TRANSCRIPT: Spotlight on an understudied institution: evictions and the Magistrate’s Court in South Africa

(Recorded August 2019)

Rishika Sahgal (0:11)

Welcome to RightsUp! RightNow, a podcast at [the] Oxford Human Rights Hub. I am Rishika Sahgal, a DPhil student at the University of Oxford. Today, I will be talking to Nerishka Singh from the Social Economic Rights Institute of South Africa, or SERI.[1] I also have here with me Timothy Hodgson, Legal Adviser on Economic, Social and Cultural Rights at the Africa Team of the International Commission of Jurists, or ICJ.[2]

Rishika Sahgal (0:50)

SERI develops and implements strategies to challenge inequality and realise socio-economic rights in South Africa through its litigation, research, and advocacy efforts. The ICJ, composed of eminent judges and lawyers from all regions of the world, promotes and protects human rights through the rule of law by using its unique legal expertise to develop the national and international justice system.

Rishika Sahgal (1:14)

Welcome Nerishka and Tim.

Nerishka Singh (1:17)

Thank you.

Timothy Hodgson (1:17)

Thank you.

Rishika Sahgal (1:18)

In this podcast, we will explore the cutting-edge research of SERI on mapping evictions in inner city Johannesburg, and in particular, on the role played by the Magistrates’ Court in relation to eviction applications.[3] Nerishka, let’s start by talking about the issue of evictions in the inner city of Johannesburg. What is this issue and why is it an issue?

Nerishka Singh (1:41)

Before starting to talk about the inner city evictions we need to realise why having access to the city is so important. And that is a remnant of spatial inequality, which is a relic from the apartheid planning system, which basically means that infrastructure, social development, social immunities are all located in the centre of cities and the outskirts are underdeveloped. And despite being, you know, 20 plus years out of apartheid, this is still something that we need to overcome.

Nerishka Singh (2:14)

So, because of that, when people are evicted from the city centre, we often see that this is further marginalising, financially, and financially excluding poor people from accessing schools, job opportunities, and social security. So, that’s kind of where the research is found. It is looking into who’s evicting, why they’re getting evicted, and what circumstances is it happening under?

Rishika Sahgal (2:43)

So, you mentioned apartheid and you mentioned “poor people”. Are there specific categories of poor people that we’re talking about?

Nerishka Singh (2:51)

Yeah, we are. In the sense of what economic income group we’re talking about, a lot of our research shows that the people who are being evicted from the inner city live below 3,200 Rand a month,[4] which places them in an indigent economic group. These are low-income black South Africans and foreign nationals who are being evicted unlawfully.

Timothy Hodgson (3:18)

Yeah, so, in addition to the question about— there’s obviously a racial aspect to it, and there’s obviously a class dynamic when it comes to who is being evicted. In South Africa, what’s important to understand for listeners overseas is that because of land dispossession of black people, and segregation laws, which prevented people from living in the inner city centres, people don’t have anywhere lawful to live in general — the majority of the country does not own land upon which they can live. So, taking up occupation on the outskirts of the city, close enough to go to work, as well as taking up occupation in even dangerous buildings in the city, is appealing. And that’s just to add to the general phenomenon around the world of globalisation, and globalisation produces this type of living situation in many countries in the world, and there are evictions resulting from this all around the world.

Rishika Sahgal (4:13)

Are evictions a human rights issue, and if so, why?

Timothy Hodgson (4:18)

So, the basic starting point as an international human rights lawyer is that the International Covenant on Economic, Social and Cultural Rights protects the right to adequate housing, in terms of the right to an adequate standard of living.[5] And, according to that, it’s generally accepted in international law that a category of eviction, described as “forced evictions”, are not lawful. And forced evictions are evictions that happen by force, as the definition says, but also without sufficient legal process and protection. So, you are subjected to a forced eviction not only if you’re physically forced from the house, but also if you are evicted without a legal process and a court order. And that’s the basic principle of international law, which applies around the world. In South Africa, there are various pieces of legislation and the Constitution which confirm this and specify more details.

Timothy Hodgson (5:10)

But the last thing I’ll say about that is that— but, other than housing, losing one’s home creates violations of many other human rights — so, it becomes difficult to access the same school, to access the same health care services, to be able to get to work, in addition to just enjoying general human dignity, because the home is very fundamentally the place where human beings can be cared for, respected, feel happy, feel sad. And so, it’s at the core of human rights — evictions really strike at the core.

Rishika Sahgal (5:39)

So, you mentioned that there is a legal framework around evictions, or access to adequate housing, in South Africa. Could you briefly describe that?

