Wayne Francois Strauss v Shorne Susette Strauss (Born Jacobs) and Another

The applicant and first respondent are divorcing parties. The applicant left the matrimonial home approximately seven months prior and had been barred from entering the property by an interdict issued under the Domestic Violence Act, 116 of 1998. The applicant sought urgent access to the former matrimonial home for six hours each on 1 and 2 October 2022 to remove personal effects and belongings, including a drone collection, specialized tools, camera equipment, an Apple Computer, speakers, cables, surf-skis, kayaks, an inflatable boat, electric motor, and a barge. The parties engaged in extensive correspondence from 1 September 2022 regarding the timing and manner of collection. The respondent offered to pack all items and make them available for collection at the garage, but the applicant insisted on personal access to pack his own items, citing their fragile and specialized nature. The respondent eventually packed all items and placed them in the garage for collection, and offered to allow the applicant to walk through the home if accompanied by a uniformed SAPS member. The applicant rejected being accompanied by police and demanded six hours' free access to the property.

• Whether the applicant established a clear right to enter the former matrimonial home to collect personal belongings
• Whether the applicant established interference with or injury to his rights
• Whether the applicant had satisfied the requirements for final interdictory relief
• Whether the applicant had an alternative remedy available

The application was dismissed with costs on the ordinary scale.

A party subject to a domestic violence interdict barring entry to former matrimonial property does not have a right to enter that property to personally identify and select items for removal where: (1) the items have already been packed and made safely available for collection by the other party; (2) the party seeking entry has not established actual interference with or injury to their property rights; and (3) reasonable alternative arrangements for collection have been offered. The right to property does not automatically confer a right to enter property (from which one is barred by court order) to identify whether property belongs to one. To obtain final interdictory relief, an applicant must establish all requisite elements including a clear right and actual interference with that right.

The court observed that had the applicant agreed to the respondent's reasonable demand that he be accompanied by a police officer during any visit to the property, the application may well not have been necessary. The court also noted that the applicant has alternative remedies available, including bringing an application based on rei vindicatio or claiming damages in the ordinary course should any items be damaged or missing after collection. While the application was dismissed, the court found no grounds for a punitive costs order on an attorney-client scale as requested by the respondent.

This case illustrates the application of requirements for final interdictory relief in the context of matrimonial property disputes during divorce proceedings. It demonstrates the court's approach to balancing property rights against the protection afforded by domestic violence interdicts, and emphasizes that where reasonable alternative arrangements have been made for collection of personal property, a party does not have an unfettered right to enter property from which they have been barred by court order. The case also reaffirms the application of the Plascon-Evans principle in motion proceedings and the availability of alternative remedies such as rei vindicatio.