Court orders elderly couple to vacate late son's property after daughter-in-law's eviction application

A DURBAN High Court judge has ruled that an elderly Phoenix couple must vacate their late son's property, despite being invited to live there.

The judge granted them until July 31, 2026 to relocate

Their daughter-in-law, Sarojanie Govindan, brought an application for her in-laws to be evicted due to financial difficulties following her husband's death.

According to the judgment, since April 2021, Thamanathran Govindan, 79, and his wife Romila Govindan, 72, had been living in the property, which belonged to their late son, who was an architect and his wife Sarojanie.

She is the executrix of her late husband’s estate. He passed away in August 2021. 

In her evidence, Sarojanie said she and her husband had agreed that his parents could occupy the property provided that they paid the costs of the utilities consumed by them as a consequence of that occupation. 

She said the invitation to occupy the property was taken up by her in-laws.  

Sarojanie said that her in-laws were monthly tenants and were obliged to vacate the property on the giving of one month’s notice. 

She added that her in-laws have diligently made all payments for the utilities consumed by them throughout their period of occupation. 

However, since the death of her husband she found herself in financial straits due to the loss of his salary, she said.

She said to ease the financial pressure that she was experiencing, she resolved that it was necessary for the property to be sold. 

Sarojanie said she accordingly gave notice to her in-laws to vacate the property twice - on January 21, 2022 and again on October 9, 2022. 

She said neither of the notices were effective and her in-laws remained in occupation of the property against her wishes.

She said notwithstanding the unwillingness of her in-laws to vacate the property, she had marketed the property as being for sale, and that she previously succeeded in attracting a purchaser. 

However, because her in-laws refused to vacate the property, the sale fell through.

Sarojanie added that her in-laws had sufficient resources available to them to obtain alternative accommodation.

She said if that was not the case, that they had two adult daughters who would be able to assist them with alternative housing. 

According to the court papers, in their evidence, the elderly couple said that their son’s last will and testament ought not to have been accepted by the Master of the High Court.

They said this was because each page of the copy of the document before the court did  not appear to bear the initials of the two witnesses to the execution of the will. 

The couple said because of the irregularity in executing their son’s will, the appointment of the Sarojanie was both irregular and invalid.

They added that they previously resided at their niece’s premises but were persuaded by their son to move to the property. 

The couple said that at the time that the invitation was extended to them to move to the property, they were content with their living arrangements.

They said however, their son insisted that they uproot themselves and take up residence at the property, and that they eventually relented and agreed to the request. 

According to court papers, a municipal report prepared in terms of s 4(7) of the Prevention of Illegal Eviction from an Unlawful Occupation of Land Act 19 of 1998, revealed that the elderly couple had a combined monthly income of R5 200. 

In addition, the report stated that the elderly couple informed the author of the report, a senior manager in the municipality’s human settlement department, that, “their daughter is willing to house them, should the court grant the eviction order”.

Judge Robin George Mossop, in handing down his ruling, said the ownership of immovable property brings with it certain rights, and was definitively established with reference to the title deed pertaining to the immovable property in question.

He said the title deed in this instance, revealed that the immovable property was indeed registered in the name of Sarojanie and her late husband.

 “As executrix of the deceased’s estate, the first applicant (Sarojanie) has the ability and power to  deal with the deceased’s half share of the immovable property.”

Judge Mossop said in determining whether ejectment should be ordered, there are two inquiries that must be conducted by the court.

He said that the first inquiry related to whether an eviction order should be issued.

Judge Mossop said that he had already concluded that Sarojanie was entitled to determine who occupied the property. 

“The oral invitation in terms of which the respondents (elderly couple) were permitted to take up residence at the immovable property is not alleged by them to have been an agreement in perpetuity nor were its terms defined and agreed upon. 

“It therefore seems to me that the respondents’ entitlement to occupy the immovable property was dependent entirely upon the largesse of the applicant and the deceased, and, therefore, could be terminated by them at the moment of their choosing,” he said. 

He said while largesse which was defined as being the virtue of generosity or liberality or munificence, it was a human attribute that cannot be compelled to exist. 

“It either exists naturally in the character of a human being, or it does not. While the applicant may have demonstrated a generosity of spirit that permitted the respondents to occupy the immovable property while her husband was still alive, now that he has passed on, it appears that her liberality of spirit has also left her.

“The applicant therefore cannot be compelled to be kind and generous towards the respondents. Her change of heart towards the respondents’ occupation of the immovable property is, however, a change that brings no credit to her. Indeed, it tends to suggest that she is capable of being construed as being mean spirited, for the respondents, in losing their son and benefactor, have suffered a loss as big as, if not greater, than the loss that she has suffered,” he said.

Judge Mossop added that it was a sad reality that elderly members of society who have limited means available to them are often shifted around by those related to them as if they were “insignificant pawns in a game of chess”. 

“It is even more unfortunate that such elderly members of a family are often sacrificed by their clansmen, as pawns in a game of chess may be. Elderly members of society are not inanimate objects that can simply be discarded and moved away out of sight when desired: they are living, breathing persons with feelings and expectations who must be treated compassionately and who must be afforded the dignity to which they are entitled.”

Judge Mossop said the second inquiry related to whether any conditions should be attached to the order to vacate the property.

“In my view,  given their respective ages, it is likely that the respondents may not have the ability to find alternative accommodation as swiftly as they might have done had they been of younger years. 

“As one gets older, one may still be capable of doing the same things that were done when younger, but it may take a little  longer to do so. I accordingly intend giving them a generous amount of time to find another place to stay,” he said.

Judge Mossop ordered that the elderly couple  and all other persons claiming a right of occupation through them must vacate the property by July 31, 2026. 

He said during this time, they would continue to pay the costs of all utilities consumed by them arising out of their occupation of the property. 

Judge Mossop further ordered that Sarojanie pay the costs of relocating the elderly couple to their new place of accommodation, provided it is within the greater Durban area.

He further ordered that in the event that the elderly couple fail or refuse to comply with the order, the sheriff of the court is authorised and empowered to eject them, and any other persons claiming a right of occupation of the property.

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