“Critique of Pure Reason” relates to Property Hijacking investigations

Critique of Pure Reason - Property Hijackings

Critique of Pure Reason - Property Hijackings I am involved in preventing and combating the property hijackings that are spiraling out of control in South Africa and, in particular, in the province of Gauteng.

Using the approach codified in Critique of Pure Reason (by the 18th century German philosopher, Immanuel Kant), I analyse the current methods and procedures used by authorities investigating property hijacking cases to determine whether those actions are working or not.

Writer’s Summary of this Article: I am of the view that property hijacking crimes could easily have damaged the Gauteng Province by R100 billion the past 10 years. Only 50 cases currently being investigated by ProJuSA possibly equate to that amount. COJ believes that property hijacking cases have declined over the past five years, and, as such, the City only has one investigator working on these cases. COJ is currently using 3 (three) criteria to establish whether a property can be considered to be hijacked or not. I, on the other hand, identified at least 15 (fifteen) contributing factors. The approach used by COJ is limited to complaints by actual owners or their agents, while I emphasise that complaints by occupants of these suspicious properties can’t be ignored. I have incorporated the COJ approach with our approach and concluded that there is definitely more to property hijackings than meets the eye, and that the problem can only be properly resolved once a specialised unit is established.

I have written various articles on this subject and will continue doing so until our Government eventually realises that the crimes associated with property hijackings are probably the biggest crime network in our country today. They should be more controversial than the arms deal corruption. I make such statement because from face value information, property hijackings might directly and indirectly damage the municipalities and people in Gauteng for R20 billion per annum! Yes this is an annual estimated figure and therefore recurring, possibly worse than any other corruption case in the history of our country. Taking inflation into consideration, one can easily estimate that property hijackings, or in real terms the crimes giving rise to so called property hijackings, could easily have cost the people R100 billion the past 10 years alone or even much more.

From the few cases (around 50 properties) we have investigating the past 6 months, a mere drop in the ocean, the market value of the immovable properties involved, and the arrears municipal bills on those few properties, add up to more than that amount.

That is excluding the damages either the landowner (the legitimate one) or the occupants on those properties have suffered and are suffering relating to loss of income or being unlawfully evicted. Many of these properties are residential blocks of flats or combination of residential and commercial where one property could easily be valued in the millions of Rands.

I have the privilege to meet and communicate a lot with the Special Property Hijacking Investigation Unit of the City of Johannesburg (COJ). I found them to be dedicated to their work and eager to assist anyone with a property hijacking associated complaint. Currently this unit has one full time investigator. According to COJ, property hijackings have declined and this unit used to be engulfed with complaints and today there is just a few every month enough for one investigator to handle.

To be honest, I am really flabbergasted. Here COJ claims that property hijackings have declined, but our websites receive several complaints monthly from primarily occupants claiming that their occupied properties have been hijacked. We simply don’t have the infrastructure and funds to investigate all of these complaints and unfortunately can only assist with some of these cases.

The problem lies with how our supporters and I see property hijackings versus how COJ sees property hijackings. Therefore, I need to be objective to also criticise our own camps’ views.

Some COJ officials believe that property hijacking has somewhat become a “swear word” and everyone is using this phrase too often and many times without any substance. I agree with them to a degree. I have also received complaints where occupants shouted “property hijacking” for me to later discover that it was just a comfortable excuse for those occupants not to pay their rent, or an owner of a property trying to bypass payment to the municipality. Therefore, when one deals with the concept of “property hijacking”, one needs to be sure that we are all talking about the same thing.

As I have written before, there is no such crime as “property hijacking” in our law. These words are mentioned to refer to crimes either involving theft or fraud of a property, and I have gone so far to identify 9 (nine) different formats in which I would classify property hijacking crimes.

There has never been a law book written about this subject. There has never been a reported High Court case. It is not that it is non-existent, but merely that our society has not really acted against it, and somewhat accepted it as a way of life.

