Student accommodation doesn’t constitute a 'home', says Appeal Court

The Supreme Court of Appeal (SCA) has ruled that student accommodation doesn’t constitute a “home”, finding that the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) doesn’t apply to student accommodation.

In its ruling on Monday, it said the accommodation was for a finite period with a limited and defined purpose which was to accommodate students for the academic year and assist them to study at the university.

In 2021 the Cape Town high court dismissed an application by the owner/manager of a student residence, New Market Junction, to evict Cape Peninsula University of Technology (CPUT) students.   

At the time, students had been asked to show why they should not be evicted from the residence which they continued to occupy without the property owner's consent.

Students studied at the university during the 2020 academic year. 

The high court at the time discharged a rule nisi and dismissed the owner's application with costs, including the costs of two counsel. 

It also granted leave to appeal to the SCA. .

The owner leased the residence to the university. Students were allocated accommodation by CPUT until the end of November 2020.

The students, however, occupied the residence and refused to vacate after CPUT gave them notice to leave within 72 hours of their last examination of the 2020 academic year.

The 79 to 90 respondents [students] 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 owner had made available so that maintenance and decontamination could be done at the residence. 

But students refused to vacate the residence and the owner requested private security guards to forcefully remove them on January 12 2021.

When students resisted, the owner approached the high court on January 15 2021 for an order to evict them. The appellant relied on the rei vindicatio to do so.

Students contended the owner wasn’t compelled to evict them on the basis that the provisions of the PIE applied to the proceedings brought by the owner and to the extent that the owner failed to bring the eviction proceedings in terms of PIE and that the application was fatally defective. 

But the owner contended the residence did not constitute the students’ home and if evicted they would not be rendered homeless as they had homes.   

Acting judge of appeal Nelisa Mali indicated at the commencement of the case the court had been informed students were no longer staying in the residence which rendered the appeal moot.

Both parties agreed the appeal should proceed because of the wider and far-reaching implications.

“I am also persuaded that this court should hear the appeal because the rights and duties of students provided with accommodation by CPUT is an issue of recurring controversy,” said Mali. 

She said though the substantive provisions of PIE reference the occupation of land, it is plain PIE gives effect to the constitutional protections against the peril of homelessness.

It follows that, if the occupation of land does not constitute the home of an occupier, PIE does not find application. 

“The central issue in this appeal is whether, given what this court has held home to be for the purposes of s26(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. 

“There are three important features of the accommodation afforded by CPUT to the respondents which are relevant.

“First, the students came from homes 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. There is then no basis to seek the protection of PIE. Eviction does not render the students homeless,” said Mali.

The court upheld the appeal with no order regarding costs and declared PIE did not apply to the students' unlawful occupation of the residence and that the owner was entitled to evict them. 

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