Timothy Hodgson (5:49)

Sure. So, the starting point is there’s a specific provision of the Constitution — section 26(3) of the Constitution — which prevents people from having their homes demolished or being removed from their homes without a court order.[6] And law has to be made in terms of the provision of the Constitution, and there are various laws. So, the general principle — it doesn’t matter which law you fall under — is that the Constitution protects you against arbitrary unlawful evictions without a court order, which is a little bit broader than the protection against forced evictions in international law. But there are specific laws for unlawful occupiers. So, there’s a particular law call the Prevention of Illegal Eviction from Unlawful Occupation Act, which is called the PIE Act, and that protects people who are not lawfully on land, but have nowhere else to go.[7] And it creates a process whereby the State is supposed to engage in mediation with you, regardless of whether or not you’re evicted by a private entity or not. They are supposed to provide alternative accommodation if you will be rendered homeless, and a variety of other protections. There are several other laws which deal with rights against eviction, but it’s— that’s the basic position.

Rishika Sahgal (7:00)

Thank you. So, Nerishka, tell us more about SERI’s project on mapping inner city evictions.

Nerishka Singh (7:07)

The project was basically to get more first-hand data on what the reality is of people who are being evicted in the inner city, and we looked at a five-year timeframe — so, from 2013 to 2018 — and we looked at a multiple of data sources. We’re still in the process of collecting data, but so far we’ve looked at the case files of other public interest organisations, as well as the case files in the Johannesburg Central Magistrates’ Court. When we were sorting through the data, we looked at an eleven-ward radius — so, the geographical wards of Johannesburg, we picked eleven, which formed the heart of the inner city of Jo’burg.

Nerishka Singh (7:46)

What we then did is, we wanted to ask questions of, “Who are being affected? What are the personal circumstances of the evictees, as well as the applicants who are instituting these proceedings?”, just to get a real sense of the dynamics of these eviction applications. And obviously, between, you know, different data sources, the questions vary slightly, but what we found in the Magistrates’ Court, which was the most surprising, is that the eviction applications weren’t about hijacked or abandoned buildings, which is a rhetoric we hear a lot about [in] the inner city of Johannesburg, but it was about the evictions of lease holders and lease applications that have been cancelled. And that raised a few questions.

Rishika Sahgal (8:31)

Could you tell us more about what you’re finding at the Magistrates’ Court?

Nerishka Singh (8:36)

So, like I said, the relationship that we’re looking at most is private holding companies trying to evict tenants from buildings in the inner city. And what we find is that there is a dense concentration in areas such as Hillbrow— as Hillbrow.[8] So, it’s one specific ward in this eleven-ward radius — it isn’t scattered throughout the city, it’s very, very concentrated. And that was interesting, because it does speak to the need to— of people to be right in the middle of the city, to access schools, to access job opportunities, and that kind of thing.

Nerishka Singh (9:08)

Another thing that we saw is that 95% of the cases did not fully consider the personal circumstances of the evictees. And, I’m sure as you would know, this is mandated by PIE. So, the job of the presiding officer in an eviction application is to understand what impact this eviction will have on the people who are being evicted. The problem with this is that in most of the cases, 84% of the cases, the respondents did not come to court, so they were not there, so the eviction was granted in default. Added to this, most of the cases — again, in the 80 percentile — were completely undefended, which means they had no legal representation. So, if there’s no personal circumstances being put in the file, in terms of your pleadings and your legal arguments, and the applicant then does not come to court, there’s no real way for a Magistrate to know whether or not granting that eviction order will lead to homelessness. And that is something our constitutional jurisprudence has said has to happen, because an eviction that leads to homelessness can’t be considered just and equitable. So that was something that’s struck— that stuck out.

Timothy Hodgson (10:20)

So, the context of this is that the Constitution itself says that all relevant circumstances must be considered before an eviction order can be granted, which would be just and equitable in the circumstances. At the level of the Constitutional Court in South Africa, there are many cases on housing rights and evictions. And there is a recent case, of a year ago, where the Constitutional Court decided that, in fact, judicial officers in the position of Magistrates, or High Court Judges, have a pro-active duty to enquire about relevant circumstances. So, the position of the court is that— that you cannot evict people if you don’t know their circumstances, and if they don’t bring the circumstances to you, then you as a judicial officer must make sure that you can acquire the circumstances. One of the ways of doing this is to involve the State in the case, even when there’s a private landlord, and to ask the State to report on the circumstances, which the landlord may not be able to do.

Timothy Hodgson (11:17)

Another thing to emphasise about this context is that Magistrates often might not fully understand what the PIE Act actually intends to protect. So, as I’ve said, it specifically protects people who are not lawful. It’s an unusual law like that, because normally we provide legal protections for legal people. So, the rhetoric that lawyers come to court with, and private— private owners come to court with is, “There are people who are not legally on my land, because they haven’t paid rent, they don’’ own it, they just hijacked the building”, and then they will say to the Magistrates, “Well, the PIE Act and the Constitution, these things are important, but they don’t apply because these are land invaders.” But the Constitutional Court has made clear that land invaders, or what we are calling “land invaders”, is specifically what is protected by the law. And so there you have the fundamental problem, which is that the judicial officer in a case-by-case basis might not have the information and might also think that the facts exclude the law, which is actually applicable.

