eThekwini Municipality: Informal Trading By-law, 2014
Commences on 27 June 2014 unless otherwise noted
1. DefinitionsIn this By-law, unless the context indicates otherwise – "authorised official" means a person authorised to implement the provisions of this Bylaw, including but not limited to:- (a) peace officers as contemplated in section 334 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977); (b) municipal or metropolitan police officers as contemplated in the South African Police Service Act, 1995 (Act No. 68 of 1995); and (c) such employees, agents, delegated nominees, representatives and service providers of the Municipality as are specifically authorised by the Municipality in this regard: Provided that for the purposes of search and seizure, where such person is not a peace officer, such person must be accompanied by a peace officer; "beach" means the portion of land above and contiguous to the seashore and includes any grass verge, where such verge exists; "beach trading" means informal trading that is conducted on a beach and includes informal trading in a parking area adjacent to the beach; "black person" means a black person as defined in the Broad-based Black Economic Empowerment Act, 2003 (Act No. 53 of 2003); "event" means an event as defined in the Safety at Sports and Recreational Events Act, 2010 (Act No. 2 of 2010), namely sporting, entertainment, recreational, religious, cultural, exhibitional, organisational or similar activities hosted at a stadium, venue or along a route or within their respective precincts; "foodstuff" means foodstuff intended for human consumption as defined in section 1 of the Foodstuff, Cosmetics and Disinfectants Act, 1972 (Act No. 54 of 1972); "goods" means any movable property displayed or kept by a person in a public place or public road used or intended to be used in connection with carrying on the business of an informal trader and includes any article, container, vehicle, movable structure or living thing; "high-water mark" means the high water mark as defined in the National Environmental Management: Integrated Coastal Management Act, 2008 (Act No. 24 of 2008); "illegal goods" means – (a) goods which may not lawfully be sold or bought including, but not limited to, counterfeit goods as defined in the Counterfeit Goods Act, 1997 (Act No. 37 of 1997); (b) goods that are bought or sold in an unlawful manner; or (c) goods that have been acquired in an unlawful manner. "impoundment fee" means the applicable tariff charge, as determined by the council from time to time, for the impounding and storing of goods impounded in terms of this By-law, as well as the disposal or releasing of the impounded goods; "informal trader" means a person who carries on the business of informal trading; "informal trading" means the trading in goods and services in the informal sector by an informal trader in a public road or public place, and which typically includes, without limitation, the following types of trading: (a) beach trading; (b) street trading; (c) trading in pedestrian malls; (d) trading at markets or flea markets; (e) trading at transport interchanges; (f) trading in public places; (g) mobile trading, such as caravans and light delivery vehicles; (h) trading from kiosks, stalls or containers; (i) car wash; (j) hair dressing; (k) photography; (l) roving traders, including without limitation, trading from trolleys; and (m) trading at special events; "intersection" means an intersection as defined in the regulations promulgated in terms of the National Road Traffic Act, 1996 (Act No. 93 of 1996); "kerb line" means the boundary between the shoulder and the verge or, in the absence of a shoulder, the part between the edge of the roadway and the verge, as defined in section 1 of the National Road Traffic Act, 1996 (Act No. 93 of 1996); "litter" includes any container, wrapping or other waste which has been discarded or left behind by an informal trader or by his or her customers; "market" means an area within an informal trading area which is designated as a market on an informal trading plan and which is managed in a co-ordinated manner; "motor vehicle" means any self-propelled vehicle as defined in section 1 of the National Road Traffic Act, 1996 (Act No. 93 of 1996); "municipal council" or “council” means the eThekwini municipal council, a municipal council referred to in section 157(1) of the Constitution; "Municipality" means the eThekwini Municipality, a category A Municipality as envisaged in terms of section 155(1) of the Constitution of South Africa and established in terms of Provincial Notice No. 43 of 2000 (KZN); "municipal manager" means a person appointed in terms of section 54A of the Municipal Systems Act as the head of administration of the municipal council; "municipal property" means property owned by, leased by or under the control of the Municipality; "national monument" means any one of the "public monuments and memorials" as defined in terms of section 2 of the National Heritage Resources Act, 1999 (Act No. 25 of 1999); "non-municipal