The end of the affair – evicting a live-in partner

The Western Cape High Court was recently called upon to consider the rights of a partner in a cohabitation relationship, after such relationship ended.

The plaintiff in the case was a married German national, Mr Hasse. He had, in addition to his marriage, been in a romantic relationship with the defendant, Ms Steyn, since 2005. Mr Hasse spent most of each year in Germany but visited South Africa annually for four months. He owned a property in Cape Town in which Ms Steyn resided with his permission on a rent-free basis as of 2007. During his visits to South Africa, the couple resided there together. Ms Steyn paid the expenses associated with the property using funds sent to her by Mr Hasse. Mr Hasse also paid for her day-to-day personal expenses.

The relationship ended in 2010. In early 2011, Mr Hasse informed Ms Steyn that he required her to move out of the property. She refused to vacate the property, and Mr Hasse instituted eviction proceedings against her.

In the course of the proceedings, Mr Hasse claimed that he had entered into a sort of lease agreement with Ms Steyn, and that she had breached the agreement by failing to properly manage the property and the funds provided to her for this purpose. He further alleged that her right of residence arose solely from his consent, which he had withdrawn, and that he had validly given her notice to vacate.

Ms Steyn on the other hand alleged that Mr Hasse had guaranteed her a residence for at least ten years, and had promised to buy her a townhouse if their relationship ended.

Both parties claimed to be under financial stress, and to desperately require either the sale of the property or continued residence therein, respectively.

The magistrate hearing the matter granted an eviction order. The court found that there was no lease agreement but that the right of residence arose only from Mr Hasse’s consent. He had withdrawn his consent as he was entitled to do, and properly followed the procedures to secure an eviction. Ms Steyn did not face the prospect of being left homeless if evicted. It was just and equitable that she vacate Mr Hasse’s property.

Ms Steyn appealed against the eviction order, to the High Court. Before the proceedings, she took the position in correspondence that she and Mr Hasse had entered into a universal partnership, and that he therefore legally owed her a duty of financial support. Before the court, however, she implicitly conceded that there was no universal partnership between her and Mr Hasse. The High Court noted that mere cohabitation does not give rise to any legal duty of support. However there was nothing to stop cohabiting partners from entering into an agreement creating such a duty.

In the present case, the evidence did not support any finding that Mr Hasse was obliged to maintain Ms Steyn. The court found that her allegations that she was promised accommodation for ten years and/or a townhouse were not credible. On her own version, she and Mr Hasse did not discuss finances or the future. The alleged agreement was raised late in the proceedings and was improbable.

Having disposed of Ms Steyn’s allegations as to Mr Hasse’s duties to her, the court considered what was equitable.

Ms Steyn had supported herself before her relationship with Mr Hasse and had done so since he withdrew his support. She also had two adult children who were legally obliged to support her if needed. She would not be rendered homeless if evicted.

Ms Steyn claimed before the court to be suffering from debilitating motor neuron disease since 2006, however this was the first time she had mentioned such an illness, and she supplied no evidence in support of such a diagnosis having been made. The court therefore did not take the alleged illness into account.

There was no basis on which Ms Steyn’s eviction would be unjust or inequitable.

The appeal against the eviction order was dismissed, and the High Court confirmed that Ms Steyn was obliged to vacate Mr Hasse’s property.

Protecting the Public Protector

On 8 October 2015, the Supreme Court of Appeal handed down judgment in the matter between the SABC and others versus the Democratic Alliance and others. The matter concerned the appointment of Mr Hlaudi Motsoeneng as COO of the SABC, in the face of directions from the Public Protector that he be subjected to disciplinary action, and that wasteful expenditure be recovered from him.

In the High Court, the learned judge found that the Public Protector’s findings were not binding and enforceable, but that the organ of state subject to them could only reject them on a rational basis. In this instance, the rejection of the directions was arbitrary and irrational, and the SABC was bound to implement the directions.

The SABC and Mr Motsoeneng appealed this judgment to the Supreme Court of Appeal (SCA), before which the Public Protector (PP) and a friend of the court (Corruption Watch) also made submissions.

The SCA considered the powers of the PP as set out in the Constitution and legislation, and concluded that the very purpose of her office would not be achievable if organs of state were free to second-guess and ignore her recommendations. Organs of state owed her office co-operation, in accordance with the duties upon them to engage in co-operative governance. In the absence of a review application made to the court to set aside the PP’s directions, they had to be implemented.

The appeal was dismissed with costs.

The full judgment is now available online, and may be read at:

http://www.saflii.org/za/cases/ZASCA/2015/156.pdf

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