H.M v L.M (19881/2019) [2020] ZAWCHC 24 (26 March 2020)

H.M v L.M (19881/2019) [2020] ZAWCHC 24 (26 March 2020)

The court found that the applicant had established a prima facie right to occupy the property, which was considered a matrimonial home due to its use as the parties' residence prior to separation. The respondent's conduct, including harassment and denial of access, created an intolerable situation for the applicant, justifying her exclusion of the respondent pendente lite. The balance of convenience favoured the applicant, as the respondent had alternative accommodation and the trial was imminent. The court held that the applicant had no satisfactory alternative remedy and confirmed the interim order ejecting the respondent from the property and restraining him from alienating or...

Citation
[2020] ZAWCHC 24
Parties
Applicant: H M; Respondent: L M
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
26 March 2020
Case Number
19881/2019
Procedural Posture
Urgent Application / Confirmation of Interim Order Pendente Lite
Outcome
Interim order confirmed pendente lite; costs reserved for trial court.
Judges
WILLE
Legal Topics
Interim Relief, Matrimonial Home Occupation, Ejectment, Balance of Convenience, Prima Facie Right
Family and Children Civil Procedure Interim Relief Matrimonial Home Occupation Ejectment Balance of Convenience Prima Facie Right

Case Brief

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Parties

H M

Applicant

L M

Respondent

Procedural Posture

Urgent Application / Confirmation of Interim Order Pendente Lite

Legal Issues

  1. 1 Whether the applicant is entitled to confirmation of the interim order ejecting the respondent from the matrimonial home pending the divorce action.
  2. 2 Whether the applicant has established a prima facie right to occupy the property pendente lite.
  3. 3 Whether the balance of convenience favours the applicant.

Ratio Decidendi

The court found that the applicant had established a prima facie right to occupy the property, which was considered a matrimonial home due to its use as the parties' residence prior to separation. The respondent's conduct, including harassment and denial of access, created an intolerable situation for the applicant, justifying her exclusion of the respondent pendente lite. The balance of convenience favoured the applicant, as the respondent had alternative accommodation and the trial was imminent. The court held that the applicant had no satisfactory alternative remedy and confirmed the interim order ejecting the respondent from the property and restraining him from alienating or...

Court Disposition

Interim order confirmed pendente lite; costs reserved for trial court.

Orders

  • The interim order granted on 28 January 2020 is confirmed pendente lite.
  • Costs of and incidental to this application, including costs of two counsel, shall stand over for determination by the trial court.