Steyn v Hasse and Another

• Jurisdiction: South Africa
• Citation: 2015 (4) SA 405 (WCC)

Steyn v Hasse and Another
2015 (4) SA 405 (WCC)

2015 (4) SA p405

Citation	2015 (4) SA 405 (WCC)
Case No	A 93/2013
Court	Western Cape Division, Cape Town
Judge	Goliath J and Schippers J
Heard	May 9, 2014
Judgment	August 15, 2014
Counsel	C Bosman for the appellant.; MA Ipser for the first respondent.; No appearance for the second respondent (the sheriff for the Magistrates' Court, Somerset West).

Flynote : Sleutelwoorde B

Cohabitation — Rights — Reciprocal duty of support — Though none arising by operation of law, it may be regulated by agreement — Universal partnership may come into being — Requirements — Both parties must contribute or bind themselves to do so; it must be carried on for joint benefit of both parties; and object must be to make profit. C

Headnote : Kopnota

Cohabitation generally refers to people who, regardless of their gender, live together without being validly married to each other. Although cohabitation is a common phenomenon and widely accepted, cohabitants generally do not have the same rights as partners in a marriage or civil union. While no reciprocal duty of support arises by operation of law, this may be regulated D by agreement. An express or implied universal partnership may arise between cohabitants. A universal partnership exists when parties act like partners in all material respects without explicitly entering into a partnership agreement. The three essential elements are, first, that each contributes something to the partnership or binds himself to contribute something to it; second, that the partnership should be carried on for the joint benefit E of the parties; and, third, that the object should be to make profit. (Paragraphs [16] – [17] at 410B – H.)

Mr Hasse, a married German businessman residing chiefly in Germany, was involved in a romantic relationship with Ms Steyn during a series of interludes he spent at his house in Somerset West, Western Cape. Steyn ended up living there rent-free. But when the relationship soured Mr Hasse F wanted Steyn out and sent her an eviction notice. Steyn resisted on the ground that she was living in the house at Hasse's invitation and, moreover, as his partner. She alleged that he had promised to provide her with a secure home for 10 years. A magistrates' court, having found no reciprocal rights and duties of support, held that the withdrawal of Hasse's consent meant that Steyn's occupation was unlawful and granted an eviction order. In an G appeal to the High Court —

Held: Given the nature of the relationship between the parties, there would have been no express or tacit universal partnership nor any other legal basis for a finding that there were reciprocal rights and duties of support. It was moreover highly unlikely that Hasse would have given Steyn an undertaking H to provide her with a home for 10 years, and the averment could be rejected out of hand. Steyn would be given three months to vacate the premises. (Paragraphs [22] – [33] and [40] at 411E – H and 415G.)

Cases Considered

Annotations I

Case law

Buffalo Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd and Another 2011 (1) SA 8 (SCA): dictum in para [21] applied

Butters v Mncora 2012 (4) SA 1 (SCA): considered

City of Johannesburg v Changing Tides 74 (Pty) Ltd and Others 2012 (6) SA 294 (SCA): dictum in paras [11] and [12] applied J

2015 (4) SA p406

Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC) (2000 (8) BCLR 837; [2000] ZACC 8): dictum in para [30] applied A

Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA) (2003 (11) BCLR 1220): dictum in para [13] applied

Du Toit and Another v Minister of Welfare and Population Development and Others (Lesbian and Gay Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC) (2002 (10) BCLR 1006): dictum in para [1] applied B

Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) ([2006] ZASCA 54): dictum in paras [55] – [56] applied

Kritzinger v Kritzinger 1989 (1) SA 67 (A): applied

McDonald v Young 2012 (3) SA 1 (SCA) ([2011] ZASCA 31): applied C

Mühlmann v Mühlmann 1981 (4) SA 632 (W): dictum at 634C – E applied

National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) (2009 (1) SACR 361; 2009 (4) BCLR 393; [2008] 1 All SA 197; [2009] ZASCA 1): dictum in para [26] applied

Pezzutto v Dreyer and Others 1992 (3) SA 379 (A): dictum at 390A – C applied

Plascon-Evans Paints Ltd v Van Riebeek Paints (Pty) Ltd 1984 (3) SA 623 (A): applied D

