Staples: A story about accessing court records.
A little pile of staples blinked at me condescendingly. It had taken exactly 12 minutes to savage these little bastards from 693 pages of dense, and spontaneously organised, court filings. By this stage, I was willing to siphon them off with my teeth if that resulted in me getting a copy of these papers ready. Because this had been a painful experience, and a sad one. This was the basis for a somewhat elaborately drawn-out story – the premise being: how does one access a South African court record?
So let’s start at the beginning by way of introduction: I am a ‘kind of’ lawyer, i.e. not a practicing one. I mean, I have L.A. Law as my ringtone obviously, but have no desire to immerse myself in the world of civil procedure and black cloaks that practice entails. Instead, I work with civic technology hub – OpenUp – which focuses on facilitating engagement between citizen and state through enhanced transparency and participation. We have opened access to By-Laws and Gazettes and thought to ourselves, what other records would help make access to justice a reality? Our friends at SAFLII and AfricanLII already facilitate access to judgements, so why not improve access to court files themselves: the backbone to both civil and criminal litigation?
To my mind, the value of court records is immense. While a court judgment gives the story of what the judge thinks the solution to a conflict is, the court file tells the story of the source of the problem from each persons perspective. So, would you rather hear the screaming match between your two neighbours through the wall, or interrogate the removal truck driver who moves out Barry’s things? I, for one, like to have my glass to the wall.
Court records are, as a matter of course, required to be open. However, courts act a bit like their own principalities, with different courts implementing the process for access to these records in slightly different ways. The Western Cape High Court for instance, requires you to complete an ‘upliftment order’ to access files. As a problem-solving and user-centred organisation, we at OpenUp decided the first step to do before considering access to court records more generally was to jump in and explore first-hand what an upliftment exercise involves. I knew already that in the Cape High Court you had to file an upliftment order, and then return the next day to access the file. But that was the sum total of what I understood of the process. And so began my somewhat painful four day sojourn into the lived court experience…
I arrived at the High Court on a Wednesday morning after a kilometre from the nearest available parking I could find in Harrington Street. Being Southern Suburbs based, I had forgotten how much the resounding smell on that walk from the Square past the Magistrates Court is very urine-themed.
Walking up the steps to the Court, which have the strange impact of completely obscuring a visual entrance as the steepness of the stairs restrict your ability to see a strong entry point, I was immediately met by a sense of chaos. Directly through the doors are metal detectors and security guards. But just before and slightly to the left, a court official was seated behind a desk with large stacks of files around her. She was smiling, but in that hollow way a woman may smile when mentally scrolling through the list of implements she might use to stab someone with. The expression was an understandable one – I couldn’t immediately tell the problem, but it seemed there were very antogonised suited people constantly assaulting her with the queries of the immensely-busy-and-immensely-important. I decided she looked too much like she had a specific task, so decided to just go ahead into the court to try and figure out where I should be heading.
Security pointed me down to the help desk. Amusingly, the help desk was tucked at the bottom of a very unhelpful little flight of stairs, around the side from the entrance. It kind of looked like the original person tasked with aiding the public had fallen down the flight of stairs and, despondently turtle-like lying on their back, thought: “Well, this is as appropriate spot as any”. I waited in a short queue then told the very kind desk clerk I wanted access to a court file (no sarcasm, he was really lovely). He said that I should go to Room 1 but that, today because of archiving, I would have to come back at 12 as the Room was currently closed.
On leaving, I walked past the lady at the entrance and overheard that she was of course the filing clerk, having to accept files at this makeshift desk while archiving was underway. I decided to go wait at the coffee shop over the road to kill two hours. Sitting there, peering at the entrance to the Court, I was struck by how inaccessible to the entrance appeared: not just for wheelchairs and other physically impediments, but also in the narrowness of the entry point and that painful Romanesque grandiosity that pillars mindlessly create. This does not appear a place for people. It looks like a place of robes and incomprehensibility. Red and yellow parking lines run the almost entire length of the forecourt – with haphazard parking creating an enforced one-way, which requires constant and aggressive negotiation between drivers from opposing sides.
Promptly at 12, I bounded up the stairs with the false confidence of someone who thinks they now know how to do something. However, I was met by a someone scrappily amended sign now posted by security stating Room 1 would now only open at 2 pm.
Now, I take immense pride in my capacity to know when I’m beat. I spent years surviving early childhood with a big sister just rolling over like a dead possum in response to any threat of a physical fight. I’d already noted the sign, which told me that Room 1 was ordinarily open to 3pm. I decided that the chances of me this coming back at 2pm to find another hastily amended sign would be significant. I beat a hasty retreat.
