Bylaws (KwaZulu-Natal Provincial Gazette MN 97, 1995 of 28 September 1995) (‘the Street Trading Bylaws’) is hereby declared to be inconsistent with the Constitution and invalid;
  2.  Alternatively to para 1: Bylaw 7 of the eThekwini Municipality’s Street Trading Bylaws (KwaZulu-Natal Provincial Gazette MN 29, 1998 of 23 April 1998) (‘the Street Trading Bylaws’) is hereby declared to be inconsistent with the Constitution and invalid;
  3. It is declared that eThekwini Municipality is under a legal duty to return impounded goods on request;
  4.   It is declared that s 6A(1)(d)(ii) of the Businesses Act 71 of 1991 (‘the Businesses Act’) does not authorise the eThekwini Municipality to make bylaws providing for the permanent confiscation of the goods of street traders;
  5. Alternatively to para 4: Section 6A(1)(d)(ii) of the Businesses Act is hereby declared to be inconsistent with the Constitution and invalid;
  6.   Sections 6(5)(a)(i) and (ii) of the Businesses Act are hereby declared to be inconsistent with the Constitution and invalid;
  7.  The practice of the eThekwini Municipality to issue notices to appear in court in terms of s 56 of the Criminal Procedure Act 51 of 1977 and making the retrieval of impounded goods conditional on the admission of guilt and payment of a fine, is declared to be irregular and not authorised by the Businesses Act or the Street Trading Bylaws;
  8.   Alternatively to para 7: To the extent that the practice described in para 7 is authorised by the Businesses Act or the Street Trading Bylaws, it is declared that the Businesses Act and the Street Trading Bylaws are to that extent inconsistent with the Constitution and invalid;
  9.  Insofar as declarations of invalidity have been made in respect of provisions of the Businesses Act, they are referred to the Constitutional Court for confirmation;
  10. Alternative relief;
  11. Costs,

and that the accompanying affidavits and supporting documents will be used in support thereof.

TAKE NOTICE FURTHER that the applicants have appointed RANJIT PURSHOTAM in the Legal Resources Centre, N240 Diakonia Centre, 20 St Andrews St, Durban, as their attorney and the address of the Legal Resources Centre as the place at which they will accept notice and service of all process in these proceedings.

TAKE NOTICE FURTHER that if you intend opposing this application you are required (a) to notify applicants’ attorney in writing on or before the 15 December 2005; (b) and within fifteen days after you have so given notice of your intention to oppose the application, to file your answering affidavits, if any; and further that you are required to appoint in such notification an address referred to in rule 6(5)(b) at which you will accept notice and service of all documents in these proceedings.

KINDLY place the matter on the Roll for hearing accordingly.

SIGNED at Durban this 22nd day of November 2005.

 

 _____________________________

RANJIT PURSHOTAM

Applicants’ Attorney

LEGAL RESOURCES CENTRE, Durban

N240 Diakonia Centre, 20 St Andrews St

DURBAN.

Tel 031-301 7572 Fax 031-304 2823

Docex DX 1 Parry Rd Exchange

jp@lrc.org.za

  

And to:                       eTHEKWINI MUNICIPALITY

                                    First Respondent

                                    Care of the Municipal Manager

                                    City Hall, West St

                                    DURBAN.

  

And to:                       MEMBER of THE EXECUTIVE COUNCIL

                                    FOR FINANCE AND ECONOMIC

DEVELOPMENT, KWAZULU-NATAL

                                    Second Respondent

                                    Natalia, Longmarket St, Pietermaritzburg

                                    Care of the State Attorney (KwaZulu-Natal)

                                    Third floor, Sangro House, Smith St

                                    DURBAN.

   

And to:                       MINISTER of TRADE & INDUSTRY

                                    Third Respondent

                                    Union Buildings, Pretoria

                                    Care of the State Attorney (KwaZulu-Natal)

                                    Third floor, Sangro House, Smith St

                                    DURBAN.

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