Franny Rabkin. Evicted Johannesburg traders can return to inner city, court rules. Business Day, Dec. 5, 2013

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MORE than 2,000 of Johannesburg’s informal traders will be able to return to their stalls in the central business district after the Constitutional Court on Thursday interdicted the City of Johannesburg from interfering with their right to trade.

The traders — some of whom had been lawfully trading in the same spot for more than 20 years — were evicted from their stalls and had their goods impounded in October as part of “Operation Clean Sweep”, a mayoral initiative to rid the city of illegal hawkers. They have been living hand to mouth since.

The interim order will last until the high court hears argument on the lawfulness of Operation Clean Sweep, probably next year.

The justices had barely exited the court on Thursday when ululations and singing started.

Members of the South African Informal Traders Forum (SAITF) and the South African National Traders Retail Association had approached the Constitutional Court after they were turned away by the high court, which struck their case off the roll, saying it was not urgent.

For the highest court to entertain an urgent appeal against a high court’s striking-off order was highly unusual. But lawyers for the two informal traders’ organisations argued that this was an exceptional case that warranted a departure from the usual procedures — in the interests of justice.

Counsel for the forum Paul Kennedy SC said the city had, in trying to remove 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.

Realistically the high court would only be able to hear their appeal in February, which was too late, he said.

Counsel for the association Chris Georgiades agreed, saying that while technically the high court ruling was temporary, its effect on the traders was final — they could not wait until February.

Mr Georgiades said the city had an obligation to protect its citizens. Instead, it had done the opposite — it had abused the traders and treated them like criminals.

Counsel for the city Gcina Malindi SC said this was not a case that justified the Constitutional Court’s intervention. But he faced a barrage of questions from the bench about how the city and the Johannesburg metro police had behaved, 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 checking with his client, Mr Malindi said the city would not settle. Instead it was willing to allow those traders who had recently been verified as lawful to return to their stalls.

But Mr Kennedy’s junior counsel, Steven Budlender, said this was not enough. He said the city had itself admitted that all the traders who had come to court had been lawfully trading prior to the operation. To avoid a subsequent fight about who was lawful and who had been verified, the court’s order should apply to all those names on two lists that were handed up to court.