Until the final outcome of protracted divorce proceedings, a woman’s attempt to continue living in a matrimonial home she had been evicted from failed after she turned to the courts to retain further occupancy despite the home having already been sold. 

The Supreme Court of Appeal, which dealt with the application for reconsideration, upheld the decision of the Western Cape High Court.

The divorce proceedings of the couple, who were married out of community of property under the accrual system, have yet to conclude, having begun in June 2010. In those proceedings, the wife claimed payment of half the difference in the accruals of her and her estranged husband’s respective estates, as well as lifelong spousal maintenance.

The property was purchased by the husband in 2003. Although he was the sole registered owner, it served as a family home until it was sold in March 2022.

The couple’s daughter resides on the property and operates a livery and horse-riding school there, and this business was joined as the second applicant in the current proceedings.

After her lawyer was informed of the sale of the property, the wife challenged the validity of the sale, stating that she would not vacate the property due to a substantial claim against her husband.

The woman claimed that the property was sold at a price substantially below its true value, and the sale constituted a deliberate breach of her fundamental rights to housing, dignity, and access to the court. She also argued that the sale and transfer of the property was unlawful, against public policy, and was null and void. 

She also submitted that her eviction from the property, on these unlawful transactions, should consequently be invalid.

Among a number of reasons, the High Court held that prior to dissolution of the marriage, a spouse only has a contingent right to claim half of the accrual in the estate of the other spouse and has no general right to prevent the other spouse from dealing freely with his own property.

After the transfer of the property, the new homeowners, who wanted to ensure vacant possession of the property, made gratuitous offers to the woman on the basis that she vacate the property by no later than January 31, 2023.

The gratuitous offers included that her husband would agree to release R300,000 to her from the amount held by the new property owners in trust.

Further offers were that a similar amount would be released to the woman to help her find alternative accommodation and cover medical care, and above this, the new homeowners would also pay her an additional R100,000 from their personal funds.

However, the woman rejected the offer, and subsequently, the new homeowners filed an application in the High Court under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act) to evict her from the premises.

The woman argued that she was not in unlawful occupation and according to her, had a right to remain in the property.

She made the arguments that she enjoys quasi–proprietary or quasi–vindicatory rights by virtue of her accrual right to claim and accused her estranged husband of colluding with the new homeowners to achieve her eviction.

SCA Judge Anna Kgoele, in her judgment, said: “As things stand (…) the applicants merely requested the revisitation of the merits of their unsuccessful application because the current legal position does not provide for the (woman’s) continued occupation of the property pending divorce. The right that she has is a contingent right to share in the value of the accrual determined at the dissolution of the marriage.

“That contingent right becomes a vested right only when the contingency materialises. She, in fact, has no legally vested right to Mr M(…)’s assets, nor does she have a general right to prevent Mr M(…) from freely dealing with his own property.”

chevon.booysen@inl.co.za

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