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“An eviction affects a person’s right to adequate housing and the right to property in terms of the Constitution.
“The procedure in this case did not meet the requirements of basic justice. Such an order (for eviction) may be justified, but the magistrate did not make an informed assessment.
“The effect, if any, that the provisional injunction had on the husband’s behavior up to that point was also not investigated,” Judge Rogers said, writing for the court.
The attraction has had a rocky road.
It was first established in December last year before Judge Rogers and another interim judge, who disagreed with the outcome.
It was postponed several times for different reasons and then the court asked the Cape Bar Council to appoint an attorney to represent the wife.
Judges Henney and Acting Judge Martin were then added to the panel to ensure there would be a majority ruling in the event of judicial disagreement.
The wife, in her request for a protection order last year, said that the family home was hers and that her father had bought it. However, because they were married in community of property, they were both equally owners.
She alleged that her husband abused her emotionally and verbally.
You obtained an ex parte interim injunction (without notification to the other party) with a return date. Although he also requested an eviction order at the time, it was not granted.
The husband also filed a domestic violence lawsuit against her and one of her children.
The magistrate hearing the matter decided to consolidate both requests and ordered the husband to leave the house within a week.
She said, “Even though you are married in community of property, it is clear to me from the evidence that this is not your home. You met her. She had a home. You stayed with her.”
The magistrate said the homeownership issue could eventually be resolved during their divorce.
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Judge Rogers said the couple appeared to have not started the divorce proceedings, although they did not love each other and slept in separate rooms.
Regarding procedural fairness, Judge Rogers said that the day the matter was heard that the husband was not represented and would have been surprised when the magistrate, in the middle of hearing his application, made his wife’s application was included in the court list.
It was possible that he also did not know, at that moment, that she was seeking his eviction, because they would only have given him the provisional order, that he would not have warned him of that.
“An order that prohibits someone from committing acts of domestic violence effectively prevents them from doing what is illegal. On the contrary, an eviction order prevents them from doing what would otherwise be lawful,” the judge said.
The judges referred the issue of the eviction order to the magistrate, and ordered that the parties have a fair opportunity to present evidence and make presentations.
“Given the time lag, it would be appropriate for the court to also find out what has been going on in the home since June 2019 (when the interim protection order was granted).”