It is only when I have started to publish my articles and present seminars about property hijackings, that there has been something which people can give their opinions and views on. Property hijackings are slowly becoming an area of sufficient interest to garner authority scriptures about it.

I am now working on a course that focuses on property crimes, which I hope will take property crimes associated with property hijackings into a new era of interest, and will contribute to fighting this cancer destroying our communities.

It is interesting to note that in the United Kingdom, there is also currently a major stir about property hijackings. However, their view of what property hijackings are is different to ours. The UK refers to the fraudulent process where someone who is not the owner of a property has taken a bond on that property and pocketed the money. This is also happening in South Africa. I also associate that with “property hijacking”, however the UK doesn’t have our problem of the forceful takeover of immovable property.

The question has also been raised whether it is possible to criminally “rob” an immovable property. In our law it is understood that robbery entails two criteria, namely that the property must be forcefully taken from the victim and secondly that the property must be removed from the victim. The fact that an immovable property can’t be removed from its place is therefore the question in law that needs to be answered. As stated above, there is not a published High Court case about this or property hijackings, so we need to improvise on what we have to our disposal.

When I had discussed my views with COJ, I was informed that COJ only assist with alleged property hijacking cases using the following 3 (three) criteria to determine whether a complainant has a legitimate case or not:-

  • The Owner of the property must be the complainant – The person complaining that a property has been hijacked must be the legitimate owner or his/her/its agent confirming ownership with a Deed of Transfer indicating that that person is actually the owner.
  • There must be a loss of control over the property – At some stage the owner or agent literally lost control over the property by either unsuccessfully claim rent from the occupants or access to the premises are denied by the occupants. These are only two examples of a few ways in which an owner or agent can lose control over the property.
  • There must be an exchange of monies between the occupants and someone else not authorised by the owner or agent to allow the occupants to occupy the property further – This basically refers to a transgression of Section 3(1) of the Prevention of Illegal Eviction from and Occupation of Land Act, 1998 (PIE Act) where this article states that it is a criminal offence if a person directly or indirectly receives or solicits payment of any money or other consideration as a fee or charge for arranging or organising or permitting a person to occupy land without the consent of the owner or person in charge of that land.

When I discussed my view relating to the many complaints we receive from occupants with COJ, I was told that COJ simply can’t work on those cases purely for the reason that the complainants are not the owners or agents of those properties. COJ wants me to bring the owner of the property to it and then COJ is able to assist.

The problem I have is that the actual owner of the suspicious property is deceased, overseas or not traceable. According to most of these cases we are working on, the person claiming to be the owner has actually transferred the property into his/her name or is the executor of the deceased estate or providing some proof that he/she was authorised by the actual owner to attend to the management of that property involved.

I have asked COJ the following questions with summarised corresponding answers to each one of these questions:-

  • Do you check whether the person claiming to be the owner and who presented you with a Deed of Transfer is indeed the owner of that property? – Yes, we do a WinDeed search and compare the Deed of Transfer with that information. We also have our own records which we keep on property ownership.
  • Do you verify the identity of a person claiming to be the owner of the property? – No, if the identity or passport number corresponds to the information of the deed search and documents, there is no reason to dispute his/her identity when he produces positive identification. However, if the investigator determines that it is necessary, he will probably do so.
  • Do you conduct interviews with the occupants staying on these properties? – Yes, but then they are mostly referred to the Rental Housing Tribunal or other structure to assist them. If the owner or agent confirms that they have not entered into leases or allowed the occupants to stay on the property, we don’t have to also talk to the occupants and many times the owner or agent did obtain an eviction order but for some reason was unsuccessful to execute it. In most occasions the owner also doesn’t have the financial means to apply for an eviction order.
  • Many, if not all, of these properties are far in arrears with their municipal account. Shouldn’t COJ repossess these properties much earlier? – Yes, effective credit control measures are definitely seen as a deterrent to prevent hijacked properties. The accounts department of COJ should be more vigilant with its debt collection procedures and if they do we all should probably not have any property hijacking dispute. The debt collection process simply takes too long for the one or other reason.
  • What actions do you take once you have confirmed that a complainant has a legitimate case of property hijacking? – Once the 3 (three) questions to legitimize a complaint have been verified, the complainant is directed to the Police to open a criminal case and further to interact with the Hawks Special Investigative Unit for Property Hijackings. The Hawks will start to investigate the case and SAPS might organise a raid on that property and try to arrest as many as possible occupants for illegal activities. The Department of Home Affairs and JMPD might also be involved to check for illegal immigrants or enforcement of bylaws respectively. In most instances this action clears the property for the owner and the owner doesn’t have to apply for an eviction order.

