Arendse v. Arendse and Others, [2012] 4 All SA 305 (WCC) (South Africa)

A mentally disabled woman with three children sought to set aside an eviction order from the family home obtained by her former husband. In making the eviction order, the magistrate found that the man was the registered owner of the property and the former wife and the children occupied the home after he had withdrawn his consent. The magistrate acknowledged the woman’s disability, but found that the former wife had suitable alternative accommodation available because she could move back in with her relatives (which she denied). The magistrate did not consider where the children would go if evicted.

The woman argued that the eviction order infringed her rights under § 26 of the South African Constitution, the right to housing and the right to due process in evictions. The woman also claimed that the magistrate should have considered the fact that the husband owed the wife a house as the required dowry payment (mahr) under Islamic law.

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) of 1998 §§ 4(6), 4(7) require a court to only grant an eviction order after considering “all relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed women.” Case law added another factor to be considered under either § 4(6) or § 4(7): the availability of alternative land/accommodation. In reversing the eviction order, the High Court reaffirmed the importance of considering these factors, and held that courts have an affirmative duty to make factual findings on these factors. The Court found that the magistrate should have considered the rights of the children, the disabled woman, and the fact that it was a woman-headed household, as well as whether there were adequate alternative accommodation. 

The High Court also discussed how the eviction of children by their father potentially violated the children’s Constitutional rights, including the right to shelter (§ 28(1)(c)), the right to parental care (§ 28(1)(b)), and to be protected from neglect, abuse or degradation (§28(1)(d)).  The father violated those rights when he sought to evict them without considering whether they had alternate accommodation.