Your ‘home away from home’ is not in fact your home: Students be warned
Your ‘home away from home’ is not in fact your home: Students be warned
Many students across South Africa are fortunate enough to benefit from student residence when attending a higher education institution.
At a glance
- In Stay At South Point Properties (Pty) Ltd v Mqulwana and Others (UCT intervening as amicus curiae) (1335/2021)  ZASCA 108 the Supreme Court of Appeal (SCA) had to decide whether student accommodation can be described as a "home" for the purposes of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE).
- The SCA held that it is plain that PIE gives effect to the Constitution's protection against the peril of homelessness. It follows, according to the SCA, that if the occupation of land does not constitute the home of an occupier, PIE does not find application.
- The SCA concluded that the student residence was not a home to students. Rather, it was “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”.
Earlier this year, in Stay At South Point Properties (Pty) Ltd v Mqulwana and Others (UCT intervening as amicus curiae) (1335/2021)  ZASCA 108 the Supreme Court of Appeal (SCA) had to decide whether student accommodation can be described as a “home” for the purposes of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). The University of Cape Town (UCT) applied for and was admitted as an amicus curiae in the appeal before the SCA.
The appellant, Stay At South Point Properties (Pty) Ltd (South Point), represented by Cliffe Dekker Hofmeyr, appealed against the order of the Western Cape High Court (High Court) in terms of which South Point’s application to evict the respondents was dismissed on the basis that South Point had not inter alia brought the application in terms of PIE.
South Point is the owner and manager of various private residences, one of them being New Market Junction (NMJ). NMJ houses Cape Peninsula University of Technology (CPUT) students based on an umbrella agreement concluded between CPUT and South Point. The 90 respondent students before the High Court, as well as the SCA, were all students who were studying at CPUT and residing at NMJ during the 2020 academic year. These students refused to leave the residence at the end of the 2020 academic year, despite only being allocated accommodation by CPUT until the end of November 2020.
South Point required the students to vacate the premises so that they could attend to necessary, and legally required, maintenance and COVID-19 decontamination.
Despite receiving notification to vacate and, in some instances, being provided with alternative accommodation, the students refused to vacate NMJ.
South Point then summoned private security guards to remove the respondents on 12 January 2021. This too was resisted by the respondents. South Point then approached the High Court on 15 January 2021 for an order to evict the respondents from the residence, relying on its real right as owner of the residence, to do so. The respondents contended that the application was fatally defective, as South Point did not rely on and comply with the provisions of PIE. In response, South Point contended inter alia that a student residence did not constitute a home, and thus PIE did not find application. The High Court granted the rule nisi in terms of PIE, calling upon the respondents to show cause why they should not be evicted from NMJ. On the return date the rule nisi was discharged and the High Court dismissed South Point’s application to evict the respondents. The High Court ruled that student accommodation can be viewed as a student’s home for the purposes of applying PIE, South Point should have brought the application in terms of PIE, and had failed to do so.
Before the SCA
At the commencement of the hearing before the SCA, the respondents were no longer in occupation of the residence. Although this rendered the factual issues to be decided by the SCA purely academic, the SCA found that the legal issues to be decided were wider than and had far-reaching implications beyond just this singular incident, especially as they were issues of recurring controversy.
In determining whether PIE finds application in the eviction of students from student residences, the SCA considered the wording of various provisions, as well as the preamble, of PIE. Although the substantive provisions of PIE make reference to the occupation of land, the SCA held that it is plain that PIE gives effect to the Constitution’s protection against the peril of homelessness, as in section 26 of the Constitution. It follows, according to the SCA, that if the occupation of land does not constitute the home of an occupier, PIE does not find application. This proposition had already been confirmed by multiple previous judgments, and it was also confirmed that the meaning of “home” is a place with “regular occupation coupled with some degree of permanence”.
The SCA’s finding
With the above in mind, the SCA had to determine whether a student residence constitutes a home for the students residing therein, so as to render PIE applicable. In this regard, there are three material features of the accommodation afforded by CPUT to the respondents.
First, the students already come from homes before they take up residence at the university to study. Unless otherwise demonstrated, student accommodation does not displace or replace the homes from which students come. The students therefore have homes other than the residence. According to the SCA, there is then no basis to seek the protection of PIE, as eviction under these circumstances does not render the students homeless.
Second, the provision of student accommodation is for a finite period of time and it has a limited and defined purpose, being to accommodate students for the duration of the academic year and thereby assist them to study at the university. The arrangement is by its nature temporary and for a purpose that is transitory, and students are well aware of this.
Finally, UCT, as amicus, advanced submissions which placed the provision of student accommodation within the context of the Higher Education Act 101 of 1997. It was submitted that student accommodation is primarily an incident of the right to access to higher education, and higher education institutions regulate access to student accommodation in terms of its institutional rules. It is well-known that there is a current scarcity of student housing in the higher education sector in our country. As new students join higher education institutions each year, they should be provided with the same assistance provided to students in previous years, and those who had the benefit of accommodation should yield to those who have not.
Accordingly, the SCA concluded that the above three features of the student accommodation made available to the respondents indicated that the residence was not a home to students. Rather, it was “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, and South Point was entitled to rely on its real right as owner to evict the respondents. The appeal against the order of the High Court was thus upheld. South Point did not seek a cost order against the respondents.
This judgment has come as a welcome relief to those institutions providing student accommodation, especially when that accommodation has to be made ready for the new academic year, and for new academic enrolments. Had the judgment gone the other way there may have been a serious accommodation crisis for new students requiring residence in order to advance their education.
This is also a warning to students as we near the end of the 2023 academic year. Students are advised to abide by the policies of student residence when being requested to vacate accommodation at the end of the year. Failure to do so could result in forcible removal by private security, or an urgent eviction application ordering their eviction, with the potential of a costs order against them. Rather, students should start planning their trips home now.
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