In this extract, essential key elements are pointed out in the case of the street vendors. According to the authors, the illegality in issue does not lie in the activity but in a status which is being denied to the Hawkers.
THE International Labour Organisation defines the ‘informal economy’ as “all economic activities by workers and economic units that are, in law or in practice, not covered or insufficiently covered by formal arrangements”. These workers operate outside the formal reach of the law or are not covered in practice by legal warranties. Street vendors, also referred to as hawkers, constitute a category of those workers who constantly oscillate between formal and informal situations. The Trade and Industries Classification Act 1951 acknowledges the existence of this labour force by defining a hawker as “any person who in any street or public place, other than in permanent premises, and who goes from place to place or to other person’s houses to sell any goods, wares or merchandise, or sells his skill in handicraft.” Not with standing this legal recognition, the enforcement of the legislative framework has not been smooth in practice as evidenced by press coverage.
1. THE LEGAL FRAMEWORK
Based on section 23(1) of the Universal Declaration of Human Rights, “everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment”. This declaration ratified through regulation No. 100 of 1949 under the United Nation Act 1968, legally binds the Mauritian State to set human rights standards in numerous spheres. It would also be relevant to highlight that Mauritius has acceded to the International Covenant on Economic, Social and Cultural Rights on the 12th of December 1973 whereby the fundamental right enshrined in section 23(1) (supra) has been reaffirmed by article 6 of the Covenant. Although the Mauritian Constitution does not explicitly provide for such freedom, the right to work is inherently upheld in our laws.
There is a balance to be struck between the freedom to work and the public interest which legitimates the existence of legal instruments regulating hawking activities. In light of this, there are two main frameworks which govern the carrying out of such activities, namely: The Trade and Industries Classification Act 1951 (TICA) and the Local Government Act 1989 (LGA). The TICA is additionally supplemented by the Classifi ed Trade Regulations 1954 which standardise health and safety measures to be taken into consideration when granting a license. The key gist of the TICA provides that a license is essential for a hawker to operate legally. Consequently, failure to comply with this requirement constitutes an offence under section 12(b) of the TICA and may be prosecuted under section 15(A) by an inspector of the Ministry of Health or an offi cer of a local authority. Moreover, it is not strictly necessary to join the Director of Public Prosecutions as party (Municipality of Beau Bassin- Rose Hill v. Sik Yuen Supermarket [2001 SCJ 173]).
2. ELEMENTS OF DEFINITION
Pursuant to the definition of a ‘hawker’, the person must (1.) operate in any street or public place or (2.) go from place to place or to other persons’ houses, (3.) and not be in permanent premises (4.) to sell any goods, wares or merchandise, or sells his skill in handicraft. Historically, under section 54 of the regulations published under the Government Notice No. 332 of 1891, it was held in Procureur Général v District Magistrate of Plaine Wilhems [1900 MR 50] that as long as the public has a view of the goods, the public or private nature of the premises is immaterial. The case of Municipality of Vacoas-Phoenix v The Queen [1992 SCJ 62] sheds light on the mobile aspect of hawking : it affirms that to be a hawker one need NOT travel from place to place. Mobility is also demarcated by the perimeter within which the hawker can operate. For instance, prior to 1992 a licensed hawker could operate all over Mauritius but the amendment of the TICA limited the freedom of movement of hawkers to an administrative area of a given local authority. Thus a hawker cannot operate at an address other than that mentioned in his license. While a hawker doesn’t have to move from place to place, he cannot operate from a permanent premise. The phrase “permanent premises” is not intended to include the case of persons who sit or stand at the same place but are meant to exclude from the definition of hawker those who in a public place exercise the trade in a permanent building (Vacoas- Phoenix v The Queen (supra)). Further clarification provided by case law points out that moving goods to and from a permanent premise does not make someone a hawker (Teeluckdharry S.D v The State [2002 SCJ 300]). To illustrate the strict application of the law, application for a license under the TICA was rejected due to the fact that the hawker’s caravan was to remain static at a particular chosen spot (Hazareesingh v Municipality of Beau Bassin-Rose-Hill [1992 SCJ 142]). Although the scope of hawker’s activity is restricted to the trade of goods, we do observe in practice that there is a market for the trade of services in the informal economy. The question arises as to whether this reality calls for the expansion of the definition hawkers.
3. OFFENCES AND PENALTIES
Failure to fulfil the requirements under the TICA constitutes an offence punished under section 16 by a fine not exceeding Rs 500 and imprisonment not exceeding 6 months and in the
case of recidivism, by a fine not exceeding Rs 1000 and imprisonment for a term not exceeding one year. In addition, the court may order the closing of any premises where there has been a contravention to the conditions of the license or where the business is conducted so as to be a danger to public health, public order or public safety. To this effect, the Classified Trade Regulations 1954 emphasizes the aspect of public health by requiring the hawker to maintain personal cleanliness, to be free from contagious or infectious skin diseases and diligently ensure that the food is clean, pure and wholesome and be kept in a container which prevents contamination of any sort. It is to be noted that the penalty provided under the regulation, which is a fine not exceeding Rs 1000 and imprisonment not exceeding one year, is more severe than the penalty under the TICA. Offences prosecuted under the LGA regarding contravention to licenses give rise to a fine of not less than Rs500 and not exceeding Rs1000. These double standards have been observed in the case of Teeluckdharry (supra) where the Judge was led to prompt the legislators to address those issues.
4. LAW ENFORCEMENT AGENCIES
As per its definition, hawking is carried out in a public environment which inevitably involves the use of public infrastructure such as roads. Under the Roads Act 1966, a highway authority is empowered and has a duty to ensure that all urban roads, including pavements should not be encumbered or impeded with articles. Moreover, section 67 of the Road Act confers the relevant power on the Highway authority to free the urban roads from any encroaching structures. In Joonas Industries Ltd v Municipal Council of Port-Louis [2012 SCJ 355], it was held
that this legislation had to be strictly applied and consideration of policy do not have to be taken into account. Local government authorities also have a major role to play in the monitoring of public infrastructure as they have a duty under the Local Government Regulations to seek compliance of hawkers with any other law or court judgment (Market Traders Association v The Municipal Council of Port-Louis [2008 SCJ 324]). Police authorities are also involved in the process of enforcing the legislation and are even conferred powers of search and seizure without warrant when trade premises are accessible to any member of the public (Teeluckdharry (supra)).
Article 6(2) of the International Covenant on Economic, Social and Cultural rights provides that a state party to the covenant should take steps in order to achieve the full realization of the right to work under conditions safeguarding fundamental and economic freedoms of the individual. After balancing the various interests at stake, we observe that our legislative framework has adopted a more restrictive approach towards the activity of hawkers. Divergent opinions on the matter in the judiciary still persist though as illustrated by case of Joonas Industries Ltd (supra). The statement whereby “the hawkers fall outside the formal economy […] because not enough attention has been given to assisting them to enter the formal economy. Their illegality lies not in their activity but in a status which is being denied to them. Earn a living is not illegal; it is what they should do” is outweighed by the fact that the rule of law has to be upheld fi rst and foremost before any consideration of policy.
Nadiah RAMSAMY & Ajmal TOOFANY Legal Research Officers
This article was first reprinted from the January issue of the newsletter from the Office of the DPP.