property" means property that is situated within the area of jurisdiction of the Municipality but which is not owned by, leased by or under the control of the Municipality; "nuisance" means any conduct or behaviour by any person or the use, keeping, producing, by-producing, harbouring or conveying, as the case may be, of any item, substance, matter, material, equipment, tool, plant or animal or causing or creating any situation or condition in or on private property or in a public place or anywhere in the Municipality which causes damage, annoyance, inconvenience or discomfort to the public or to any person, in the exercise of rights common to all or of any person; "obstruct" means to do anything which blocks or is likely to block vehicular or pedestrian traffic flow on a public road; "one-off event" means an event that occurs only once annually; "park" means a garden or park to which the public has a right of access, and “garden” has the same meaning; "permit-holder" means an informal trader who has been granted a permit by the Municipality, to conduct informal trading from a designated site situated in an informal trading area on municipal property; "prescribed" means as determined by resolution of the council from time to time; "public building" means a building belonging to or occupied solely by any sphere of the government, including the Municipality; "public parking space" means any space in a public place designated by the Municipality for the parking of a motor vehicle; "public place" means (a) a public road; (b) a public parking space; and (c) any square, park, recreation ground, sports ground, beach, shopping centre, municipal cemetery, open space, or vacant municipal land which is vested in the Municipality, or in respect of which the public has the right of use, or which is shown on a general plan of a township filed in the deeds registry or a SurveyorGeneral’s office as having been provided for the use of the public or the owners of erven in such township; "public road" means any road, street or thoroughfare or any other place (whether a thoroughfare or not) which is commonly used by the public or any section thereof or to which the public or any section thereof has a right of access, and includes─ (a) the verge of any such road, street or thoroughfare; (b) any bridge, ferry or drift traversed by any such road, street or thoroughfare; and (c) any other work or object forming part of or connected with or belonging to such road, street or thoroughfare; "roadway" means that portion of a road, street or thoroughfare improved, constructed or intended for vehicular traffic, which is between the edges of the roadway, as defined in section 1 of the National Road Traffic Act, 1996 (Act No. 93 of 1996); "seashore" means the seashore as defined in the National Environmental Management: Integrated Coastal Management Act, 2008 (Act No. 24 of 2008); "sell" includes (a) bartering, exchanging or hiring out; (b) displaying, exposing, offering or preparing for sale; (c) storing on a public road or in a public place with a view to selling; and (d) providing a service for reward, and "sale" or "selling" has a corresponding meaning; "services", in relation to an informal trader, includes any advantage or gain given or supplied by the trader in return for consideration or reward; "shoulder" means that portion of the road, street or thoroughfare between the edge of the roadway and the kerb line, as defined in the National Road Traffic Act, 1996 (Act No. 93 of 1996); "sidewalk" means that portion of a verge intended for the exclusive use of pedestrians, as defined in section 1 of the National Road Traffic Act, 1996 (Act No. 93 of 1996); "street trading" means the selling of goods or the supply of services for reward in a public road; and "verge" means that portion of a road, street or thoroughfare, including the sidewalk, which is not the roadway on the shoulder, as defined in section 1 of the National Road Traffic Act, 1996 (Act No. 93 of 1996).
2. Interpretation of By-lawIf there is a conflict of interpretation between the English version of this By-law and a translated version, the English version prevails.
3. Objects of By-lawThe object of this By-law is to regulate informal trading in a manner which – (a) ensures that informal trading is conducted in an orderly manner; (b) enables access to job and entrepreneurial opportunities within the informal trading sector; (c) harmonises the relationship between the informal trading sector and the formal trading sector; and (d) ensures the health and safety of the public.
4. Application of By-lawThis By-law applies to all areas which fall under the jurisdiction of the eThekwini Municipality and is binding on all persons to the extent applicable.
Freedom to trade informally
5. Freedom to engage in informal tradingSubject to compliance with the provisions of – (a) this By-law; (b) any other applicable law; and (c) any applicable informal trading permit, any person is permitted to engage in informal trading within the area of jurisdiction of the Municipality.