Rishika Sahgal (12:18)

So, tell me something more about this. You mentioned that the Magistrates may not be aware of the PIE Act — what it entails, who it’s meant to be protecting — and therefore this makes me wonder, what are the institutional constraints under which Magistrates are operating? Why is it that magistrates may be unaware of their duty under PIE, under the Constitution, etc? So, what— what is causing all of this?

Timothy Hodgson (12:46)

So, Magistrates are wildly overworked, and they also don’t necessarily have the benefits, as in High Courts and higher-up, of legal arguments, both written and substantive, by lawyers who understand the circumstances. Very often, you’ve got a private lawyer, who happens to be the lawyer of a landlord or something like that, who might be aware of property law, but not all property law under the Constitutional dispensation. So, that’s the first point — they don’t have the benefit of those things.

Timothy Hodgson (13:13)

The second point is that this massive jurisprudence that I’m talking about, it doesn’t appear on the face of the PIE Act. So, one has to do much more than read the PIE Act to be able to work out what is going on, and Magistrates don’t have a lot of time, because they’re dealing with many, many cases in their courts every single day, and they might have several eviction matters on a particular day, so time is another constraint.

Timothy Hodgson (13:36)

But when it comes to broader institutional constraints, recently, over the last 10 years, there is an institute called the Southern African— South African Judicial Education Institute, and it’s tasked with providing training to judicial officers in general.[9] And those judicial officers that they provide with training are mostly Magistrates and the formula that they have is that they use judicial educators who are Magistrates to train Magistrates.

Timothy Hodgson (14:02)

They do have training on evictions, and this is training which all magistrates should at some stage have, but the Institute, like many States entities, is not very well funded, or supported, and therefore it’s not capable of reaching consistently all Magistrates, for example, every time there’s a new Constitutional Court decision. So, they might get a standard training, and then the law might advance, and then you don’t end up with a situation in which it has all Magistrates knowing specifically what’s going on. You also have new magistrates who are providing some training, but may not be fully prepared because their practice before they were appointed was in criminal law, or in civil litigation, which has nothing to do with human rights in some instances. So, this— these are some of the background institutional constraints that exist.

Nerishka Singh (14:49)

Just to add on to, you know, what Tim was saying, is that what I found when looking at these cases is that from the time of the institutor’s application to the time the eviction order was granted was roughly three months, and that is not a very long time to establish fully what kind of impact an eviction is going to have on people. So, I think, you know, there was a very clear trend in how quickly decisions had to be granted, and I think that was— what you’re saying was clear in the evidence.

Rishika Sahgal (15:19)

Alright, so we’ve been talking about Magistrates, and we’ve mentioned the High Court and the Constitutional Court. Why is the Magistrates’ Court important?

Nerishka Singh (15:27)

If you’re a middle— low to middle income, chances are you’ll fall within Magistrates’ Court jurisdiction, which means that what happens at the Magistrates’ Court is going to be your access to justice and the justice system in South Africa. For the— for extremely— you know, for lower income households, they might not have the financial means to appeal, they might not have the backing of civil society, which means that what happens at the Magistrates’ Court is probably going to be final. I think that’s really important to think about because we do have a system where appeals are possible and things, but if that— you are financially excluded from those avenues, or for whatever reason can’t get further assistance, you really are dependent on a Magistrate fulfilling its constitutional obligations to bring you justice in your personal capacity.

Timothy Hodgson (16:15)

From an access to justice angle, there’s another bit of this that’s interesting. So, we have a right to access to courts in South Africa, and access to justice more broadly interpreted, but legal aid—  [the] legal aid system provides criminal support in the majority. The civil support that they provide is extremely limited, and it’s limited even further by the Legal Aid Act, and then also by the practice of Legal Aid South Africa.

Timothy Hodgson (16:41)

So, the majority of instances which I’ve come across in which Legal Aid itself has provided support in eviction matters is providing support to low-income landlords trying to evict people, which means that the people who are being evicted in those circumstances are not being provided with the civil assistance. So, there’s very little support. The only support that exists is— in the majority, when you either go to a paralegal, which helps in many instances, or if you come to a not-for-profit NGO, like the Socio-Economic Rights Institute, or Lawyers for Human Rights, or the Centre for Applied Legal Studies. And in general, these organisations will tell you that they’re inundated with cases and they can’t take enough, and if they refer to Legal Aid, Legal Aid will say that they don’t have capacity, even though we are hearing that the capacity that Legal Aid has is being used on assisting in procuring lawful evictions for landlords, rather than protecting people from unlawful evictions, which is a matter of policy, which could be open to debate, but it’s something which is happening.

