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Essay: Informal Traders’ Right to the City: South African Informal Traders Forum v City of Johannesburg 2014 (4) SA 371 (CC)

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  • Informal Traders' Right to the City: South African Informal Traders Forum v City of Johannesburg 2014 (4) SA 371 (CC)
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Introduction

The world population is rapidly urbanising, cities are gradually becoming the location at which and the means through which civil and political as well as socio-economic rights are realised. Cities are becoming locations for access to basic socio-economic amenities and essential services. South African cities have changed tremendously over the past twenty years, both in terms of demographic (social) and economic dimensions. South African cities are no longer exclusive reserves of a particular racial group. Since the dawn of democracy, legislative measures promulgated during the apartheid regime which limited Africans’ access to the cities were repealed. The government has an obligation to promulgate and implement legislative measures that promote the spirit and purport of the Constitution. The Bill of Rights contained in the Constitution provides for fundamental human rights. The State has an obligation to ‘promote, protect’ these fundamental human rights. The Bill of Rights contains the right to dignity and equality. The right to dignity and equality can be used to redress all the injustices and prejudiced experienced by Africans during the apartheid regime.

Apartheid regime strenuously promoted fragmented spatial planning for different racial groups. South African cities, were, therefore, reserved for White people. The spatial configuration of South African cities during the apartheid regime ‘impacted on the size, shape and functioning of cities…which were designed and built to serve white minority interests’ The State has a responsibility to promote the not only to promote the enjoyment of the socio-economic rights but to promote spatial and political transformation in order to uphold the right to dignity and equality of all citizens. Consequently, the post-apartheid government obligation is to eradicate apartheid legacies that denied Africans access to the city and economic opportunities it offers. This obligation requires the government to focus on development and creation of sustainable urban environments that are favourable to the realisation and enjoyment of the rights contained in the Bill of Rights. The reconfiguration of the South African cities is a laden process. It must strive to balance the conflicting interests of the capitalism, consumerism, class and racial conflicts. It must strive to eradicate poverty and hardships associated with the past discriminatory practices. The South African cities’ transition must be rights-based and promoting good urban governance.

The Right to the City

The Constitution introduced and imposed a range of rights-based governance obligations on the State and in particular local government. The Constitution ushered justiciable human rights, these range from socio-economic rights to basic goods and services necessary for human being endurance. The local government is mostly directly affianced with socio-economic rights challenges faced by society and with the concomitant spatial transformation of city life, in particular the life of the poor individuals. The right to the City can be exercised within the city by those who either reside within the city or seek to access the city in order to enjoy the benefits offered and found in the city. This situation places local government firmly in the centre stage for the achievement of the right to the City and the ultimate enjoyment of the socio-economic rights contained in the Bill of Rights. The concept the Right to the City emanated in the political context of the French students’ riots in 1968. Henri Lefebvre is regarded as one of the people who articulated this concept exceedingly well and regarded it as ‘cry and demand’ by those disenfranchised urban masses for the inclusion in city life and the various advantages associated therewith. It is further regarded as a claim for the control over the production of city space. Pieterse assert that development discourse that appropriation of the concept presents a localised and inclusive vision of governance, which highlights welfare concerns and participatory citizenship alongside a developmental agenda.

Therefore, developmental discourse declines the radical notion of the right to the city which rejects the notion of State power over urban form and life. This means that the State cannot unilaterally implement policies without involving city citizens. The right to the city requires meaningful access to the city, and that which it offers. Meaningful access and participation to the city life consist of claims of habitation and appropriation. Habitation entails the right to inhabit the city, to use its space and share in its plunders. Appropriation entails the right to be present in, to experience and make use of the fullness of the city. The right to the city is grounded in the reality of present everyday life in the city and in a continuously shifting and contested vision of a future city that is impossible to identify but is actively imagined, struggled and strived for, by inhabitants individually as well as by collectives. The right to the city spread out to all individuals who inhabit the city and not only those whose presence there is legally recognised or tolerated, or to those who legally quality for rights protection.

