Category

Evicting a family member

Oct 19
0

Lobby challenges eviction of 101-year-old woman

By | Appeal of an eviction order, Evicting a family member, Eviction news, PIE

Reprinted from Sowetan Live, by Penwell Dlamini – 2022-10-17

A civil society group has filed an urgent application in the Johannesburg High Court to challenge the eviction of a 101-year-old woman from a house in Meadowlands, Soweto.

On October 5, Kenaope Mosidi was evicted from the house where she lived with her granddaughter Patricia Mosidi. A video of a frail Mosidi leaving the home was shared on social media with the public expressing outrage. Patricia took care of Mosidi as all her children are now deceased.

The man who evicted the family was Jacob Moalusi who said he bought the house from Mosidi’s other granddaughter Kedibone Demake.

He told the SABC that Mosidi’s grandchildren brought her from Rustenburg where she has a home just to use her so that they cannot lose the house.

Lawyers For Black People (BLA), an organisation which aims to protect the human rights of the marginalised, wants Mosidi and her family to return to her home, arguing that the eviction was unlawful.

In the court papers lawyers said Mosidi and her family had been [living on] the property since 2017 and their eviction was done without an eviction order.

“The eviction was not in terms of any law or court order. The manner in which the persons concerned were evicted, treated and assaulted was in and itself unlawful. The first respondent and his people conducted such unlawful and illegal evictions without having regard to the rights of women and children as promulgated under the Constitution of the Republic of SA Act 108 of 1996,” the lawyers argued in the papers.

According to BLAs, Moalusi alerted the Mosidis in 2019 that he had bought the home from Demake and intended to either reside in it or make developments. This came as a surprise as the home was considered a family dwelling and was never for sale.
BLA argued that Moalusi did not provide any written notice ordering the Mosidi family to vacate.

“In this instance there was no valid court order to evict and remove the occupiers, thus making the eviction completely unlawful and unconstitutional in all respects of law and against the principles of natural justice,” the lawyers argued.

“The first respondent more importantly conducted the eviction without the assistance of the sheriff who is by law entrusted with the responsibility to execute and enforce court order, thug giving more clarity on the undoubtable fact that the eviction was unlawful and unconstitutional,” BLA said.

BLA further described the eviction as inhumane.

It argued that even if Moalusi was entitled to evict the family, the court would still not sanction the execution until it is satisfied that the occupiers of the house would not be left homeless.

For further information

Simon Dippenaar & Associates, Inc. is a Cape Town law firm of specialist eviction lawyers, now operating in Johannesburg and Durban, helping both landlords and tenants with the eviction process. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you are concerned about unlawful eviction or if you need advice on the eviction process.

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Jan 14
0

Man in customary marriage not allowed to evict wife

By | Evicting a family member, Eviction news

Reprinted from iol.com, by Zelda Venter – 2021-12-23

Pretoria – A man who got tired of his “wife” and wanted to evict her from his home got more than he had bargained for after the court ruled that as he was married to her, he could only kick her out of the house if he offered her alternative accommodation – the same as that to which she is now accustomed.

The High Court sitting in Johannesburg turned down the man’s eviction application and found that he was married to the woman by customary law as per the provisions of the Recognition of Customary Marriage Act.

The parties are not identified, as it’s a marriage dispute.

The court had some harsh words for the man, who claimed that the woman had moved in with him as they were still “developing” their love relationship.

He said he, meanwhile, realised it would not work, but she refused to budge.

However, it had emerged from the answers of the woman in her opposition to the eviction order that they were, in fact, married.

The man had paid lobola, but remained mum on this aspect in his application.

When confronted with this by the judge, he reluctantly had to agree that he had paid lobola, but he claimed there was no marriage as the negotiations were not concluded.

The man maintained that the woman was an “unlawful occupier” in his home, as he had since terminated their “love relationship.” As the owner of the property, he said, he could choose who lived there.

The woman, on the other hand, told the court that her family and that of the applicant entered into lobola negotiations. Upon the successful conclusion of the negotiations, an agreement was concluded, reduced to writing and signed by delegates of the two families. It is stipulated that the lobola agreed upon was R50 000.

The family of the applicant paid R40 000, and the remaining amount of R10 000 was due at a later stage.

Following the successful negotiation, the woman said she had moved into the house with her husband, as she regarded them to now be married. He even assisted her in moving her things to his house.

In response, the man admitted that he paid part lobola. He, however, disputed that a valid customary marriage was concluded. He claimed that other formalities dictated by custom still needed to be fulfilled.

