A wife whose husband secretly sold their home, leaving her and their children unlawful occupiers, received a lifeline when a judge ordered an urgent inquiry about whether she and her children had other living options.
The woman, who has not been identified in order to safeguard the identity of her children, was married in community of property to her now-estranged husband.
She told the court the first word she had heard about the sale of their matrimonial home, in which they had lived for more than 15 years, was when the new owner had pitched-up and said he wanted to move in.
She turned to the Gauteng High Court, Pretoria, in a bid to overturn an order by the lower court, granted in favour of the new owner, that she and her children should be evicted from their home in Mamelodi East.
The mother argued that the magistrate had erred in finding that their eviction had been just and equitable under the law. The magistrate had erred in not conducting an inquiry about whether the eviction would lead to their homelessness.
She lived with her husband and children on the property, which was their home and primary residence since 2009. In 2022, her estranged husband sold the property to a buyer, without her knowledge and consent.
Until the sale, the property was part of a joint estate in the marriage of a community of property between the woman and her estranged husband. After he sold the property, the husband left the matrimonial home and lived elsewhere.
A few months after the sale, the woman was informed by the new owner that her husband had sold the property to him and that it had been registered in his name.
She said she had told the buyer that she was the seller’s wife, was married in community of property and that she had not consented to the sale of the property. Thus, the property had been sold fraudulently.
The new owner had served her with a notice to vacate the property within 30 days. She had ignored the notice and through her attorneys, told him she would not move as she had never given consent to the sale.
The new owner had then taken her to the lower court to have her evicted.
He testified that he had been looking to buy property and had come across an advertisement for the property. He had contacted the estate agent and arranged for a viewing. When he had gone to look at the house, he had found only the husband there.
The new owner said he had bought it and subsequently registered it into his name. He said that when he had been preparing to move in, he had found the wife there. She had told him she and her husband were divorcing.
He testified that he was a bona fide buyer and the legal owner of the property and he should not feel the brunt of the previous owners’ domestic affairs.
He said the wife could sue her husband for half of the proceeds of the house if she wanted to.
The lower court ordered the eviction of the mother and the children and held that she had not placed any factors before court to indicate that there was a possibility of homelessness if they were to be evicted.
But the high court found that had been wrong, as the mother had pleaded destitution and her estranged husband had sold their matrimonial home and their primary residence without her consent, leaving her with 85% of the furniture.
She said she did not have the financial means to take care of her children.
The facts were sufficient for an inquiry on possible homelessness, which had been never done, the high court found.
The matter was remitted back to the lower court for an urgent inquiry regarding whether eviction would lead to the mother and children’s homelessness.
Pretoria News