Hi, my name is Lee, and I am a student at UPCT residing at New Market Junction student accommodation. I am seeking legal advice. My landlord asked me to vacate the residence at the end of my academic year, and when I refused, he said he would go to court to have me evicted. My friend is a law student at UCT, and he said that the landlord cannot put me out and must apply for an eviction order in terms of the PIE Act. I would appreciate your professional advice. Does PIE apply?
Hello, Lee, no, unfortunately, in this case, your friend is wrong. PIE does not apply. Please let me explain why.
Generally speaking, you would be correct to assume that the principles of Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 [PIE] would apply to evictions relating to residential property, however, there are exceptions to this general rule, and your case is one of those exceptions as was the case in the matter of Stay at South Point Properties (Pty) Ltd vs Mqulwana and others 1 (the Mqulwana-case).
In the Mqulwana case, the respondents (the students) were all students who were studying at the Cape Peninsula University of Technology during the 2020 academic year until the end of November 2020. The appellant, Stay At South Point Properties (PTY) LTD (the owner), leased a residence known as New Market Junction (the residence) to Cape Peninsula University of Technology [CPUT] for purposes of providing student accommodation. The students refused to vacate the residence after CPUT gave them notice to vacate within 72 hours after their final examination of the 2020 academic year in accordance with their procedure. After an attempt to remove the student forcefully by private security guards, the owner approached the high court on 15 January 2021 for an order to evict the students from the residence, relying upon the rei vindicatio to do so.
The rei vindicatio is the remedy for the owner (the applicant) who is reclaiming possession of his property from the person in control of it without the owner’s consent (the defendant). The applicant needs to prove that he is the owner of the property (movable or immovable) in question and that the defendant is currently in control of it. It is not necessary for the owner to prove that the defendant is unlawfully in possession of the property.
The students opposed the owner's application on the basis that PIE applied to the proceedings and that the owner's application is, therefore, defective and should be dismissed with costs.
PIE states that a court may grant an order for eviction of an unlawful occupier of the land in question after considering all relevant circumstances, such as whether alternative accommodation has been made available for the relocation of the unlawful occupier as well as the rights and needs of among others, children, the elderly and disabled persons 2, giving effect to our Constitutional right of not being evicted from your home without a court order 3, thereby protection against homelessness, one of our basic human rights.
It follows then that if the occupation of land does not constitute the home of the occupier, PIE does not apply and that section 26(3) should also be read in conjunction with section 26(1) of the Constitution 4 as was found in the case of Lester v Ndlambe Municipality and Another 5.
You are probably wondering now how it can be that PIE does not apply to your student accommodation, which you consider your home.
The crux of the Mqulwana case we are discussing now was, in fact, "what is a home" and "whether the student accommodation by CPUT to its students constitutes a home for purposes of applying PIE".
This Court in Barnett 6 held that the ordinary meaning of home is a place with 'regular occupation coupled with some degree of permanence' and, therefore, PIE would apply to evictions of persons from their homes. This is conveyed by the use of terminology such as “relocation” and “reside” (in sections 4(7) and 4(9) of the Act) and reference to section 26(3) of the Constitution in its preamble.
The court considered the following three important features of the accommodation afforded by CPUT to the students to formulate its decision.
1. The students came from homes in order to study at the university. Unless otherwise demonstrated, student accommodation does not displace or replace the homes from which students come, and hence, logically, the respondents have homes other than the residence. Therefore, PIE would not apply because eviction does not render the students homeless.
2. The student accommodation provided is for a limited period of time, and it has a limited and defined purpose to accommodate students only for the duration of the academic year to assist them in studying at the university. The arrangement is by its nature temporary, and the students who CPUT assists with accommodation are well aware that this benefit is of limited duration.
3. Because of the scarcity of student housing in the higher education sector in our country, those who are fortunate enough to benefit from accommodation provided by CPUT know that each and every year, new students come to the university who legitimately look to the university for the very assistance that the students (the respondents) enjoyed. Fairness requires that those students who have had the benefit of accommodation should concede to those students who have not. Nothing about the position of these students (the respondents) suggests that this fair principle should not continue to apply. It is also for this reason that student accommodation forms part of the larger policy framework of higher education, which placed the provision of student accommodation within the context of the Higher Education Act 101 of 1997 (HEA), following that student accommodation is primarily an incident of the right to access to higher education, and higher education institutions, such as UCT (the amicus curiae), regulate access to student accommodation in terms of its institutional rules Policy on the Minimum Norms and Standards for Student Housing at Public Universities. (the Policy)
The court held that the student accommodation made available to these students (the respondents) indicates that this accommodation is not a home. The accommodation is merely a residence of a limited duration for a specific purpose that is time-bound by the academic year, and that is, for important reasons, subject to rotation; therefore, PIE did not apply to these students’ (the respondents') occupation of the property.
The court held further that the owner (the appellant) was entitled to evict these students (the respondents) in reliance upon the rei vindicatio and that the high court’s refusal to order these students’ (the respondents) eviction was, therefore, in error and further accordingly upheld the appeal.
1 (1335/2021) 2023 ZASCA 108 (A) - This judgment was handed down electronically by circulation to the parties’ representatives by email, publication on the Supreme Court of Appeal website, and release to SAFLII. The date for hand down is deemed to be 3 July 2023 at 11h00. This is an appeal against the order of the Western Cape Division of the High Court, Cape Town discharging a rule nisi and dismissing the appellant’s application to evict the respondents, with costs.
2 Section 4(7) of Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
3 Section 26(3) of the Constitution of the Republic of South Africa, Act 108 of 1996
4 “Everyone has the right to have access to adequate housing.”
5 Lester v Ndlambe Municipality and Another  ZASCA 95; 2015 (6) SA 283 (SCA);  1 All SA 402 (SCA)
6 Barnett and Others v Minister of Land Affairs and Others  ZASCA 95; 2007 (6) SA 313 (SCA); 2007 (11) BCLR 1214 (SCA) para 38
7 Policy on the Minimum Norms and Standards for Student Housing at Public Universities, GN R 897, GG 39238, 29 September 2015
Written by: Anna Hattingh
Moderated and approved by: Clive Smith