Eviction order of mom and children after husband fraudulently sold house is wrong — high court

The high court in Pretoria has set aside a magistrate’s order evicting a mother and her children from their home after her estranged husband secretly sold the matrimonial property.

The judge ordered that the matter be remitted to the magistrate’s court for an urgent inquiry into whether the eviction of the mother and children would lead to homelessness.

In requesting the court to set aside the eviction order granted by the magistrate’s court, the mother argued that the magistrate had erred in finding that their eviction had been just and equitable under the Prevention of Illegal Eviction and Unlawful Occupation of Land Act.

She said that the magistrate had erred in not conducting an inquiry into whether the eviction would lead to their homelessness.

According to the mother, she and her estranged husband are married in community of property and the family has lived at the property since 2009.

She told the court the first she had heard about the sale of the matrimonial home was when the new owner showed up and said he wanted to move in.

It was her evidence that she advised the new owner that she and her estranged husband were married in community of property and that she did not consent to the sale of the property.

Thus, the property was sold fraudulently.

The new owner contended that he came across an advertisement for the property on Property24 and contacted the estate agent to arrange for a viewing.

He thereafter attended to view the property and found the seller (the estranged husband) alone at the property.

Satisfied with the property, he purchased it in March 2022 and in August of the same year, the property was registered in his name.

It was when he was preparing to move in that he found the mother and children at the property, who subsequently informed him that she was the seller’s wife and that they were in the process of divorcing.

According to the mother, she and her estranged husband are married in community of property and the family has lived at the property since 2009

He then approached the magistrate’s court to have them evicted from the property.

The magistrate’s court ordered the eviction of the mother and children and held that she had not placed any factors before the court to indicate that there was a possibility of them being homeless if they were to be evicted.

However, on appeal, the high court found that the magistrate had been wrong as the mother had pleaded destitution.

In addition, her estranged husband had sold their matrimonial home and their primary residence without her consent and left with 85% of the furniture.

She said she did not have the financial means to take care of her children.

The facts, according to the appeal court, were sufficient for an inquiry on possible homelessness, which had never been done.

The matter was remitted back to the magistrate’s court for an urgent inquiry into whether eviction would lead to the mother and children’s homelessness.