He made reference to the fact the woman still needed to be introduced to his family in the Eastern Cape, and that gifts between the two families still needed to be exchanged.

According to the woman, they lived together as husband and wife until the breakdown in their relationship due to infidelity by the applicant. She maintained that she was his wife, and thus, would not budge.

Judge J Thupaatlase said the woman’s defence had to be accepted. “The facts stated in her affidavit are not disputed by the applicant except his feeble attempt to explain them away. He didn’t take the court into his confidence, and in fact, lied to the court about his relationship with the respondent.

“If this court was to accept his version, this will lead to untenable and gross unfairness to the respondent,” the judge said.

He added that the undisputed fact, which was crucial before the court, was the payment of lobola, and the applicant was disingenuous and dishonest.

“He created a totally false state of affairs.”

In ruling that they are legally married in terms of customary law, the judge referred to case law where another court found that a spouse cannot become an “unlawful occupier” in relation to the other spouse in terms of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act, as argued by the man.

The judge also referred to an academic publication called The South African Law of Husband and Wife, where the author stated that “even where the husband is the owner of the property occupied by the couple, he has no right, while the marriage is in existence, to eject his wife from it without providing her with suitable alternative accommodation”.

“Acting in accordance with these principles, the applicant (man) can only seek the respondent’s eviction from the matrimonial home against a tender of equally comparable living conditions,” the judge concluded.

In referring to another judgment in a similar case, the judge said that judgment made it clear that a spouse occupying the matrimonial home (the wife, in this instance) may be ejected from the matrimonial home provided that she is offered “suitable alternative accommodation” or “a means of acquiring such suitable accommodation”.

“The applicant, in this case, is not tendering any such accommodation,” the judge said in turning down the eviction application.

SD Law can help

If you are in a customary marriage and are uncertain about your rights, or have any questions about it, Cape Town law firm SD Law can help. Call attorney Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

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*This article has also appeared on our sister site, divorceattorneycapetown.co.za
Jun 24
0

Call for moratorium on court magistrates granting eviction orders

By | COVID 19, Evicting a family member, Eviction news, Eviction orders

Reprinted from IOL, by Mthuthuzeli Ntseku – 2021-06-23

Non-profit organisation Ndifuna Ukwazi calls for moratorium on eviction orders

Non-profit organisation Ndifuna Ukwazi said evictions under alert level 3 remained prohibited unless a court ordered otherwise. File picture: Henk Kruger/African News agency (ANA)

Cape Town – The Ukubavimba Foundation has called on Minister of Justice and Correctional Services, Ronald Lamola, to place a moratorium on court magistrates granting eviction orders.
This as a family of six from Atlantis is facing possible eviction after a family member got an eviction order to throw them out of the house they have been occupying for 35 years.

Speaking on behalf of the family, activist Verona October said the family had been living in the house since birth, but now their aunt wanted to evict them.

“The sheriff was recently at the family home, and we want to know what this eviction is based on. Earlier this year the aunt got people to rent the house, and now she wants to evict the family. They haven’t received a letter of eviction, but we are aware of her intention to get them evicted. The family has been living in their late grandfather’s house since birth, and they know no other home but this one,” she said.

Foundation activist Deon Carelse said it was a constitutional matter, adding that evictions increased homelessness.

“Minister Lamola is in charge of the courts, and with the judges that under his authority he can bar them from signing these eviction orders. Our Constitution tells us that there should be adequate housing for all, and that is a basic human right. For a court judge to grant an eviction order is unconstitutional.

“Currently we are under alert level 3, and with the national lockdown it is unconstitutional to evict a person. These evictions, whether private or farm evictions, are unlawful and unjust. An eviction order to be granted by a court does not do justice to the evicted families; it is inhumane, especially at this time of the year,” said Carelse.

Non-profit organisation Ndifuna Ukwazi said evictions under alert level 3 remained prohibited unless a court ordered otherwise.

“This means the sheriff cannot physically remove you from your home until the State of Disaster ends, unless the court specifically orders that it is just and equitable for the eviction to be carried out before then,” the organisation said.

It said courts must always consider all factors, including the reason for an eviction, evictees’ personal circumstances, especially the elderly, children and people with specific needs, and whether alternative accommodation was available.

For further information

SD Law is a law firm in Cape Town and Johannesburg with specialist eviction lawyers. If you are seeking an eviction, we will make sure you meet the court’s requirements. Contact Cape Town attorney Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za.

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