The right to the city extend beyond individual’s liberty to access city resources; it entails the right to change ourselves by changing the city. For the poor to change themselves, in particular their socio-economic situation, they need to change the city. They city must be transformed fully to enable poor individuals to access all the benefits it offers. They must be allowed (not tolerated) to be in the city in order to access economic opportunities the city offers such as employment opportunities or entrepreneurship opportunities. The right to the city is set up in the reality of contemporary, everyday life in the city. This is tied up with the need to generate income, majority of city citizens provide for themselves as well as their families. Generating income enables them to provide basic necessities (such as clothes, food and shelter) to their families. The majority are (or comes from) working class. Therefore, the working class is the right to the city main agent. However, the right to the city can also be claimed by non-working-class malcontents and marginalised groups or certainly by anyone who partakes in the struggle over the city’s form and meaning. To the poor and marginalised the struggle the ‘form’ of the city entails the design and planning that promotes to access city space in order for them to be able to realise their socio-economic rights. The poor realise their socio-economic rights mainly by being employed (by capitalists) or by being informal traders in the city. The right to claim habitation, appropriation and participation in the city life, is embedded in the struggle among different inhabitants of the city over its design and meaning.

The individuals have the right to socialise, which implies that they can claim material and more aspirational aspects of the right to the city, which are incessantly redesigned through interaction with competing claims of other inhabitants. The poor have to interact with the capitalist either as employees or informal traders competing for urban space. The struggle for the urban space by the capitalist and informal traders indicates a struggle for the promotion of socio-economic right of different groups within the city. Different individuals with diverse ventures struggle with one another over the character of the city, the conditions of access to the public area and even the rights of citizenship. The derivative of the struggle over the urban space should be one city with novel approach to appropriate, inhabit and participation to city life and economic opportunities it offers. The right to the city entails the realisation that the form and design of the city is a constant effort to ensure that different groups are accommodated within the city and as such the city becomes are ‘melting pot’ where ‘deference lives’ in harmony.

The difference is tolerated and accommodated at the level of everyday interaction, without essentially being assimilated or even approved, that urban space becomes interesting and fulfilling as it maintains a difference and that they cultivate a sense of public togetherness without necessarily identifying with one another on a personal level. Consequently, city citizens are enriched by the deference they experienced through interaction. Given the limited knowledge available on city residents about different groups (based on race, tribal denomination or country citizenship) influenced by ideologies, legislative measures and policies of the apartheid regime, the right to the city appear to be a unifying concept that can contribute to social cohesion and tolerance. The focus was not on the views of the residents (on how to shape their city) but rather how to keep racial groups apart from each other in terms of access to various social and economic opportunities. The right to the city, thus, promote peaceful coexistence, collective development and solidarity. All these elements underscore the importance of social cohesion fundamental in the right to the city. South African cities are beset with partial and in some instances complete segregations based on race due to the apartheid segregatory polices.

Consequently the white minority area, (predominantly urban) were more developed than areas occupied by other racial groups. The areas occupied by white people became rich more developed whilst other areas were under-developed and poor. Such segregation, mainly those between the poor areas and the rich areas undercut city cohesion and solidarity. The South African government is actively promoting social cohesion through various initiatives. The initiatives are aimed at promoting social integration and inclusiveness in the cities. The government’s initiatives aimed at promoting social cohesion cannot afford to neglect the integration of the previously marginalised people who could not access the city due to apartheid policies. These are the people who became restive as a result of poverty and lack of jobs in rural and peri-urban areas. Consequently, they moved to the cities in search of ‘better life’. Once in the city, they either engaged in formal or informal sector in order to generate income for survival. Clearly, the law that infringes their ability to earn income in the city will not be impeding the right to the city, but other constitutionally protected rights such as the right to dignity and equality. Any law or practices that deny them an opportunity to be in the city impact on social structure and ultimately undermine government efforts to integrate social and eradicate inequality. The right to the city comprise of an interrelated and interdependent package of rights rather than singular entitlement, it becomes easier to support with the logic of legal human rights framework. Accordingly, individuals’ right to dignity and equality will be impacted by policies that seek to regulate individuals’ right to the city. Consequently, they impacted on the individuals’ right to dignity and equality.

Constitutional and legislative provisions pertaining to the right to the city

The preamble and the founding values in section 1 of the Constitution squares perfectly with the right to the city’s foundational emphases on ideals of inclusion, participatory, tolerance and respect for difference and belonging. The city citizens’ participation in the collective redesigned and planning of the South African cities in the pursuit of post-apartheid urban citizenship, correspond to with a constitutionally envisaged transformation project. The right to the city is an equitable usufruct of cities within the principles of sustainability, democracy, and equity as well as social justice. It is the collective right of the inhabitants of cities, in particular of the vulnerable and marginalised groups, that confers upon them legitimacy of action and organisation, based on their uses and customs, with the objective to achieve full exercise of the right to free self-determination and an adequate standard of living. The essential elements of the right to the city includes: the right to work, health, healthy environment and access to water, energy, public transport, housing and shelter, transparent and participative governance, political participation, development, preservation of heritage, physical safety and personal security, freedom of movement, and freedom of organisation and association.

