Our farm was sold without our knowledge or the necessary paperwork. What can we do?

The long answer

To quote from Tania Broughton’s GroundUp article about an unlawfully sold property: “The judge said that there was no indication that any judicial processes were instituted when the home loan agreement was cancelled around 2001. This meant that the foreclosure and sale by the bank was tainted with illegality. And because of this, the subsequent sales were also tainted.”

Acting Judge Tebogo Thupaatlase emphasized that both Sections 25 and 26 of the Constitution were implicated in the case. Section 25 says that every person has the right not to be deprived arbitrarily of their property – in other words, a person’s property can’t just be sold from under them. Section 26 says that every person has a right to housing, which the government must try to fulfil, and that no one can be evicted without a court order.

Also, as Ciresh Singh has pointed out in an article for De Rebus, Section 34 of the Constitution says that everyone has the right of access to the courts. So, says Singh, “In the context of foreclosure, Section 34 entitles a homeowner with the right to have their foreclosure dispute heard in an open and accessible court.”

In the case of Jaftha v Schoeman in 2005, the court said that immoveable property may be sold in execution (in other words, when the owners have fallen behind with their payments and the property has been repossessed) only after a court order has been obtained and the court has provided judicial supervision of the process. The Jaftha judgement can be applied retrospectively – in other words, to sales that took place before 2005.

Herbert Kawadza, a senior legal lecturer at Wits University, says in an article for de Jure in June 2019, that the number of foreclosures in South Africa was extremely high and there were inconsistent approaches by the courts, which resulted in poor people suffering the loss of their homes which were sold for a fraction of what they were worth, while the banks and richer people made profits from these foreclosures. For this reason, the Judge President ordered a full Bench of the High Court to come up with procedures that had to be followed in terms of repossession judgements. This was in May 2018. 

After that, the landmark case of Absa Bank Ltd vs Mokebe in 2018 found that there must be a reserve price for the property being sold. In other words, the bank could not just sell it to the highest bidder for whatever they were prepared to pay – like the R100 mentioned in the GroundUp article. 

The courts were also empowered to give the owners who had defaulted on their payments time to make other arrangements to pay what they owed – in other words, the courts could postpone the sale, to give the defaulting owners a chance to pay their arrears. The sale was to be the last resort.  

As Kawadza has noted, this brought the law more into line with the Constitution, and also more in line with what is done in countries like France, Ghana, Germany, Malaysia and Korea, where banks are obliged to sell repossessed homes at fair market value.

You say that you have had the same experience with your farm being sold as described in the GroundUp article, and that there was no legal deed of sale or transfer documents. The Registrar of Deeds should have refused to register the farm in the name of the new owner based on this lack of documentation.  

If there was no court order granted against you and no court supervision of the foreclosure process, you could be in a similar situation to the people in the GroundUp article. 

You would need to get legal advice. If you can’t afford a lawyer, you can ask Legal Aid for help. They are a means-tested organisation and must assist those who qualify in terms of their means test.

These are their contact details:   

Legal Aid Advice Line (Toll-free): 0800 110 110

Please-Call-Me number: 079 835 7179

You could also approach one of the following organisations:

• Lawyers for Human Rights

  Email: info@lhr.org.za 

 Tel: Musina: 015 534 2203, Durban: 031 301 0531, Pretoria: 012 3202943,      Johannesburg: 011 339 1960, Cape Town: 021 424 8561

• Legal Resources Centre:

 Email: info@lrc.org.za

Tel: Johannesburg: 011 836 9831, Cape Town: 021 481 3000.

Wishing you the best,
Athalie