REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:

versus

								Ref: A Torr

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE No: 9376/2010

In the matter between:

And

JUDGMENT : 24 JUNE 2011

MANTAME, AJ:

[1] In this application the Applicants seek a review of the Respondent's decision directing them to remove their permanent business structures and rebuild their business structures daily on their trading sites. The notices to this effect were served on them on the 23 April 2010. The said Notices are the subject of these review proceedings.

[3]     Both the interdict and review applications were opposed by the Respondent

[4] Applicants were represented by Mr. Filand and Respondent was represented by Ms. Mayosi.

[7] First applicant is the sole proprietor of an informal business trading in the sale of fruit and vegetables at the corner of Vanguard and Highlands Drives, Mitchell's Plain since 2002. He has been an informal trader in the Mitchell's Plain area for more than 30 years.

[9] Mr. Filand, who appeared for the Applicants, contended that over a long period of time, Applicants enjoyed a good working relationship with the Respondent's officials, more particularly the Area Manager of Mitchell's Plain Their interaction was for the purposes of improving business.

[10] In 2008, First Applicant was approached by Respondent's officials to move his business 50 metres back from where it was then situated to its present location. First applicant fully complied with this request.

[11] Applicants further complied with the request by Respondent to neaten up their trading structures and made use of refuse bins provided by the Respondent at its own expense.

[12] The cordial relationship with the Applicants continued until they were served with notices unexpectedly on the 23 April 2010. These notices read as follows:

ISIZEKO SASEKAPA 
STAD KAAPSTAD

TEL NO: 021 951 5390
SPECIALISED LAW ENFORCEMENT SERVICES INFORMAL TRADING UNIT:

Address: xxxxx Cresent, Morgenster"

[13]   Mr. Filand submitted that these notices stand to be reviewed and set aside
on the following basis:

The notices as they stand, allege that Applicants placed their structures on the City of Cape Town's property without being authorised to do so. Applicants have therefore been requested to move under threat of being fined, or else their stalls would be impounded or removed by the Respondent.

Though the right to trade is not being challenged, but it has been threatened by the said notices.

[14] The notice of the 23 April 2010 requiring the Applicants to remove their stalls which constitutes their sources of livelihood, materially and adversely affected their rights to trade.

[15] Applicants contention is that these notices had a direct and legal effect as they required compliance. The Respondent's contention that no decision was taken is without substance and or untenable.

[16] It is wholly irrational to require the Applicants to conduct their business from temporary structures which are erected at the beginning of the day and dismantled at the end of the day, given the size and weight of these structures.

[17] It was Mr. Filand contention that the decision of the Respondent's is so unreasonable, impractical and meaningless for the Applicants to trade in that it would seriously affect the quality of the produce which the Applicants sell and cannot handle them excessively.

[18] These stalls have been created in such a way that they are suited to withstand the weather conditions of the Cape Flats where the Applicants are trading.

[19]   Ms. Mayosi, Counsel for the Respondent, argued that:
The notices do not adversely affect the rights of any person and have no direct, or external legal effect and do not constitute an administrative action in terms of PAJA.

Applicants did not try to resolve the matter with Respondent before approaching the court.

Respondent's notices merely constitute notification to the Applicants of its intention to enforce compliance with the relevant by-law Notices do not constitute a final decision, and do not require finality in the determination of the right.

Ms. Mayosi further argued that Applicants do not have the right to trade illegally on property that belongs to the Respondent and to private individuals. Furthermore, she submitted the Respondent has the right and an obligation to enforce the provision of its by-laws in the interest of local community

[20] In turn, she contended that by-laws are legal instructions that the Respondent acted on to manage and control the public places.

[22] Ms Mayosi submitted further that Applicants' prayer for an order reviewing, correcting and setting aside the Respondent's decision to compel them to remove and rebuild their business structures daily on their trading sites is misconceived. No such decision was taken by the Respondents.

"Section 1 (i) of PAJA defines administrative action as any decision taken or any failure to

"the audi principle is but one facet, albeit an important one, of the general requirement of natural justice that in the circumstances postulated the public official or body concerned must act fairly... The duty to act fairly, however, is concerned only with the manner in which the decisions are taken, it does not relate to whether the decision itself is fair or not."

[31] Section 3(1) of PAJA provides that administrative action which materially and adversely affect the rights or legitimate expectations of any person must be procedurally fair.
a)	A fair administrative procedure depends on the circumstances of each case.
In order to give effect to the right to procedurally fair administrative action, an administrator, subject to subsection (4), must give a person referred to in subsection (1) -
(i)	adequate notice of the nature and purpose of the proposed
administrative action;
(ii)	a reasonable opportunity to make representation;
(iii)	a clear statement of the administrative action;
(iv)	adequate notice of any right of review or internal appeal,
where applicable, and;
(v)	adequate notice of the right to request reasons in terms of
Section 5 of PAJA.

[33] Section 22 of the Constitution guarantees Applicants a right to trade. I am not in agreement with Respondent's argument that Applicants have no rights on which to base this review application.

"everyone has the right to administrative action that is lawful, reasonable and procedurally fair."

[35]   Section 22 of the Constitution provides that:

"every citizen has the right to choose the trade, occupation or profession freely."

[39] It is therefore the duty of the Respondent to afford the Applicants sufficient opportunity to make representation, as their decision affects the day to day running of Applicants business and their right to trade. The contrary argument is clearly untenable.

[40] The authorities that have been referred to by the Respondents counsel do not address the issue at hand, as outlined above, though they might have come closer.

[42] In casu, the Applicants legitimate expectation is justified since First Applicant has been trading thereat for a period of some thirty years and Second Respondent has been trading thereat since 1998.

[43]   Consequently, I make the following order:

-	Respondents decision taken on or about April 2010 to compel Applicants to remove and rebuild their business structures daily on their trading sites situated at the corners of Vanguard and Highlands Drive and Vanguard Drive and Morgenster Street, Mitchell's Plain, Western Cape is reviewed and set aside:

–	Respondent's notices served on the Applicants on the 23 April 2010 to remove their business structures situated at the corners of Vanguard and Highlands Drive and Vanguard Drive and Morgenster Street, Mitchell's Plain, Western Cape are reviewed and set aside;
Applicants are entitled to remain in their existing structures, up until Respondents afford the Applicants sufficient opportunity to make representations as to why their trading pattern cannot be altered;
Respondents are ordered to pay Applicants costs.