The right to dignity and equality correlate with the right to the city since these rights can be interpreted in a broad and substantive manner that extend issues of livelihood and living conditions ( such as the right to housing and work). These rights can be interpreted in such a manner that they extend to poor and marginalised as well as informal traders in the city. Informal traders have the right to participate in the affairs of the city. Their participation will be actualisation of the principle of democracy, equity and social justice enunciated in the World Charter and articulated in the Constitution. Furthermore, informal traders have the right to clean environment, sanitation, energy, and transport as well as telecommunication infrastructure. These form part of the basic services which local government has an obligation to provide to city citizens in terms of section 152 of the Constitution. In terms of section 152 of the Constitution the objects of the local government include the provision of sustainable services to communities as well as promotion of social and economic development. This provision is buttressed by section 195 of the Constitution which resolves that public administration must be development orientated, promote efficient and sustainable use of resources and the services must be provided in an impartial, fair, equitably and without bias. Inevitably public participation and involvement in the formulation of the policies aimed at achieving these goals is required.

The constitutional requirement for an active public participation in policy formulation and implementation within the city realm resonates with the right to the city in the right to the city literature and other international instruments. The recognition of the developmental role of the local government in the Constitution is an acknowledgement that ‘of all there sphere of government, the notion of a government in service of its community is perhaps most compelling with respect to local government’. Local government is part of the notion of ‘state’ encapsulated in the Constitution. Consequently, local government is obliged to ‘respect, protect, promote and fulfil’ all the rights in the Bill of rights and to take reasonable measures, within its available resources, to achieve the progressive realisation of socio-economic rights’. Despite the fact that the functions and authority of the local government regarding developmental duties is limited and subject to national and provincial oversight and control, its role of driving development consolidating democracy and effecting the enjoyment of socio-economic rights is evidently essential. The oversight role of the national and provincial government on local government is aimed at strengthening the ability of local government to execute its functions, within the framework of co-operative government prescribed in Chapter 3 of the Constitution.

The oversight role of other tiers of government may not obstruct local government ability or right to exercise their executive and legislative authority or to perform their constitutionally mandated functions. The provincial government can only intervene through the appropriate measures to ensure that obligations are fulfilled. Other than that the municipality retains the authority to structure and manage its administration and budgeting and planning process to give priority to the needs of the community, and to promote the social and economic development of the community. In fulfilling its functions, municipalities are bound by the values and principles governing public administration, articulated in section 195 of the Constitution and echoed by sections 51 and 73 of the Local Government: Municipality Systems Act. Municipalities are bound to be transparent, accountable and development orientated, ensure that services are provided in a fair, impartial, equitably and without bias, that public administration and services provision are responsive to the needs of the city citizens and that service provision should be accessible as well as environmentally and financially sustainable and that public participation in policy making is encouraged. Pieterse submits that the Constitution and the Municipal Systems Act conception of developmental local government clearly echo with the concept of ‘the city’ in the right to the city literature. He asserts that the recognition that local government is by its nature well-placed for community involvement in governance, and that such involvement must structure the shape of both service delivery and spatial planning, reflects the participatory dimensions of the right to the city. Further, local government should also become the medium through which citizens work to achieve their vision of the kind of place in which they wish to live. This is in proportion to the notion that urban citizenship underlie the right to the city and this is grounded in the reality of urban habitation, which entitles urbanites to physical presence in the city, to access the goods and services that the city provides, and to participates in the policies and structures that shape such access. ….

The right to dignity

The right to dignity is generally recognised as the core value and standard of section 9 (3) of the Constitution. The dominant meaning accorded to the right to dignity in South African jurisprudence is one of equal concern and respect, and the need to affirm an individual’s sense of self-worth. The major harms underlying this are recognition-based and relate to stereotyping, stigma and prejudice resulting in exclusion, denigration and harm, and impinging on individual self-worth.