Informal trading policy
6. Adoption of informal trading policy
7. Public participation
8. Amendment, revocation and review of informal trading policyThe council─ (a) may amend or revoke an adopted informal trading policy, provided that the council must─ (i) follow the public participation process set out in section 7; and (ii) afford to any person whose existing rights are adversely affected by a proposed amendment their rights to administrative justice; and (b) must review informal trading policies from time to time as the council deems fit.
Informal trading on municipal property
9. Trading areas and trading sites
10. Trading hours and other conditionsThe Municipality may when setting apart informal trading areas, or at any time thereafter on reasonable notice, impose - (a) trading days and hours; and (b) any other conditions.
11. Prohibition: informal trading on municipal property without permitNo person may conduct informal trading on municipal property without a valid informal trading permit from the Municipality.
12. Informal trading permits
13. Informal trading feesThe Municipality is entitled to charge - (a) any person who applies for an informal trading permit, an application fee on submission of each application for an informal trading permit; and (b) any informal trading permit-holder, an annual rental in respect of the informal trading site to which the permit relates.
14. Transfer of informal trading permits
15. Removal and suspension of informal trading permitsThe Municipality may, on reasonable notice to an informal trader and after having given the informal trader an opportunity to make written representations, revoke or suspend an informal trading permit if the informal trader has─ (a) breached any conditions of his or her informal trading permit; (b) breached the provisions of this By-law or of any other law; (c) been convicted of trading in illegal goods or of providing a service unlawfully; or (d) been found to have wilfully supplied incorrect information to the Municipality when required to provide that information.
16. Temporary relocation and suspension
17. Removal and suspension of informal trading permitsA permit-holder must immediately return his or her permit to the Municipality when the permit expires or if the─ (a) Municipality revokes the permit; (b) permit-holder is refused permission to transfer the permit; (c) permit-holder ceases trading for a period of 25 or more days; (d) permit-holder no longer wishes to trade as an informal trader from the relevant informal trading site; or (e) permit-holder becomes employed in the formal sector.
Restrictions and prohibitions on informal trading
18. Restricted or prohibited areas
19. Restricted conduct: erection of structuresAn informal trader must not erect any structure, whether movable or immovable, other than a device approved by the Municipality.
20. Restricted conduct: use of the site overnight
21. Restricted conduct: location of trading
22. Restricted conduct: display and storage of goodsAn informal trader must not─ (a) place or stack his or her goods in such a manner that it constitutes a danger to any person or property, or is likely to injure any person or cause damage to any property; (b) display his or her goods on or in a building, without the consent of the owner, lawful occupier, or person in control of such building or property; (c) interfere with the ability of a person using a sidewalk to view the goods displayed behind a shop display window or obscure such goods from view; (d) place on a public road or public place any goods that are not capable of being easily removed to a storage place at the end of the day's business; and (e) store or dispose of his or her goods or litter in a manhole, storm water drain, public toilet, bus shelter or in a tree.
23. Restricted conduct: street furnitureAn informal trader must not obstruct access to, or the use of, street furniture or any other facility designed for the use of the public.
24. Restricted conduct: firesAn informal trader must not make a fire at any place unless authorised to prepare foodstuffs by utilising open-flame fire or gas-fired equipment and, where the informal trader is authorised to make a fire, he or she must not make a fire in circumstances where it could harm any person or damage any building, structure, vehicle or other property.
25. Restricted conduct: litter
26. Restricted conduct: attachmentsAn informal trader must not attach any of his or her goods by any means to any building, structure, pavement, tree, parking meter, lamp, pole, electricity pole, telephone booth, post box, traffic sign, bench or any other street furniture in or on a public road or public place.
27. Restricted conduct: alcohol, sound-emitting devises and electricityAn informal trader must not─ (a) sell or promote alcoholic products; (b) use bells, hooters, amplified equipment or similar devices which emit sound, in order to attract customers; and (c) use any electrical supply or a power generator, unless expressly approved by the Municipality.
