Petty-Offence By-Laws are Part of the Problem in the Regulation of Informal Trading

Chloë Lead with Sithulisile Moyo

Informal workers constitute a critical component of the city’s economic fabric, sustainability and development within the State. Thousands of informal workers operate in public spaces in Durban to earn decent livelihoods to support their dependants. This has alleviated poverty and economic hardships faced by families surviving far below the minimum wage threshold. Yet this vulnerable group remains at risk to all forms of violations on two levels – the undue enforcement and unlawful confiscation of their goods by the police; and subsequently from the public (the recent operation dudula has adversely affected informality and has seen a number of informal traders left stranded without any recourse).

In December 2020, the African Court on Human and Peoples’ Rights (ACHPR) handed down an advisory opinion on domestic ‘vagrancy laws’, and their compatibility with the African Charter on Human and Peoples’ Rights and other human rights instruments applicable in Africa. The request was filed by the Pan African Lawyers Union (PALU) and was based on the submission that numerous African Union (AU) member states impose laws which criminalise the socio-economic status of individuals rather than specific condemnable conduct. It thus submitted that vagrancy laws target and therefore have a disproportionate impact on poor and marginalised people.

The Court, in this matter, advised that there is a positive obligation on state parties to the Charter (which includes RSA) to review, and either amend or repeal, those laws that provide for vagrancy-related offences – so as to bring their domestic laws in conformity with the AU charters.¹ In South Africa, these ‘vagrancy laws’ are in the form of by-laws and prohibit many petty-offences (not limited to the homeless) which are punishable by a fine or a short term of imprisonment.²

In eThekwini, the Nuisances and Behaviour in Public Places By-law ³ as well as the Informal Trading By-law⁴ are relevant legal instruments criminalising petty offences. On face value, these petty offences may appear necessary – in order to maintain public order – and neutral in their application (for example: anyone who sleeps on a public bench is preventing others – such as the elderly – from using that bench and ought to be deterred). However, on a closer analysis it becomes clear that there are specific categories of people who are most likely – given their personal circumstances – to engage in the criminalised conduct in question such as the homeless, street traders, street children etc. It thus becomes clear that these by-laws target, albeit indirectly, specific classes of people based on their socio-economic status.

Impact on Informal Trading

While the advisory opinion of the ACHPR focuses primarily on the effect of these vagrancy by-laws on the homeless, it does note that they essentially “punish the poor and underprivileged, including but not limited to the homeless […] street vendors, and individuals who otherwise use public spaces to earn a living.”⁵

Whilst the extent of the ‘legal targeting’ of the homeless and informal traders may differ respectively, the mentality, however, is the same – targeting and having a disproportionate impact on those who do not fit within the narrow conceptions of societal order and formal frameworks (as inherited from the colonial mindset) and with the intention of driving such individuals out of urban public spaces.

In effect, these by-laws criminalise behaviour relating to life-sustaining activities in the case of the homeless (such as sleeping, washing clothes, bathing) as well as livelihood-creating activities in the case of informal traders. These petty offences thus limit a person’s ‘human experience’ and ability to earn a livelihood for themselves on the basis that they are making use of public space.

These by-laws call into question the notion of ‘public’. Whether it is public space or public nuisance, these provisions echo the pre-constitutionalism legal landscape – the notion that a certain group of society are effectively ‘other’ than ‘public’. The fact that the very people who require public facilities and public services the most, are explicitly restricted in their enjoyment and use thereof is socially and legally untenable.

Petty offences, by nature, tend to be quite vague and lacking in precision – with words such as ‘nuisance’ and ‘loitering’ having overly broad meanings. The ambiguity in the wording of these provisions has an impact on how they are enforced, as it confers on law enforcement officials an unduly wide discretion. It is important to note that where there is overly broad discretion, personal prejudices and stigmas manifest, often in the form of harassment. This disproportionate latitude afforded to police and city officials is all too susceptible to abuse of power – with vulnerable groups suffering the most.⁷

Where the state fails in providing sufficient employment opportunities and adequate assistance, it is the informal sector that acts as a net – catching people before they fall through the deep tunnel of disempowerment and into the desperate poverty pit with its high walls. And yet instead of recognising the informal trading sector as its saving grace, the government casts it aside and criminalises the very conduct that characterises it. #StopCriminalizationOfPoverty