The right to equality

The right to equality

Informal sector and local government constitutional duty

The prerequisite for access to urban areas advance potential of each individual to enjoy the benefits offered by the city for all city residents. The informal sector is very large in South Africa exacerbated by high unemployment rate. High unemployment rate can be associated with the failure of socio-economic polices since the advent of democracy. The right to the City encourages the democratic participation of all urban residents in the decision making processes and enable city citizens to fully realise their fundamental rights and liberties. Individual’s have the right to appreciate the conditions necessary for his or her political, economic, cultural, social and ecological realisation while assuming the associated duties with solidarity in the city. The large number of individuals seeking access to the city and the magnitude of the informal sector presents significant challenge to local government. The process must be managed and confronted in such a manner that it does not exclude any segment of the society from access the city and the benefits it offers. Urban fragmentation, separate development (for different racial groups) and exclusion were key pillars of apartheid South Africa. Apartheid regime used draconian legislative measure to achieve its desired aims of separate development. Legislative measures were used to promote and facilitate, inter alia, urban scenery which is closely connected to race and class ‘difference’ to severe social and economic disadvantage of mostly Africans. Africans were denied access to the city.

Their presence was tolerated provided that they offer labour to white people residing in the city. The advent of democracy ushered in a new era in South Africa. The Constitution prohibits discrimination based on race, social status, sexual orientation or greed. Despite this constitutional provision barring different forms of discrimination, unless there is a justifiable cause based in accordance with the provisions of section 36 of the Constitution, different forms of discrimination still continue. Since the dawn of democracy, many people moved into the inner-city. This necessitated most cities to introduce measures to control the use of urban space. The informal traders are inevitably affected by these regulatory measures, as they either stipulate when, where and how they should trade in the city. At times the areas demarcated for trading purposes is not suitable to them. This became clear in South African Informal Traders Forum v City of Johannesburg, in this matter, the officers of the metro police forcibly evicted the informal traders from their trading stalls and confiscated their merchandise.
The city has granted to some informal traders written permission to operate in a manner consistent with its bylaws read with its trading policy. Most have traded there for many years, some for about 20 years. However, the City introduced ‘Operation Clean Sweep’ aimed at getting rid of unsightly and disorderly trading areas. These, it alleged, gave rise to disorderliness, criminality and obstruction of citizens’ rights to appropriate utilisation and enjoyment of facilities in and around trading areas. Essentially, the argument (thought not specifically enunciated by the City) was to the effect that the informal traders impede other city inhabitants’ right to the city. The City, conceded, that it went about to achieve its objectives in flagrant disregard of the traders’ rights. The city did not that any of the traders in the two applications were trading illegally.

The mass eviction was carried out by the City without taking any measures to distinguish between the traders who have always been doing business legally, and other informal traders who have not. Faced with indiscriminate evictions, the informal traders negotiated with the City to allow them to return to their lawful trading activities. Despite the informal traders complying with the verification process suggested by the City, they were not permitted to return to their stalls and to trade. Those who did so were forcibly evicted by the metro police, who also dismantled the stalls previously used by the traders. They say it became increasingly clear to them that OCS was not an attempt to verify and reregister the lawful informal traders in the inner city. Instead, it was a project to remove informal traders permanently from their trading booths and relocate some or all of them to unknown ‘alternative designated areas’, and prohibit them from trading in the interim. The informal traders approached the High Court, and they could to secure the relief sought. They approached the Constitutional Court which found that in terms of section 6A(3) of the Businesses Act certain steps must be taken by the city in order to designate a trading area for informal trading. The City failed to comply with these requirements.

The Constitutional Court found that the City has not identified any lawful ground that permits it to disturb the informal traders’ right to enjoy the use of trading stalls in the inner-city. The city does not dispute the unlawfulness of its officials’ conduct. It was found that the informal traders’ families’ livelihood depended on their trading in the inner city. The City conduct denying them to trade in the inner-city left them destitute and unable to provide for their families. It must be added that the eviction of the traders involved constitutional issues of considerable significance. The capability 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’. Most traders have dependants majority of these dependants are children, who also have suffered hardship as the City denied their breadwinners’ lawful right to conduct their businesses. The city has not disputed this. The City’s conduct has a direct and ongoing bearing on the rights of children, including their direct rights to basic nutrition, shelter and basic health- care services. The harm the traders were facing was immediate and irreversible.

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