The high court in Pietermaritzburg heard argument in an appeal involving the eviction of the granddaughter of a 78-year old woman living on property subject to the right of use of the property in her favour.
The Legal Resources Centre defended the eviction on the basis that the rights of the usufructuary‚ or the person who had the right to enjoy the use of another’s property‚ entitled her to allow her granddaughter to reside with her.
The centre was approached by the grandmother who is living in a house in Chatsworth‚ KwaZulu-Natal. The property consists of a main building and a granny cottage.
During 2012‚ the woman’s son took her to an attorney so that she could sign a will.
The woman‚ who is illiterate and can only sign her name‚ signed what she thought was a will.
But this was actually a deed of donation‚ transferring the property onto her son’s name.
However‚ the transfer was done subject to a lifelong usufruct in favour of the woman.
After the transfer‚ Mrs N’s son and his family moved into the main building on the property and informed Mrs N that she needed to move into the granny cottage. She resided there with her granddaughter‚ who took care of her‚ and her great-granddaughter.
During 2014‚ the son instituted eviction proceedings against Mrs N’s granddaughter in the Chatsworth Magistrate’s Court.
The centre defended the eviction on the basis that Mrs N’s usufructuary rights entitled her to allow her granddaughter to reside with her.
The usufruct had been registered unconditionally and is not subject to any limitations.
Despite this‚ the magistrate’s court granted the eviction order in November 2014.
The centre took the matter on appeal.
It argued that the granddaughter did not meet the requirements of an “unlawful occupier” in terms of section 1 of The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act.
In terms of the Act‚ an unlawful occupier is a person who occupies land without the express or tacit consent of the owner or the person in charge or without any right to occupy such land.
The centre also argued that as the usufructory‚ Mrs N had the power to let the property and transfer her right of use and enjoyment of the property to a third person‚ as long as the character of the property remains preserved.
It also argued that the granddaughter was in lawful occupation of the property as she had the consent of Mrs N.
The court reserved judgment.
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