Durban Legal Victory

Introduction: 

John Makwicana, a vendor in Warwick Junction in Durban/eThekwini, South Africa, took the municipality to court, claiming the law that allowed the confiscation of his goods was unconstitutional. He won a legal victory for street traders in South Africa. John died on March 7, 2018, but his legacy will live on. This videos captures a last interview with him. The rest of the story is detailed below.

Story of a Legal Victory

Since 2008, WIEGO has worked closely with Asiye eTafuleni ("a seat at the table" in Zulu) in Durban/eThekwini, South Africa. Founded by two former city employees who had worked together with informal workers in the Warwick Junction precinct of the city, the NGO provides design, legal and other support to street vendors, market traders, barrow operators, waste pickers and garment producers in Warwick Junction. In 2010, at the request of Asiye eTafuleni (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 6-7,000 street vendors and market traders earn their living. In 2014, again with support from AeT, WIEGO and others, the Legal Resources Centre filed another case against the Durban/eThekwini municipality: this time to challenge the power of the municipality to confiscate and impound goods of street vendors.

John Makwickana sells shoes and sandals in Warwick Junction to earn a living for himself and eight dependants. He is also a local 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 (MAT), an association of street trade organisations 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 1996. But his permit, like that of others, stipulates that no one else may trade under the permit which means that vendors with permits cannot leave their tables or stalls, even to go to the toilet.

Photos Courtesy of Asiye eTafuleni

Early morning on August 6, 2013, John Makwickana set his goods out on display and then left to do some of his activist work, leaving his assistant to tend his table. When mid-day his assistant went to buy lunch from a nearby supermarket, he 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 before October 18, 2013 or appear in court.

John Makwicana went to court before the October deadline but was forced to pay the fine and was not able to retrieve his confiscated stock. This made him even more determined to seek justice. In June 2014, with a young lawyer from the Legal Resources Centre, John went to file a case at the magistrate's office. The magistrate provisionally withdrew the criminal charges against him 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.

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 their expert witness.

The Legal Resources Centre lawyer argued that the provisions in the eThekwini Municipality’s Street Trading Bylaws which authorise con¬fiscations 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. The presiding judge agreed and ordered that the municipality compensate John 775 rand with interest for the confiscated goods and also compensate him for his legal fees.

This judgment represented an enormous victory for John and his fellow street vendors/market traders across South Africa: as the judge had acknowledged that the 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.”

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