When property rights collide with ubuntu: the Govindan ruling and its implications

THE recent Durban High Court ruling in the Govindan eviction matter has ignited debate about the balance between property rights and our obligations to the elderly.

Judge Robin George Mossop’s decision to grant Sarojanie Govindan’s application to evict her elderly in-laws from their late son’s property, while legally sound, exposes how financial pressures are reshaping family dynamics and eroding ubuntu values that define South African society.

From a legal perspective, the judgment is unassailable. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act mandates that courts consider whether eviction is “just and equitable” after weighing circumstances including the rights of the elderly. Judge Mossop correctly determined that the oral invitation extended to Thamanathran and Romila Govindan, aged 79 and 72, could be terminated at the executrix’s discretion. However, the law’s technical correctness does not address broader societal implications.

Having advised clients on estate planning for decades, I have observed a disturbing pattern: the increasing willingness of beneficiaries to prioritise immediate financial gain over familial duty. This trend has devastating consequences that extend far beyond the individuals directly involved. The facts are sobering. This elderly couple, with a combined monthly income of R5 200, had faithfully paid all utilities throughout their occupation. They were not delinquent or destructive and had been specifically invited by their late son. Their only transgression was existing in a space that could be monetised.

Judge Mossop’s observation that the widow’s change of heart “brings no credit to her” and suggests she is “mean spirited” reflects the moral discomfort inherent in this case. This ruling sets a precedent that should alarm every South African family.

Research consistently shows that elderly individuals facing eviction experience significantly higher rates of depression and anxiety. A 2023 study found that 40% of elderly residents in South African care facilities suffer from symptomatic depression, compared to 9.7% in the general population. The trauma of forced displacement can trigger profound psychological distress, particularly when removed from a home associated with their late son. The ripple effects extend beyond the evicted grandparents.

Research from Stanford University demonstrates that grandparent involvement during childhood is positively linked to emotional development, cognitive functioning, and social adjustment in early adulthood. Children with close grandparent relationships exhibit fewer emotional and behavioural problems, including depression, anxiety, and aggression. Studies in the Journal of Family Psychology reveal that such children develop better emotional regulation skills, leading to improved social and academic outcomes. When grandparents are forcibly removed from family homes, these vital intergenerational bonds are severed, depriving grandchildren of repositories of wisdom and emotional support that shape their character.

The alternative facing displaced elderly is bleak. With only eight government-run old age homes nationwide, adequate care is severely lacking. Government funding for elderly care has decreased by 13% over 18 years despite policy rhetoric about “ageing in place.”

This systemic failure leaves families scrambling when faced with eviction scenarios. The municipal report indicating the couple’s daughter would house them represents another forced displacement, another rupture in established bonds.

From an estate administration perspective, executors wield substantial power, but this power carries ethical obligations. An executrix facing financial difficulties has multiple options beyond evicting elderly relatives: negotiating with creditors, selling other assets, seeking family contributions, or establishing payment plans. The decision to dispose of the property after only five months of widowhood suggests insufficient exploration of alternatives and a troubling prioritisation of convenience over compassion.

The ubuntu philosophy - “I am because we are” - has historically distinguished African societies through its emphasis on interconnectedness and respect for elders. Research confirms that in African communities, elders are revered for their wisdom and contributions. Yet cases like Govindan reveal how rapidly these values erode under financial pressure, replaced by individualism that views elderly family members as economic burdens rather than treasured assets.

This case will create lasting damage to intergenerational trust. Adult children may hesitate to invite ageing parents, fearing future complications. Most tragically, grandchildren will learn that elderly family members are disposable when inconvenient - a lesson that will shape their values and character. Research confirms that what children observe in family relationships shapes their emotional wellbeing and future behaviour. By normalising elderly evictions, we raise a generation lacking ubuntu, compassion, and intergenerational solidarity.

The financial services industry must respond urgently. Estate planning must include discussions about protecting elderly family members through testamentary trusts, life interests, or explicit residential clauses. For the legal profession, this judgment raises questions about whether the PIE Act adequately protects elderly family members. Legislative reform may be warranted to establish stronger protections for elderly persons occupying family properties.

The Govindan ruling is legally correct but morally devastating. As Judge Mossop eloquently stated, 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". 

South African families must reflect deeply. When financial difficulties arise, will we sacrifice our elders and damage our children’s development on the altar of expediency? The Govindan precedent may be legally sound, but if we allow it to become the moral norm, we will have lost our ubuntu, our humanity, and our children’s capacity for empathy. The true cost will be measured not in rand and cents, but in fractured families, traumatised elders, and a generation who learned that love and duty are subordinate to financial convenience.

"The executrix herself will, in all probability, one day be an elderly parent - let us see what life offers her."

Sanjith Hannuman is the managing director of Avinash Consultants & Actuaries.

** The views expressed do not necessarily reflect the views of IOL or Independent Media. 

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