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Stay At South Point Properties (Pty) Ltd vs. Mqulwana and Others - (03 Jul 2023)

Accommodation is not a home, it is a residence of limited duration for a specific purpose, that is time-bound by the academic year and subject to rotation


Present is an appeal against the order of the High Court, dismissing the Appellant’s application to evict the Respondents. The respondents had been called upon to show cause why they should not be evicted from the student residence which they continued to occupy without the consent of the owner of the property.

Although the substantive provisions of Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (PIE) reference the occupation of land, it is plain that 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. Further support for this proposition is found in Lester vs. Ndlambe Municipality and Another. There, this Court stated that Section 26(3) needs to be read against the backdrop of Section 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 Section 26(3) does not find application.

There are three important features of the accommodation afforded by CPUT to the respondents which are relevant. First, 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. There is then no basis to seek the protection of PIE. Eviction does not render the students homeless.

These features of the student accommodation made available to the Respondents indicate that this accommodation is not a home. It is a residence, of limited duration, for a specific purpose, that is time-bound by the academic year, and that is, for important reasons, subject to rotation. It follows that PIE did not apply to the Respondents’ occupation of the property. The appellant was thus entitled to evict the Respondents in reliance upon the rei vindicatio. The high court’s refusal to order the Respondents’ eviction was therefore in error. Accordingly, the appeal must be upheld. As the respondents have now vacated the property, present Court do not order their eviction. It suffices to declare that, PIE did not apply to the unlawful occupation by the Respondents of their student accommodation. The Appellant was entitled to secure their eviction.


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