Justice for the people (or, are Courts undermining a people-centric justice system”?)

Calyn Pillay
Apr 24 · 8 min read

Activists, lawyers and researchers who work with low-income tenants in Cape Town, know they are one misstep or emergency away from getting evicted. Low-income tenants spend a large proportion of their income on rental and housing costs, however, with the backlog for affordable housing in the hundreds of thousands, with a waiting period of 20 years, and emergency housing at capacity, tenants struggle to get help from the state.

Open Up (a nonprofit organisation with a mission to empower people to improve their lives and their communities, through impacting the systems and processes they use) and Ndifuna Ukwazi (a nonprofit activist organisation and law centre that combines research, political organising and litigation in campaigns for land and affordable housing) produced our first qualitative eviction study in Cape Town, we spoke to 14 individuals facing evictions in the inner-city. Five participants were elderly people who cannot and should not be expected to keep up with increasing rental prices, while relying on their government grants of R1700.00 as their sole source of income. Three participants were foreign nationals who struggled to find employment while having (or waiting) for refugee status. Two participants were single mothers or grandmothers. All participants in our study were people of colour, who due to the historic injustices of apartheid, colonialism, and present-day corruption, do not have a robust social-welfare net to help them pay rent, when they struggle to find work or when a breadwinner dies.

In the face of this reality, what can be done to help? How can we reach the National Development goal of ensuring that all South Africans feel safe at home, at school and at work, and enjoy a community life free of fear by 2030?

This article looks into how two Cape Town magistrate courts are working to achieve this goal through the characters Sarah and Eve based on other tenants experiences in court.

Sarah and Eve are sisters. They both work as shop-tellers. Sarah rents in Woodstock with her family, while Eve rents in Wynberg with her family. The sisters lost their husbands in a car accident over the December holidays. This emergency has put them in a difficult position as they have not only lost a husband, and a father to their children, but the family breadwinner as well.

Three months after the accident Sarah and Eve are struggling to pay their rent and receive a Notice of Vacate. The sisters support each other in talking to their respective landlords. Sarah’s landlord has already sold the property she lives in and the new owner does not want to continue leasing the property to Sarah. Eve’s landlord is willing to let her stay in her home, however, they stipulate that if Eve cannot pay the new rental price they will evict her. One month later Sarah and Eve receive Notice of Motions and 4(2) Notices indicating that they have to go to court as they are being evicted.

Private waiting room for tenants and their families.

Because Eve rents in Wynberg, her Notice of Motion tells her she must go to the Wynberg Magistrates’ Court. When Eve gets to the courtroom she notices that the court has a single file of benches lining the passageway. Even though it is 8:30 am these benches are crammed with people benches barely visible — the elderly, mothers with their young children, and young people. Eve knew that she might have to wait in court, however, waiting in the hallway outside closed courtroom doors offers her no privacy. Eve sits exposed as the staff of the court, lawyers, and other tenants walk past. She is unable to gather her thoughts or read over the notes she made about what she wants to say to the Magistrate. She sees lawyers walk behind the large, heavy, and soundproof courtroom doors. However, it seems that citizens belong outside and Eve stands nervously outside.

While Eve is standing exposed in the passage outside the courtroom, Sarah who rents in Cape Town is sitting inside the Civil Courtroom in the Cape Town Magistrates Court. She saw that there is a waiting room next door to the courtroom. However, many citizens walked into the courtroom and were now sitting inside. Sarah is happy that she decided to sit inside the courtroom as she is able to watch how other eviction matters proceed. Sitting inside the court, Sarah intently observes the way lawyers, Magistrates, and tenants speak and behave.

Tenants allowed to wait inside the courtroom.

The Wynberg court space is separated in a way that Eve and other tenants cannot observe the behaviour, expectations, and language of the court, even though they are required to understand and speak according to these rules. The consequence of the separation of court space is also a separation of knowledge and practice. Eve and other tenants walk into court nervously as outsiders and more likely to make an error and less likely to know how to use the processes to advocate for themselves.

Living in Cape Town Eve and Sarah are part of an unequal society. Due to historic injustices, Eve and Sarah do not have a family safety net that can help them. Instead, they both rely on the state and the courts for a fair and equitable eviction.

