How Wynberg court is evading public scrutiny

The magistrate’s efforts to remove us from the court are sneaky.

She announces, “Motion court is over” – signalling that no more eviction cases will be heard today. It doesn’t make sense. Having spoken to tenants waiting outside this courtroom, we know that there are at least three eviction cases yet to be heard.

“You’re excused,” the magistrate says, addressing the attorney before her. It’s not a surprising thing to hear; it’s how magistrates grant permission to attorneys to leave the court when their matters are concluded. What is surprising, however, is that she now turns her attention to us: a group of people, sitting quietly in the public gallery, here to observe how this court handles evictions cases. “You’re excused,” she repeats, this time looking directly at us. Confused, we leave.

As we gather outside the courtroom to figure out what’s going on, the people waiting for their eviction matters to be heard, begin to be called into the courtroom. Evidently, motion court is not over. Our confusion dissipates as we realise what’s happening. We’ve been unduly excluded from the court.

And we think we know why.

Who are we? Why are we going to evictions court?

We are members and supporters of Reclaim the City (RTC) – a social movement that since 2016 has been fighting for affordable housing in Cape Town’s inner-city and surrounding areas. More specifically, we are members of the Eviction Task Team: a group consisting of housing activists, NGO researchers, and volunteers who have come together to learn about evictions and support tenants going through the complicated legal process.

Evictions are displacing many people in Cape Town, leaving some homeless. As areas in and around the city centre become hives of new, up-market development, often advertised as “investment opportunities”, families who have lived in these areas for generations are being pushed out.

South Africans have a constitutional right to housing and our courts have repeatedly affirmed that a key factor in deciding whether an eviction is just and equitable — and in turn whether or not to grant an eviction — is whether persons being evicted will be rendered homeless. The state is obliged to provide emergency accommodation in cases where an eviction would result in homelessness. Our contact with tenants across Cape Town, however, suggests that in practice this often doesn’t happen. This is why we became curious about what is happening in our eviction courts.

In 2017, we began our inquiry at the Cape Town Magistrates Court. We sit in court to observe how eviction cases are handled, give informal advice to unrepresented (and often very emotional) tenants appearing in court for the first time, and develop resources (such as information booklets) to assist tenants to know their rights and where they can access further help.

The Cape Town court has responded positively to our presence and we have noticed some important shifts that bring the practice of the court closer to what is envisaged in the Constitution. For example, we have noticed magistrates better explaining to tenants that they have a right to legal representation and that they can request a translator if they need one. Encouragingly, magistrates routinely refer tenants to our informational poster in the waiting room that provides the details of pro bono legal services and the clerk of the court has handed out our Eviction Guide (a detailed booklet about the eviction process) to tenants.

In late 2018, after these successes, we decided to expand our work to the Wynberg Magistrates Court.

Wynberg Court: a hostile place for tenants

While at Cape Town Magistrate’s Court, members of the public routinely sit inside the court, at Wynberg there is an unwritten rule that only attorneys are allowed inside the courtroom. Everyone else is expected to wait in the corridor outside. This adds to the already anxiety-provoking experience of coming to court, shrouds court processes in secrecy, and creates the distinct sense that the courtroom is a private rather than public space.

And behind the closed courtroom doors, away from public scrutiny, we have observed some concerning things: cases postponed for impossibly short periods of time for tenants to find legal representation; inadequate and jargon-filled explanations to tenants of the legal process; dismissive attitudes towards tenants; and most egregiously, a persistent failure of the court to exercise its inquisitorial duties – that is, to find out from tenants what their personal circumstances are and why they find themselves before the court.

Section 26(3) of the Constitution states: “No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.” This places a duty on the magistrate to know tenants’ personal situations because only then can they judge if an eviction order would be “just and equitable”. This, along with proving that the tenant is occupying the property unlawfully, is required by the law to grant an eviction.

In the landmark PE Municipality case, the Constitutional Court held that granting an eviction order would not be just and equitable if it only took one of the parties’ circumstances into consideration. South African law now requires all courts to follow a “sensitive and balanced” approach toward all parties involved in an eviction and all the factors placed before it.

This failure to inquire into the circumstances of all parties is at the heart of the dysfunction of Wynberg Magistrates Court. It seems to us that this practice is driven by the court’s automatic assumption that all tenants act in bad faith and deserve to be evicted.

The week before the stealthy throw-out, the magistrate said in court that she had heard “rumours” (legitimate concerns) that “people” (us) were complaining that the court was not handling eviction cases fairly. She stated to the room that if an eviction matter is before her, it must mean that the landlord has a case against the tenant.

In practice, this means that if tenants stands before the court, it is taken as a given that they must have done something wrong. And maybe they did. Maybe they didn’t pay the rent. But a failure to pay rent is rarely the result of being a bad person or a criminal. Our experience suggests it’s often caused by the loss of a job, a crisis in the family, the death of a breadwinner, or a sudden increase in the rent. And all this is coupled with the reality of living in a city where affordable housing is scarce, unemployment is high, and the general cost of living is only going up.

Treating tenants as if they are criminals not only ignores these systemic issues; it undermines tenants’ dignity and leads to violations of other rights - such as the right to seek legal representation and to have one’s circumstances heard and taken seriously by the court. Moreover, it dismisses the possibility that a landlord may have acted unlawfully or unfairly (e.g. by exorbitantly increasing the rent).

In keeping with this bias, our efforts to provide information to tenants about their rights have been met with open hostility. Instead of referring tenants to our informational posters, they have been taken down multiple times. The court manager has also interpreted our informal advising as attempts at “influencing people” rather than seeing it for what it actually is: a free, pro-poor community service.

Open justice and the right for the public to access the court

The concept of open justice means that in the interest of justice, legal proceedings must be open to the public. In common law, it is expressed by the maxim: justice should not only be done, but should manifestly and undoubtedly be seen to be done.

In 2008, the Constitutional Court, which is the highest court in the country, held in Independent Newspapers (Pty) Ltd v Minister for Intelligence Services that open justice had essentially become a right of its own.

Section 34 of the Constitution not only protects the right of access to courts but also commands that courts deliberate in a public hearing: “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”

It is clear from multiple legal authorities that unless there are extreme circumstances all legal proceedings should be open to the public. Evictions are no exception.

The practice of the Wynberg Court goes against the common law and is in conflict with the Constitution and the ruling of the Constitutional Court. Kicking people out of court because they are providing oversight and being critical of judicial officers who are not applying the law correctly is quite simply unlawful and unconstitutional.

Where to from here?

After being thrown out of court the first time, one of our members was called out of the courtroom by security personnel, marched down to the court manager for “disrupting my court”, and promptly escorted out of the building. All he was doing was sitting quietly at the back of the courtroom taking notes.

We wrote a letter to the court manager to explain our work and to ask for a meeting to clear up any misunderstandings. We also expressed our desire to understand where we may have erred. One month later, we have received no response. So, we went back to continue our work. This time, we were told directly by the magistrate that we are “not allowed” in court. We wrote another letter asking for a meeting and an opportunity to explain our work.

Silence

Our experiences over the last few months have exposed real threats to justice for the many people who use Wynberg Court every day. We are concerned that the court administration and presiding officers have been failing to execute their duties and apply laws correctly (and in the spirit of the Constitution). Banning us from the court continues to make this a fact. It has also created a wall between the courts and the community – a move that effectively blocks public oversight in an attempt to circumvent accountability. This state of affairs is unacceptable in our hard-won democracy.

Views expressed are not necessarily GroundUp’s.

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