Arendse v. Arendse, Socio-Economic Rights Institute of South Africa (SERI),

On Tuesday 5 June 2012, Stuart Wilson appeared in the Cape High Court for the Legal Resources Centre (LRC) in its amicus curiae intervention in a review of an eviction order granted by the Goodwood Magistrate. The Magistrate granted a man's application to evict his ex-wife and her three children from the family home in Ruyterwacht, despite the fact that he owed a clear duty of support to the children. The Magistrate found that the man was the registered owner of the property and his ex-wife and her children were in occupation of his home without his consent. Accordingly, the Magistrate found that his ex-wife and three children were in unlawful occupation and were liable to eviction. The Magistrate furthermore found that the ex-wife could move back in with her relatives and so had suitable alternative accommodation available to her. The Magistrate did not consider where the children would go. The ex-wife denied that she had alternative accommodation available to her, as her family could not put her up for anything more than a short visit, and would not accommodate the children.

The LRC intervened in the case in order to point out six fundamental errors committed by the Magistrate. These were his failture:

  • to appreciate that the eviction would lead to homelessness;
  • to appreciate that the real possibility of homelessness required him to embark upon an enquiry in order to establish what all the relevant circumstances were, and what alternatives to ordering an eviction were open to him;
  • to take into account the best interests of the children;
  • to consider ordering the parties to engage;
  • to consider ordering the municipality to appoint a mediator;
  • to consider calling for a report from the municipality setting out what steps it could take to provide alternative accommodation.

SERI hopes this case will provide clarity of the duties of a Magistrate hearing eviction proceedings.

The matter was argued in front of Judge Meer, and was postponed for further argument until 30 July 2012. Judgment was handed down on 20 August 2012, in which the court set aside the eviction order, declaring that it infringed on the applicant's rights in terms of section 26 of the Constitution.

  • Judgment (20 August 2012) here.
  • Heads of argument on behalf of the amicus curiae (30 May 2012) here and table of authorities here.