Ponelat v Schrepfer 2012 (1) SA 206 (SCA): dictum in para [19] applied

Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) (2004 (12) BCLR 1268; [2004] ZACC 7): applied

Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC) (2002 (9) BCLR 986): dicta in paras [23] and [25] applied E

Soffiantini v Mould 1956 (4) SA 150 (E): dictum at 154G applied

Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC): dictum in para [20] applied

Wallach v Lew Geffen Estates CC 1993 (3) SA 258 (A): dictum at 263G – I applied

Wightman t/a JW Construction v Headfour (Pty) Ltd and Another 2008 (3) SA 371 (SCA) ([2008] 2 All SA 512): dictum in para [13] applied. F

Case Information

C Bosman for the appellant.

MA Ipser for the first respondent.

No appearance for the second respondent (the sheriff for the Magistrates' G Court, Somerset West).

An appeal from a decision in a magistrates' court in which an order for the eviction of the appellant was granted.

Order

(a)

The appellant's application for condonation is granted, the appellant H to bear any costs associated therewith.

(b)

The appeal is dismissed.

(c)

The appellant and all persons holding through her are hereby ordered to vacate the premises at 10 Vredelust Street, Helderview, Somerset West, also known as Erf 8354, Somerset West, by no later I than 21 November 2014.

(d)

In the event of appellant or any persons holding through appellant failing to comply with para (c) of this order, the sheriff is authorised to evict them from the said property together with their belongings and to hand over vacant possession to the first respondent on 24 November 2014.

(e)

J No order is made as to costs.

2015 (4) SA p407

Judgment

Goliath J (Schippers J concurring): A

[1] The parties in this matter were involved in a brief cohabitation relationship which ended, and resulted in first respondent obtaining an eviction order against the appellant. The appellant now seeks to have the eviction order granted by the magistrates' court on 12 December 2012 set aside. B

[2] The appellant filed a notice of appeal on 15 January 2013 in which appellant's grounds of appeal are that the learned magistrate erred in finding:

[2.1]

It is just and equitable to evict the appellant from the property, C given her personal circumstances and more particularly the fact that the appellant is an elderly, disabled, unemployed woman in a woman-headed household, diagnosed with motor neuron disease.

[2.2]

That the appellant's eviction will not lead to her homelessness.

[2.3]

That it is not necessary for the relevant municipality to compile D a report regarding alternative accommodation and that it would serve no purpose to refer the matter to mediation in terms of s 17 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.

[2.4]

That no dispute of fact existed on the affidavits and by consequently not referring the matter to oral evidence in respect of the E following disputed issues:

(i)

whether there existed an agreement between the parties that the appellant would have the right to occupy the property for a minimum period of 10 years; and

(ii)

whether a cohabitation agreement existed between the parties and what the material terms of such agreement were. F

[3] In the alternative the appellant contends that if it is found to be just and equitable to evict the appellant, the eviction date should be extended to a date in the discretion of the court.

Factual background G

[4] The first respondent is a married German businessman, primarily residing in Germany, and is the registered owner of the property at 10 Vredelust Street, Somerset West. In his founding papers the first respondent contended that the parties had entered into an oral agreement H of lease for residential purposes on 20 February 2007, and consequently the appellant took occupation of the property on this date. According to first respondent the express terms of the agreement were that the appellant would look after the house and maintain the swimming pool and garden and, furthermore, that appellant would ensure that all costs related to the property would be paid out of appellant's designated I bank account from cash provided by the first respondent. According to the first respondent the appellant breached the agreement by failing, refusing or neglecting to account to first respondent.

[5] The first respondent subsequently informed the appellant that he wished to rent, alternatively sell, the property, and requested her to J

2015 (4) SA p408

Goliath J (Schippers J concurring)

A vacate the property by 30 January 2011. He alleged that at some stage he felt sorry for her and agreed that she could extend her stay. However, subsequently further correspondence was exchanged, notices to vacate were served on appellant, but she failed to vacate. The first respondent stated that the appellant made no financial contribution towards the property and lives rent-free. He is suffering financially and can no longer B afford to allow the appellant to continue living rent-free at his property.

[6] The appellant opposed the eviction...