The consequences of co-habitation when relationships terminate

When parties start living together as a result of a romantic relationship, few love birds think about the consequences of such a co-habitation should the relationship turns sour. One such a pear shaped relationship ended in an eviction for one of the parties in Steyn v Hasse and Another 2015 (4) SA 405 (WCC). Hasse obtained an eviction order against Steyn, which Steyn subsequently attempted to set aside in court.

Background

Hasse is a married German businessman, primarily residing in Germany, but is also the registered owner of the property situated at 10 Vredelust Street Somerset West.

Hasse and Steyn allegedly entered into an oral agreement for the lease of the property from 20 February 2007 with the express terms that Steyn would take care of the house, the swimming pool, the garden and she would make sure that the costs related to the property would be paid from her designated bank account with cash that Hasse provided to her. Steyn subsequently took occupation on 20 February 2008.

Hasse alleged that Steyn breach this agreement by her failure to account properly to him which scenario put tremendous financial pressure on him. Hasse informed Steyn that he wanted to rent or sell the property and asked her to vacate the premises on 30 January 2011.

Notices to vacate were served on Steyn, but she failed or refused to vacate.

When Hasse brought an eviction application, Steyn not only opposed it, but denied that there was ever an agreement of lease concluded between them. She stated that the parties were romantically involved and that she started living on the premises on 1 April 2007. Hasse lived on the property for about four months of the year and returned to Germany to live with his wife for the remainder of the year.

Hasse furnished Steyn with a general power of attorney and had given her his bank card to withdraw any money she needed to perform the agreed upon services referred to above and allegedly agreed on between the parties. This status quo lasted for about five years. Hasse gave Steyn an expensive ring, bought her a Ford Fiesta and introduced her as his wife to other people. Hasse also allegedly assured Steyn that he would give her the security of a home and said that if their relationship didn’t work out he would buy her a townhouse of the same value as her previous townhouse.

Although Steyn received an eviction notice on 18 April 2012, she was allegedly not in a financial or physical position to vacate the premises. In 2006 she was diagnosed with motor neuron disease and was apparently unable to find other accommodation. She is also financially dependent on Hasse.

Steyn said that Hasse failed to provide her with the necessary finances to look after the property since December 2011 and that she contributed R73 080.00 of her money towards maintenance expenses. She also disputed the notion that the first respondent was going through a difficult time. Steyn insisted that she was not unlawfully occupying the property and stated that she started living on the property because of Hasse’s express invitation and consent thereto.

Although Hasse indicated that he initially allowed Setyn to live on the property for free, he said that he later withdrew such consent. Hasse admitted to being romantically involved with Steyn, but stated that this relationship had terminated in 2010. Hasse further said that the general power of attorney given to the appellant had been revoked on 5 November 2007 due to Steyn’s failure to look after the property in his absence. Hasse also denied ever promising or offering Steyn the security of a home for a ten year period or offering her another place to stay if their relationship came to an end and that there was no obligation for him to maintain Steyn. He was of the opinion that Steyn could secure alternative accommodation with either of her two children.

Steyn presented the following arguments for setting aside the eviction order that was granted against her:

  • it was unjust and unequitable to evict her from the property considering the fact that she was an elderly disabled, unemployed woman who headed her household and had been diagnosed with motor neuron disease;
  • the eviction would lead to her homelessness;
  • that a relevant municipality should have compiled a report regarding alternative accommodation for her and that the matter should have been referred to mediation in terms of Section 17 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998;
  • Steyn further disputed whether:
  • there was an agreement between her and Hasse, allowing Steyn to occupy the property for a minimum of 10 years; and
  • whether a cohabitation agreement existed between the parties and what the material terms of this agreement were.

Court’s findings

The court found that there was no reciprocal rights and duties of support between the parties. Steyn had occupied the property because of the romantic relationship and based on the consent of Hasse, but has Hasse withdrawn this consent and served the necessary termination notice in this regard on Steyn. There was also no lease agreement between the parties and was Steyn’s occupation subsequently unlawful.

