LindsayKeller has taken on the pro bono case of a client whose home was sold in execution for R10 without his written knowledge or consent. The case has highlighted the problems caused by a lack of knowledge of the historical background and legal framework of land ownership rights in Apartheid South Africa.

Historical background and legal framework of land ownership rights in SA

Prior to the 1990s, black South Africans did not have the right to own land in the country. They were only allowed to lease property for a period of 30 years from the local government, and once the lease ended, ownership of the property was supposed to pass to the person occupying the property at this time.

However, the government realised that the 30-year lease could pave the way for black South Africans to claim their title deeds. It therefore established the West Rand Board and the East Rand Board for the purpose of issuing 99-year leases on the lapsing of the 30-year leases. This meant that a black South African would have to occupy his or her home for 129 years in order to obtain a title deed.

In the 1980s, various civic organisations lobbied for a boycott of paying rent for the leased properties. The West Rand Board responded with a series of evictions of the boycotters. In the landmark case of Mngomezulu and Others v City Council of Soweto (223/87) [1988] ZASCA 163, it was held that tenants could not be evicted from their homes for non-payment of rent because the City Council’s lease agreements were not lawful. This represented a small victory for the tenants. However, South African banks began lending money to township residents around this time. Upon default of the loan repayments to the bank, the property was supposed to revert back to the government and not the bank: the results of this lending practice are now starting to emerge.

Pro bono client’s house sold in execution for R10.00

Our pro bono client, an indigent pensioner, has been living on his property in Thokoza, east of Johannesburg, since 1987. He has instructed us to rescind an eviction order granted against him as he does not know why, how or when he ‘lost’ ownership of the house he has been living in for about 30 years.

On perusal of our client’s file of documents and after extensive investigations at the Department of Human Settlements, the following emerged:

  • Our client entered into a lease agreement with the East Rand Board around 1990. He erroneously believed that the lease permit issued by the East Rand Board was proof of ownership of the property.
  • On 8 March 2003, our client’s home was first sold in execution of a judgment granted by the Magistrate’s Court in Alberton in an action where Nedcor Bank was the plaintiff and our client was the defendant. The property was publicly sold to People’s Bank for R10.00. However, our client insists that he has never used his home as collateral for any loan with any bank. Moreover, from 2003 to date, ownership of our client’s home has been passed down to six different people without his knowledge or written consent.
  • Despite the eviction order issued by the Palmridge Magistrate’s Court on 1 August 2014, our client does not want to vacate the property as he has no alternative accommodation. As a result of our client’s refusing to leave, he now faces the criminal charges of trespassing and being in contempt of court. Our client’s criminal case has been set for May 2017.

Is there a solution?

The crux of the matter is that those most vulnerable in our society have little or no knowledge of South Africa’s property laws. In addition, the 99-year lease extension was never officially promulgated, which raises many questions about the legal owners of millions of homes in townships such as Thokoza and Soweto.

There is, however, a process underway to resolve the complex matter. The Department of Human Settlements and the Gauteng Crisis Committee are currently conducting investigations to assist with bringing our client’s matter to finality. The Lungelo Lethu Human Rights Foundation is also working hard to assist other people who find themselves in similar situations. One of these cases has been covered by www.groundup.org.za in an article titled ‘Soweto man’s house sold behind his back for R100’. One can only hope that the NGO’s efforts will soon come to fruition.

As one of the leading firms in the field of civil litigation, LindsayKeller Attorneys continues to do pro bono work on instruction of the Law Society of the Northern Provinces.

By Sylvia Malia

Associate, LindsayKeller Attorneys

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