In a courtroom, there is a legal dialogue between Magistrates and lawyers. It is this, coupled with the knowledge of legal processes and the law, that makes courts technical. The weight of this technical practice is felt by Sarah and Eve in court. It echoes in the silences observed in court, in the standing when the Magistrates stands, and it is never as present as when an unrepresented tenant wants to say something in court to the magistrate. Lawyers are trained in these practices, while tenants like Sarah and Eve are not. Because Eve and Sarah have yet to secure legal representation they have no access to this legal language or process. They must rely on the Magistrate or the applicant’s (landlord) lawyer to ask them questions in order for them to tell their stories.

At Wynberg Court, the applicant’s lawyer opens the large, heavy and soundproof courtroom doors and calls out Eve’s name. She is taken aback and moves hurriedly into the court for the first time. She does not know where to stand, however, the applicant’s lawyer ushers her onto a wooden platform. She stands nervously — what will happen next?

Magistrates using their inquisitorial duty

The Magistrate greets Eve and confirms her name. The Magistrate turns to the applicant’s lawyer who lays out the specifics of the case. After a few moments, the Magistrate turns to Eve — “do you have a lawyer?” Eve nervously responds with a few words “Not yet, Mam”. The Magistrate turns back to the lawyer and they begin discussing postponement dates. The Magistrates turns to Eve for the last time “you must come back on 8th May 2019, to this court at 8:30 am with a Lawyer. If you don’t the case will proceed”.

Eve is told she can leave. As she walks out the court, her mind if filled with all the things she wished she had said. She can’t believe how quickly it went by and that she must find a lawyer in two weeks. Where does she start looking?

At the Cape Town Magistrates’ court, Sarah has a responsive Magistrate that adapts to the reality of unrepresented low-income tenants by performing her inquisitorial duty. The Magistrate does this by asking Sarah questions, such as:

Magistrate: “Do you have a lawyer?”

Sarah: Not yet

Magistrate: “Why not?”

Sarah: I am a single mother, I cannot pay a caregiver to look after my children after school. I am also unsure where to go when I can arrange a caregiver and can take off work.

Magistrate: The clerk of the court will give a sheet that lists the pro bono legal services available.

Sarah: What does pro bono mean?

Magistrate: free legal representation

“How old are your children?” “Is anyone in your family disabled?”

Sarah answers these questions and others. At the end, the Magistrate and lawyer begin discussing a date. The applicant’s lawyer suggests two weeks, the Magistrate in recognition of Sarah’s personal circumstances states that two weeks is not enough time. She sets the date at three weeks. Personal circumstances are a vital component in the test for whether it would be just and equitable to evict the tenant. In Sarah’s example, the Magistrate attempted to understand how long the tenant would realistically need (what is fair) for them to find a lawyer and then made a decision on the date..

Sarah leaves court armed with some experience of the way the court works, the list of pro bono legal services, including Ndifuna Ukwazi’s (information, an Eviction Guide (guide to help tenants go through an eviction process), and three weeks to find a lawyer.

Handing out printed information is a simple action for the court. However, a majority of low-income tenants use their mobile phone exclusively for WhatsApp, SMS, and phone calls. Eve and Sarah do not use their phones for browsing the internet. The cost of data in South Africa is a major contributing factor to using data this way. The list of pro bono legal services given to tenants like Sarah saves her time (and possibly money). The time and money Sarah saves she uses to pay for the cost of travelling to the lawyer’s offices and to print out her personal documents.

The Department of Justice and Constitutional Development (DoJ&CD) believes that in order to make South Africans feels safe they need ‘justice services that place victims, vulnerable persons and other court users at the centre of the justice system’.

Cape Town Magistrates Civil Court is working towards this by physically allowing citizens to be inside the courtroom and by adapting their procedures by asking them to leave when financial or sensitive information is discussed.

They are upholding the principle and value of the DoJ&CD — Responsiveness. The Magistrate performing her inquisitorial duty by asking Sarah about her personal circumstances and providing her with a list of pro bono legal services makes Sarah feel safer when she leaves the court. Justice is made more accessible to Sarah even though she did not have a lawyer, and the court efficiently provided her with reliable information about pro bono lawyers.

The vivid formulation of the stakes of having a courtroom that is not responsive and does not put people at the core of its processes — is to wonder about the additional physical, mental, emotional and financial toll placed on Eve and tenants like her when they walk out of Wynberg magistrates court empty-handed, confused, and with a court date looming in the near future. What would have happened to her, if instead of being left on the outside of the court and its processes, she like Sarah was offered simple yet tangible steps to access justice?

Calyn Pillay

Written by

is a the Research Lead at OpenUp (formerly Code for SA) in Cape Town. Supports effective altruism, believes in human potential and likes tea.