Van Den Berg N.O and Another v Strobos and Others (11030/2012) [2013] ZAGPJHC 402 (1 March 2013)

78 Reportability

Land and Property Law

Brief Summary

Property — Eviction — Occupation under court order — Applicants sought eviction of first respondent from property owned by a trust, claiming unlawful occupation — First respondent occupied the property with minor children since 2000 under a Rule 43 order pending divorce proceedings — Court found first respondent's occupation lawful as it was supported by a court order, and no evidence was presented to establish unlawful occupation — Application for eviction dismissed.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings were an opposed application in the South Gauteng High Court, Johannesburg, for the eviction of a spouse and minor children from residential property owned by a family trust. The relief sought was an order directing the first respondent and all persons occupying with her to vacate the property.

The applicants were Daniel van den Berg N.O and Pieter Jacobus Jooste Strobos N.O, cited in their capacities as the trustees of The Calendula Trust, the registered owner of the property. The first respondent was Petro Strobos, the spouse of the second applicant. The second respondent was cited as all other occupiers on the premises (which included the parties’ minor children), and the third respondent was the Director of Public Housing, City of Johannesburg – Roodepoort.

The application arose against the backdrop of an ongoing and acrimonious divorce between the second applicant and the first respondent. During that divorce litigation, the first respondent had obtained a Rule 43 order permitting her (and the children) to remain in occupation of the property pending the finalisation of the divorce, as well as a domestic violence protection order against the second applicant. The present application was launched by the trustees of the trust, contending that the trust was not bound by the Rule 43 order because it had not been a party to the divorce interlocutory proceedings, and that the first respondent’s occupation was unlawful.

The general subject-matter of the dispute concerned whether an eviction could be granted in motion proceedings where the occupier relied on a subsisting Rule 43 order and the matrimonial relationship, in circumstances where the property was registered in the name of a trust rather than in the name of either spouse.

Material Facts

It was common cause that The Calendula Trust was the registered owner of the immovable property situated at 1014 Calendula Crescent, Weltevreden Park X45, Roodepoort. It was also common cause that the trust had two trustees, being the two applicants. The second applicant was married to the first respondent, and the parties had two minor daughters, who lived with the first respondent on the property.

The court accepted as common cause that the first respondent had resided on the property since 2000, when she and the second applicant occupied it as the matrimonial home, and that the minor children had lived there for most of their lives. The second applicant left the property during August 2010 and resided elsewhere.

It was further common cause that, in the context of the divorce proceedings, the first respondent obtained a Rule 43 order (granted on 25 June 2010) which permitted her to reside on the property with the minor children pending the outcome of the divorce. The order also obliged the second applicant to maintain and upkeep the property and to maintain the first respondent and the children.

The applicants alleged that the property required urgent repairs and relied on a report from a consulting civil engineer indicating that the property should be vacated to enable repairs, including concerns relating to trees and retaining walls. They also alleged that the first respondent denied the trust access to the property, purportedly relying on the domestic violence order, and that she obstructed repair efforts by insisting on contractors of her approval. The applicants further raised issues about the security system covering an adjacent property (also owned by the trust) and alleged instances of inadequate cooperation by the first respondent in relation to the security system.

The first respondent disputed the bona fides of the eviction application and alleged that it was brought as an abuse of process to undermine the Rule 43 regime and to gain advantage in the divorce. She emphasised that she and the children were living in the property pursuant to the Rule 43 order and that eviction would be contrary to the children’s interests. She also referred to the trust’s structure and beneficiaries, asserting that she and the children were beneficiaries.

For purposes of the decision, the court treated the existence and continued operation of the Rule 43 order permitting occupation as decisive, and it was not necessary to determine every contested allegation concerning repairs, access, and motive.

Legal Issues

The central legal questions were whether the applicants had established a legal basis to evict the first respondent and minor children from trust property where the first respondent’s occupation was supported by a subsisting court order under Rule 43, and whether the applicants had shown that the first respondent was in unlawful occupation as alleged.

