Eviction of abusers from the home
As the increase of domestic violence cases are ongoing, one of the difficult factors faced by the Court is whether perpetrators may be evicted from the shared home. It should be noted that all parties to these proceedings have a right to provide evidence of the facts, and details as to whether the eviction would be lawful or not.
Domestic Violence is defined as the violent or aggressive behaviour within the home, typically involving an abusive partner. This abuse can take the form of physical abuse, psychological or emotional abuse, and/or sexual abuse amongst others.
Where partners are living together and where there has been abuse, the victim may approach their nearest Magistrates Court for an interim protection order to be granted. Such interim order may include that the perpetrator is prohibited from:
- contacting the victim and/or their dependants;
- being in close proximity with the victim and/or their dependants; and/or
- entering the shared home.
The preparator always has a right to oppose the interim order, prior to a final order being granted.
Facts of case before court
In this particular case study, based in the Western Cape, a wife had approached the court for a protection order against her husband, due to emotional and verbal abuse. She had further informed the court that the shared home, was hers, as it had been bought by her father. However, the parties were married in Community of Property, and therefore had an equal share in the property.
The wife sought an order prohibiting the husband from entering the shared home.
Where a perpetrator is prohibited from entering the shared home, the Magistrates Court had to determine, whether such prohibition is lawful and/or whether it amounts to an eviction.
The Court granted an order that the perpetrator must leave the shared home. The matter was then referred to the Western Cape High Court for a ruling on appeal.
In terms of the Constitution of the Republic of South Africa, all persons are entitled to the right of housing. The law stipulates that where a person is to be evicted from a home, irrespective of the relationship, eviction can only be done on a Court Order.
An eviction impacts a person’s right to adequate housing and the right to property in terms of the Constitution.
The Western Cape High Court stated that eviction in terms of the Domestic Violence Act 116 of 1998 must take various factors into consideration, and a Magistrate is required to make an “informed assessment”.
Procedure to be followed in these instances
Prior to a Court making a ruling of evicting a perpetrator from the property, the court has to take various factors into account, such as:
- the potential prejudice suffered by the perpetrator;
- the person’s ability, including financial resources;
- the ability to obtain alternative accommodation; and
- access to their children.
Without following such procedure, the eviction is unfair. An order for eviction must be justified at all times.
In the above case study, the Judges of the Western Cape High Court ruled that such informed assessment was not done.
The Western Cape High Court referred the matter back to the Magistrates Court for the Magistrate to allow both parties to present evidence and make submissions, prior to a formal eviction order being granted.
This article is not intended to provide legal advice. This article is a general information sheet and should not be used or relied on as legal or other professional advice. This article is based on research regarding laws and may be subject to change. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).
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