Rishika Sahgal (17:43)

Nerishka, do most public interest organisations in South Africa, and— and Tim mentioned a few— do they usually appear before the Magistrates’ Court, specifically in eviction matters, or is it that these institutions are litigating mostly in the High Court or in the Constitutional Court etc.?

Nerishka Singh (18:05)

From what the research shows is that civil society as a whole litigates from the High Court up. So, from the High Court, and then the battle sort of begins to the Constitutional Court, if that’s necessary. I think there are a lot of reasons for this. Partially, from what I can tell, it’s also about capacity, and the hopes that once you set a strong constitutional principle that is progressive and inclusive, and protects the right of the most vulnerable, that that begins to filter its way down in its interpretation. I think that’s probably a strategy adopted by a lot of civil society organisations. How effective that’s been is obviously another question on its own. And I think there are also a lot of other reasons why, but from what I could tell, there was no civil society involvement in the Magistrates’ Court.

Rishika Sahgal (18:57)

Alright. So, Nerishka, what is your takeaway from your research on inner city eviction applications before the Magistrates’ Court?

Nerishka Singh (19:05)

I think that, as a part of civil society, we need to redirect our scope a little bit. And even if it means we’re not always able to litigate on the individual basis in the Magistrates’ Court, more research really needs to be done in the Magistrates’ Court level to ensure that what’s happening doesn’t defy our constitutional— our constitutional obligations. So, that was my takeaway from this — the Magistrates’ Court is— is extremely important, and it shouldn’t be overlooked just because it doesn’t have the power to set powerful precedent.

Rishika Sahgal (19:37)

Tim?

Timothy Hodgson (19:38)

The only thing I’d add to that is that we really need to support the South African Judicial Education Institute more. They currently spend a lot of time, from my understanding, needing to find partners to work with just to be able to fund basic functions, which are legislatively mandated. So, it’s a legislative body, and there needs to be more support from the Department of Justice to make sure that Magistrates are provided with the information that they need to be able to do their jobs. And it’s not even just the information — I’m talking about resources, internet connections in remote places in the country, books, which will help them to try and do their work. Definitely, researchers could contribute to this by concentrating more on the Magistrates’ Court, writing more for Magistrates, instead of writing for High Court Judges and other researchers and academics, which we often do.

Timothy Hodgson (20:27)

From a civil society perspective, the problem is resource constraints, and it would be good to see people focusing on the Magistrates’ Courts more, but it’s very understandable why that’s not the case. So, Legal Aid South Africa also is another underfunded institution, which has had this year workers rightfully going on strike, saying that, “We cannot work like this. We have too much work. We have too little support.” And so a lot could be done to improve this by funding both those two major institutions — Legal Aid South Africa and the South African Judicial Education Institute — who do, I think, what they can, although I might have some disagreements with their policy decisions sometimes, but they really need more support to do the work that they’re doing.

Rishika Sahgal (21:10)

Thank you very much for joining us.

[1] “Nerishka Singh” SERI, https://www.seri-sa.org/index.php/who-2/interns-and-volunteers/23-about-us/who/874-nerishka-singh#:~:text=Nerishka%20Singh%20joined%20SERI%20as,at%20SERI%20from%20February%202019.

[2] “Africa Regional Office ICJ, https://www.icj.org/staff/africa-regional-office/.   

[3] “Evictions: Just and Equitable? An analysis of eviction applications in the Johannesburg Central Magistrate’s Court and their compliance with the law” SERI (Evictions Research Series) (January 2022),

https://www.seri-sa.org/images/SERI_Mag_Court_Evictions_report_FINAL_HIGH_RES_FOR_WEB_UPLOAD.pdf. See also “SERI publishes new publication on eviction applications in the Johannesburg Central Magistrate’s Court and their compliance with the law” SERI (23 March 2022), https://www.seri-sa.org/index.php/latest-news/1216-publications-seri-publishes-new-publication-on-eviction-applications-in-the-johannesburg-central-magistrate-s-court-and-their-compliance-with-the-law-23-march-2022.

[4] Equivalent to approximately £161 and US$203 (as at 24 May 2022).

[5] Article 11(1) of the ICECSR provides: “the present Covenant recognize[s] the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions”.

[6] Section 26 of the Constitution provides: “1. Everyone has the right to have access to adequate housing. 2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. 3. 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. No legislation may permit arbitrary evictions.” https://www.gov.za/documents/constitution-republic-south-africa-1996.

[7] Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, https://www.gov.za/documents/prevention-illegal-eviction-and-unlawful-occupation-land-act.

[8] Hillbrow is an inner city residential neighbourhood (1.08 km² or 0.42 mi²) in Johannesburg.

[9] “About SAJEI” SAJEI, https://www.judiciary.org.za/index.php/sajei/governance.