Lawyer Tembeka Ngcukaitobi told the Durban High Court on Wednesday that Constable Kaitlin Schonken should not only pay for the sandals she confiscated, but should also pay for at least a quarter of the legal costs of the application to review and set aside the impoundment and confiscation.
Schonken confiscated the 25 pairs of rubber and plastic sandals from John Makwicana in August 2013 and charged him for trading without a valid licence.
However, Ngcukaitobi said that Schonken’s affidavit before the high court contradicted a statement she made for the criminal case that was opened against Makwicana.
In her affidavit she made no mention of the fact that Makwicana had produced his trading permit, while in her statement for the criminal case she said he had indeed produced the permit.
The court heard that the criminal case was thrown out of the magistrate’s court, and the municipality had been ordered to return the sandals to Makwicana.
The sandals, valued at R775, had never been returned to him.
“There was no lawful authority for the impounding,” said Ngcukaitobi, who accused Schonken of perjury.
“It is clear somebody is lying. Should we impose this [the costs of the application] on the ratepayer or should Miss Schonken pay? Her actions are not only unlawful, they are reprehensible.”
He told Judge Daya Pillay that he believed Schonken should be reported to the Director of Public Prosecutions and charged.
Sandile Kuboni, for the eThekwini Municipality and Schonken, said that the by-laws under which Makwicana had been charged had been replaced with new regulations in 2014.
He argued that the aim of impounding of goods in terms of the by-laws was to protect legal street traders.
“If you don’t impound the goods, you are encouraging them [illegal street traders],” he said.
But when questioned by Judge Pillay as to how penalising Makwicana protected other traders, he was unable to answer.
Judge Pillay questioned why she should not grant an application to have Schonken pay costs.
“When someone accuses you of dishonesty, your immediate reaction should be to say you are wrong and here is why you are wrong. I might ask her [Schonken] to say why I should not ask her to pay the cost order.”
She rejected Kuboni’s assertion that impounded goods were to be used as evidence in legal proceedings against those who breached the by-laws.
“Where are the goods? What inference must I draw from that? Perhaps the applicants are right that there has been an abuse of power,” she suggested.
“Officials are not supposed to lie. I expect an upfront response when it is suggested that she pilfered the goods.”
In her affidavit Schonken makes no mention of what happened to the sandals or to whom she gave them.
Ngcukaitobi argued that the by-laws permitting the city to confiscate goods an officer deemed to be illegal was unconstitutional.
“You cannot legislate the courts out of an impoundment decision.”
Ngcukaitobi, who works for the Legal Resources Centre, argued in his application that eThekwini Municipality’s street trading by-laws, which authorise confiscations, were in conflict with the constitutional rights to equality, the right to choose one’s trade or occupation, the right to property and the right of access to courts.
Pillay reserved her judgment.