THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 1335/2021
In the matter between:

STAY AT SOUTH POINT PROPERTIES (PTY) LTD
APPELLANT

and

ABULELE MQULWANA
FIRST RESPONDENT
AKHONA NTOTHO
SECOND RESPONDENT
AMANDA MSABA
THIRD RESPONDENT
ANDILE PHAKADE
FOURTH RESPONDENT
ANDISIWE SITYATA
FIFTH RESPONDENT
APHIWE MASEBENI
SIXTH RESPONDENT
ASEMAHLE DANGISA
SEVENTH RESPONDENT
AVILE GIYAMA
EIGHTH RESPONDENT
AVUMILE MZANTSI
NINTH RESPONDENT
AVUYILE SOMAGAGU
TENTH RESPONDENT
AWODWA PICANE
ELEVENTH RESPONDENT
AYANDA BUHLEBEMVULO SIKO
TWELFTH RESPONDENT
BONGA GWABENI
THIRTEENTH RESPONDENT
BONGANI PUZA
FOURTEENTH RESPONDENT
BUKHO MANGALI
FIFTEENTH RESPONDENT
EYRAM ADALETE
SIXTEENTH RESPONDENT
FULUFHELO LENNOSE KHOMOLA
SEVENTEENTH RESPONDENT
GLODIE KABUYA
EIGHTEENTH RESPONDENT
IVIWE LOLIWE
NINETEENTH RESPONDENT
KAMVELIHLE MDAYI
TWENTIETH RESPONDENT

KELETSO QHETSU
TWENTY-FIRST RESPONDENT
KHANYISILE DUBULA
TWENTY-SECOND RESPONDENT
KHOLIWE NGUMBE
TWENTY-THIRD RESPONDENT
LELOKA MOTHIBE
TWENTY-FOURTH RESPONDENT
LERATO NGQOBWA
TWENTY-FIFTH RESPONDENT
LESIBA KHALO
TWENTY-SIXTH RESPONDENT
LIMPHO RANAMANE
TWENTY-SEVENTH RESPONDENT
LITHAKAZI MQUQU
TWENTY-EIGHTH RESPONDENT
LONWABO ALVIN
TWENTY-NINTH RESPONDENT
LONWABO NOFEMELE
THIRTIETH RESPONDENT
LULAMILE DYANI
THIRTY-FIRST RESPONDENT
LUNGELO MNGUNI
THIRTY-SECOND RESPONDENT
LUTHOLWETHU NTLOKO
THIRTY-THIRD RESPONDENT
LWANDO MKWANE
THIRTY-FOURTH RESPONDENT
MANCOBA VUYISANANI
THIRTY-FIFTH RESPONDENT
MBONGENI BOQWANA
THIRTY-SIXTH RESPONDENT
MDUNA AKHONA
THIRTY-SEVENTH RESPONDENT
MELINDA SOGIBA
THIRTY-EIGHTH RESPONDENT
MIHLALI SITYATA
THIRTY-NINTH RESPONDENT
MINENHLE SG NGWENYA
FORTIETH RESPONDENT
MOJAKI REETUMETSI
FORTY-FIRST RESPONDENT
MPHO-ENTLE MOKOENA
FORTY-SECOND RESPONDENT
MVELELI MADOTYENI
FORTY-THIRD RESPONDENT
NEO MONGALE
FORTY-FOURTH RESPONDENT
NHLANHLA MKHITHIKA
FORTY-FIFTH RESPONDENT
NJABULO NHANZI
FORTY-SIXTH RESPONDENT
NOLUVUYO NOCANDA
FORTY-SEVENTH RESPONDENT
NTANDO TSHANAVHA
FORTY-EIGHTH RESPONDENT
NTLAKANIPHO NIKA
FORTY-NINTH RESPONDENT
NTOBEKA SEKHUKHUNI
FIFTIETH RESPONDENT
NTOKOZO MASEKO
FIFTY-FIRST RESPONDENT
OKUHLE JAMES
FIFTY-SECOND RESPONDENT
PAMELA NKOMANA
FIFTY-THIRD RESPONDENT
PHELOKAZI NTOLA
FIFTY-FOURTH RESPONDENT

PHUMZA MHAGA
FIFTY-FIFTH RESPONDENT
SANDISIWE CHWAYI
FIFTY-SIXTH RESPONDENT
SANDISO MBANJWA
FIFTY-SEVENTH RESPONDENT
SIHLE YANI
FIFTY-EIGHTH RESPONDENT
SIKHO SISONKE MBOTO
FIFTY-NINTH RESPONDENT
SIMAMKELE NCWADI
SIXTIETH RESPONDENT
SINDISWA SIYAKA
SIXTY-FIRST RESPONDENT
SINOXOLO MDAKA
SIXTY-SECOND RESPONDENT
SIPHAMANDLA QOLI
SIXTY-THIRD RESPONDENT
SIPHENATHI MZWALI
SIXTY-FOURTH RESPONDENT
SIPHO NUSE
SIXTY-FIFTH RESPONDENT
SIPHO VONGWE
SIXTY-SIXTH RESPONDENT
SITHSABA MACEMBE
SIXTY-SEVENTH RESPONDENT
SIXOLILE MADWARA
SIXTY-EIGHTH RESPONDENT
SIZWE TYOKWANA
SIXTY-NINTH RESPONDENT
SOUKE MDIYANA
SEVENTIETH RESPONDENT
WILLIAM MAKASHANE

