THE High Court has dismissed an application by more than
600 informal vendors in Bulawayo who were challenging Bulawayo City Council
(BCC)’s decision to close their vending sites at 5th Avenue market place in the
city centre.
The council, as part of a raft of measures meant to curb
the spread of Covid-19 pandemic, in April relocated all vendors operating
vending stalls in the area and permanently closed the popular weekend Khothama
Market to bring order in the city beyond the lockdown period.
Some defiant vendors who had returned to their former
vending site along 5th Avenue were on Monday raided by municipal police.
The vendors under the banner “Bulawayo Upcoming Traders’
Association (Buta)”, through their lawyers R Ndlovu and Company, filed an
urgent chamber application at the Bulawayo High Court citing Bulawayo City
Council (BCC) and Local Government and Public Works Minister July Moyo as respondents.
They wanted an order directing council to reverse its
decision to relocate them from their vending bays. Bulawayo High Court judge
Justice Martin Makonese ruled that the application failed to meet the
requirements of urgency.
“In this matter there is no single allegation that the
applicant will suffer irreparable harm, let alone proof or detail of the
perceived irreparable harm. Applicant had full knowledge of the fate of the
vending bays from April 26, 2020,” he said.
“The resolution to take legal action is dated May 26, 2020
and yet the application was only filed on June 17, 2020. The urgency is clearly
self-created by the applicant.”
Justice Makonese said a specific recommendation was made
that vendors willing to remain in the central business district would be
accommodated at an area near Highlanders Football Club premises.
The judge said vendors were seeking an order to be granted
unhindered access to bays that no longer existed.
“The applicant deliberately approached the court on a
falsehood. It was within the knowledge of the applicant that all vending bays
had been dismantled and in reality, there are no vending bays,” he said.
“In the result I am satisfied that the order sought is
incompetent at law. This application should never have seen the door of this
court and accordingly, it is hereby dismissed with costs.”
The vendors wanted to carry on with their vending business,
subject to compliance with the relaxed Covid-19 lockdown regulations in force
as announced by the President on June 12.
They argued that council used Covid-19 restrictions as an
opportunity to unlawfully close their vending sites without notice despite paying
monthly rentals.
The vendors said they also contributed financially in the
renovation and refurbishment of the vending sites.
In his founding affidavit, Buta secretary-general Mr
Dumisani Ncube said the closure of their vending site was unlawful, arguing
that it was a unilateral decision by council yet they held operating licences
and paid monthly fees.
He said BCC’s conduct was a violation of their right to
lawful and fair administrative action under the provisions of section 3 (1) (a)
of the Administrative Justice Act and under the Constitution of Zimbabwe.
“It is a violation of the provisions of section 199 (2) of
the Urban Councils Act, which provides that a notice be served on affected
members specifying the nature of the administrative action proposed and the
grounds for the same,” said Mr Ncube.
He said by virtue of being vending licence holders and
paying monthly rentals to council, they had a right to be given notice and be
afforded a hearing before the decision was made to close the vending bays.
Mr Ncube said by failing to notify them of its decision to
close and destroy their vending bays, the local authority denied the affected
vendors an opportunity to exercise their right to appeal to the Administrative
Court within the stipulated 28 days.
The vendors said the arbitrary closure amounts to
compulsory deprivation of property in violation of the fundamental right to
property enshrined in section 7 of the Constitution.
In its opposing papers, BCC through its lawyers Coghlan and
Welsh Legal Practitioners, said there was no urgency in the matter since the
vending bays were non-existent along 5th Avenue.
“The applicant cannot come to court on an urgent basis and
seek to be placed on non-existent vending bays. The Town Clerk on 26 April 2020
advertised in the newspapers the re-opening of 5th Avenue and 8th Avenue in the
CBD to vehicular traffic,” argued BCC lawyers.
The lawyers said vendors were well aware of the new
development since an advert was placed in the newspapers alerting everyone concerned,
including them of the status of 5th Avenue and the fate of the vending bays
from April 26.
Council said its decision to close 5th Avenue market was in
line with Government lockdown regulations and guidelines for resilient food
supply chain system during and after the lockdown.
BCC recently identified five new produce distribution hubs
and new vending sites for 600 informal vendors who were affected by the closure
of the 5th Avenue market place in the city centre. Chronicle
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