WHEN the high court awarded street trader John Mpini Makwicana damages of R775 plus costs and interest against one of South Africa’s biggest municipalities it seemed like a done deal: he would immediately be recompensed for the losses the municipality had caused him. And though the amounts were paltry, justice would be served.
Wrong. Despite the clearest of instructions by Judge Dhaya Pillay of the high court in Durban, Makwicana, 65, is still waiting for his compensation five months after the judgment. The municipality, as well as the official ordered to pay the damages jointly, have simply ignored all letters from Makwicana asking for his money.
But matters have taken a new turn in this strange case of a municipality unable to pay a court ordered debt of not even R1 000: last month the sheriff judicially attached municipal filing cabinets to the value of R4 000 and, after waiting a further month for the municipality to pay what it owes, Makwicana this week told the sheriff to sell the cabinets to cover what is due to himself as well as the sheriff’s costs. Not to mention interest of R69.75 payable to Makwickana.
Sole breadwinner for eight dependants, Makwicana makes a precarious living on the streets. That’s why he has also made it his business to know his rights. He’s a key figure in the Masibambasane Traders Association, a group of street traders’ organisations working on the problems faced by members – including harassment by municipal officials. He’s also the chairperson of Traders Against Crime, though right now it must be hard for him to tell the difference between harassment by municipal officials and crime.
Traders in the Warwick Junction area have long-standing complaints against city officials, but the particular problem that led to Makwicana’s ground-breaking high court case involved officials who impounded plastic sandals from his sales table in August 2013.
Since then Makwicana has been fighting a series of legal battles to get back his goods – or to be compensated. First the magistrate’s court ordered that his stock had to be returned, and when it turned out that the city had ‘disposed’ of the plastic sandals, he went on to win an even more important high court judgment.
In this decision Judge Pillay not only ordered that he be compensated for the sandals, but in doing so ruled that key local by-laws used to oppress street traders were invalid.
The municipal officials who took Makwicana’s goods claimed they were entitled to do so because he didn’t have a proper licence to sell them. But they were wrong. He had a licence, and it was valid. For Judge Pillay this was the easy part and she immediately awarded damages against the municipality, saying it had to pay for the loss it had caused.
Then she went further, combing through the by-laws affecting people like Makwickana and ruling some of the most oppressive among them unconstitutional.
But for Makwicana right now it’s numbers that matter most. So let’s be clear about the finances involved. He trades in plastic and rubber sandals that cost him R18 a pair for adult sizes and R15 for the small ones. These he sells for between R20 and R30. In a week he would earn about R300.
The stock impounded by the municipality, valued at R775 and which the municipality is apparently “unable” to pay, thus represents considerable capital not to mention groceries for a family of nine, and he is determined to get what is his due.
On Monday this week, on Makwicana’s instructions, his lawyers wrote to the sheriff: “We wish to record that the judgment debtor, the Ethekweni Municipality, has not settled the claim. … In the circumstances we request that your office arrange to remove the attached goods and proceed to sale. For your convenience we record that the judgment debt was R775 plus interest at the prescribed rate to date of payment.” The letter notes that the sheriff’s costs are R608.99 while the interest payable must be calculated at R0.191 per day, to a total of R69.75
The sheriff’s earlier notice of service from the date on which municipal goods were “judicially attached” for resale to meet Makwicana’s dues, states that on 8 June at 10h26 a writ of execution was served on Mr S Mtingwana, “Head Legal, apparently a responsible employee and apparently not less than 16 years of age, in control of the principle place of business of Ethekweni Municipality.”
The sheriff’s notice continues, “As Ethekweni Municipality was unable to pay the debt and costs in full or in part, the goods described were judicially attached.” The inventory lists 20 four-drawer steel filing cabinets worth about R200 each, with a total value of R4 000
While the sheriff goes through the required administrative and legal steps involved in selling off these filing cabinets to meet the city’s debt, there are two other questions worth asking.
Judge Pillay found that the municipal official who raided Makwicana’s table had lied in her evidence and as a mark of her displeasure the judge ordered that the official pay jointly for the confiscated goods. So, you may well ask, will the official have to buy new filing cabinets for the municipality?
The second issue is that Judge Pillay gave the municipality three months to fix its patently unconstitutional by-laws. Have they done anything about it? Or perhaps the drafts of new bylaws were in those attached filing cabinets?