I returned that Friday, having identified two cases I was interested in pulling files on, both of which were related to eviction matters (being an area of work we are working on elsewhere [xx]). Interestingly, identifying case numbers for cases of interest was an exercise that in and of itself involved some reverse-engineering. There is of course no comprehensive case list of court files available at the Court given the lack of a comprehensive publicly accessible digitisation project. And while SAFLii makes available the court roll, it is difficult to search judgments dealing with specific matter types given how judgments are provided to them. Instead, I had to use a private law database (access to which is prohibitively expensive for most) and use the special function hey provide for identifying statutes judicially considered, and then sort through those list to identify the Cape High Court specific ones. I did this, presuming the court files for a judgment would stay with the originating court (a presumption I still haven’t fully resolved…).
As I walked up to Court, I was met by a group of singing protesters. They had gathered outside the Court to protest their evictions. I felt satisfied to be looking for what I was looking for consequently, but was struck by how dwarfed the protestors were by the building front, and how apathetic all the people streaming in and out the building to conduct their process-heavy activities were to the disruption.
I arrived at Room 1 and was met with concerted chaos. As I mentioned, I have no real court work experience and found it overwhelming. There were signs (in various eye-scratching fonts) pasted along most wall spaces, and the main desk on entrance was bustled on its far side by clerks and near side by lawyers in a discombobulating dance that gave me, who felt like a distinct outsider, the definite appearance that everyone but me knew what they were doing. I felt strangely embarrassed, actually, by my lack of know how and wondered how much of it was due to my own insecurity at having not practiced as a lawyer, versus the direct physical experience of the space as a whole.
I walked to the next room and saw a sign that mentioned upliftment orders, but decided that I was probably best placed to go back to the fray. I then recognised the female clerk who had managed the ad hoc desk the days before, and thought she would be my in. I showed her my two case numbers. She asked whether they were current cases, and I noted they were old. She then pointed at the one and said: “No, no these are appeals. You have to go to the room next door”. She was pointing at the A in front of the case number of one. I bustled away sheepishly, embarrassed at my own inability to know what the case numbers mean, and how that translates into the space I was in as well. Walking to the next room, I noticed a pile of pre-printed sheets saying ‘upliftment’. I grabbed a sheet, and filled in the details I had of the case with the A (I decided to cut my losses, and just try and access one specific file when I had instructions on it). While standing in a queue behind a new group of tutting lawyer-types, I tried to look in the know – we were queued outside a locked door, as it turned out that someone had lost the key and the room had consequently not been open all morning. I rolled my eyes knowingly, whilst obviously knowing nothing.
Eventually, the key was discovered and I shuffled along the queue line expectantly. When I got to the front, I asked the man behind the desk where I should leave the upliftment notice. He asked when the matter was heard, and I noted it had been heard in March of 2014. He looked confused, and blinked at me. I looked confused back. This confusion back and forth lasted a few second, before he simply took my page, and said he usually didn’t work the room but had been sent to find the key. I looked confused again. Once he’d dumped on some anonymous pile, I asked him how many upliftment orders he had to deal with a day – “Hundreds”, came his flustered reply. I was told to come back Monday.
On Monday, I came back and went straight to the side room off Room 1. Confidently I wandered up to the clerk behind the, this time, open door. “I’ve come to collect my file”, I said with authority. The new clerk asked which file I meant, so I showed him the written down case number. “Oooooh,” he said sweetly, “I’m afraid that’s with the main desk. The 4th Division only seals with access to cases currently on the court roll”. He was very apologetic, which I appreciated and I noted it was no issue. I was starting to realise how convoluted civil procedure is (which of course I should have realised when I got only about 60% for civil procedure in law school…) and shuffled back to the main desk in Room 1 obediently. This time, I simply asked for an upliftment order form and was provided with a new sheet, and then directed to enter it manually into the upliftment book at the end of the desk as well. The upliftment order requires you to enter your name, the name of your law firm, and also the reason for your upliftment. I found this interesting on many fronts: the first is that, of course, as far as security goes asking me for my name and then giving me full access to walk out the Court with the record is probably not congruent. The second is that there is of course a presumption in the form itself that sees this process as one for attorneys – certainly the lived experience confirms this, even though the SANRAL judgment makes it clear that this is, rather, a process meant to ensure transparency and legitimacy of the court system to all. The third is the request for reasons for the upliftment. This is interesting, in the context of South Africa’s access to information law context. When requesting access to public records under the Promotion of Access to Information Act 2 of 2000, public entities are directly prohibited from requiring reasons from a person seeking access. This process comparatively, while not being a formal request under the law, would be well placed to learn from some of the substantive guidelines it sets up for allowing access.
