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Blow for street vendors’ bid to reverse Covid ban

Mohalenyane Phakela

STREET vendors have been dealt a body blow after the High Court refused to hear an application by five vendors for an interim order to reverse the government ban on vending during the ongoing lockdown.

Acting Chief Justice, Tšeliso Monapathi, also set down 7 February 2021 as the date for hearing their application for a final order to reverse the government’s decision to impose a total lockdown banning them from conducting business.

Given that the lockdown, which began on 14 January 2021 is expected to on end on 27 January 2021- way before the 7 February hearing date, this means that vending will remain banned for the entire period of the lockdown just as the government had intended.

Two weeks ago, five vendors teamed up to file an urgent High Court application to reverse the government’s decision to impose a total lockdown banning 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 argue that the government is unfairly making them suffer for the politicians’ own failure to combat the Covid-19 pandemic.

They further argue that the ban will permanently destroy their businesses while politicians, civil servants and others will continue earning their monthly salaries even if they stay at home in line with lockdown regulations.

They also want the courts to order the security forces not to brutalise them when enforcing the lockdown regulations announced on 12 January 2021 by Prime Minister Moeketsi Majoro.

Dr Majoro imposed a nationwide lockdown in response to the exponential increase in Covid-19 cases.

As part of the lockdown rules, street vendors are not allowed to operate their stalls or conduct any business.

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 represented by Attorneys Monaheng Rasekoai and Kuili Ndebele as well as Adv Christopher Lephuthing.

In terms of interim reliefs, the applicants want Commissioner Molibeli and Lieutenant General (Lt-Gen) Letsoela “and the officers subordinate to them be ordered (or interdicted) and restrained from dealing with the applicants in any manner other than by due process of the law while enforcing lockdown regulations”.

They also want Commissioner Molibeli and Lt-Gen Letsoela and their subordinates “to be ordered (or interdicted) to not assault the applicants and/or subject them to any form of torture or inhuman treatment while enforcing lockdown regulations”.

In terms of final reliefs, they want “The decision of the government of Lesotho announced and or published by The Right Honourable Prime Minister and or any government ministry or department that prohibits the applicants to conduct their trade be reviewed and set aside as irrational”.

They also want the Ministry of Small Business Development, Cooperatives and Marketing to be ordered to pay Covid-19 relief stipends which had been promised to vendors by the previous Thomas Thabane administration.

They do not say how much they expect each vendor to receive.

In her founding affidavit, the first applicant, Ms ‘Mabathoana alleges that the Covid-19 pandemic has negatively impacted vendors’ businesses, adding the lockdown has compounded their problems.

She argues that the ban on vending is discriminatory and promotes the monopoly of big retailers at their expense since these are allowed to continue operating.

On Friday, Ms ‘Mabathoana and her co-applicants were disappointed by Justice Monapathi who refused to grant their application for an interim order allowing them to go about their business unmolested.

However, Justice Monapathi said he had already refused to grant their interim orders when their lawyers appeared before him on 19 January 2021.

The judge did not say why he had refused to grant the interim reliefs.

After refusing to grant the interim prayers on Friday, Justice Monapathi was expected to hear the vendors’ application for final prayers.

However, the hearing failed to take off after the respondents’ lawyers argued that they had been caught unawares. They pleaded for more time to be allowed to consult their clients to prepare “adequate proof” demonstrating why the government had to impose the lockdown and specifically ban all vending activities.

Mr Rasekoai said he only learnt very late that they were supposed to appear in court on that day. He said the decision had been made in their absence on Tuesday.

He also argued that although he fully appreciated the vendors’ plight, once they had adequately prepared for the case, he would show why the soaring Covid-19 infections justified the government’s decision to impose the lockdown and ban vending.

“We appreciate the problems of the vendors. I know what poverty is as I grew up poor. However, we cannot ignore the fact that this pandemic is there and killing people globally including in America where the standard of living is advanced,” Mr Rasekoai said.

He said the government had also introduce Covid-19 relief programme to cushion vendors from the effects of the lockdown and the pandemic.

He said despite all this, the applicants had embarked on a strategy of “invoking emotions” to try and get the courts to overturn the lockdown which was necessary.

“We need to balance the plight of the poor with fighting the pandemic. The state has an obligation to salvage the situation because people are dying,” he said.

One of the applicants’ lawyers, Adv Mafaesa, opposed the postponement of the hearing, saying his clients would be prejudiced by the continued ban on their business activities.

He pleaded with Justice Monapathi to grant his clients interim reliefs if he was going to postpone the hearing.

“My clients’ stance is that they (applicants) were brought here by hunger and they are aware that the lockdown expires on 27 January. Postponing the matter will not do them any good.

“They acknowledge the importance of this case and their plea is that they be given interim reliefs to continue operating should this matter not proceed today.

“They said that they cannot afford to pay legal fees beyond this day because they do not have money like the government,” Adv Mafaesa submitted.

Unmoved, Justice Monapathi asked whether the applicants were withdrawing the application because it could not proceed that day. Adv Mafaesa asked for an adjournment to consult. When proceedings resumed 10 minutes later, Adv Mafaesa announced that both sides had agreed on new dates for the matter to be heard to finality.

The respondents are to file their answering affidavits on 27 January 2021 and the applicants are to reply on 1 February 2021 and file their heads of argument on 3 February 2021.

The respondents will file their heads of argument on 5 February 2021. The matter will now be heard on 7 February 2021.

Justice Monapathi then endorsed the two sides’ agreement. He said he wanted to finalise the matter. He urged the lawyers to base themselves on the principles of the law and not allow emotions to rule them.

“We are lawyers trained to deal with principles of the law and procedure. If we deal with emotions, we are going to make mistakes like the politicians.

“I am interested in bringing closure to this business. It must be treated like any other urgent case. We work according to principles and rules of the law and not emotions which are not legal issues,” Justice Monapathi said.

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