28. Restricted conduct: generalAn informal trader must not carry on informal trading─ (a) in a place or area in contravention of any prohibition or restriction imposed by the Municipality; or (b) in such a manner as to─ (i) create a nuisance; (ii) damage or deface the surface of any public road or public place, or any public or private property; (iii) create a traffic or health hazard or a health risk; (iv) contravene any of the terms and conditions of his or her informal trading permit; or (v) act in a way which disturbs the reasonable peace, comfort or convenience and well-being of any other person.
29. Environmental healthAn informal trader must – (a) keep the informal trading site or area or occupied by him or her for the purposes of conducting informal trading in a clean and sanitary condition; (b) keep his or her goods in a clean and sanitary condition; (c) ensure that, on completion of business each day – (i) the informal trading site or area occupied by him or her for the purposes of conducting informal trading is free of litter and other waste; and (ii) all his or her goods are collected and removed from any public road or public place and stored in a suitable facility; (d) take necessary precautions in the course of conducting his or her business as may be necessary to prevent the spilling of fat, oil or grease onto a public road, or public place, or into a storm water drain; (e) ensure that no smoke, fumes or other substance, odours, or noise, emanating from his or her activities associated with informal trading, causes pollution of any kind; (f) carry on business in a manner which does not cause a threat to public health or public safety; and (g) at the request of an authorised official of the Municipality, move or remove any object so that the area or informal trading site from which informal trading is conducted may be cleaned.
30. Temporary relocationAn informal trader must, on request by an authorised official or a service provider appointed by the Municipality, move his or her goods so as to permit the carrying out of any work in relation to a public road, public place or any work.
31. Special events
32. Obligation of owners on non-municipal propertyAn owner of non-municipal property must – (a) ensure that any informal trading taking place on his or her property complies with this By-law; (b) permit any authorised official access to his or her property for the purpose of ensuring compliance with this By-law; and (c) ensure, at the owner’s cost, that sufficient services are provided to maintain acceptable hygienic conditions in respect of the informal trading.
33. Lawful instructionsFailure to comply with a lawful request of an authorised official is a contravention of this By-law.
34. Recovery of costs
35. Removal and impoundment
36. Vicarious liability
39. Exemption from liabilityThe Municipality shall not be liable for damages or compensation arising from anything lawfully done in good faith by it or any authorised official or employee thereof in terms of this By-law.
42. Repeal of laws and savings
43. Transitional provisionsNotwithstanding the enactment of this By-law─ (a) any declaration of an area within the jurisdiction of the Municipality as an area in which the carrying on of the business of street vendor, peddler or hawker may be restricted or prohibited, shall remain valid until such time as the council adopts an informal trading policy in respect of such area in terms of this By-law; (b) where an informal trader had been issued with a lease or permit prior to the enactment of this By-law which permits trading from a particular site, such lease or permit shall remain valid until a new permit system is adopted by the council which complies with the permit system as contemplated in this By-law.
44. Short title and commencementThis By-law is called the eThekwini Municipality: Informal Trading By-law, 2014 and takes effect on the date on which it is published in the Provincial Gazette of KwaZulu-Natal.
Part A - BY-LAWS
|Number and year of law||Title||Extent of repeal|
|Municipal Notice No. 97 of 1995||Street Trading By-laws, eThekwini Municipality||The whole|
|Municipal Notice No. 28 of 1997||By-laws Relating to the Carrying on of the Business of Street Vendor, Pedlar or Hawker, South Local Council||The whole|
|Provincial Notice No. 208 of 1937||General By-laws, Amanzimtoti Local Administration and Health Board Area||Section 9|
|Provincial Notice No. 30 of 1954||Yacht Bank By-laws, City of Durban||Section 10(f)|
|Provincial Notice No. 237 of 1941||Regulations of the Purposes of the Local Health Commission (Public Health Areas Control) Ordinance||Chapter 2 and Section 7|
|Municipal Notice No. 14 of 2009||2010 FIFA World Cup South Africa By-law, eThekwini Municipality||Chapter 6 and Section 7.5|