By Michal Johnson and Tarryn Paterson

On 5 December 2013 the Constitutional Court heard urgent -applications brought by two informal trader organisations for urgent relief. The South African National Retail Traders Association (SANTRA) and the South African Informal Traders Forum (SAITF) approached the Constitutional Court as a result of a judgment handed down in the High Court, Gauteng Local Division, by Monama J.

The urgent application was brought to the High Court as a result of the City of Johannesburg (the city) having taken the decision to relocate informal traders to an unknown destination in an unspecified time-period; and to prohibit or restrict trading in areas in the Central Business District (CBD) that are currently demarcated for informal trading.

In what has become known as ‘Operation Clean Sweep’, the Johannesburg Metropolitan Police Department (JMPD) enforced the decisions taken by the city. The city attempted to justify its decisions outside of the court papers by reasoning that illegal informal traders gave rise to disorder and criminality. However, the members of SANTRA and SAITF were in possession of written permission from the city to trade. The city did not deny the existence of the operators. The effect of the operation was that thousands of informal traders were displaced, their ability to earn an income was interrupted and in some instances their stock was taken.

The relief sought in the High Court was framed in a two-part application; the relief that was sought urgently and immediately was interdictory in nature. SANTRA sought to –

• interdict the city from demolishing any further stalls from which the informal traders had been trading;
• compel the city to allow informal traders who were lawfully entitled to trade to return to the areas previously allocated to them so that they could continue trading;
• compel the city to re-erect the stalls that had been demolished, alternatively to allow those affected informal traders to trade from the sites where their stalls had stood;
• interdict the city and the JMPD from interfering with the informal traders’ right to trade; and
• compel the city to give reasons for its decisions to relocate the informal traders and prohibit trading in the CBD.

The second part of the application was a review of the decisions taken by the city to –

• demolish existing stalls erected by the city for the use of informal traders and which had been leased by SANTRA’s members for that purpose;
• relocate informal traders from the CBD; and
• declare certain areas in the CBD restricted or prohibited for the purposes of informal trading.

While the matter was heard as an urgent application in the Johannesburg High Court and extensive argument was led, Monama J, in line with the view taken in the city’s answering affidavit, ruled that the matter was not urgent and dismissed the matter from the urgent roll. Interestingly the court did grant leave to an intervening party to join the proceedings, their application having also been brought on an urgent basis.

SANTRA immediately requested reasons from the court and sought leave to appeal.

Subsequent to the order handed down in the High Court, SANTRA and SAITF approached the Constitutional Court on an urgent basis (see South African Informal Traders Forum and Others v City of Johannesburg and Others; South African National Traders Retail Association v City of Johannesburg and Others 2014 (6) BCLR 726 (CC)). SANTRA approached the Constitutional Court seeking an order on the following terms:

• The matter should be dealt with as one of urgency in terms of r 12 of the Rules of this Court.
• SANTRA should be granted leave to appeal to the Constitutional Court against the High Court’s judgment and, pending the determination of the appeal, SANTRA members be permitted to trade in a manner consistent with ss 9 and 10 of the informal trading by-laws at the places where they traded prior to ‘Operation Clean Sweep’.
• In the alternative, pending the determination of SANTRA’s application for leave to appeal to a full Bench, that its members be permitted to trade in a manner consistent with ss 9 and 10 of the informal trading by-laws at the places where they traded prior to ‘Operation Clean Sweep’.

While it is unusual for a matter to be heard directly after an urgent hearing in a High Court, both the Constitution and the Rules of the Constitutional Court make provision for this. Section 167(6) of the Constitution provides that:

‘National legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court –

(a) to bring a matter directly to the Constitutional Court; or

(b) appeal directly to the Constitutional Court from any other court.’

Similarly r 18 of the Constitutional Court Rules which relates to direct access provides that:

‘(1) An application for direct access as contemplated in section 167(6)(a) of the Constitution shall be brought on notice of motion, which shall be supported by an affidavit, which shall set forth the facts upon which the applicant relies for relief.

(2) An application in terms of subrule (1) shall be lodged with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out –

(a) the grounds on which it is contended that it is in the interests of justice that an order for direct access be granted;

(b) the nature of the relief sought and the grounds upon which such relief is based…;’.

