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Judgement reserved in vendors’ case

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Mohalenyane Phakela

STREET vendors will have to wait until 24 February 2021 to know whether their application to reverse the government ban on street vending during the hard lockdown succeeds.

High Court Judge Tšeliso Monapathi heard arguments from both sides’ lawyers from Sunday morning until about 1pm the same day before adjourning the session after learning that the judiciary had not made any provisions to cater for his support staff’s lunch and transport needs. He resolved to hear the case to finality and deliver judgement on 24 February 2021.

The case is now only of academic interest because the ban on street vending which began when the lockdown was imposed on 14 January 2021 was lifted on 3 February 2021 by Prime Minister Moeketsi Majoro.

However, the vendors are insisting on the case being heard in the hope that a court victory will set a precedent wherein the government will not be able to ban their operations whenever it imposes hard lockdowns in future to combat Covid-19.

Late last month, five vendors teamed up to file an urgent application to reverse the government’s decision to impose a total lockdown barring them from conducting business.

The five are Mareni ‘Mabathoana, Paul Pakisi, Lesole Ramole, Kotsi Koali and Teboho May.  They are represented by Advocates Napo Mafaesa, Fusi Sehapi and Neo Komota.

By imposing the lockdown and banning vending, the five argued they had been unfairly made to suffer for the politicians’ own failure to combat the Covid-19 pandemic.

They further argued the ban would permanently destroy their businesses while politicians, civil servants and others continued earning their monthly salaries while at home during the lockdown.

They had also wanted the courts to order the security forces not to brutalise them when enforcing the lockdown regulations announced on 12 January 2021 by Dr Majoro.

Dr Majoro imposed a nationwide lockdown on 14 January 2021 in response to the exponential increase in Covid-19 infections and deaths in the country in the aftermath of the Christmas holidays in December 2020.

As part of the hard lockdown rules, street vendors were not allowed to operate their stalls or conduct any business. However, the lockdown restrictions were eased on 3 February 2021, allowing vendors to resume operations.

Nevertheless, the street vendors are insisting on their application being heard to finality.

Dr Majoro, Health Minister Motlatsi Maqelepo, Police Commissioner Holomo Molibeli, army commander Mojalefa Letsoela, the Ministry of Small Business Development, Cooperatives and Marketing and Attorney General Haae Phoofolo are the first to sixth respondents respectively.  They are being represented by Attorneys Monaheng Rasekoai and Kuili Ndebele as well as Adv Christopher Lephuthing.

During the Sunday hearing, Adv Mafaesa argued that the government had discriminated against his clients in that they were barred “despite that they served a much smaller market compared to the large retailers who were allowed to operate even though their shops served larger volumes of people”.

“The applicants’ case is narrowly confined to the decision by the government to discriminately exclude them from the list of essential services providers like other retailers,” Adv Mafaesa argued.

“Their argument is that the decision to bar them has no rational basis in that, as opposed to retailers who sell a wide variety of products, they (vendors) offer limited products. They operate in open spaces and attract a small number of customers. Therefore, the risk of spreading Covid-19 is low compared to big retailers who serve large numbers of people in their shops.

“We are not challenging the law or exercise of the constitutional right of the prime minister but the rationality.  The applicants also demand that they be paid the stipends which they were promised by the government (as a cushion against the Covid-19 induced slowdown in business activity).”

On behalf of the government, Adv Lephuthing counter-argued that the application had been overtaken by events because the vendors were now allowed to operate after the lockdown restrictions were eased on 3 February 2021. He also argued that the application should be dismissed because it was instituted in bad faith.

“The restrictions have been relaxed to allow vendors to trade therefore their case has become academic. How is the court expected to review something that has been overtaken by events? They came here aware that the hard lockdown regulations did not prescribe a permanent state.

“The matter was instituted in bad faith and they have only taken the government to court to scandalise it. The government established a Covid-19 relief fund and the applicants knew that their stipends were being processed when they decided to come to court,” Adv Lephuthing argued.

After hearing the arguments, Justice Monapathi postponed the case to 24 February 2021.

“I promise that the matter will be finalised on 24 February 2021,” Justice Monapathi said.

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