When A House Is Not A Home – The SCA Decides PIE Act Not Applicable To Student Accommodation


Stay At South Point Properties (Pty) Ltd v Mqulwana and Others (UCT intervening as amicus curiae) (1335/2021) [2023] ZASCA 108 (3 July 2023)

Earlier this week the Supreme Court of Appeal (SCA) handed down judgment in a matter concerning a topical issue in the South African legal landscape: evictions. 

A key feature of South African constitutional law is the right of access to adequate housing enshrined in Section 26 of our Constitution. 

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE Act) is cornerstone legislation which gives effect to Section 26. Section 26(3) provides that no one may be evicted without an order of court considering all relevant circumstances.

In this case, the SCA had to determine whether the PIE Act applied to student residences at a higher education institutions.

The appellant, Stay at South Point Properties (Pty) Ltd, was granted Leave to appeal to the SCA was granted by the Western Cape Division of the High Court.

The appellant is the owner and the manager of a residence, known as New Market Junction, a residence for students enrolled at the Cape Peninsula University of Technology (CPUT). 

The appellant leased the residence to CPUT for purposes of providing student accommodation. The respondents were allocated accommodation by CPUT in the residence until the end of November 2020. However, they refused to vacate, after CPUT gave them notice to do so within 72 hours of their last examination of the 2020 academic year, in terms of its procedures. The seventy-ninth to ninetieth respondents were granted permission to remain in the residence for the 2021 academic year, but they were required to vacate the premises at the end of 2020 and stay in alternative premises, which the appellant had made available. These respondents also refused to vacate the residence. The appellant then employed the services of private security guards to remove them forcibly on 12 January 2021. When the respondents resisted the forcible removal, the appellant launched rei vindication application proceedings in the high court for an order to evict the respondents.

The respondents argued that the appellant’s application was fatally defective on the basis that the appellant did not launch eviction proceedings in terms of the provisions of the PIE Act. The appellant on the other hand argued that the student residence did not constitute the respondents’ home, and if evicted, they would not be rendered homeless, as they would be in a position to return home. The appellant accordingly submitted that the PIE Act did not apply to the circumstances of its case.

The main issue in the appeal, given what SCA had already held a home to be for the purposes of s 26(3) of the Constitution and its implementation in the PIE Act, was whether the student accommodation provided by CPUT to its students constituted a home.

The SCA considered three important features of the student accommodation in question, in determining what exactly constitutes a “home” for purposes of namely:

  • The students came from homes in order to study at the university. Unless otherwise demonstrated, student accommodation does not replace the homes from which students came.
  •  Student accommodation is provided for a finite period of time and it has a limited and defined purpose.
  • Taking into account the Equity requires that the benefit of accommodation should be enjoyed by all students and those who have enjoyed such a benefit must yield to those who have not. 

Based on the aforesaid, the SCA found that the PIE Act did not apply to the respondents’ occupation of student accommodation. The appellant was thus entitled to evict the respondents in reliance upon the rei vindication.

It follows then that landlords of property that serves as student accommodation does not need to apply for evictions in terms of the PIE Act, but can merely approach the court with a rei vindicatio application to restore to the landlord possession of the property unlawfully occupied by a student.

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