Walking out the building (after a 30 minute run around inside) I noted my female clerk nemesis/friend now working the help desk I stopped to chat for a bit on where to go if I wanted to pull multiple files, and she directed me to someone in Room 5. The more I spoke to people, the more flustered I felt. This was not at all because court staff were unhelpful – in fact, my constant experience was the exact opposite: court staff were exceptionally keen to help, in spite of how patently busy they were, but the underlying processes which govern organisation and access of records is completely opaque to those not well embedded in the system of court/court-official/lawyer.
I returned the following day to signage saying Room 12 files were not available. My momentary panic at the possible meaning of this was, however, fortunately brushed aside. On my arrival at the Room 1 main desk, my request for my file was met with the handing over of a massive brown folder that thumped on the desk like someone offloading a body from the back of their Lincoln. I asked if I could take the file, and was informed that I would need to leave the brown cover and “any unsigned orders”. To look for unsigned orders, we merely scanned the last few pages together and then I was out and on my way.
I took the file out on to the main court steps and sat a little nervously. This nervousness was partially borne of the responsibility with sitting with the file, and partially because of what can only be described as the paramilitary presence of multiple vehicles from the Anti-Gang Unit. A quick look to my left saw a group of gentlemen maybe, just maybe, to whom this attention was intended. I decided now would be the time to leave.
I took my pile and my Google Maps and searched for a local printing shop. This in itself turned in to an enterprise, though perhaps one should not cost into a calculation “deficiencies in Map-Reading”. After twenty minutes, I found a printing shop in the basement of a building. I asked if they could print my document, in the hope I would be able to drop it off and have coffee, for which every inch of my person was screaming. The eyes of the woman behind the desk, as she flicked between my ‘stack’ and my face, was – how shall we say it? – filled with palpable hatred. She informed me that they would not be able to scan record of this size, but could print it – as they were quiet. However, I would need to remove the staples and separate the files accordingly, then re-organise them as they were printed. She delightedly reiterated: “We wouldn’t always do this”.
And so began my staple tweaking. I then took my stash over to the man I had been directed to, who began photocopying batches of the document as I refilled them into corresponding files. We spent an hour photocopying together, discussing upcoming public holidays and, eventually, swapping details so he could forward me his CV. In that time, I got to watch his colleague ask three separate girls for their numbers, each one surprisingly kind about it (I don’t remember being that nice to me who asked for my number – can it be so long ago?). About 45 minutes in, I mentioned we were hoping to help digitise court records. Mr Photocopy’s response was: “Won’t that take business away from us?” This was amusing on many levels, not at least because they had made it pretty clear they didn’t ordinarily want to be photocopying files in 693 page batches. I find this to be a not uncommon knee-jerk reaction to any conversation, which introduces tech into processes; one that will no doubt be repeated later as we go further down this road.
Finally, an hour and five minutes after arriving, we packed my gigantic copy of the record into my backpack and I staggered out of the store with my R554, 40 printing bill. Trudging back up to Court I was struck by many things. Perhaps the most worrying, outside of the time and financial costs and general pain of the exercise, was the fact I was now merrily marauding the streets of Cape Town with a file, which I wasn’t sure was a duplicate. Further, while I had been pretty meticulous in ensuring everything was returned to its proper place, I had already noticed that there was some disorder within file from whomever had last accessed the record. This of course has serious implications for the time it may take to order files once digitised, and the challenges it may present to external people trying to read through the files.
After dropping off the record back in Room 1, I was able to go tally the costs of the exercise. In summary, they were as follows: • I had spent 10 hours in traveling back and forth between the Court and my office over a four-day period before I was able to have a copy of the file. • I had travelled 96 kilometres by car and walked 14 054 steps. This is of course very subjective, but it matters. There was no accessible or cost effective parking around the Court, and public transport is definitely not overly close: Cape Town Station, for instance, is a 1.4 km walk away. • The direct environmental impact was 0.2 trees – this was a result of both the paper used to print 693 pages, as well as the emissions from the driving. Of course, parties to the case who gain access to the record won’t ordinarily require a full reprint of the file – and many other observers may simply want an inspection. However, for us, the full record is what matters most. I used 1.4 reams of paper, which I had to do, as the commercial store couldn’t scan the record for me die to its size. • There was a further direct monetary cost of course as well (the most costly exercise being my time): the copying of the record was R554, 40 but when we included the parking and petrol cost as well, the tally came to R1140, 96.
We are now busy contextualising what this experience means when set against the context of the experiences of private law firms, and other people seeking to access records. But perhaps the most startling aspect of these costs is that they are what is required to gain a physical copy of the record. The process of digitising that record so that it is machine-readable, and what that means for analysing the record, is another story. One that OpenUp will be telling in good time.
This is the problem, what I see as a substantial problem in a country supposedly committed to open justice, we will be solving.
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