JOHANNEBURG SOUTH – Building ‘hijacking’ – “This offence must be rooted out for our wonderful city to go forward; and we need to rid ourselves of this scourge,” said Mr H Louw, Regional Court Magistrate, in his pronouncement of sentence on the two accused in the Regional Court in Johannesburg on March 3.
He said that the legislation is sorely lacking to address the problems encountered in this matter. He also added that the Legislature must enact and expand on the Common Law to include fixed corporeal property in the offence of theft; and it must provide for a protection programme for state witnesses. Furthermore, in referring to the sentencing provisions in the PIE Act, he also stated that they were shockingly inappropriate. (A maximum of two years imprisonment).
The two accused were part of a group of people with ties to Zimbabwe, which formed the Johannesburg South Tenant’s Association (JSTA). This group organised a large-scale attack on buildings in the South and tried to hijack Adelphi Court, Airesdale Court, Irene Court, Elrit Court, Rosettenville Centre, Adelphi Business Centre, Ercole Court, Jadene Court, La Rose Court, Nesdon Court and Garden Court in Rosettenville, as well as Freedley Mansions, Barbara Court, Elken Place and Rodturf Court in Turffontein; Villamez Court in La Rochelle, and Ettienne Court in Regents Park. Due to the swift action of the Hawks two of the members of this organisation were arrested in March 2010. Bail was denied.
The accused and other co-perpetrators formed the JSTA, placed people in some of the buildings as tenants and began to persuade and intimidate tenants into not paying their rent and utilities, promising them instead rent free accommodation and a return of the last five years’ rental in return for an affiliation and monthly fee payable to them. Mr Birkenstock, a director of TUPA, the managing agents of the blocks of flats, testified that before the arrival of this group they had not experienced any problems with tenants and had a good relationship with them. This group prevented the owners, agents and contractors from entering the premises or speaking to the tenants. Rental payments ceased almost overnight. TUPA applied in the High Court for an interdict to prevent members of the JSTA from dealing with the buildings in this fashion.
The State argued that there had been a common purpose among the perpetrators. Mr Louw stated in his judgment that, “The JSTA was a group of like-minded individuals who acted in a manner that was designed to make buildings ungovernable.” The Court made a finding that the accused were in fact part of the JSTA and was satisfied that there was clear testimony of prior agreement of the modus operandi of the JSTA; and the actions of the unknown members of JSTA could be imputed to the accused.
The owners lost a total of R 736 049.21 in rentals and utilities during December 2009 and March 2010. The loss in commission to TUPA was R45 000, and in addition TUPA had to pay legal fees in the amounts of R182 000. Mr Birkenstock testified that they were other indirect costs suffered such as the repairs to the electrical boxes and doors; the allocation of more staff to collect the rental, and the changing of systems.
Attempted extortion
The directors of TUPA testified that the second accused, Vusi Mringi, arrived at their offices on the February 24 2010 asking to see them. He told them that they had opened a company called JSTA and that they had hijacked the buildings. He added that their aim was to get these buildings and get the rentals and utilities of the buildings. He asked her for R50 to buy a beer and when they declined, he said that they had planted Zimbabwean persons in the building, and they would ‘check out the scenery of the building’ and talk to the tenants.
Accused two told them that they had contacts in government; that he could make any cases that were pending at the magistrates court disappear. He also claimed that he had been trained in the intelligence services in Zimbabwe and they would create chaos and force the owners to hand over their ownership to them. He had contacts at the Booysens Police Station and they could get tenants to hand over the rental to them. He further stated that he wanted R100 000 as a first payment in a silver briefcase in order to cripple the JSTA and make them disappear.
When sentencing the accused, the Magistrate said that it was a great pity that the other members of the group were not before court for sentencing. They were not apprehended and warrants have been issued for their arrest. They are Edgar Makadzange, also known as Rasta or Makhosini Ncube or Edgar Ncube, and Jonathan Ngara.
Mr Louw said that where an offence is rife, such as in this case, and there is a wilful disregard of others’ property rights, and despite heavy punishment the offence is still rife, then reform is not the most important aspect in sentencing. While the Court may have sympathy for the accused, it is however not wrong to have a deterrent effect as primary importance in a crime of this nature.
The Court took note of the prevalence of this offence in its jurisdiction. It did not happen on the spur of the moment, but was carefully planned. He added that landlords cannot access their properties, cannot affect repairs and cannot pay their utility bills. The City of Johannesburg loses income and the vicious circle continues. Ms Victoria Ramala testified that the City has lost approximately R8 billion in income to ‘hijacked’ properties.
In passing sentence Mr Louw said that the accused were far from being the camp fighters for the poorest of poor; instead they had exploited them further. The two accused were convicted of fraud; and Section 3(1) of the PIE Act 19 of 1998 (Prevention of Illegal Eviction from and Unlawful Occupation of Land Act), receiving or soliciting payment of any money as a fee or charge for arranging or organising or permitting persons to occupy land without the consent of the owners during the period November 2009 to March 2010. Accused two was also convicted of two counts of attempted extortion and S49(1)(a) of the Immigration Act, No 13 of 2002 – being an undocumented foreign national.
They were sentenced to eight years imprisonment for fraud and two years imprisonment for the PIE Act contravention. Accused two was sentenced to a further five years imprisonment for the attempted extortion as well as three months imprisonment for being an undocumented foreign national in SA.
