informal trade - eviction - Mogwase
SERI represents 29 market traders trading near the Mogwase Shopping Complex in Mogwase, North West in a case brought against them by Transnet.
Transnet approached the High Court in Mafikeng seeking an order to evict the market traders alleging that they are trading on land currently owned by the Republic of South Africa which will soon be transferred and registered in its name. In anticipation of this transfer, Transnet alleges that the traders are trading on their property. The property is located close to a railway line which Transnet argues is a safety risk for the traders. Transnet further states that they have engaged with the Municipality in order to resolve the situation but the Municipality has not been responsive.
SERI filed an answering affidavit on behalf of the traders on 2 March 2018, arguing that the property does not belong to either the Republic of South Africa or Transnet. The piece of land on which the market traders are trading appears to be owned by the Moses Kotane Local Municipality. Thus, Transnet does not have standing to seek the eviction of the traders. SERI also argued that the land is sufficiently far enough from the railway not to pose a safety risk to the traders. This is demonstrated by the fact that the area where the traders are trading was zoned off by the Municipality for “shops”.
SERI further submitted that even if the court found that Transnet could seek the eviction, as an organ of state it is bound to respect, protect, promote and fulfil the right to dignity and the right to trade of the market traders. As such, Transnet is not entitled to evict the market traders from the land unless and until it can demonstrate that the trader’s constitutional rights to dignity will not be unjustifiably infringed. Finally, SERI argued that the market traders have been trading on the property since 2000 despite Transnet alleging that it first became aware of them in 2015.
On 4 April 2019, SERI, on behalf of the market traders, filed heads of argument with the Mahikeng High Court. SERI argued that: 1)Transnet does not own the land on which the market traders are operating; 2) The traders’ activities are not illegal and are recognised and protected in terms of the Businesses Act 71 of 1991; 3) The traders do not operate on or near a railway line but between the shopping complex and housing estate and are not enticing people to cross railway lines to access their stalls; 4) and, finally, that the traders have been trading on the land for almost 20 years, not four.