Category Archives: responsible lending

South Africa: redefining, reimagining

Not only is another world possible, she is on her way. On a quiet day, I can hear her breathing.” – Arundhati Roy, quoted on the Black Sash website

The life of Jo’burg

IMG_4034Johannesburg, in South Africa, is an immense, contradictory city with a living history, much of it entangled with the law. Situated in the wealthy province of Gauteng (literally “place of gold”), named after its gold mines), it is the nation’s finance centre and one of the richest cities in Africa. It is also where Nelson (Madiba) Mandela studied at the University of the Witwatersrand, where he lived through much of the 1950s, and where he co-founded the first all-black law firm, Mandela and Tambo. He had briefly been imprisoned here at Johannesburg’s Fort Prison (where Ghandi had also been imprisoned in 1906), on what is now Constitution Hill, while awaiting the Rivonia Trial in 1962. Constitution Hill has since been reconstituted as a museum precinct and is also home to the IMG_0304Constitutional Court of South Africa, the nation’s highest appeal court. It is here that legal decisions which ended the death penalty in South Africa, and paved the way for gay marriage, were made. The South African Constitution (1996), negotiated over two long years, is heralded as one of the most progressive in the world.

Yet, from my outsider’s perspective, Johannesburg is still very much segmented by the legacy of apartheid. Downtown you can walk just two blocks and move from designer industrial redevelopment to a pot-holed street lined with half-closed liquor shops, pawn shops, and metal grate frontages. Along these streets diesel-exhaust buses careen around worn out men with street-darkened skin who move slowly under the weight of  enormous sacks of scrap. As I ride my bicycle along one of these streets to my first fellowship meeting, there is not another white person in sight. Change happens slowly, of course. But knowing this in the abstract is different to being in the thick of it. Perhaps Bryan Stevenson would call this proximity.

The Legal Resources Centre

My first interview in Johannesburg was with the quite remarkable Regional Director of the remarkable Legal Resources Centre (LRC): Naseema Fakir. Co-founded in 1979 by Arthur Chaskalson, one of the defence counsel in the Rivonia Trial, the LRC is one of South Africa’s oldest public interest law organisations. For varied oral histories of the LRC, see here. It is largely privately funded, and has a diverse mandate that has evolved with funding priorities and legal need. This includes environment law, housing rights (including illegal evictions and repossessions pursuant to mortgages), refugee law and legal assistance to not-for-profits. It runs a walk-in clinic, and also receives referrals from various organisations, including courts.

As Naseema tells me of the many interesting LRC cases, two challenges stand out: firstly, that of negotiating satisfactory early resolution of disputes with the state (particularly in meritorious cases), and secondly, that of effective enforcement of successful outcomes, again often against the state. For example, the LRC had, over many years, instigated urgent applications to release immigrants held in detention for over 120 days, which is prohibited under section 34 of the Immigration Act (2002). This work culminated in August of 2014, when the Centre successfully obtained a finding by the South Gauteng High Court that such conduct by the IMG_0305Minister of Home Affairs and others, ongoing since 2000, is unconstitutional (decision here). In this matter the LRC acted on behalf of the South African Human Rights Commission (SAHRC, a public oversight authority), two other institutional clients and 19 individuals. It is interesting to see how even with such clear technical breaches of law, state compliance cannot be assured, and to consider how legal organisations can best encourage good faith regulatory compliance and implementation. In that case, one of the orders that was sought and granted required two respondents to report to the SAHRC on compliance with the court order.  My impression was that even despite this clear outcome, enforcement would prove a challenge. This was confirmed by a further court order against the Minister for Home Affairs and others in relation to another unlawful detention matter on 1 April 2015.

