On the morning of 6 August 2013, John Makwicana, an informal trader at Warwick Junction in Durban, left his trading stand in the care of his assistant. Later that day the assistant, in turn, left the stand in the care of a neighbouring trader as he went to buy food at a nearby supermarket.

Although the assistant had left both his and Mr Makwicana’s trading permits with the neighbour, when he returned, law enforcement officials were confiscating sandals worth R750, arguing that the goods had been “abandoned”.

Mr Makwicana was told that he would need to pay a R300 fine for the goods to be released. To his surprise, when Mr Makwicana tried to obtain his confiscated goods, officials were unable to return them or provide an itemised list, as required by the by-laws.

In 2015, Mr Makwicana, with the help of the Legal Resources Centre, approached the Durban high court and obtained a judgment in his favour because the officials had failed to regulate informal trade in a manner that was consistent with the Constitution.

Importantly, the Court also found that the eThekwini Municipality’s by-laws potentially violate the rights of traders if they are implemented restrictively, for example, if officials can confiscate traders’ goods, even if a violation is less serious.

The municipality was ordered to compensate Mr Makwicana for the value of his goods plus interest and to revise their by-laws to be in line with the Constitution. Regrettably, Mr Makwicana died in March 2018 without seeing any meaningful implementation of the court’s landmark judgment.

It took four years for the eThekwini Municipality to pass its new informal trading by-laws in 2019. Unfortunately, the by-laws continue to create several challenges for traders, as we outline here.

General view during the Street Traders March on 12 October, 2020 in Durban, South Africa. (Photo: Gallo Images/Darren Stewart)

By-law barriers

First, traders face systemic exclusion through the online system to register for a trading permit. Once a prospective trader applies for a trading permit, they receive a system-generated message that states that if they do not receive further correspondence in 6-12 weeks, they can consider their application to have been unsuccessful, and no reasons are given for the refusal.

This is contrary to the constitutional right to just administrative action which requires state decision-makers to provide reasons for their decisions, and to do so without undue delay.

Without knowing why they were unsuccessful, traders are unable to appeal the decision. The by-laws should be amended to allow prospective traders a fair appeals process and therefore an opportunity to present reasons why their application should have been granted.

While the weeks-long application process runs its course, the prospective traders are unable to make a living to support their families.

Once a trader has been granted a permit, a second issue arises: the allocation of space, which is usually only 1.5m x 2m in size. This space can barely accommodate the trader, their goods, portable storage, and an assistant. Traders can pay for additional space, but this does not take into consideration that their incomes vary and that those who might be most in need of additional space cannot afford it.

Women traders face the added challenge of space allocations in remote and unsafe locations. The traders must also contend with overly restrictive trading hours that limit trade to 2pm, drastically reducing their potential income. The municipality is giving preference to formalised retailers who have longer trading hours.

A general view taxi rank and informal traders of Umlazi Township on 9 April, 2020 in Durban, South Africa. (Photo: Gallo Images/Darren Stewart)

Equitable allocation needed

To equalise the terrain, the by-laws must be responsive to lived realities by allocating appropriately sized stalls in well-policed areas with proximal foot traffic during regular business hours, as with formalised businesses.

Connected to this is a third issue: due to a lack of space and/or funds to secure paid-for storage, some traders are forced to store goods in their trading space in a locked box. The by-laws prohibit this.

Where goods are left unattended for 24 hours or more, in the absence of their owner, those goods are considered abandoned and can be confiscated. The result is that traders must often pay a fine to release the goods and the fine is usually greater than the value of the stock.

Some traders end up having to take from their meagre earnings to transport and store goods elsewhere. Challenges around storage require municipal intervention — without the municipality’s assistance, the traders cannot access off-site storage that is affordable and within proximity to their stalls. The municipality must proactively engage with traders on these issues.  

Lastly, a substantial challenge with the eThekwini by-laws is that they permit law enforcement officials to impound traders’ goods “for all contraventions of the by-law or any other law”. This means that a violation like trading without possession of one’s permit, a less serious contravention of the by-laws, and trading in an area where trading is not permitted, a serious contravention, can both result in goods being confiscated.

This is at odds with what the court found in Mr Makwicana’s case where it explicitly ruled that the old by-laws were excessive as they did not differentiate between serious and less serious contraventions.   

In eThekwini, traders are easily criminalised and have their goods confiscated based on the by-laws, while their day-to-day realities and vulnerabilities are overlooked or not understood.

This is against the spirit of our constitutional democracy which would require a truly consultative and inclusive scheme to regulate informal trade within the inner city.

Our plea is for more constructive engagement between the municipality and traders to overcome challenges, as well as amendment of the by-laws in the ways outlined above. Only then can we say that the court’s landmark judgment would have been implemented. In the meantime, eThekwini traders continue their struggle to interact with the existing regulatory framework.

The Socio-Economic Rights Institute (Siri), the South African Informal Traders Forum (SAITF), and the Southern African Human Rights Defenders Network (SAHRD), have compiled a guide in IsiZulu and English available online and in print to support eThekwini’s street traders make a living within the constraints of the existing regulatory framework. DM

Khululiwe Bhengu is an attorney at the Socio-Economic Rights Institute (Seri). Muano Nemavhidi is a candidate attorney at Seri.