RAND DAILY MAIL: How a street trader’s court victory over metro cops changes the game

It could be one of the smallest damages awards made by a high court in recent times, but the R775 plus interest ordered by Judge Dhaya Pillay represents an enormous victory for street traders everywhere in South Africa.

Pillay, sitting in the Durban High Court, awarded the damages at the end of a lengthy judgment delivered earlier this month in which she found key, local by-laws invalid, a decision which should prompt every other municipality to search their own by-laws and make sure they pass constitutional muster.
The case concerns a Durban metro police raid on street traders in the Warwick Junction area during which they impounded plastic sandals from the sales table of John Mpini Makwickana, 65. But the police had chosen the wrong person to target:  sole breadwinner for eight dependants, Makwickana knows the law and was determined to get justice.

He is the chairperson of Traders Against Crime, an association of traders in Durban’s central Warwick Junction district. Formed in 1996, it works with the metro police to fight crime associated with traders and their customers. He is also the deputy president of Masibambisane Traders Association (MAT), a group of street trade organisations working on members’ rights and concerns including harassment by municipal officials.
In August 2013, a metro police office impounded goods from his table allegedly for failing to produce a street trading permit. The goods have since disappeared and no one can account for them.

Since Makwickana, in fact, has a permit, it was an open and shut case in which damages had to be paid for the impounded stock, said the judge, but it also allowed street traders as a group to challenge the validity of the by-laws and the way they were carried out in the area.
Makwickana is a familiar face in his part of Warwick Junction: he’s had a permit to trade at the corner of Bertha Mkhize and Fish Market Streets since 1996. He sells plastic and rubber sandals, buying an adult size at R18 and selling them for between R25 and R30; children’s sandals cost him R15 and he sells them for between R20 and R25. In a week he’d earn about R300.

Out of this he must pay for a permit that carries his name and photograph. Like other traders, Makwickana finds it seriously inconvenient that the permit stipulates no one else may trade on the permit. It means that even if they have a valid permit, they can’t leave the stalls to go to the toilet, eat or even buy new stock.

Following negotiations, however, the municipality has agreed to issue permits to “assistants” who help manage the stalls. On August 6 2013 — the exact date turned out to be important — Makwickana put out his goods before 7am as usual. Then he left his table for his assistant to look after while he dealt with some business on behalf of the MAT. He came back to hear that his stock had been confiscated. His assistant had gone to buy food from a supermarket 20m away, leaving the permits with a neighbouring trader. This trader called the assistant urgently and he rushed back to find an official packing 25 pairs of new sandals into a plastic bag. She left behind the sun-faded the old stock and handed over a receipt that simply read: “1xb/bag of slops”.

There was no further information about how they could get the sandals back as required under the by-laws. She also handed over a notice to pay a fine of R300 before October 18 2013 or appear in court.

The fine and confiscation greatly upset Makwickana, who had been working to curb what traders saw as unfair practices by the authorities, sometimes leading to theft and corruption among police officers who were not liable to account for the goods they confiscated.
In June 2014 he went with a staffer of the Legal Resources Centre to the magistrate’s court for the case. The magistrate provisionally withdrew the prosecution at the instance of the state and ordered that all the goods be returned.
Next stop, the Albert Park metro police station where they asked for the goods back. No, said the official, they were gone. All non-perishable goods were held for “between three and six months” and then were disposed of by auction. As the sandals were taken 10 months before, they were “no longer available”.

The municipality and its officials denied there had been any unlawful action, but their evidence was contradictory. In addition, the confiscating officer said the Business Support Unit required that if there was no permit on a table during a raid, the permit-holder should be charged even if he or she came back after the fine was issued. No corroboration for this “patently arbitrary” directive was given to the court.

In the view of the judge, the evidence of the municipal officials lacked credibility and was unreliable. The judge was also “shocked” and “disappointed” that the municipality did not explain whether it had done anything to check the official’s version or to get her to account for the goods she had impounded.
Because of the officer’s apparent “mendacity”, Makwickana successfully requested the court to order that she (the official) should have to pay part of the damages and the court costs out of her own pocket.

In the end, the judgment was a complete rout. The long-standing grievances of the traders were taken seriously and the municipality and its officials taken to task for the way they operated and for the by-laws which infringed the traders’ rights.
The judge referred to detailed research on the history of legislation and regulations controlling street traders and to a number of court decisions, and concluded that these traders were clearly a vulnerable group.

She found that the by-laws targeted by Makwickana and his organisation indeed infringed various sections of the constitution. She made wide-ranging orders to address the situation, including a declaration that the removal and impounding of the sandals had been invalid and unlawful. Read more here