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

In October 2013, officers of the City of Johannesburg Metro Police forcibly evicted approximately 1,210 informal traders from their trading stalls in the inner city and confiscated their goods as part of an operation called the 'Mayoral Clean Sweep' or 'Operation Clean Sweep'. The evicted traders included all applicants who had been trading lawfully with written permission from the City under its By-Laws and Trading Policy, some for as long as twenty years. The City did not distinguish between legal and illegal traders during the evictions. After negotiations, the parties agreed on 2 November 2013 to a verification and re-registration process, after which lawful traders would be allowed to return to their stalls. However, even after being verified as lawful traders and re-registering, the traders were not permitted to return. Instead, the City intended to relocate them permanently to undisclosed 'alternative designated areas'. The traders sought urgent interim relief in the High Court to allow them to return to their trading locations pending a review of the City's decisions. The High Court (Monama J) struck the application off the roll on the basis that it was not urgent, without providing written reasons.

• Whether it was in the interests of justice to hear an appeal against an interlocutory order of the High Court on an urgent basis
• Whether the applicants were entitled to interim relief pending the determination of their review application
• Whether the applicants had established a prima facie right to trade at their original locations
• Whether the City's eviction and relocation decisions were lawful under section 6A of the Businesses Act
• Whether the matter was urgent
• Whether irreparable harm would result if interim relief was not granted
• Whether the balance of convenience favoured granting the interdict

The Constitutional Court granted leave to appeal directly to it on an urgent basis. The appeal was upheld and the order of the South Gauteng High Court striking the application off the roll was set aside. The Court granted an interim interdict pending the determination of Part B of the application in the High Court, interdicting the City respondents from interfering with the trading of the applicants at the locations they occupied immediately before their removal between 30 September and 31 October 2013. The City respondents were ordered to pay the applicants' costs in the Constitutional Court and the High Court, including in each case the costs of two counsel.

The binding legal principles established are: (1) The Constitutional Court may hear appeals against interlocutory orders, including on an urgent basis, where it is in the interests of justice under section 167(6) of the Constitution. Relevant factors include: the kind and importance of constitutional issues; irreparable harm if leave is not granted; whether the interim order has final effect; prospects of success in the pending review; whether the appeal would usurp the review court's role; whether relief would unduly trespass on executive terrain; and efficient use of judicial resources. (2) Interim interdicts should be granted where applicants establish: a prima facie right (or prospects of success); imminent irreparable harm; that the balance of convenience favours the interdict; and no other effective remedy. (3) Local authorities must follow the procedural requirements in section 6A of the Businesses Act when designating trading areas or declaring areas as prohibited or restricted for informal trading. Failure to do so renders eviction decisions unlawful. (4) The right of traders to earn a livelihood is an important component of the constitutional right to human dignity under section 10 of the Constitution. Denial of this right causes humiliation and degradation. (5) Where traders' livelihoods are affected, children's rights under section 28(1)(c) (basic nutrition, shelter, healthcare) are also engaged. (6) Government conduct that is admittedly unlawful cannot be justified on grounds of administrative convenience.

Moseneke ACJ made several important observations: (1) As a general rule, this Court is not well-equipped to deal with urgent matters, and urgent appeals against temporary orders should be permitted as a last resort, when other court systems do not provide proper urgent procedures. (2) The Court would not normally agree to hear an appeal against an interlocutory decision without more, as such decisions are open to reconsideration by the court that granted them. Doing so would be an exception rather than the norm. (3) The Court noted approvingly that it was prudent and salutary for applicants to first seek to engage with government before rushing to court. (4) The judgment opens with a quotation from Nelson Mandela emphasizing that the rule of law prevents government from acting on whims and ensures administrative conduct is subject to scrutiny by independent organs - a reminder of the importance of judicial oversight of executive action. (5) The Court observed that a promise of possible future damages to impoverished street traders 'may well border on the cynical' given their limited earnings.

This case is significant for several reasons: (1) It clarifies the Constitutional Court's jurisdiction to hear appeals against interlocutory orders on an urgent basis where the interests of justice demand it, expanding on the test and factors to be considered. (2) It establishes important principles regarding the protection of vulnerable traders' livelihoods as an aspect of human dignity. (3) It confirms that government authorities cannot evict lawful traders without following proper procedures, even in pursuit of legitimate objectives like combating crime and disorder. (4) The case demonstrates the Constitutional Court's willingness to act swiftly to protect fundamental rights when lower courts fail to provide adequate relief. (5) It emphasizes that procedural requirements under administrative law (section 6A of the Businesses Act) must be followed by local government, and admissions of unlawfulness will not be excused on grounds of convenience. (6) It reinforces the importance of the rule of law and proper administrative action, particularly in relation to vulnerable communities. The judgment quotes Nelson Mandela on the rule of law constraining governmental whims.