Court dismisses grandmother seeking to evict mother and children after a house was built on her property

The Limpopo High Court in Thohoyandou has dismissed an application to evict a woman and her children from a family home, ruling that it would be neither legally justified nor fair given the circumstances, including substantial improvements made to the property and the welfare of minor children.

The case centred on a dispute between a woman, who owns the property, and her former daughter-in-law, who has continued to live there with her children following the breakdown of her marriage to the owner’s son.

According to the judgment delivered by Deputy Judge President Matsaro Violet Semenya, the grandmother sought to have both her son and his ex-wife evicted from the property within ten days.

However, the court heard that the son had already vacated the home years earlier, leaving the first respondent — his former spouse — and their children in occupation.

The property, located in Thohoyandou Block J, is registered in the grandmother's name. Despite this, the court found that the occupants had lived there for nearly two decades and had significantly developed the property during that time.

A central issue in the case was the extent of improvements made to the property. While the applicant claimed that some structures already existed, it was undisputed that the respondents constructed a substantial eleven-room house.

A valuation report placed the property’s value at R686,000 as of June 2023, largely due to these additions, which include multiple bedrooms, living spaces, a kitchen, and a garage.

The ex-wife argued that she had a legal right to remain on the property based on an “enrichment lien” — a law that allows a person who has improved someone else’s property to retain possession until compensated for their contribution.

The court agreed, finding that the ex-wife had established a real right of retention over the property. Judge Semenya noted that such a lien does not require a contractual relationship with the property owner and entitles the occupier to remain in possession until the value of improvements is settled.

“The first respondent has a real right over the property by virtue of improvements,” the court held, adding that eviction could not proceed until her claim is satisfied or appropriate security is provided.

Beyond the property dispute, the court placed significant weight on the living conditions and rights of the children involved. It was noted that the children have lived on the property for most of their lives and are under the primary care of the first respondent.

The judge emphasised that the Constitution protects individuals from eviction without a court order that considers all relevant circumstances, including the needs of children. In this case, the court found that removing the family from their long-term home would not be “just and equitable,” as required under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act).

Importantly, the court also highlighted the applicant’s familial obligations. As the grandmother of the children, and in light of evidence that their father is unable to provide financial support, the court found that she bears a degree of responsibility toward their welfare — including housing.

“The municipality’s responsibility is, in my view, secondary,” Judge Semenya stated, indicating that family obligations may take precedence in certain circumstances.

The applicant’s argument that she was entitled to evict the occupants simply because she owns the property was rejected. The court found no compelling reason for the eviction, especially given that the applicant does not reside on the property herself.

Ultimately, the court dismissed the eviction application on two main grounds: the ex-wife's legal right to remain due to the improvements made, and the broader consideration that eviction would be unjust given the presence and needs of the children.

The grandmother was also ordered to pay the legal costs of the ex-wife.

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