The dispute primarily concerned the application of legal principles to largely common-cause facts, particularly the legal effect of an extant Rule 43 order and the requirements for eviction relief where minor children were involved. It also required an evaluative determination on whether eviction would be just and equitable in the circumstances (including the interests of minor children and the nature of the household).

Court’s Reasoning

The court approached the matter on the footing that it was common cause the first respondent and minor children were permitted to remain on the property pending the divorce by virtue of a Rule 43 court order. The court considered this subsisting order to be a significant constraint on the eviction relief sought.

Although the applicants relied on the proposition that the trust was not a party to the Rule 43 proceedings, the court held that the existence of a valid court order allowing occupation could not be bypassed by an eviction application framed against the trust’s property rights alone. The court reasoned that the Rule 43 order remained valid and operative until set aside by a competent court, and that the applicants’ application was not one seeking rescission or variation of that Rule 43 order. In this context, the court regarded reliance on remarks made in the Rule 43 proceedings (to the effect that the trust was not a party) as insufficient to justify the present application “in this format”.

The applicants pleaded that the first respondent was in unlawful occupation. The court noted that in a rei vindicatio-type application it is not necessary for an applicant to plead unlawfulness, because the occupier is ordinarily required to establish the basis for occupation. However, the court treated the applicants’ pleaded case—unlawful occupation—as material to the way the matter was presented, and concluded that there was no evidence establishing that the first respondent’s occupation was unlawful. On the contrary, the first respondent demonstrated a basis for occupation arising from the marriage relationship and, importantly, the Rule 43 order, which the applicants themselves acknowledged in their founding papers.

On this reasoning, the court concluded that, until the Rule 43 order was set aside or the divorce action finalised, the applicants could not obtain an eviction order against the first respondent. The court expressly stated that the Rule 43 order was binding on the applicants for purposes of the relief sought.

The court further held that the application failed on an additional ground: the applicants had not set out adequate grounds showing why eviction would be just and equitable and reasonable in the circumstances. The court placed weight on the presence of minor children, the fact that the household was headed by a female, and the reality that the children had lived on the property for most of their lives. The court was not persuaded that immediate eviction at that stage would serve the children’s interests. The court added that, if urgent repairs were required, the appropriate course was that the first respondent should allow the applicants reasonable access to effect repairs, which would also be in the interests of the first respondent and the children.

Outcome and Relief

The application for eviction was dismissed. The court ordered that costs follow the result, and accordingly dismissed the application with costs.

Cases Cited

No cases were cited in the judgment.

Legislation Cited

Family Violence Act 116 of 1998.

Rules of Court Cited

Rule 43 of the Uniform Rules of Court.

Rule 43(6) of the Uniform Rules of Court.

Held

The court held that the applicants failed to establish that the first respondent was in unlawful occupation of the property, particularly given that her occupation (with the minor children) was authorised by a subsisting Rule 43 order granted in pending divorce proceedings. The court held that the eviction application was not a competent substitute for setting aside or varying that order, and that eviction would in any event not be shown to be just and equitable in light of the minor children’s circumstances and the composition of the household. The application was therefore dismissed with costs.

LEGAL PRINCIPLES

A Rule 43 order authorising occupation pending divorce proceedings remains binding and operative until set aside by a competent court, and eviction relief cannot be granted in a manner that effectively contradicts such an order where the order remains extant on the papers before the court.

In an eviction application framed as a vindicatory claim, the occupier ordinarily bears the burden of establishing the basis for occupation; however, where an applicant pleads and relies upon unlawful occupation as the foundation for relief, the applicant must still present a case consistent with that pleaded basis, and the court will assess whether unlawfulness has in fact been shown on the evidence and admissions.

Eviction relief, particularly where minor children are involved and where the household is headed by a female, requires a further evaluative inquiry into whether the relief is just and equitable and reasonable in the circumstances. Where urgent repairs are alleged, the court may regard access for repairs as a more appropriate practical response than immediate eviction, depending on the established facts and the subsisting legal framework governing occupation.