Constitutional Court Application — Leave to Appeal

Your role

Junior Counsel

Scenario

THE APPLICANT Ms Nozipho Buthelezi (52), widowed mother of four and grandmother of two, has traded fruit and vegetables from a wooden stall on Wale Street outside Cape Town Station since 2011. Her stall is her sole source of income, generating R4,200–R5,800 per month. She is registered with the SA Informal Traders Alliance (SAITA). THE BY-LAW City of Cape Town Street Trading By-law, 2022 (PN 224/2022), s7(1): No person shall trade in the street or on any public place within a radius of 500 metres of any registered shopping centre, mall, or supermarket. Contravention: fine R2,500 or 30 days imprisonment (s14). PROCEDURAL HISTORY - 3 August 2023: Applicant received a compliance notice from the City. Refused to move. - 14 November 2023: Applicants stall confiscated; goods worth R1,840 forfeited. - 2024 Western Cape High Court: Applicant challenged the by-law under ss 22, 25, and 33 Constitution. Dismissed (Rogers J) with costs. Court held limitation was reasonable and justifiable under s36. - 2025 SCA (Sutherland JA writing for the majority): Appeal dismissed. Held that the by-law is a proportionate limitation of s22 rights in the interests of urban order, pedestrian flow, and revenue-collection by formal ratepayers. Costs on party-party scale. - SCA judgment handed down 4 April 2026. Rules of ConCourt Rule 19(2): application for leave to appeal must be lodged within 15 court days = deadline 30 April 2026 (extension granted to 3 June 2026). GROUNDS OF APPEAL YOU MUST DEVELOP 1. Constitutional issue (s167(3)(b)(i)): the SCA misapplied the s36 limitations analysis and failed to consider less-restrictive means (permit system, designated zones), following the framework in Makwanyane 1995 (3) SA 391 (CC) and Manamela 2000 (3) SA 1 (CC). 2. Arbitrary deprivation of property (s25(1)): confiscation of trading stock without compensation, following FNB v Commissioner SARS 2002 (4) SA 768 (CC). 3. Failure to consider socio-economic impact on the s22 right and dignity (s10), following Grootboom 2001 (1) SA 46 (CC) and applied to trade in Somali Association v Limpopo 2015 (1) SA 151 (SCA). 4. Prospects of success and interests of justice (S v Boesak 2001 (1) SA 912 (CC)). RELIEF SOUGHT (a) Leave to appeal granted; (b) SCA and High Court judgments set aside; (c) s7(1) of the 2022 By-law declared unconstitutional and invalid; (d) suspension of invalidity for 12 months to enable the City to enact a permit scheme; (e) costs including two counsel.