Hundreds say their properties were repossessed and sold by the banks for a fraction of their worth.
Several hundred former homeowners who say their properties were repossessed and unlawfully sold by the banks for a fraction of their worth will finally get their day in court in February 2026 for a R60 billion class action suit that was initially launched in 2017.
The court must first decide whether the class can be ‘certified’, a formal process that would allow the complainants to sue as a single entity.
“It’s taken eight years to get this far, but we are moving in the right direction,” says Advocate Douglas Shaw, who is representing the former homeowners.
The first hurdle to overcome is an objection by the banks to some of the affidavits filed by some applicants.
Four South African banks are cited as respondents – Nedbank, Absa, Standard Bank and FirstRand Bank.
Also cited are the National Credit Regulator (NCR), the Minister of Justice and Constitutional Development, and the South African Human Rights Commission.
The applicants in the case had their homes repossessed after supposedly falling into arrears, with some homes being auctioned by the banks for R1 000 and even less. This was at a time when there was no floor (or reserve) price required by the courts. Court rules were changed in 2017, requiring banks to reserve prices in all but exceptional circumstances.
ALSO READ: Class action suit shows banks sell repossessed houses for cents in the rand
Big numbers
The R60 billion figure is the estimated average loss of home equity multiplied by the more than 100 000 homes repossessed since the Constitution of the Republic came into effect in 1994.
Shaw says this is a conservative estimate.
The applicants argue that this practice deprived homeowners of equity accumulated in their properties, and was in violation of constitutional protections against arbitrary deprivation of property.
They want the court to order the banks to repay the difference between the market value and the auction price – and to pay interest on the difference from the date of auction.
Repossession ‘last resort’ say the banks
In their court filings the banks say they were complying with the applicable law at all times, and that home repossession is a last resort.
All the banks cited as respondents argue that they engage customers in financial distress to assist them in getting back on their feet, for example through payment arrangements and loan restructuring.
Only when there is no hope of recouping their mortgage loans do they approach the courts to repossess.
ALSO READ: National Credit Regulator accused of siding with banks in R60 billion class action suit
Repossession ‘first resort’ say others
Lungelo Lethu Human Rights Foundation, the driving force behind the class action suit, says it’s looking forward to challenging the claims from the banks, and that it possesses substantial case history to buttress its argument that home repossession is in many instances a first rather than last resort.
Multiple cases, some of them heard in court this year, appear to support the foundation’s arguments.
This week a high court judge slammed Standard Bank for its ‘disproportionate’ attempt to foreclose on the home of trade federation leader Zwelinzima Vavi, even as he was consistently paying off the arrears on his home loan.
Last week Absa was rebuked for attempting to attach a property as a way to recover R6.7 million when the judge found its accounting in disarray. There was also uncertainty about whether or not the client was in arrears at all.
ALSO READ: Banks hit with class action suit over ‘unlawful’ home foreclosures
Abusive practices
Shaw says the Constitution, under a democratic government, has failed to enact necessary reforms governing the banks, particularly as research has shown that SA has some of the most abusive foreclosure practices in the world.
“This has been going on since before the Constitution even came in,” he adds.
“But you would think that when the Constitution came in, the banks would have stopped doing this and it affects more than 100 000 people in this country who we believe the banks have sold their properties for significantly less than they could have sold them for what they were worth.
“This is before we got the reserve price as some form of protection in 2017, but even today, with the reserve price, they sometimes sell them for 50% or 70% of their value,” says Shaw.
ALSO READ: Smackdown for Standard Bank in home repo case
‘Forced removals’
Lungelo Lethu Human Rights Foundation president Nkululeko Xhelithole says banks are pursuing removals akin to those of apartheid, but this time under the guise of foreclosure.
“During apartheid, there were forced removals. We accepted that. We fought against that. Now, in today’s era, forced removals are called evictions because people are still thrown away out of their houses.
“Our Constitution says if you evict a person, give them an alternative accommodation suitable for their needs. But it does not happen in our country,” he adds.
“The question we want answered is: Do the banks’ commercial rights supersede our constitutional rights? We say no, they don’t.”
ALSO READ: Court rules in favour of clients in Standard Bank home loan dispute
Auctioning properties for R1 000
Evidence to be presented in court shows banks auctioning properties for R1 000 when the market value was R200 000 to R440 000, and in one case R1.3 million.
Much of this information was collated at the request of the NCR which, strangely, attempted to suppress public disclosure of this evidence, citing the disclosure prohibitions of the National Credit Act and the Protection of Personal Information Act.
The NCR’s efforts to conceal this information, even though names had been redacted, was defeated in the Gauteng High Court in 2022.
This outraged consumer activists and the Lungelo Lethu Human Rights Foundation, who believe the NCR should have joined its case against the banks but chose not to.
This article was republished from Moneyweb. Read the original here.