We also discussed unintended consequences, particularly in the context of environmental law proceedings, which often hold in balance disparate competing interests. This is one challenge inherent in “litigating in complex factual circumstances where the terrain is constantly shifting underfoot“.[1] A case in point is Tudor Shaft. In 2012, a private entity endorsed by government departments sought to remove a toxic mine dump from near the informal Tudor Shaft settlement in the West Rand area. The LRC represented the Federation of Sustainable Environment (FSE) in opposing the process of the removal, as there had been no risk assessment or consultation in relation to the move. There was concern that the removal would liberate toxic dust that the community living nearby would inhale. Three years later, the matter is still ongoing, and has devolved into a multi-pronged legal battle involving numerous parties and a myriad of experts, who are necessary but also add further cost, delay and layers of complexity. While this goes on, the toxic mine dump continues to sit near Tudor Shaft, and a collaborative solution seems further and further off.

It is useful to contrast this with the work of the LRC in the area of responsible lending, where it opposes private entities. Carien van der Linde, Attorney at LRC, explained to me how she (together with only one administrative assistant and one articled clerk equivalent) is running about 60 files in relation to a fraudulent loan scheme administered by the now-liquidated Brusson Finance (Pty) Ltd.[2] The LRC successfully opposed foreclosure in many of these cases, and court orders have been successfully enforced (one example is here). These cases reminded me of the work of Consumer Action in relation to payday lending and responsible lending. It is interesting to consider how the sensitivity to costs and reputation risk exhibited by the pragmatic private sector may be encouraged in the case of the state.

Postscript: an arts conversationIMG_0326

On one of my first days in Jozi, I attended an art exhibition opening at the former Women’s Goal (now museum) at Constitution Hill titled “The New Now: Afrika Reimagined“. The proceedings started late, and wine bottles were left corked on the tables in the absence of bottle openers, and yet, the night entranced its audience. The conversation was between black artists and a largely black audience around “reimagining the past in order to move forward“. Poet Lefifi Tladi discussed the importance of language for freedom – how “one part of freedom is the ability to share ideas” – and yet, how few dictionaries there were between most of the 11 official South African languages, although they had all been translated into English. Artist Samson Mnis discussed religion and industry – creating, making, and buying, African. It was all said in a space itself lifted out of its history of violence, colonialism, and hatred. I wondered how this conversation could connect with that of the lawyers I would speak to.


Footnotes:

[1]Legal Resources Centre Annual Report 2012-13, p 24 , available online here.

[2] For those interested, in short, Brusson would offer credit to property-owning individuals with poor credit histories and unbeknownst to them transfer the property interest to a third-party investor, who would then obtain a bank loan using the prop­erty as surety, and provide the loan proceeds to the clients, with each company taking a cut. If a default occurred, the bank would fore­close on the prop­erty, result­ing in the orig­i­nal own­er los­ing their home, with little recourse to resist this.

Images:

[1] Johannesburg from up high. On one of the buildings hangs a banner that says: “Jozi, you’ve come a long way now let’s go even further.”

[2] Inside the Constitutional Court.

[3] A placard outside the Constitutional Court.

[4] A painting by Samson Mnsi.

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The London legal discussions (London, part 2)

My conversations in London started with the wonderful Julie Bishop of the Law Centres Network, who briefed me on the devastating effects of the legal aid cuts, the state of the sector, and linked me with key organisations. I then met with Professor Roger Smith, a freelance writer and expert on legal aid and access to justice issues within the UK but also internationally. Together we attended an All Party Parliamentary Group (APPG) meeting of the House of Commons, where community and law organisation representatives spoke to what I assume was meant to be a room full of parliamentarians (but may have been mostly interested parties) about the effects of the legal aid cuts. This was followed by a launch of the Legal Aid Practitioners Group (LAPG) Legal Aid Manifesto, a detailed text setting out the legal aid reforms proposed by the LAPG.IMG_0055

That evening caused me to again reflect on how community (and here legal aid) lawyers frame the narrative of why their work is important, and of how we can best work to foster conversations with government that allow for what Fran Peavey calls ‘movement’. These are discussions that avoid predictable patterns, and generate new ideas and possibilities. Fran, for example, writes about how strategic questioning is one tool with which such movement can be encouraged. There are of course many others in the toolbox.

