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The Constitution of the Republic of SA makes it very clear that property is not limited to land and provides that no-one may be deprived of property in terms of the law of general application, that no law may permit arbitrary deprivation of property, and that everyone has the right to access adequate housing.
On the one hand, government is presently engaged in processes aimed at restoring land to the people who were dispossessed many years ago, while at the same time thousands of descendants of those who were dispossessed, having now moved to urban areas and their peripheries, are daily being unlawfully deprived of property, inclusive of their homes, many of which they spent many years paying for.
South Africa has the most abusive repossession practices in the world. This is a finding made by experts. The overwhelming majority of repossessions, although sanctioned by our courts, are in contradiction to the Constitution of the Republic of SA and its written laws flowing from the Constitution.
It is further estimated that there has been more than 100,000 home repossessions since the Constitution was adopted 20 years ago. The majority of repossessions were as a result of court actions by major banks using reconstructed documents, claiming the originals were destroyed. The conduct and its circumstances are highly questionable and further and conveniently hide any evidence of securitisation. Without access to original documents which they are purported to have signed, many victims have been unable to protect their Constitutional rights against arbitrary deprivation of property.
The courts continually issue summary judgments, sale in execution orders and eviction orders based on dubious evidence supplied by unscrupulous bank practitioners benefitting the banks and others in the chain. In most instances, the courts hardly get to assess the merits of the matters, particularly from the perspective of the affected persons.
If that was not enough, the majority of the houses are usually sold on auction, or illegally outside auctions, well below their market value for as little as R10 or R100 in some cases. This mkeans that people who have spent most of their lives paying for those houses are deliberately incapacitated and prohibited to retain the same or buy another house.
Within this framework of the unscrupulous, fraudulent and corrupt property repossessions by syndicates involving estate agents, some elements within the judiciary and the police, is the practice of imprisoning senior citizens, many of them over 70, for "trespassing" in their own properties that are then repossessed from them.
More than 225 applicants from all sectors, strata, genders, ages and racial groups led by Lungelo Lethu Human Rights Foundation (LLHRF) have launched a R60bn Class Action suit at the Constitutional Court, claiming damages from the big banks for home repossession abuse. The applicants are also asking for criminal investigations into banking executives. The overall prayer of the applicants to the Constitutional Court is that the relief sought should apply across all of SA to persons who are similarly affected.
Nedbank, Absa (Barclays), FirstRand Bank and Standard Bank are cited as respondents as well as the National Credit Regulator, the Minister of Justice and Correctional Services, the SA Human Rights Commission and the High Court Rules Board.
The first applicant is Innocent Gwisai, a disabled man, whose home was repossessed and sold at auction for a fraction of its worth after he fell into arrears with his bank loan. The second applicant is Ernest Mashaba, whose property was sold in execution for R10. Mashaba never missed a payment and had paid his house in full. He never received summons.
The third applicant is John Mojake, whose property was sold in execution for R100 in 1999, as was the fourth applicant, Solomon Nhlapo. The fifth applicant is Elizabeth Majoro, the sixth is Victor Zuma, who owed only R6,000. The seventyh applciant is Gladys Maviko (91) and the eighth Mr Ngoepe (the brother of the former judge president Ngoepe) who was arrested for staying in his own home. The ninth applicant is Pieter Potgieter and the tenth is Lionel Newby, while others are Magda Odendaal, Anne Peachey, Kevin Redford, in that order, and 216 others.
- The Chief Justice must commission an investigation into unconstitutional, unlawful, illegal, unscrupulous, fraudulent, corrupt, arbitrary and uncaring home repossessions and the role played by the courts, court processes, officials and staff in enabling or giving effect to those repossessions.
- The High Courts must insist that all foreclosure matters brought before them take into account the full merits of the cases of the respondents at all times and ensure fair and just outcomes.
- That Specialised Courts be set up to deal with property matters, inclusive of foreclosures, eviction orders and related disputes in a humane and caring manner, sensitive to human rights.
- The offices of both the Masters of the High Court and the Sheriffs must desist from any fraudulent, unlawful, inhumane and arbitrary activities in executing whatever orders are granted by the courts.
- The government and Parliament should change legislation to stop homes being sold at auction below their market value.
- A freeze on home repossessions and evictions pending the introduction of the new legislation.
- An investigation by the Directorate for Priority Crimes into possible criminal liability of bank directors for knowingly selling properties below their market value after the Constitution was introduced.
- A prohibition on banks collecting loan shortfalls from home owners who suffered repossessions and had their houses sold below market value.
- The Rule Board of Courts of Law must stop allowing homes to be auctioned without reserve prices less than the market value of the house.
- The return of repossessed homes to the rightful owners or full compensation to the victims of property fraud and unlawful, arbitrary or unscrupulous evictions in cases where there are valid reasons not to inconvenience other innocent people who might as well be victims of such transactions.
- An independent Commission of Inquiry into the abuse of the courts or court processes by the banks or estate agents or whoever may be involved in such, and into collusion, criminality, illegal and unlawful conduct.
Our final demand is that all of the abovementioned respondents should provide written responses to our memorandum within 15 working days from this day.
President of SA
Minister of Justice and Correctional Services
Chief Justice of SA
Judge President of the South Gauteng High Court
Chairperson of the Rules Board of the Courts of SA
Chief Master of the High Court
Director of the National Prosecuting Authority of SA