The Supreme Court of Appeal (SCA) has confirmed a landmark eviction order in a contentious property dispute arising from protracted divorce proceedings, addressing enforceable rights against third parties in cases of divorce.
The case involved the rights of a divorcing couple and those of the buyers of the property in a situation where the house became central in protracted divorce proceedings that went on for more than 15 years.
The dispute pertained to a family home that was sold by Mr M (who cannot be identified because of South African divorce laws) to Cara Masureik and Joost van Lier. The sale came as Mr M and his wife Mrs M were involved in a bitterly contested dispute over who could live in the house.
At the heart of the dispute were complex questions about the nature of marital property rights, the enforceability of accrual claims against purchasers and the narrow procedural route for challenging final SCA judgments.
Mrs M, who was living in the house, was locked in extended divorce proceedings with Mr M, from whom she was estranged.
They were married out of community of property with the accrual system, meaning upon divorce each spouse would be entitled to half of everything the other had acquired during the marriage.
The divorce proceedings remain ongoing.
Mr M in the meantime sold their matrimonial home, but Mrs M resisted eviction and launched multiple legal challenges.
The Western Cape High Court granted an eviction order in favour of Masureik and Van Lier in December 2023, finding that Mrs M no longer had legal rights to continue living in the house they had bought.
The court dismissed arguments that the sale and transfer were unlawful, or that evicting Mrs M would breach her constitutional rights such as dignity and access to courts.
To overturn the order, Mrs M argued that as a spouse married out of community of property, she held a proprietary interest in her husband’s assets ― including the property — which should have protected her right to continue living in the house.
She argued that her contingent accrual right ought to shield the property from disposal or at least warrant an interdict to prevent the sale pending divorce proceedings.
The high court rejected her argument, finding that she had no vested proprietary right to Mr M’s separate estate before divorce; that the accrual claim is contingent and not enforceable against third parties unless specific legal protections are put in place before the transaction; and there was no evidence of collusion or attempts to conceal assets that would justify injunctive relief.
Mrs M took the matter on appeal and the SCA was asked not to revisit the substantive merits of the high court’s decision, but for the president of the SCA to refer the matter for reconsideration on grounds that failure to do so would result in a grave failure of justice or bring the administration of justice into disrepute.
Unanimous judgment
Delivering the unanimous judgment, judge Anna Kgoele held that it did not meet the statutory threshold for reconsideration as the contingent right to claim accrual does not confer proprietary rights against third parties absent clear legal protection; that no propriety right had been established before the sale; and that the eviction order against her was lawful.
The court emphasised that the legislation she had cited should not be used as a vehicle for a “second bite at the appeal cherry”, but rather as a narrow remedy to correct grave injustice where the integrity of the judicial process is genuinely at risk.
The threshold, the judgment explained, is not met simply by dissatisfaction with how earlier courts applied substantive law — clearing the uncertainty in property transactions involving divorcing couples by ensuring that buyers can purchase a property without fear of latent matrimonial claims in cases where they act in good faith and no protective steps such as a preservation order had been granted.
The SCA ordered that Mrs M did not have the right to continued occupation of the house her husband had sold, her eviction was upheld and she was instructed to pay all the legal costs.