- The court found that the wife has a legal right to stay, recognising her contribution to building an 11-room family home.
- When the husband left and stopped supporting the children, the wife was left to raise them alone.
- The court refused to evict the family, finding that neither the law nor basic fairness could justify removing them from the only home they have known.
A divorced woman who stayed on in her former marital home in Thohoyandou with her children has successfully fought off eviction, after the High Court ruled that both the law and basic fairness are on her side.
The case centres on a family home at Thohoyandou Block J, a property where a marriage was built, fell apart, and left behind a family still trying to find its footing nearly two decades later.
The home they built in Thohoyandou
When the couple first moved in, there was disagreement about the state of the property. What nobody disputes is what it eventually became. Over the years, they turned the land into a substantial 11-room home complete with front and rear covered verandas, a double garage with wooden doors, a sitting room, dining room, semi-fitted kitchen, bathroom, laundry room, and multiple bedrooms. The main bedroom came with its own ensuite bathroom and a private external entrance.
The home is the product of years of gradual construction and shared family life. By June 2023, it was valued at R686 000. This was no temporary arrangement. It was a fully established household where the couple raised their children.
How the marriage ended and what followed
The couple were married in community of property and lived in the home together with their children, with the blessing of the husband’s mother, the property’s registered owner.
By the time the divorce was finalised in January 2019, the husband had already walked out. The wife stayed behind with the children. The divorce settlement noted that neither party owned immovable property, but that legal formality did nothing to change the reality on the ground. The wife and children were still there, still calling it home.
After leaving, the husband fell into financial difficulty and was eventually unable to maintain the children. A maintenance order against him was later discharged because of his circumstances. The wife carried on alone as the primary caregiver, responsible for both the children and the upkeep of the home.
The eviction attempt and procedural challenges
Years after the divorce, the husband’s mother moved to evict the wife and children, citing her ownership of the property.
The wife pushed back hard, raising a string of legal challenges. She argued that the municipality should have been joined as a party, that the husband had been improperly cited, and that the application amounted to an abuse of process, pointing to earlier eviction attempts that had been withdrawn.
The court rejected all of these arguments. It held that the municipality did not need to be joined, though its role in eviction matters was noted. The husband’s inclusion was found to be proper, given that the matter directly affected his children, and the court confirmed that previously withdrawn applications do not bar fresh proceedings.
The court confirmed that the requirements of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act were met, including proper notice.
The wife’s right to remain
At the heart of the case was a straightforward but weighty question of whether a woman should be thrown out of a home she had spent years helping to build.
The husband’s mother argued that she had never consented to the improvements. Yet she also accepted that she had not objected to them and had allowed the construction to continue uninterrupted.
The court found that this contradiction did not undermine the wife’s legal position. Judge Semenya stated, “A real lienis afforded to a person who has expended money or labour on another’s property without any prior contractual relationship between them.”
The court recognised that the wife holds a real right of retention over the property. In plain terms, she is entitled to stay in the 11-room home until she is properly compensated for the improvements she made.
The children and the reality after divorce
The court looked at what the divorce actually meant in practice. The husband left, and the wife stayed, while the children continued growing up in the same house they had always known.
The court also noted a glaring omission that the eviction application said nothing about what would happen to the children.
Judge MV Semenya observed, “The applicant fails to state why she intends to evict the respondents. She merely states that she intends to do so because she is the owner of the property.”
The court did not overlook the fact that the person seeking eviction was the children’s own grandmother. It found that she carries a legal duty to help maintain her grandchildren when their father is unable to do so, a responsibility that sat uncomfortably alongside her bid to remove them from their home.
Why was the eviction refused
The court found that the eviction application failed on two separate and independent grounds. First, the wife has a legal right to remain in the property due to the improvements she made. She cannot be removed until compensated.
Second, eviction would not be just and equitable under the law. The family has lived on the property since around 2005, and no alternative accommodation was put forward.
Judge Semenya said, “It is my view that this application stands to be dismissed under the PIE Act as well.” The court further concluded, “It will not be just and equitable to evict the first respondent and the applicant’s grandchildren from a place they called home.”
Outcome
The eviction application was dismissed in full. The wife remains in the home with her children, and the husband’s mother was ordered to pay costs on a party and party scale.
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