By understanding how complex legal processes play out in the real world (not just in a textbook) we can design tools and systems that empower ordinary people to access justice in our courts.
Cape Town is one of the most unequal cities in the world. A history of colonialism and apartheid has created an economic divide that runs largely along racial lines. The same divide is true for access to land and adequate housing. There is very little security of tenure for millions of Capetonians, who are predominantly low-income black, coloured, and immigrant (often refugee) families. We have seen this play out in the courts, where large numbers of evictions are causing the displacement of low-income families renting in the last few mixed-race, mixed-income inner-city suburbs, to slums on the City’s outskirts.
The major problems facing these families are the complexity of the legal eviction process and access to legal representation. Most cannot afford to hire a private lawyer and are left with the option of using lawyers provided by the under-resourced and overburdened state (Legal Aid), or pro bono lawyers provided through the Legal Practice Council (formerly the Cape Law Society). Pro bono lawyers are not experienced in eviction law and don’t always exhaust their legal options, which could secure a better outcome for their client. They just “go through the motions” and because the law is so inaccessible, tenants are unaware that more could have been done.
To address the root causes of eviction, we need to understand why people are being evicted and what the stumbling blocks in the legal process that stop tenants from securing the best possible outcome for themselves are. If we have detailed data on the problems, activist-organisations such as Ndifuna Ukwazi (NU) and movements like Reclaim the City (RTC) could be more effective in their eviction work.
In search of this information, we embarked on the Eviction Research Project, which collected, analysed, and presented eviction data to relevant civic-organisations working in the evictions space, with the aim of fostering more effective action. The project was a collaboration between Ndifuna Ukwazi and OpenUp, consisting of interviews that covered the entire eviction process with tenants going through an eviction, or who had recently gone through an eviction. We analysed the patterns in the data to pinpoint commonly recurring problem areas and made suggested solutions.
SO WHY ARE TENANTS BEING EVICTED?
The most common reason for eviction is the inability of tenants to pay rent. This is caused by a number of factors. Exorbitant rent increases, loss of income, loss of a breadwinner, and sporadic and inconsistent income (meaning landlords aren’t always paid regularly or on time) all contribute to rent not being paid, forcing landlords to apply to the courts to evict their tenants.
Another common cause is the change of ownership of the rental property. Property owners sell their house without informing the tenants, and sometimes don’t even inform the new owner that there are tenants living in the property. In South African law, a rental agreement is still valid when a property is sold. If the previous owner agrees to evict the tenant they must do so before the sale. The lease is still valid if they fail to do this and the new owner must still go through the courts to secure a lawful eviction. Many tenants are unaware of this and are mislead or bullied into leaving their home.Faced with eviction for one of the reasons mentioned above (or any other grounds), most low-income tenants are unequipped to handle the eviction process in a way that does not prejudice themselves. Most civilians, no matter their income and education level, would struggle to defend themselves in court without the help of a lawyer or access to comprehensive information about the legal process.
WHAT STOPS TENANTS FROM ACCESSING JUSTICE?
Tenant’s don’t use the rental housing tribunal
Tenants are not taking disputes to the Rental Housing Tribunal (RHT). Many are not aware that the Tribunal is an option for tenant-landlord disputes. Others are unsure of the process and don’t even know where to begin. Even those who do manage to lay a complaint struggle to navigate the Tribunal process. Many are turned away even though their disputes are legitimate. Tenants need to first know about the Tribunal, then need to understand how to navigate the process effectively, and last, may need some support from someone who has personally experienced the Tribunal process.
Tenant’s don’t understand legal documents and process
The research showed unequivocally that tenants struggle to fully understand the court documents and the legal process. This is the major contributor to the lack of action by tenants.
Tenants do not know their rights in terms of the Constitution and Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act), and the court often fails its inquisitorial duty. This is a duty of care to unrepresented respondents (tenants in court without a lawyer), including a duty to meaningfully inquire into the personal circumstances of tenants, and taking these circumstances into account, when deciding whether or not to grant an eviction.
Language is also a major obstacle. Legal language (jargon) is a common barrier to understanding. Additionally, many foreigners facing eviction are unable to adequately understand English. These tenants often end up agreeing to settlements that prejudice themselves. If they knew that they have a right to a translator, it could have an effect on what they agree to.
Tenants agree to bad settlements under pressure
Apart from the difficulty of understanding the legal process, and securing legal representation, tenants struggle to negotiate fair settlements outside of court. They may be bullied and intimidated by their landlord and their landlord’s legal representatives. They are also usually unaware of the municipality’s obligations in regard to producing a report and making an offer of emergency housing if they are going to be rendered homeless by their eviction.
Tenants who are unable to secure a lawyer need, at the very least, a judge or magistrate, who can explain the process (and any settlements) to the tenants in a simple and straight forward manner.
Organisations like OpenUp can provide tenants with information about the lawful eviction process, where they can get help, and what their rights are. We can also create tools that make the confusing administrative process much simpler. These are the critical first steps towards providing them with access to justice. Current examples of efforts (which have been heavily influenced by the Research Project) include an Eviction Guide and the Advice Assembly, hosted by Reclaim the City.
A number of additional tools have been identified, such as:
- a document assembly system (Affidavit Assistant) which could help tenants create a basic affidavit, and speed up the securing of legal representation as well as allow tenants to defend themselves in court in an emergency;
- an SMS reminder for court dates;
- and asking Sheriffs to offer Eviction Guides when serving a Notice of Motion (like an eviction court summons) on tenants.
THE WAY FORWARD
The Research Project has enabled OpenUp to identify key intervention points and we are currently designing civic-tech (some very low-tech) tools and systems to empower people facing eviction to better access justice for themselves. The work moving forward is to put out tools that provide value while continuing to extract data and feedback that can be plugged back in, to create tools and systems that are more effective helping tenants facing eviction. Ultimately this feedback loop should allow tenants to drive the process.