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The substantive provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”) reference the occupation of land and applies in respect of all land throughout the Republic of South Africa.

Written By of Cowan-Harper-Madikizela Attorneys

However, PIE was promulgated to give effect to s 26(3) of the Constitution. Section 26(3) provides that ‘[n]o one may be evicted from their home … without an order of court made after considering all the relevant circumstances’.

In Lester v Ndlambe Municipality and Another, 2015 (6) SA 283 (SCA), the SCA held that s 26(3) of the Constitution needs to be read against the backdrop of s 26(1), that is, the right of access to adequate housing. It has been found that where one cannot demonstrate that one would be without alternative accommodation, and thus be rendered homeless, the protection of s 26(3) does not find application.

The Supreme Court of Appeal in Barnett and Others v Minister of Land Affairs and Others, 2007 (6) SA 313 (SCA), held that the sensible and ordinary meaning of home is a place with ‘regular occupation coupled with some degree of permanence’ and further stated that:

“I believe it can be accepted with confidence that PIE only applies to the eviction of persons from their homes.”

On 3 July 2023, the Supreme Court of Appeal in handing down a judgment in Stay At South Point Properties (Pty) Ltd v Mqulwana and Others (UCT intervening as amicus curiae) (1335/2021) [2023] ZASCA 108 took a further step and ruled that:

“Although the substantive provisions of PIE reference the occupation of land, it is plain that PIE gives effect to the constitutional protections against the peril of homelessness.”

This was an appeal against an order of the Western Cape Division of the High Court. The respondents, who were students, had to show cause why they should not be evicted from New Market Junction, a student accommodation owned and managed by the applicant, The appellant leased the accommodation to the Cape Peninsula University of Technology (CPUT) for the purpose of providing accommodation to students enrolled with it.

90 students refused to vacate the property without the consent of the owner of the property, despite the expiry of their lease agreements in November 2020. Faced with resistance the applicant instituted High Court proceedings for an order of eviction, relying on the rei vindicatio.

The students contended that the action was fatally defective as any eviction procedure attracts the application of PIE. The applicant contended that the residence did not constitute the students’ ‘home’ for purposes of PIE and if the students were evicted, the students would not be left homeless.

The students had already vacated the property at the commencement of the hearing. Notably, the SCA proceeded on the strength of the far-reaching implications of eviction of students from student accommodation the full bench held that the issue was one of “recurring controversy”.

The full bench accepted the earlier decision of the Barnett case and declared that:

“The central issue in this appeal was whether, given what the Court previously held a ‘home’ to be for the purposes of s 26(3) of the Constitution and its implementation in PIE, the provision of student accommodation by CPUT to its students constitutes a home, so as to render PIE of application.”

Consequently, if a person occupies land which is not the home of the occupant, PIE does not apply. A person seeking to resist an order of eviction must prove that the property occupied constitutes their home and that they will not have access to alternative accommodation.

In the judgment, the full bench raised a threefold enquiry to answer this question.

Firstly, the students came from their homes to study at the institution of higher learning. Unless demonstrated, student accommodation does not displace or replace their homes and if evicted, they would not be rendered homeless, because they had homes to go to. This militates against the application of PIE.

Secondly, the valuable benefit of student accommodation is for a finite period. That is, limited to a defined, transitory purpose, to accommodate students for the course of the academic year. The students were aware of this.

The full bench drew on submissions from UCT as amicus curiae demonstrating that student accommodation is incidental to the right to access higher education. Higher education institutions regulate access to student accommodation by way of their institutional rules. The full bench drew attention to the broader context of the scarcity of student housing and the equitable and legitimate objective to house new students forming part of a broader policy framework.

Ultimately the SCA held that student accommodation for a limited duration, for a specific purpose, that is time-bound by the academic year, subject to rotation. It is not a home and thus, PIE does not apply. The appellant’s reliance on the rei vindicatio was justified without adhering to the provisions of PIE. The SCA upheld the appeal and set aside the High Court’s order against the eviction.

This decision reiterates the age-old principle of subsidiarity, crucial to a proper interpretation of PIE. PIE seeks to prevent homelessness. PIE does not seek to guarantee unfettered, undisturbed access to the property owned by another, echoing an earlier decision of the Constitutional Court in William Grobler vs Clara Philips and Others CCT243/21.

PIE is not intended to completely divest owners of their property rights. This decision is fact sensitive and must be applied with caution as circumstances may vary. Parties to an eviction dispute should take specialist legal advice to ensure a comprehensive understanding of subsidiary legislation such as PIE or risk reliance on a purported, unsubstantiated demand.

Henry Korsten

Henry Korsten
Head of Property, Conveyancing and Litigation

Anthony Andrews

Anthony Andrews
Candidate Legal Practitioner of Corporate Law and Commercial Litigation

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