Later in the week I met with, among others, representatives of the Hackney Community Law Centre, and Islignton Law Centre. My impression was that while continuing to provide a good service to those in need, both generalist centres were feeling the constricting effects of the legal aid cuts. At Islington, I was also lucky to meet with Baljeet Sandhu, who coordinates its specialist Migrant & Refugee Children’s Legal Unit (MCLU). She spoke passionately, and hopefully, of her work bringing children’s rights language into the practice of immigration law with respect to children in the UK.

IMG_3982In particular, she referred me to a landmark case brought by the MCLU’s predecessor project, ZH (Tanzania) v Secretary State of the Home Department (2011), in which the Court relied on children’s rights principles in allowing a mother of two British citizen children, aged 9 and 12, to remain in the country despite her “appalling immigration history”. The case set a valuable precedent in which two young children were not effectively punished, through the immigration system, for their mother’s acts. Baljeet spoke also of her efforts to unite lawyers working on these issues by establishing a Children’s Rights Network, and of working with funders to fund not only casework, but also the time required for reflection and planning of effective strategic litigation.

Finally, I also spoke to representatives from a series of varied public interest law organisations – the Public Law Project, Liberty, and Just for Kids Law – as well as with Damon Gibbons of the Centre for Responsible Credit, a policy research organisation. For reasons of brevity, a snapshot of the matters we discussed is as follows:

  • One current campaign focus for Liberty (UK) is human rights, and the retention of the Human Rights Act in particular, which provides many key civil rights protections. Liberty’s Legal Director, James Welch, talked me through the 2013 case of Verna Bryant, in which the right to life enshrined in article 2 of the Human Rights Act was relied upon successfully by Liberty to secure a proper inquest in relation to Verna’s daughter’s death. Through the inquest process, a series of institutional failings were found to have contributed to the murder. This at the same time worked to dispel the misconception that the Act had led to the undue release of her daughter’s murderer. The case is a powerful example of how litigation can be effective in reframing a political issue of contention.
  • Public Law Project strategically focuses on promoting access to public law remedies, such as judicial review, for disadvantaged communities. In March 2015, it successfully challenged new regulations limiting the provision of legal aid in judicial review cases. It is also currently running a project to monitor the operation of “exceptional funding” legal aid provisions that provide for applications for legal aid in areas not normally covered in defined categories of “exceptional” cases. See here for more details.
  • Out of Just for Kids Law, a children’s advocacy and rights organisation, has emerged a quite interesting youth-led campaign called Let us Learn, which aims to help young people from migrant backgrounds in the UK access university educations on equal funding conditions.
  • With Damon Gibbons of the Centre for Responsible Credit, I discussed the UK campaign for an interest rate cap, and tales of innovative consumer credit action in other places. In Germany, for example, he told me of how Udo Reifner, Professor at Hamburg University organised for consumer agencies to submit court complaints on the same day regarding an excessive interest rate charge. Through this coordinated approach, they were successful in compelling the court to rule that no lender should be permitted to charge more than twice the market average.  In the 1990s in Japan, there was a huge expansion of high cost lending – with loans available from automated booths in the major cities.  The expansion stemmed from a confusion concerning the interest rate legislation, which was only clarified after a lengthy campaign led by lawyers in the Japanese Federation of Bar Associations and with the support of the Japanese labour movement.  In 2006, the Supreme Court ruled that lenders were retrospectively liable for excessive interest charges and many were subsequently bankrupted by legal claims against them.  For further details of the Japanese experience see the CfRC report ‘Taking on the moneylenders: lessons from Japan’.  For an analysis of personal debt in the UK, see Damon’s book, “Solving Britain’s Personal Debt Crisis”.
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