A Durban Street Vendor Wins Precedent-Setting Victory in Court

Mon Jul 20, 2015
Occupational Groups: Street Vendors
Topics: Law

On March 7, 2018, John Makwicana passed away at the age of 71. John fearlessly took on the challenging battle of defending the rights of street vendors in his city of Durban, South Africa -- and, against many odds, won. His victory entrenched the constitutional rights of street vendors, and was a major step forward for vendors across Durban and beyond. John's unwavering determination inspired informal workers around the world, and his legacy will be carried on in their own fight for justice. 

By Carlin Carr

John Makwicana sells shoes and sandals in Durban’s inner-city transport inter-change Warwick Junction. Through this, he earns a living for himself and eight dependents. He is also an activist who serves as chairperson of Traders Against Crime, an association of local traders which works with the metro police to fight crime in Warwick Junction, and deputy president of Masibambisane Traders Association, an association of street trade organizations which works to defend the rights of their members against unfair practices by municipal officials. John has had a permit to trade in Warwick Junction since 1992 and was authorized to employ an “assistant trader.”

Early morning on 6 August 2013, John set his goods out on display and then left to do some of his activist work, leaving his assistant to tend his table. At mid-day, his assistant went to buy lunch from a nearby supermarket, and left John's trading permit with a nearby vendor. While the assistant was away, a police officer stopped at John's table. The nearby vendor called the assistant who rushed back, only to find the police officer packing 25 pairs of new sandals into a plastic bag, leaving only old sun-bleached stock on John's table. The officer handed the assistant a receipt for one bag of (un-itemized) goods and a notice to pay a fine of 300 rand ($24) before 18 October 2013 or appear in court on 29 October 2013.

A History of Challenging the Rights of Street Vendors 

Since 2008, WIEGO has worked closely with an NGO, called Asiye eTafuleni (AeT)—which means "come to the table" in isiZulu—in Durban/eThekwini, South Africa. Founded by two former city employees who had earlier worked together with informal workers in the Warwick Junction precinct of the city, AeT provides design, legal and other support to street vendors, market traders, barrow operators, and waste pickers in Warwick Junction. 

In 2009, at the request of AeT and with support from WIEGO and others, the Legal Resources Centre of Durban filed two successful cases against the city's plans to build a mall in the middle of Warwick Junction, where 6,000-7,000 street vendors and market traders earn their living. In 2014, again with support from AeT, WIEGO and the Legal Resources Centre filed another successful case against the Durban/eThekwini municipality, this time to challenge the power of the municipality to confiscate and impound street vendors’ goods.  

John’s Case Goes to the High Court

The Legal Resources Centre and AeT decided to file a test case in the Durban High Court, challenging the power of the city to confiscate and impound the goods of vendors/traders and seeking appropriate compensation for John. Caroline Skinner, Director of WIEGO's Urban Policies Programme, served as an expert witness. In addition, John Makwicana went to the High Court before the 29 October deadline to urgently seek the return of his confiscated goods. The urgent High Court application did not succeed. 

In the criminal case before the Magistrate’s Court, the magistrate provisionally withdrew the criminal charges and ordered that all his goods be returned. But John was unable to reclaim his goods from the municipality. He was told that the goods had likely been sold off at auction as they had been held for more than six months.

In the High Court, the Legal Resources Centre lawyer argued that the provisions in the eThekwini Municipality’s Street Trading Bylaws which authorize confiscations are in conflict with the constitutional right to equality, the right to choose one’s trade or occupation, the right to property and the right of access to courts. 

Landmark Judgment

In February 2015, a judgment and an order from the High Court were made in John’s favor. The presiding judge also ordered that the municipality compensate John 775 rand ($62) with interest for the confiscated goods and also compensate him for his legal fees. The judge declared the clause in the bylaw that allows for impoundment and confiscation of street trader goods “unconstitutional, invalid and unlawful” and ruled that the city needed to redraft this section of the bylaws, which it is currently in the process of doing. In addition the court also ruled that the city is no longer exempt from liability for the loss of the goods. This means that the police can be held liable if trader goods “disappear”.

This judgment represented an enormous victory for John and his fellow street vendors/market traders across South Africa, since the judge acknowledged that street vendors are engaged in legitimate activities but remain vulnerable to unfair practices by local authorities. 

The judgment is precedent setting; its legal arguments can be used by street vendors around the world in their struggle for economic justice.

John Makwicana's willingness to fight the case in the High Court is admirable, considering the personal, financial, and political risk involved, not least the opportunity cost of spending so much time away from earning his living. John's determination to seek justice is reflected in his testimony during the court hearings: “We as informal trader leaders have been trying to discourage police officers from impounding traders’ goods, but to no avail. It is my hope that this case is successful and results in less abuse of power and corruption by police officials and finally brings some relief for us traders. The bylaws permitting confiscations of traders’ goods need to be struck out.”

Video: A last interview with the remarkable John Makwicana