If there is a problem with this process being followed, I would like to identify those problems and bring it to everyone’s attention if that can positively contribute to combat and prevent property hijackings. Unfortunately I have found myself in the unfortunate position that critique I have provided to the Police in particular before regarding the way they have been conducting property hijacking investigations, have resulted in me receiving threats from both Maj./Gen. Sibiya (the suspended Head of Gauteng Hawks) as well as Maj./Gen. Pharassi. These threats are currently being investigated by the Independent Police Investigations Directorate (IPID).

I am therefore not a loveable person among some authorities. Throughout these investigations we are conducting, I must constantly cover my wickets. When I investigate these cases, I must be very careful not to fall into a trap that I might be the one to be considered breaching Section 3(1) of the PIE Act by giving the impression that I am “arranging or organising or permitting” those occupants to occupy that property. If I do give that impression, the Police will be too pleased to arrest me to get me off their backs. I have found that my phone calls and emails are being intercepted by someone which only stopped the moment I approached the Acting Director of Intelligence, Adv. Jay Govender, with a formal complaint.

Seemingly, activist community leaders, like myself, are currently being targeted by the Police and Intelligence to intercept our communication (as Right 2 Know recently reported in the media).

Unfortunately I am also aware of many estate agencies who are in fact renting out properties of owners who I know obtained those properties fraudulently or suspiciously and then many estate agencies are also engaging into unlawful property practices like disconnection of electricity, charge late payment penalty fees, lock outs and evictions without Court orders which I am specifically advocating against. My current work has somewhat resulted that I am considered as an “illegitimate child” of the property industry and therefore I have no other option (and I am adamant) to keep on fighting until all these injustices taking place within our country’s property industry have been exposed, eradicated and I have been disbarred as the so called “illegitimate child”.

Coming back to the investigations I undertake with my team into property hijackings and the obstacles we are facing from authorities and other estate agencies, we simply note the concerns of the occupiers and immediately start to conduct an investigation based on evidence they present and obtaining deed records of that property. I also clarify the identity of the people claiming to be the owner, legal possessor or agent of that property and by doing this I found the following inconsistencies, above others:-

