What’s going on in South African Courts?
The short answer is we don’t know. The long answer (what’s in this article) is more about why we don’t know.
For many, going to court conjures up criminal imagery and intensely dramatic scenes from Law and Order. For others (late-stage millennials and younger), it’s a bit more like Suits. Regardless of which popular TV show you associate with courtrooms, in the real world, the association is usually negative: Oscar Pistorius, divorce, and having to spend lots and lots of money. And these associations are mostly accurate. Not a lot of happy things happen at court because it is the space where society has been forced to come to a last resort and enforce regulations against bad behaviour.
Court cases are also seen as intensely personal affairs, which they are when seen in isolation. Sometimes individual cases are of public interest because they involve potential precedents that could affect the rights of every person in the country or involve famous people, but 99% of civil cases are just mano-a-mano battles.
So why should we use up our finite emotional capacity to care about a dispute between neighbours over the height of their dividing wall? We probably shouldn’t. What we all should care about is what we can tell from patterns of a large number of cases in a particular field. Aggregated and analysed, what’s going on in our courts can reflect a lot of the problems our society is currently facing, problems that can often be hidden from the public consciousness. Southern African Legal Information Institute (SAFLII) does make certain important judgments freely available to the public, but these cannot be used to make an aggregated dataset.
A single lawful eviction, while tragic for the tenants involved, is not something the public can do much about. On the other hand, if thousands of families are being evicted from the same few neighbourhoods over a couple of years, it may be a sign of rapid gentrification and a major contributor to a local or national housing crisis. Maybe we can (and should) do something about that?
Many evictions lead to displacement and homelessness. Displacement and homelessness have massive societal knock-on effects. They destroy lives, increase poverty, boost crime, and increase the burden on the state to increase spending on policing, health care, service delivery and much more.
With publically-accessible aggregated data from the courts, we can acknowledge that there is a problem, we can isolate the problem, and we can start to address it. We can also see where evictions are taking place and ask questions like why here? Why these people? Social and economic pressures can target certain vulnerable groups, and with this kind of data, we would be able to prove (or disprove) this.
Unfortunately, we don’t have any eviction court data
I and others in my professional network have been trying to get this kind of aggregated eviction data for over a year. Nothing is available online; nothing from the Stats SA website; nothing from the Justice Department website. My colleagues and I have gone directly to the courts to see what’s available. No luck there either. It seems that the only way to collect this data would be to digitise every court record and then run it through software that would “scrape” the relevant information and put it into a database that can then be analysed.
This would be a massively resource-intensive undertaking. I believe, however, that it would be worth it. In addition to going back and digitising records, the courts should create a digital system moving forward so that all cases can be tracked and counted so that academics, NGOs, active citizens, and government can oversee what is going on in our courts.
Unless this information exists on private databases (or classified state databases) we don’t know about, the South African government doesn’t have this data either. How can they find both procedural and societal problems in our court system and fix them if they don’t have a clue of what’s going on?
Okay, I lied. We did find one data source. But it doesn’t say much
The only data we found that we could directly associate with evictions are High Court Rolls¹. Still, they came in PDF and Word Doc format, and we had to scrape them and do a ton of cleaning just to get a dataset that we could eke out a few interesting findings.
What we found in the Western Cape High Court is from 5 January 2016 to July 2019 there were:
- 1255 eviction or lease-related cases (42 per month on average)
- Of these cases, there were 2111 appearances in court (70 per month on average)
- The biggest evictors were property companies and funds (the Western Cape Property Alliance ranked no. ¹²)
What we did not find (and why this information is critical):
- Outcomes of these cases: this tells us how many families were actually evicted and the success rate of taking evictions to court. It also gives us a benchmark to measure our interventions against, and to improve the outcomes for tenants.
- Where the properties in question were located: this allows us to map evictions and find hot sports of gentrification, eviction, and displacement. (See how the Urban Displacement Project from the US has used mapping to advocate for change)
- The reasons for the eviction application (why landlords were evicting tenants): this allows us to make the right tools and information available to tenants so that they can be proactive and stop the situation escalating.
- If these tenants had legal representation: this is important for protecting constitutional rights, and when cross-referenced with cases outcomes can show how important it is for tenants to be legally represented)
Government and Civil Society have so little information to go on, it is no wonder we have an eviction crisis in Cape Town.
The lack of data supports the status quo and allows serial evictors and government to escape public accountability. If you subscribe to the mantra that you manage what you measure, then nobody is managing the eviction crisis (and other yet undiscovered civil crises).
As we push to make this information accessible we must ask ourselves, what would exposing it mean for those in power? While we have a right to this information, how likely is government to release data that could directly implicate it in the housing crisis?
It must also be noted that the above statistics do not include any Magistrates Courts, where the number of eviction cases often exceed those in the High Court³. And then times that by the 56 Magistrates’ courts that exist in the Western Cape. We have no idea of the size of the crisis, making it difficult to intervene effectively.
It is time for our court system to move into the 21st century. We can no longer use ignorance as an excuse for not addressing fundamental social issues in South Africa. Court data must be rigorously collected and made available to the public, that way we can have oversight and evidence of the problems that we already know exist. We have a right to information. We should also have the right to better information.
OpenUp and other members of our network are trying to gather this information by digitising court records, gathering data at court, and scouring databases online and offline to piece together a useful picture of the state of eviction.
If you have any data or useful information and would like to contribute, please contact shaun@openup.org.za.
References
[1] I have excluded reported cases, which can be found in SAFFLII or LexisNexis databases, because not every case is reported on and a count of these cases would give a wholly inaccurate dataset
[2] There is very little information online about the Western Cape Property Alliance (not even a website).
[3] We recorded 69 cases between April and July 2019, but were not at court every day.
