‘Married’ man cannot evict his ‘wife’ from their home, judge rules


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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