Bank drives woman to brink of homelessness

While the details of this story are unique, evictions of the poor and lower middle class have become a national crisis – one that tends to favour what housing activists perceive to be the greedy and often-times illegal lending practices of South Africa’s banks.

This story is not simple. Its spans more than three decades starting out in a tiny shack in Crossroads from which she was eventually forcibly removed. In 1987, she built her home in A Section, Khayelitsha, after receiving permission, by the City of Cape Town, to settle on the serviced site ERF 105. She received a letter giving her the rights through a 99 year lease, to live and build on the property. Today, a trespassing charge could, if a magistrate gets his way, result in her eviction once again.

Mtyali makes a big contribution to her community. She has fostered two children with disabilities and started a home for children with disabilities.

A history of debt

When a young man named Kent Mkhaliphi from Bellandia Homes came to her shack in 1987 he somehow knew of her recent rights to ERF 105 on Zodiac Street in A Section. He promised her big things. With a loan of only R50,000 which he would faciliate from what is now ABSA Bank, Bellandia would build her a nice new home of her own big enough for her entire family.

According to Mtyali’s family, what Mr Mkhaliphi didn’t tell her was that the loan agreement would attach the property to her ability to pay off the bond.

Things went well at first and she diligently paid the agreed R800 per month. Nine years later, however, she lost her job as a teacher at Hlengisa Primary School in Nyanga. By 1996, when she began to make irregular payments, she had already paid in well over 1.5 times the original cost of the loan. Yet according to Lukhanyo Mangona, a Khayelitsha based education activist who has been supporting Mtyali, usurious interest rates meant that once she fell behind on payments, it would be a miracle for her get back on track. Mangona says, “[The corporates] must be stopped in their tracks and we must ensure that [homeowners] retain their houses and not let theses corporate criminals take them.”

In 2000 Mtyali landed a temporary job working for the Lotto. For months, she was able to pay R1,500 per month to ABSA. The amount had increased because she had fallen behind on the payments. But with occasional employment she was not able to pay consistently.

Then from 2003-2004, she had a Vodacom container which helped her make payments once again. Yet by 2006, ABSA auctioned her home even though she had by then paid the principal value of her bond twice over. Christopher Roman from Mitchell’s Plain bought the place for only R30,600. An eviction order was issued without providing her any alternative accommodation. Mtyali claims that she was never served a copy of the court order for her eviction. Groundup was unable to confirm whether the court order was ever served on her and was also not able to obtain a copy of this order.

But community members organised under the Western Cape Anti-Eviction Campaign broke the locks and put her back in her home. The campaign fought evictions for about 10 years from 2001 to 2011 and did the same with thousands of other families throughout the Cape Flats. Mtyali became active in the campaign. She attended meetings, organised neighbours and helped prevent dozens of evictions of people in her community in a similar position to herself.

In 2011, police allegedly arrived again, this time without the Sheriff of the Court or any court order. When she was evicted, the Western Cape Bond Housing Forum, a new organisation of which she was a prominent member, helped put her back in her home once again.

In 2012, Mtyali received a significant settlement from the Commission on Restitution of Land Rights regarding her forced removal from Crossroads thirty years earlier. She alleges, however, that ABSA used this as an opportunity to deduct nearly the full amount, R45,000, from her bank account. By then, she had paid more than R175,000 to ABSA: more than 3.5 times the original loan from 1987.

Trespassing in her own home

Then, on 14 October of this year, Mtyali was suddenly arrested. She was forced to spend the night in jail because Lingelethu SAPS decided to reinstate the new owner, Mr Zingubuntu Tom’s, charge of trespassing against her. (The deed to the property was over the years transfered from Mr Roman to Mrs Patiswa Tshazi and then to Mr Tom).

According to Mtyali’s new attorney, Teboho Motshohi, a summons, rather than an arrest, is the normal course of action for charges that are reinstated. Andile Twetwa, Mtyali’s neighbour, believes that the arrest was merely an attempt to punish Mtyali for her resistance to the eviction.

Kutala received bail but, on 21 October, she was arrested once again. This time, her son alleges, police came to the house drunk in the night, broke her window and padlock and arrested her. Her son has laid a counter charge against the police for house breaking and malicious damage to property.

Last week, Motshohi addressed the magistrate, Mr B Ndabambi. He had attempted to cancel the warrant for her arrest because she was sick the week earlier. However, according to Mr Motshohi, the magistrate refused to take the medical certificate, refused to hear his representation on Mtyali’s lack of alternative accommodation. According to Mtyali, the magistrate “attacked my integrity by claiming I was lying and using delaying tactics”.

On 9 December, Mtyali has to comply with bail conditions including handing the keys of her property to the local police station. While the magistrate has not yet indicated if Mtyali is guilty of trespassing and must vacate the property, the conditions will effectively render her homeless.

Who owns the land?

To add to this unbearably complicated matter, as of November, there is a pending High Court case where Mtyali has applied to have the title deed that was transferred to Mr Zungubuntu Tom declared null and void. Mtyali argues she has never actually owned the property. The rightful owners, according to the copy of the Certificate of Registered Grant of Leasehold held by Groundup, is actually the City of Cape Town and Mtyali is merely a leaseholder.

In essence she is claiming that the Deed’s Office mistakenly allowed ABSA to sell the property when it “illegally” attached the property to its original loan in 1987. But ABSA cannot sell off the City’s property and therefore its current owner bought the property on a false pretense.

A legal expert told GroundUp that the criminal case and the eviction case should be provisionally withdrawn until the ruling on Mtyali’s application to the high court to nullify the deed transfer.

Groundup attempted to contact the current owner to no avail. The Khayelitsha Magistrates’ Court was also unwilling to comment on the matter.

“I have nowhere else to go”

Yesterday, Kutala Mtyali remained defiant saying that she would refuse to give over her keys today. She said, “I would rather go to jail as long as my children are still in their homes. I have nowhere else to go. If I give up my keys, my entire family will be on the streets”.

Mtyali’s story is an example of the numerous people who face the loss of their homes. Jimmy Vithi is a Khayelitsha housing activist. He recounted dozens of evictions he has helped oppose just in his own street in Graceland. Vithi is fed up with the way the banks operate, “They rob people who they sell the houses too. I don’t know how long it will take until these people are exposed … they are criminals and should be put in jail.”

ABSA did not respond to an emailed request for comment.

In the meanwhile, Mtyali might either not have a home this week or she might be imprisoned. While the state has recognised that the loss of her home under apartheid was wrong, it is not stopping her or thousands of others losing their homes now.