By Franny Rabkin
The Constitutional Court ruled on Thursday that Johannesburg’s lawful informal traders can return to their stalls on the streets of the inner city and continue trading, after a morning of argument.
Members of the South African Informal Traders Forum (SAITF) and the South African National Traders Retail Association, some of whom have lawfully traded on Johannesburg’s streets for more than 20 years, had been removed as part of the city’s "Operation Clean Sweep" — an initiative to rid the city of illegal hawkers.
After they were turned away by the high court, which struck their case off the roll saying it was not urgent, they went urgently to the Constitutional Court.
"The ruling was that all the traders that were removed by the City of Johannesburg can now resume trading," SAITF deputy chairman Phumulani Ndlovu said on Thursday afternoon.
The city was ordered to pay the costs of the application. Mr Ndlovu also said the court had ordered the city not to interfere with informal traders operating on the streets.
Earlier, counsel for the forum Paul Kennedy SC had told the court the city had, in trying to clean up the city of illegal traders, removed all the traders — including the lawful ones — without any law authorising it to do so.
Because of what the city did, the traders were now "truly in a state of absolute crisis", he said.
"These are people who, despite the problems of bad education under apartheid, despite the problems of unemployment, crafted for themselves, out of their own resources, viable businesses," he said.
He argued that even though it was highly unusual for the highest court to intervene in the case at this point there were exceptional circumstances, because, realistically, the high court would only be able to hear their appeal in February, which was too late.
Counsel for the association Chris Georgiades agreed, saying the city had an obligation to protect its citizens. Instead, he said, it had done the opposite: it had abused the traders and treated them like criminals.
Counsel for the city Gcina Malindi SC faced a barrage of questions from the Constitutional Court bench, eventually saying he was "constrained to concede" that the city had not followed the right procedures when it came to the lawful traders.
However, after going back to his client to see if the city was willing to settle, Mr Malindi told the court the city would not settle, but was willing to allow those traders who had been verified as lawful, after the start of Operation Clean Sweep, to go back to their trading positions.
But Mr Kennedy’s junior counsel, Steven Budlender, said this was not enough. He said the city had itself admitted that they had all been lawful traders and, to avoid further litigation, the court should order that all of the forum’s and the association’s members be allowed back.
Sourced from Business Day – www.bdlive.co.za
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