  • Properties have been registered on someone’s name using false identity or passport numbers – When I have done identity searches on these individuals, I found that the identity or passport number of the person in whose name the property is or was registered does not exist.
  • Properties have been registered on someone’s name using the name and identity or passport number of someone else (Identity Theft) – Investigation showed that properties have been registered at some stage on the name and identity or passport number of a person but coincidently the identity of that same person is also being used by another person.
  • At some stage many of these properties have been auctioned, but the procedures selling these properties on auction are questionable – In order to make a sale on an auction legal, the Sheriff was supposed to have followed certain procedures prescribed by the Rules of the Courts and other legislation. I found that in many of these cases those procedures were not followed therefore making the sale of that property on the auction unlawful and the resulting transfer was therefore also unlawful.
  • Properties have been repossessed by banks, but the owners told me that they were never aware that their properties have been repossessed – In some cases owners of properties said that they were only aware that their property had been repossessed when the new purchaser came to the property to inform him/her that he is the new owner.
  • Municipality or Levy Clearance Certificates have been illegally obtained – We had found that properties owing large amounts towards the municipality or body corporate have been transferred without the municipality or body corporate even receiving any monies or even issuing a clearance. Some bodies corporate are so dilapidated that there is no trustee or managing agent and therefore obtaining a levy clearance certificate could not have been possible. Some municipal accounts with very large arrears have been closed and the new owner simply managed to open a new account with a zero balance.
  • Agents renting out these properties on apparent authority of the owner are not issued with a valid fidelity fund certificate by the Estate Agency Affairs Board (EAAB) – After checking the names and requested confirmation from the EAAB, it was found that many of these agents renting out these properties are in fact trading illegally as estate agents.
  • Executors of deceased estates have been appointed who are non South African citizens with only asylum documents – Although not prohibited by law specifically, people with only asylum documents are appointed by the Master of the High Court for late estates involving deceased owners who did not even die in South Africa and I simply couldn’t find any proof that those executors were even related to the deceased.
  • People claiming to be the representative of an owner based on a General Power of Attorney were able to sell properties – In one specific case I am dealing with, a lady claims to be the representative of a person who is overseas and gave her a general power of attorney to act on his behalf. This property is currently in transfer although the person who gave her the proxy is supposed to be 75 years old, has no identity or passport number and for all practical purposes nonexistent.
  • Offer to Purchase is produced apparently signed by the actual owner, but next of kin says that it is fraudulent – This usually happens where someone has passed away and transfers are then undertaken without any questions asked. By the time the next of kin realises that the property of their deceased relative has been transferred to someone else they don’t have any financial means to take the matter on and Police is also not willing to open criminal cases.
  • Owners of properties take out loans and their title deeds are then given as security – I am currently investigating one case in Soweto where the owner has taken out a loan and the intermediary requested that he had to give his Title Deed as security for the loan of R60000. No bond was registered. He received the money and had to pay his instalments every month into a bank account. Apparently the documents he signed was not only loan documents, it was in fact an Offer to Purchase that he signed and the property was therefore legally transferred into the name of the bank which then sold it for R160000 to the new owner. The bank denies having any involvement.
  • Fraudulent claims are made and sued for resulting in the property of an unsuspected owner to be legally repossessed and sold on auction – We have found that fraudulent claims have been made up and sued for, mainly using the name of a bondholder, which led to the owner physically losing his/her property by legal attachment. These owners told us that they were never served with these papers or knew about any action taken against them making the Sheriff also part of this criminal scheme.
  • Purchasers of properties on auction never take transfer and constantly “flip” to others – In many of these cases the occupants say that there is no owner, because there is literally a new claimed owner several times annually. Although it is not possible that there can be no owner of the property (there must be one), I tend to understand why these occupants say so out of frustration. These purchasers only have two intentions in mind and those are to make as much as possible money out of rent and not to pay the municipality. If it is an intentional decision to make money and not to pay the municipality, this should be investigated for fraud against the municipality. Further to this, in most instances the condition of sale actually stipulates that the rental income was supposed to have been paid towards the judgment creditor until the date of registration.
  • Although eviction without a Court order is illegal, wrong procedures are followed by alleged owners – All of the occupants on these suspicious properties who were evicted, told us that they have never been aware that eviction processes were being conducted. They were never served with any process and the Sheriff simply pitched up one day and started forcefully evicting them. We have found that COJ was also not even served with any process as compelled by the PIE Act.
  • Sectional Title Schemes are being created on properties “abandoned” by actual owners and then units are legally transferred – Some of these suspicious properties are being converted into sectional titles schemes shifting the municipal billing on one piece of land to several new sections to be billed with new zero balance accounts. The developer, who in fact has stolen the property, has now got a legitimate proof of ownership in the form of the Sectional Title Register. Once the developer sells these units, new title deeds are being created for each one of these units resulting in the developer skipping the transfer from a previous title deed which he simply don’t have obviously.
  • Occupants are arrested for trespassing although they have been staying on these properties for many years – Nowadays many of the occupants staying on these suspicious properties are arrested for trespassing, notwithstanding that they have been in occupation of these properties for many years. When they return after the charge has been dropped their property has been occupied by new tenants. This has become an easy way of evicting occupants who are querying the ownership of someone and this practice has become part of property hijacking crimes lately.