In a unanimous judgment, the Constitutional Court paid tribute to Nelson Mandela in quoting the following from his address to the seventh International Ombudsman Institute World conference in 2000 held in Durban –

‘Even the most benevolent of governments are made up of people with all the propensities for human failings. The rule of law as we understand it consists in the set of conventions and arrangements that ensure that it is not left to the whims of individual rulers to decide on what is good for the populace. The administrative conduct of government and authorities are subject to the scrutiny of independent organs. This is an essential element of good governance that we have sought to have built into our new constitutional order’.

In the High Court and in the Constitutional Court the city did not outrightly dispute the facts put forward by the two traders organisations but remained fixated on the issue of urgency, alleging that there was no urgency or that the supposed urgency had been created by the traders. The city did not even dispute the unlawfulness of their officials’ actions.

The issues the Constitutional Court was primarily faced with were whether –

• the appeal against the interlocutory order should be heard;
• the Constitutional Court should grant interim relief pending the outcome of Part B of the High Court application; and
• the appeal should be heard on an urgent basis.

In considering the first of these issues the court found that, regardless of the fact that the relief was couched as ‘interlocutory’ relief, the refusal by the High Court to grant the interim relief sought in Part B of the trader’s application was final in effect and as such, they could hear such an appeal. Consideration was given to the facts of the matter and the effect that such a decision would have on the people involved.

In terms of s 167(6), the court has the requisite jurisdiction to hear an appeal, when it is in the interests of justice to do so. The court went on to say that there was no general rule that disallowed it from hearing the appeal of an interim order, as long as it was in the interests of justice to do so, and an urgent appeal against an interim order would be permitted only as a ‘last resort’. The court found that it was in the interests of justice to hear the appeal as the applicants would otherwise have suffered irreparable harm.

As above, the city did not dispute the majority of the evidence put forward by the traders. The court noted that the city had not, at any stage during the proceedings, alleged that the applicants and their members were trading illegally. Such undisputed evidence spoke of the conduct of the city and the JMPD in carrying out ‘Operation Clean Sweep’. Therefore, the act of removing traders who were legally permitted to trade from the streets had a dire effect on the traders and their families, who numbered in the thousands and, as was noted by the Constitutional Court, these persons were rendered destitute and unable to provide for their families. It was further noted that this situation would have continued until February 2014 given the course that matters have to follow in the High Court for enrolment and hearing purposes on the ordinary motion roll.

The court, in considering the facts before it, decided that the traders would suffer ‘severe irreparable harm’ if it did not hear the appeal on an urgent basis and further that if the appeal was not granted the effect would be that there would be no real relief in terms of Part B. In support of this was the concession by the city during the hearing that it had not followed the Businesses Act 71 of 1991 which prescribes the manner in which the city is to act in such circumstances. The court purposefully commented that by the city’s concession and the undisputed facts, the city had achieved its own objectives with ‘flagrant disregard’ for the rights of the traders.

The court said that the removal of the traders from the City of Johannesburg in terms of ‘Operation Clean Sweep’ involved significant constitutional issues stating that: ‘The ability of people to earn money and support themselves and their families is an important component of the right to human dignity. Without it they faced “humiliation and degradation”. The city did not dispute this. The city’s conduct has a direct and on-going bearing on the rights of children, including their direct rights to basic nutrition, shelter and basic health services. The harm the traders were facing was immediate and irreversible’. Furthermore, the city may not unlawfully evict traders from their trading posts without following the by-laws.

The Constitutional Court granted an order on the following terms:

• Leave to appeal directly to the court on an urgent basis was granted.
• The appeal was upheld.
• The order of the South Gauteng High Court, Johannesburg, made on 27 November 2013, under case number 43427/13, was set aside.
• In terms of the order, the city was interdicted from interfering with the trading of the informal traders pending a review of the city’s decision to relocate the traders and declare certain areas restricted from informal trading.

Michal Johnson BA LLB (Rhodes) and Tarryn Paterson BCom (Law) (UP) are attorneys at Hogan Lovells in Johannesburg.

This article was first published in De Rebus in 2014 (Aug) DR 25.