The court’s focus was on the contract between the widower’s deceased spouse and the applicant. The court employed a contextual, purposive approach to the interpretation by considering the intention of the deceased’s will as well as the wording in the agreement to find that the non-compliance was not fatal to the respondent. Although finding that the agreement, on a contextual basis extended the life rights to the deceased’s spouse, as an exercise the court also looked at whether the respondent could be evicted under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE Act), which inquiry also failed to grant relief to the applicant.

Facts

In August 2010, the deceased, Adriana Catharina Botha, concluded an agreement with NG Kerk Brackenhurst Aftreebehuising NWO (the applicant), which operates retirement villages, and acquired a life right to occupy a unit in the retirement village for the duration of her life. At the conclusion of the contract, she was divorced and therefore had not filled out the section on the agreement which pertained to a spouse. However, in March 2019, the deceased married Heynike Jurie Badenhorst (the respondent), who moved in with her shortly thereafter. His occupation was known to and accepted by the applicant and the management of the retirement scheme. On 4 September 2023, Botha died. After her death the respondent remained in the unit, but shortly thereafter the applicant requested that the respondent vacate the premises, alleging that he had no right to reside there given his details were not formally captured on the agreement. After refusing to vacate, the applicant launched an application under the PIE Act to evict the respondent.

Issues before the court

In its inquiry, the court had to consider two issues. Firstly, when properly interpreted, whether the agreement entitled the respondent to continue occupying the unit despite not being recorded as a spouse in the agreement and, if not, whether it would be just and equitable under the PIE Act to evict him.

Contractual interpretation

In addressing the contractual issue, the court undertook a contextual approach in interpreting the agreement and stated that: “interpretation is a unitary exercise in which the language used must be considered in the light of its context and purpose which not only considers both the purpose” and context surrounding the contractual clause.

The court looked at the fact that the applicant knew that the respondent was residing with the deceased and did not object or insist that the agreement be formally amended to reflect the respondent’s particulars. The court also looked at the wording of the agreement and held that although it allowed the cancellation of particulars of a spouse, it did not expressly deal with the situation where the holder had been unmarried at the conclusion of the agreement but married after its conclusion. The applicant tried to argue that the deceased was supposed to terminate the agreement and then conclude a new agreement with the respondent’s details. However, the court found that neither the wording of the agreement nor the governing document of the scheme supported this contention. Furthermore, the court also considered the statutory framework under the Housing Development Schemes for Retired Persons Act 65 of 1988, which governs retirement schemes and under section 7(1) confers a right of occupation to the spouse of the person who holds an interest in the scheme. Given the above and the context surrounding the matter, the court ultimately found that the clause in the agreement served merely an administrative purpose, and non-compliance did not prevent, preclude or restrict the respondent from benefiting from the deceased’s life right, therefore making him a lawful occupier.

PIE Act consideration

Although the applicant failed in the first inquiry, the court still conducted an analysis under the PIE Act to determine whether, if on a strict application of the agreement the respondent was found to be an unlawful occupier, it was just and equitable to evict the respondent. The court considered that the respondent was 78 years old, in poor health, had limited income and did not have the means to secure alternative accommodation. The court also considered the fact that he had resided in the home for several years and it had become his primary residence. However, the court also considered the prejudice which may occur given the respondent’s continued residence, which included the delay in winding up the deceased estate, the inability to sell the property and the prejudice it would have on the heirs of the deceased. However, given that the application was not brought by the executor of the deceased estate, the court found that the prejudice was mainly towards the applicant, and of a more financial and administrative nature. 

Final finding

The court dismissed the applicant’s eviction application, finding that it would not be just and equitable to evict the respondent. This case serves as a reminder to retirement housing schemes that reliance on a strict, literal interpretation of a contractual provision may not be enough to justify an eviction, especially where the surrounding circumstances, as well as the clause itself, do not expressly indicate compliance as a prerequisite for the housing interest to be extended to the holder’s spouse. Retirement schemes should therefore ensure that the particulars of an interest holder’s spouse are properly recorded and updated.