There are many more points of concern, but these are the ones we are dealing with the most. Without having to go on a fishing expedition and try and get proof to assist the occupants to legalise their occupancy of these properties, it is clear from the points I have mentioned above that the concept of property hijacking has more to it than simply the 3 (three) points used by COJ to determine whether a property is hijacked or not. I recognise that some of these points referred to above falls also currently within jurisdiction of other authorities and should also be investigated by those structures, but may or may not happen.

If one analyses the 3 (three) criteria used by COJ and compare it to the 15 (fifteen) discrepancies identified as problem areas, one would quickly be able to note that my more intense views do have place for a proper argument that property hijackings are indeed rising and not declining as what COJ believes. With all respect to COJ and the Hawks Specialised Unit, but they must start to listen to our claims of criticizing their ways of investigating property hijackings and see the criticism as positively enhancing what they are busy doing.

I know of an instance where people have been arrested and successfully prosecuted for property hijacking related crimes, but the complainant and his agent were never investigated whether they have obtained those properties lawfully although I am aware that they have obtained those properties in several of the mischievous ways I have mentioned. According to the criteria used by COJ, they have fitted the scene to be victims of property hijacking but according to my criteria they were in fact property hijackers themselves! Sadly in this case I am trying to assist the convicted obtaining proof to justify that they in fact legally told the occupants on those properties not to pay any rental, but because there is no occupant allowed being a complainant these actual property hijackers have gotten away without any scratch. I am about to change it and can’t allow that the prosecuted are jailed while the actual property hijackers are enjoying themselves in their riches daily stolen from others.

If one investigates more thoroughly, one will probably find that in many of the instances where people have been convicted for property hijacking related crimes, that the actual property hijacker was the owner or agent who complaint. This could have been avoided if the occupants were made part of the investigation and not left out totally. Even when cases of trespassing are opened, the Police simply come to arrest these occupants based on an affidavit from the actual property hijacker without the occupants having been afforded the opportunity to also state their case.

In one instance we are assisting with, a group of 23 adults and their children have recently been arrested by the Booysens Police for Trespassing, while most of these people have been occupying this property for several years and could therefore never have been charged with Trespassing. The Magistrate hearing the matter on first appearance immediately told the prosecutor that he is highly upset and that the State should consider dropping the charges. When these people were released, they found that the alleged owner conveniently thrown out all their belongings on the street and put his own tenants in there who would not dispute his ownership. The Police here also refused to open a case of illegal eviction against the alleged owner, although it is clear that the criminal case was actually opened to bypass applying to Court for an Eviction Order. This alleged owner abused the Police to do his dirty work and saving him money and the Police in turn have gladly accepted and are now facing a massive claim for damages for wrongful arrest and malicious prosecution. The money that the Police has helped to safe the alleged owner not to apply for an Eviction Order, has now shifted once again to the taxpayer probably facing a claim of hundreds of thousands of Rand.

Even the Public Protector, Adv. Thuli Madonsela, made this mistake in her “Broken Promises” Report where she and her team also neglected to make the occupants part of their investigation. Everywhere we touch with our investigations, the occupants are left out and we are strongly of the view that property hijackings are not taken seriously because of the fact that the information of the occupants is discarded. The actual property hijackers are getting away time and time again, because of a pure lack of reason investigating these claims while the occupants are generally considered to be the property hijackers.

