The recent pronouncement made by the Supreme Court of Appeal (SCA) in the matter of Stay at South Point Properties (Pty) Ltd v Mqulwana and Others (UCT intervening as amicus curiae) (1335/2021) [2023] ZASCA has attracted significant legal scrutiny. On 3 July 2023, the court held that the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) is inapplicable to student accommodation as it does not meet the legal definition of a “home”. In its reasoning, the court emphasised that student accommodation serves a distinct purpose and is characterised by a limited tenure. Since students reside in the accommodation primarily to pursue their studies, it is intended to provide lodging for the duration of their academic pursuits and not beyond.

The matter at hand pertains to the domicile of students residing in New Market Junction, a Cape Peninsula University of Technology (CPUT) student housing facility managed and owned by Stay At South Point Properties, a private leasing company. In 2020, it came to light that these students allegedly occupied the residence without the owner’s consent, prompting legal action. The owner filed an eviction via rei vindicatio in 2021, but the Western Cape High Court rejected the application. The High Court reasoned that a tertiary education residence qualifies as a “home” for its residents. As a result, since the respondents, in this case, occupied the residence for the entirety of the 2020 academic year, they could only be lawfully evicted by means of an application brought in accordance with the PIE Act.

Although eleven students were initially granted permission to continue residing in their lodgings for the academic year of 2021, they” “were subsequently instructed to relocate to the alternative housing provided by the property company for the purpose of maintenance and clean-up at the primary site. However, the students refused to comply with the request.
Subsequently, the property owner instructed private security to evict them from the property on 12 January 2021. Following this, the owner applied and instituted rei vindicatio proceedings on 15 January 2021 to remove the students from the student residence.

Notably, the rei vindicatio process is comparatively less onerous on the applicant when juxtaposed with the PIE process. The rei vindicatio is a legal mechanism that permits an owner who has been unjustly deprived of their property to reclaim it from anyone who is exercising unlawful physical control over it. This is independent of the good faith of the person exercising physical control, including whether they possessed it in good faith or had paid for it. The justification for this mechanism is founded in the owner’s right of exclusive possession and control over his or her property. Therefore, the owner may claim their property from anyone who has it as nobody else is authorised to withhold it from them unless they possess a right that is enforceable against the owner. When initiating a rei vindicatio, the owner is only required to allege and prove that they are the owner, and that the defendant is holding the property. The burden of proof rests on the defendant to demonstrate any right to continue holding against the owner.

On 22 January 2021, the High Court issued a rule nisi calling on the students to show cause as to why they should not be removed from the student residence. Counsel representing the students argued that the owner should have approached the court in terms of PIE instead of rei vindicatio.

The students appealed the decision in the Supreme Court of Appeal (SCA) on the basis that PIE was applicable and therefore the owner’s rei vindicatio application was flawed. The owner argued that the student residence did not meet the definition of a “home” as per section 26 of the Constitution and therefore PIE was not suitable to remove the students. It is worth noting that the students were no longer residing at the student residence at the time of the appeal, rendering the arguments moot. Nonetheless, both parties agreed that the appeal should proceed given the matter’s broader implications.
The SCA reasoned that PIE was enacted to give effect to section 26(3) of the Constitution. According to section 26(3), no person may be evicted from their home without a court order made after considering all relevant circumstances. While PIE primarily pertains to the occupation of land, it is evident that the Act also serves to uphold the constitutional protections against homelessness. Therefore, if a person’s occupation of land does not constitute their “home”,
PIE does not apply. The court relied” “on the case of Lester v Ndlambe Municipality and Another (514/12) [2013] ZASCA 95; [2014] 1 All SA 402 (SCA); 2015 (6) SA 283 (SCA) to support this position. In this case, the court stated that section 26(3) must be read in conjunction with section 26(1), which guarantees the right to access adequate housing.

It has been established that if a person cannot prove that they have no alternative accommodation and would be rendered homeless, the protection of section 26(3) does not apply.
In determining the definition of a “home”, the court referred to the definition provided in the case of Barnett and Others v Minister of Land Affairs and Others (304/06) [2007] ZASCA 95; 2007 (6) SA 313 (SCA); 2007 (11) BCLR 1214 (SCA).
The court in Barnett held that the sensible and ordinary meaning of home is a place with ‘regular occupation coupled with some degree of permanence’. The court reasoned that it could be accepted with confidence that PIE only applies to the eviction of persons from their homes. Although the operative provisions of PIE do not expressly state this, the use of terminology such as “relocation” and “reside” (in sections 4(7) and 4(9)) as well as the wording of the preamble, establishes a direct link with section 26(3) of the Constitution.

The SCA held that PIE did not apply in the matter because student accommodation does not fall under the definition of a “home”. Conversely, student residence is for a limited duration, for a specific purpose, time-bound by the academic year, and subject to rotation. Therefore, the property owner was entitled to remove the students from the student
accommodation by way of the rei vindicatio application. The vulnerability of students and the high demand for student housing makes this decision particularly worrying. According to a 2020 study conducted by the International Finance Corporation, it is shocking to note that there are only 13,668 available student beds in Cape Town, while the current student population is estimated at 75,000. This means that approximately 80% of students are unable to secure dedicated accommodation. The lack of student housing options poses a serious risk to students by exposing them to Gender-Based Violence (GBV) and other criminal activities.

Given the circumstances, it can be argued that the court should have taken this case as an opportunity to develop the law to protect vulnerable students by ensuring they are afforded the same level of protection as unlawful occupants covered by the PIE Act. The rei vindicatio process does not appropriately protect the rights of students.

Offer of assistance

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Please contact her on: and 084 435 2369

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