Moremi v Moremi and Another

• Jurisdiction: South Africa
• Citation: 2000 (1) SA 936 (W)

Moremi v Moremi and Another
2000 (1) SA 936 (W)

2000 (1) SA p936

Citation	2000 (1) SA 936 (W)
Case No	28370/99
Court	Witwatersrand Local Division
Judge	Schabort J
Heard	August 12, 1999; August 13, 1999
Judgment	November 18, 1999
Counsel	Applicant in person; PM Leopeng for the first respondent; No appearance for the second respondent

Flynote : Sleutelwoorde F

Land — Occupation of — Statutory lease in terms of s 6(1) of Conversion of Certain Rights into Leasehold or Ownership Act 81 of 1988 — Rights under — Right of occupation under residential permit issued in terms of legislation applicable prior to Act 81 of 1988 an asset of G joint estate of spouses married in community of property — Statutory lease likewise becoming part of joint estate and, subject to provisions of s 6(2) of Act, governed by common law — Statutory lease not creating right personal to husband falling outside joint estate — Husband in whose name original residential permit registered only nominal lessee under statutory lease — Upon divorce of spouses, husband cannot have H wife evicted from premises nor can wife prevent husband from occupying premises — Dissolution of joint estate to be accomplished.

Headnote : Kopnota

The applicant sought an order in a Local Division for the eviction of the first respondent, from whom he had been divorced, from certain I property in respect of which the applicant had in 1977 obtained a residential permit from a Bantu Affairs Administration Board (the predecessor of the second respondent) in terms of certain legislation then applicable. The applicant and the first respondent were married in community of property in 1979 and the first respondent took up residence with the applicant on the premises, which was their matrimonial home for many years. The legislation in terms of which the applicant had obtained the residential permit was J

2000 (1) SA p937

repealed and the residential permit was converted into a A statutory 'lease' in terms of s 6(1) of the Conversion of Certain Rights into Leasehold or Ownership Act 81 of 1988. The Act conferred on the applicant and the second respondent the status of 'lessee' and 'lessor' of the premises, with the rights and obligations set out in s 6(2) of the Act. In November 1998 the applicant and the first respondent were divorced with an order for the division of B their joint estate. In seeking the first respondent's eviction, the applicant contended that he alone, as the holder of the original residential permit, had become the 'lessee' of the premises and that the first respondent's entitlement to reside on the premises with him was derived entirely from her capacity as his dependant; that she was not privy to the 'lease' embodied in the residential permit or party to the statutory lease which had replaced it and that she had C acquired no right of residence by virtue of any status, capacity or title other than as his dependant. In consequence of the divorce, the first respondent had ceased to be the applicant's dependant and therefore had no right to remain in occupation of the premises.

Held, that, as a matter of law, upon the marriage of the applicant and the first respondent in community of property the D right of occupation of the premises under the residential permit became an asset in the joint estate held by the applicant and the first respondent jointly in their common estate, even though the residential permit remained in the name of the applicant alone. (At 939I - J.)

Held, further, that there could be no question that all the lessee's rights derived from the statutory lease (under Act 81 of 1988) became part of the parties' joint estate. (At 940A/B - B/C.) E

Held, further, that the parties' rights and obligations under the statutory lease were, subject to s 6(2) of the Act, impliedly intended to be governed by the common law. (At 940B/C - C.)

Held, further, that the statutory lease was not intended to create a right personal to the applicant only, falling outside the joint estate: a construction to the contrary could hardly serve the policy of Act 81 of 1988. (At 940E - F.) F

Held, further, that, as the statutory lease with what it entailed formed part of the parties' joint estate, the applicant was only the nominal lessee thereunder: during the subsistence of the marriage the statutory lease entitled both parties to occupy the premises as their matrimonial home. (At 942C - C/D.)

Held, further, that, upon their divorce, because the G statutory lease had not been cancelled, it continued to operate, but from then on it ceased to provide a matrimonial home for the parties and neither of them could insist on the exclusive possession and occupation thereof; and this was the legal principle presently governing their relationship as ex-spouses, no matter who of them might be in physical occupation of the premises. (At 942D - E/F.)

Held, accordingly, that the applicant could not succeed in H having the first respondent evicted from the premises and the first respondent could not prevent the applicant from occupying the premises: a complete division of the joint estate was what the divorce order had enjoined the parties to undertake and that was what they would have to accomplish. (At 942E/F - F and 942F/G - G) Application dismissed.

Cases Considered

Annotations

Reported cases

Buck v Buck 1974 (1) SA 609 (R): referred to

Du Plessis v Du Plessis1976 (1) SA 284 (W): referred to

Glass v Glass1980 (3) SA 263 (W): referred to

Lovell v Lovell1980 (4) SA 90 (T): referred to

Moroeng v Roodepoort Municipality1972 (3) SA 357 (W): referred to J

2000 (1) SA p938

Persad v Persad and Another1989 (4) SA 685 (D): referred to A

Toho v Diepmeadow City Council and Another1993 (3) SA 679 (W): applied.

Statutes Considered

Statutes

The Conversion of Certain Rights into Leasehold or Ownership Act 81 of 1988, s 6(1), (2): see Juta's Statutes of South Africa 1998 vol 6 at 2-287.

Case Information

Application for the eviction of the first respondent from B certain premises. The facts appear from the reasons for judgment.

Applicant in person.

P M Leopeng for the first respondent.

No appearance for the second respondent.

Cur adv vult. C

Postea (November 18).

Judgment

Schabort J:

The...