What I don’t understand is why the occupant may not be a criminal complainant. Everyone knows that it is one’s public duty to report any crime and that is why even Police Officers may arrest a person walking with scrap metal at one o’ clock in the morning on suspicion of being in possession of stolen goods. Isn’t there then also a suspicion that these people have stolen that immovable property as well? One can go as far and say that those properties dealt with criminally should at least have been attached by COJ and therefore the people of Johannesburg have lost that benefit and these crimes were in fact committed against the people. The authorities should stop thinking like an ostrich to stick their heads in a hole and hope that the problem of property hijackings will simply disappear. Authorities must react and investigate these claims received from occupants or our cities will simply be taken over by slums for the mere fact that almost all of these hijacked properties are in an extreme phase of despair.

The other mistake authorities are making is that a complaint by an occupant is simply considered to be civil and should be dealt with by either the Rental Housing Tribunal or Court. Everywhere occupants go, they are faced with resistance to report these crimes. When they approach the Rental Housing Tribunal, they are unable to produce leases or proof of rental payments in order to classify their complaint as a landowner/tenant dispute, simply for the reason that these property hijackers don’t put any lease in writing and also don’t issue any receipt for rental payment. Many times the occupants also don’t have the financial means of contracting an attorney to take these matters to the High Court for declaratory orders and have to either accept the injustice situation or move to another home where they will most probably have to battle just another property hijacker. We are afraid that if the authorities don’t realise the importance to accommodate occupants as complainants soon, the illegal transfers would be engulfed into consecutive transfers of these properties and probably become impossible to detect and rectify. It has reached a stage where the Deeds Office must then establish a special unit to reverse many of these illegal transfers.

A contributing factor to easily get these hijacked properties registered in the name of the criminal is that the Deeds Offices have still not been linked to the Department of Home Affairs’ database in order to verify and detect false identity numbers. I am sure that once this is eventually been achieved, that the whole can of worms will open and the Government will see for the first time and be able to calculate how much damage these crimes have cost our country already. I have identified that only one key person probably involved in this property hijacking network have got a massive 89 suspicious property transactions under his belt since 2004 and still continuing as if he is untouchable. These types of suspects could easily have been stopped by a simple change in a computer programme but allowed to reap havoc of destruction amongst so many innocent victims.

I have been going on a lot about the occupants, but on the other hand what about those owners whose properties have been hijacked and also struggling to get the cooperation of especially the Police to assist them to enforce legitimate Court orders. We have found cases where legitimate owners obtained Court orders for eviction of occupants where occupants were influenced by someone or a group to stop paying rent and the Police simply refused to open cases of intimidation or other crimes or even interfered with the execution of the Court order. It is as if the Police really don’t know what they should do and it only comes back to a lack of proper training dealing with these issues involving property crimes in general.

Police seems to know criminal procedure very well as contained in the Criminal Procedure Act, or should I rather say when they want to, but have a total lack of understanding when it comes to criminal offences contained in other legislation. The easy way out is to simply tell an owner or occupant that the matter is civil and as a result many of these property hijackers are falling through the cracks. I actually think that some years ago too many occupants complained and cases were opened and at some stage it was conveniently stopped to prevent a lot of paper work and time to investigate cases investigating officers were simply not familiar with.

To summarise, in terms of my “Critique of Pure Reason” relating to property hijacking investigations, it is my view that the authorities, the Police in particular, should step up their training and start taking the occupants staying on these suspicious properties more seriously. As a result of the expertise required to formally identify suspect properties and to investigate these cases, the Government (especially the Gauteng Province) should urgently establish a real Specialised Unit to conduct these investigations. Property managers, attorneys, conveyancers, tax practitioners, deceased estate practitioners and forensic auditors should team up with the Police.

I am sure that this unit will find many sheriffs, attorneys, municipality officials, deeds office officials, Master of the High Court officials, funeral parlours, estate agents and various others as property hijackers.

These property hijackers’ assets should be attached and sold and deposited into a special fund to be distributed to those who have fallen victim to their property hijacking crimes. Where the actual properties are linked to property hijacking, those properties should be given back to the owners or next of kin as far as possible.

To simply say let us call it the day and begin with a new slate, will not be just and fair. Property hijackings have cost our people so much. No stone should be left unturned when dealing with this gigantic problem.