The court found that it was just and equitable to evict Steyn. The court took into account, the fact that the appellant lived in a townhouse previously and on her own version had financially contributed the amount of R73 080.00 despite her stating that she was unemployed. There was no need for the Court to obtain a report from the Municipality as an eviction order would not leave Steyn homeless.

So how does a universal partnership come into being as a result of co –habitation?

According to Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC), co–habitation refers to people who, regardless of their gender live together without validly being married to each other. Co-habitants do not have the same rights as partners in a marriage or civil union, especially the duty of support. For the duty of support to arise there must be an agreement.

For a universal partnership to exist each party must contribute something and must the partnership be carried on for the joint benefit of both parties. The object must be to make a profit according to Muhlmann v Muhlmann 1981 (1) SA 67 (A).

In the above matter the relationship between Steyn and Hass did not comply with the essential requirements of a universal partnership and was Steyn as a result thereof lawfully evicted from Hasse’s property.

By
Justina Chirwa
justina@dyason.co.za

Section 8 (b) of the Insolvency Act is not as simplistic as it seems at first glance

In terms of Section 8 of the Insolvency Act 24 of 1936 (“the Act”) there are 8 grounds when a creditor may apply for the sequestration of a debtor they believe to be insolvent or has committed an act of insolvency. These acts of Insolvency are set out in section 8 (a) to (h) of the Insolvency Act 24 of 1936. Section 8(b) deals with the situation where a potential insolvent is unable to satisfy a judgment obtained against him and such is recorded by the sheriff in a document called a return of service. Section 8(b) states:

if a court has given judgment against him and he fails, upon the demand of the officer whose duty it is to execute the judgment to satisfy it or to indicate to that officer disposable property sufficient to satisfy it, or if it appears from the return made by that officer that he has not found sufficient disposable property to satisfy the judgment.

Two separate acts in section 8(b)

This section often leads to legal uncertainty and confusion which largely can be attributed to the fact that this section actually comprises of two separate acts of insolvency and not one.

The first act is where the debtor upon demand by the sheriff fails to satisfy the judgment or to indicate disposable property sufficient to satisfy the judgement amount. The second act is where the sheriff fails to find sufficient property to satisfy the judgment, and accordingly states such in his return. The inability to satisfy the judgement results in a nulla bona return. It is important to remember that even though these two acts are separate they are not independent of each other. The second act will only apply when the first act cannot be established and that is to say that the sheriff will only be able to make the calling in respect to the debtor’s ability to satisfy the judgment if the sheriff cannot serve personally on the debtor. No act of insolvency is considered to have been committed if the sheriff on serving the writ fails to demand from the debtor that the judgment amount is satisfied and thereafter simply states in his return of service that there was insufficient disposable property. Furthermore if the debtor, when the sheriff demands satisfaction of the judgment, fails to satisfy such judgment or to indicate sufficient disposable property, it is immaterial afterwards if the sheriff finds sufficient disposable property to satisfy the judgment.

The meaning of disposable property

Another perplexing part of this section is what the correct interpretation of disposal property is. The term “disposal property” includes both movable and immovable property which may be attached and sold in execution even if it is situated in some other locality than where the sheriff attends on the debtor. Should the debtor be residing in Pretoria but owns a bond free immovable property in the Western Cape then the debtor could refer to such property as part of the disposable property he has to satisfy such judgement.

There are divergent views as to whether immovable property which is bonded, and even more so when the creditor is the first mortgagee of such immovable property, can be considered disposable property for the purposes of section 8(b).

In the matter of Van Der Pool vs Langeman, immovable property which Van Der Pool held a first mortgage bond over was seen to constitute disposable property, and accordingly the debtor could dispose of such immovable property to satisfy the judgement and if he told the sheriff such, then the sheriff could not issue a nulla bona return. Great emphasis was put on the fact that the creditor was the first mortgagee and there was not a third party mortgagee.

