The Supreme Court of Appeal Rules That Student Accommodation Does Not Constitute a ‘Home’.

Jul 14, 2023 | News

On 3 July 2023, the SCA delivered its judgment on whether the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”) apply to student residences at a higher education institution. The Acting Judge of Appeal Mali handed down the judgment.

Fairbridges Wertheim Becker acted for the University of Cape Town as the amicus in this matter. This judgment stands to be an important decision for universities across the country.


The matter heard on 21 February 2023, was brought by Stay at South Point Properties (Pty) Ltd (“the appellant”) on appeal against a 2021 Western Cape High Court order which dismissed the appellant’s application to evict the respondents from a Cape Peninsula University of Technology (“CPUT”) residence. The University of Cape Town intervened as amicus in the application. 

The respondents were all students studying at CPUT during the 2020 academic year and were afforded accommodation at the residence until the end of November 2020. However, the respondents remained in occupation and refused to vacate after receiving the requisite notice from CPUT. The appellant consequently approached the Western Cape High Court on 15 January 2021 for an order evicting the respondents from the residence, placing reliance on the rei vindicatio.

The contentions of the parties

The respondents contended that the provisions of PIE applied to the proceedings brought by the appellant. The appellant claimed that the residence did not constitute the respondents’ home, and if evicted, the respondents would not be rendered homeless. As such, the appellant submitted that the provisions of PIE did not apply. The amicus submitted inter alia that the issue must be examined in the context of the Higher Education Act 101 of 1997 and that student accommodation is primarily an incident of the right to access higher education.

According to the SCA, the central issue was whether the residence constituted a home, and thus, by evicting the respondents from the residence, they would be rendered homeless. If the occupation of land does not constitute the home of an occupier, PIE does not apply, as stated by Mali AJA.

What constitutes student accommodation?

The SCA emphasised that a home is a place with regular occupation and some degree of permanence. Considering this, Mali AJA said there were three essential features of the accommodation provided by CPUT.

Firstly, the student accommodation provided did not, unless otherwise shown, replace the homes from which the students came to study at CPUT. The respondents had homes other than the residence, and thus there was no basis for the respondents to seek the protection of PIE, as eviction would not render them homeless.

Secondly, the student accommodation was provided for a finite and temporary period and for a limited, defined, and transitory purpose, namely, to accommodate students for the academic year and facilitate their studies.

Thirdly, in the interests of equity, those who have benefited from accommodation should yield to those who have not. Mali AJA stated that there was nothing about the respondents’ position, which suggested that this principle of equitability should not continue.

The ruling

The SCA thus held that the residence or student accommodation made available to the respondents did not constitute a home. Accordingly, the SCA ordered that PIE does not apply to the respondents’ unlawful residence occupation and that the appellant was entitled to evict the respondents based on the rei vindicatio.

Those who wish to read the full judgment can do so by using the following link:  

Article by Delan Dhaya.