Reprinted from iol.co.za, by Mervyn Naidoo – 2024-10-27
The High Court application brought by the heads of a Durban retirement village to evict a long-time resident from their facility was dismissed with costs last week.
The Amanzimtoti Welfare Organisation For the Aged moved to terminate Diana Patricia Gregson’s lifetime right and occupation of a unit and use of a garage at the Poinsettia Park Retirement Centre.
AWOFTA alleged that Gregson, a professional opera singer, who also had UK citizenship, had not occupied her unit since December 2019, which exceeded their permitted absence period.
They stated that various clauses in the agreement and house rules supported their termination bid.
AWOFTA contends that her prolonged absence constituted a breach of the life rights.
Their legal representatives served a letter threatening to terminate her life right in January 2022.
Gregson’s attorney Shaheen Seedat, who is on Legal Aid South Africa’s ‘s panel as a judicare practitioner, eventually filed her notice to contest the AWOFA’s application in April 2023.
The 81-year-old Gregson was granted condonation for the late filing (11 days) of her response.
Gregson said she suffered severe gallbladder attacks since December 2022 which led to her hospitalisation in the UK April 2023 and was only able to consult Seedat in May.
She said the AWOFTA’s application contained numerous false claims and deviations from the truth.
Gregson said she was the registered owner of the unit at retirement village .
During the AWOFTA’s AGM held July 1985, her late mother Gladys Gregson, who attended, posed a question about Gregson’s and her intended long term absences from Poinsettia Park.
Gregson said, according to the minutes of the said meeting, all cottages were sold without Sectional Title and no cottages were for renting and there were no restrictions on leave of absence for residents of cottages bought.
“It was for that reason that my late mother purchased the said property.
“Both my mother, my late sister and I had dual citizenship in South Africa and the UK.
“I was an opera singer and performed in various countries throughout the world previously, and never had any issues with long absences from Poinsettia Park,” read an extract from Gregson’s affidavit.
Accordingly, Gregson’s mother signed a 99-year lease for the right to the exclusive use and occupation of the unit, which was concluded in 1986.
She was substituted as the owner of the unit and covered the carport during 1995 and the occupier of the property since 1996.
Gregson has had previous legal run-ins with the body corporate regarding her rights and occupation of the unit, which necessitated her approaching the same court in 2018, where a consent order was granted in her favour.
The body corporate undertook not to harass Gregson and allow her peaceful and undisturbed occupation of the unit.
Gregson also challenged the body corporate over levy charges due by her, which was handled by the Durban Magistrates Court.
In the 2018 ruling, the court also ordered that in respect of the levies issue, the body corporate give a full breakdown of her levy account, look into excessive charges, and submit their formula for levy calculation, all of which must be dealt with in the Magistrate’s Court.
Having travelled to the UK in December 2019, Gregson informed the body corporate about her departure and had no idea that Covid-19 would emerge.
Lockdown restrictions in the UK made travelling back impossible.
Her return home was further complicated by her inability to take the Covid 19 vaccine because of significant allergies to various pharmaceuticals.
The restrictions regarding non vaccine passport travel were only relaxed in late 2022, but Gregson was already beset by other health problems by then.
She was also threatened with eviction in 2021, but the body corporate were not able to follow through without a court order.
Gregson maintained that she had legal possession of the property for over 27 years and her mother’s lifelong lease with the body corporate was still valid, in her name, and must be honoured.
She said she cannot be forced to accept the body corporates new rules to her detriment, which were not contained in her original contract.
In last week’s sitting the court said the crux of this matter lay with the interpretation of the memorandum of agreement concluded by AWOFTA and Gregson’s mother, and the minutes of July 1985 AGM, and the house rules of the retirement centre.
The court found that there were no agreement that directly refers to AWOFTA and Gregson.
However, her mother entered into an agreement with AWOFTA and Gregson succeeded her, and noted that the organisation agreed to being bound by the original agreement, including its flaws.
It was pointed out that the “life rights” agreement did not directly address absences due to certain health conditions.
AWOFTA has not established a clear right to the relief sought, the court ruled.
For further information
Simon Dippenaar & Associates, Inc. is a law firm of specialist eviction lawyers in Cape Town, Johannesburg and Durban. We help landlords and tenants maintain healthy working relationships. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need help with tenants’ rights or landlords’ responsibilities.