In the matter of De Waard v Andrew & Thienhaus (PTY) Ltd, the court dealt with the situation where the immovable property was bonded to a third person and not the creditor. In this situation he said that because of the bond to a third party it was not freely disposable. The rationale behind such was that the consent of the mortgagee would have to be obtained before the debtor could deal with the immovable property as he saw fit, and accordingly the debtor could not tell the sheriff he could utilize the bonded immovable property to satisfy the judgement debt. In this situation, the nulla bona return of service, by the sheriff would be correct as the potential insolvent would not be able to freely dispose of this property as they would need the consent of the mortgagee.

In the matter of ABSA Bank Limited v Collier, the court confirmed the original (court a quo) decision, that the debtor’s immovable property, could be considered disposable property even though such was mortgaged, as the creditor was the first mortgagee in respect of such property. This was notwithstanding the fact that Mr. Collier was only an owner of an undivided half share of the property with his wife the other co-owner. Mr Collier’s undivided half share of the immovable property was disposable property in the eyes of the court, and accordingly as he had told the sheriff of such property to satisfy the judgement the sheriff’s nulla bona return was invalid.

Before launching any application to sequestrate a debtor careful consideration should be given to the above or one litigates at one’s own peril.

By
Natalie Bailey
natalie@dyason.co.za

A property owner’s liability resulting from his failure to warn visitors about dangers

In Za v Smith and Another 2015 (4) SA 574 (SCA) Mr Za slipped on a snow covered mountain slope, which was situated in a private reserve, and fell over a 150 m sheer precipice to his death. Mrs Za sued the nature reserve and the owner of the reserve for loss of support personally and on behalf of her and the deceased’s three minor children.

The basis of Za’s claim was delictual liability which arose from the private reserve’s wrongful and negligent failure to take responsible steps to avoid the incident which lead to his death.

The court a quo held that there was no causal link between failure by the private reserve to warn the deceased of any danger and Mr. Za’s death.

However, the Supreme Court of Appeal carefully considered the elements of delict and specifically focused on wrongfulness, negligence and causation. Another factor they considered was the fact that the private reserve were in control of the property which held the risk of danger for visitors and, with the knowledge and consent of the reserve and its owner, allowed members of the public, for a fee, to make use of a four-wheel drive route designed to lead directly to the area which proved to be extremely dangerous.

Wrongfulness

In terms of wrongfulness the court held that there was an assumption in this case that the reserve could have prevented the deceased from slipping and falling to his death. He died because of their negligent failure to do so. The court further held that it is reasonable to impose delictual liability on the reserve for the loss suffered by the dependents because of their negligent actions by failing to warn visitors of the potential dangers they could encounter within the nature reserve.

Negligence

The reserve’s defence to negligence was that the danger which materialized when the deceased slipped and slid to his death relates to the reasonable person test which should always be the measure and decided on considering the facts of each case. The reserve felt that the danger was clear and therefore no warning signs were needed. The Supreme Court of Appeal held that, in the reserve’s position, a reasonable person would have taken precautionary measures to protect visitors, which the reserve failed to do, therefore they were negligent.

Causation

Although the Court a quo found against Za because she failed to establish causation, the Appeal court indicated that the correct test to determine causation is the “but for” test. The Appeal court held that the court a quo was correct to use the “but for” test but not in the manner it was implemented. The Appeal court believed that when applying the “but for” test it should not be applied scientifically or mathematically, but in a practical way, with other words in the mindset of an ordinary person. The Appeal court further held that the “but for test” should be applied as follows: “but for the Respondent’s (reserve’s) wrongful and negligent failure to take reasonable steps, the harm that befell the deceased would not have occurred”, therefore establishing causation.

It was for these reasons that the Appeal court declared the private reserve liable to compensate Za in her personal capacity and as a mother of her and the deceased’s three minor children for their losses suffered I respect of support previously provided by the deceased.

By
Nicole Naidoo
nicole@dyason.co.za