SEVENTY-FIRST RESPONDENT
XOLANI JAFTA
SEVENTY-SECOND RESPONDENT
YAMKELA MVULANKULU
SEVENTY-THIRD RESPONDENT
YONELA DALASILE
SEVENTY-FOURTH RESPONDENT
ZIMASA KATA
SEVENTY-FIFTH RESPONDENT
ZIPHINDILE NYOKANA
SEVENTY-SIXTH RESPONDENT
ZIPHO MHLABA
SEVENTY-SEVENTH RESPONDENT
ZIZIPHO DANO
SEVENTY-EIGHTH RESPONDENT
BONGA NOBOKWANA
SEVENTY-NINTH RESPONDENT
GERALD THABO MASUKU
EIGHTIETH RESPONDENT
ITUMELENG DWANGU
EIGHTY-FIRST RESPONDENT
KONELE MHLOTYANA
EIGHTY-SECOND RESPONDENT
LEHLOHONOLO THABISO MOLOMO
EIGHTY-THIRD RESPONDENT
LUNGA DINISO
EIGHTY-FOURTH RESPONDENT
MASENTLE PONI
EIGHTY-FIFTH RESPONDENT
MTHANDENI NKAZIMULO CELE
EIGHTY-SIXTH RESPONDENT
NOZIPHO PETUNIA KHUZWAYO
EIGHTY-SEVENTH RESPONDENT
SIPHOSETHU THOBIGUNYA
EIGHTY-EIGHTH RESPONDENT

THANDOLWETHU MYATAZA
EIGHTY-NINTH RESPONDENT
VIWE PRINCESS NJONGO
NINETIETH RESPONDENT

UNIVERSITY OF CAPE TOWN
AMICUS CURIAE

Neutral citation:
Stay At South Point Properties (Pty) Ltd v Mqulwana and Others
(UCT intervening as amicus curiae) (1335/2021) [2023] ZASCA 108 (3 July 2023)
Coram:
SALDULKER, ZONDI and MABINDLA-BOQWANA JJA and MALI and
UNTERHALTER AJJA
Heard:
21 February 2023
Delivered:
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.
Summary:  Eviction – applicability of the provisions of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) to student
residence at a higher education institution – residence not considered a home – PIE
not applicable.

___________________________________________________________________

ORDER
___________________________________________________________________
On appeal from: Western Cape Division of the High Court, Cape Town (Baartman J,
sitting as court of first instance):
The appeal is upheld with no order as to costs.
The order of the high court is set aside and replaced with the following:
‘(a)
It is declared that the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 did not apply to the unlawful occupation by
the respondents of their student accommodation, and the applicant was entitled
to secure their eviction.
(b)
Each party to pay its own costs.’

JUDGMENT

Mali AJA (Saldulker, Zondi and Mabindla-Boqwana JJA and Unterhalter AJA
concurring):

[1] This is an appeal against the order of the Western Cape Division of the High
Court, Cape Town (the high court) discharging a rule nisi and dismissing the
appellant’s application to evict the respondents, with costs, including the costs of two
counsel. 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. Leave to appeal to this Court was granted by the
high court.

[2] The appellant is the owner and the manager of a residence, known as New
Market Junction (the residence). It is a residence for students enrolled at the Cape
Peninsula University of Technology (CPUT). The respondents are all students who
were studying at CPUT during the 2020 academic year. The University of Cape Town
(UCT) was admitted as an amicus curiae in the appeal.

[3] The appellant leased the residence to CPUT for purposes of providing student
accommodation. The respondents were allocated accommodation by CPUT in the
residence until the end of November 2020. However, they remained in occupation of
the residence and refused to vacate, after CPUT gave them notice to do so within 72
hours of their last examination of the 2020 academic year, in terms of its procedures.
The seventy-ninth to ninetieth respondents 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 appellant had made
available, so that maintenance and decontamination could be done. These
respondents also refused to vacate the residence. Consequently, the appellant
summoned private security guards to remove them forcibly on 12 January 2021. When
the respondents resisted their forcible removal, the appellant approached the high
court on 15 January 2021 for an order to evict the respondents from the residence.
The appellant relied upon the rei vindicatio to do so.

[4] The respondents contended that the appellant was non-suited on the basis that
the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of
Land Act 19 of 1998 (PIE) applied to the proceedings brought by the appellant and to
the extent that the appellant failed to bring the eviction proceedings in terms of PIE,
the application was fatally defective.The appellant contended that the residence did
not constitute the respondents’ home, and if evicted, they would not be rendered
homeless, because they had homes to go to. For this reason, the appellant submitted
that PIE did not find application. In the alternative, the appellant contended that should
PIE be applicable, then the eviction order nevertheless ought to be granted in terms
of s 5 of PIE.1

[5] At the commencement of the hearing in this Court, we were informed that the
respondents were no longer in occupation of the residence. That rendered the appeal
moot. Both parties agreed, however, that this appeal ought to proceed because of the
wider and far-reaching implications of the eviction of students from student

1 Section 5 provides for urgent evictions of an unlawful occupier pending the outcome of proceedings
for a final order. The court may grant such an order if it is satisfied that, inter alia, ‘there is a real and
imminent danger of substantial injury or damage to any person or property if the unlawful occupier is
not forthwith evicted from the land’.

accommodation. 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.

[6] PIE was promulgated to give effect to s 26(3) of the Constitution. Section 26(3)
provides that ‘[n]o one may be evicted from their home . . . without an order of court
made after considering all the relevant circumstances’. (My emphasis.)

[7] PIE’s Preamble, in relevant part, provides:
‘WHEREAS no one may be deprived of property except in terms of law of general application,
and no law may permit arbitrary deprivation of property;
AND WHEREAS no one may be evicted from their home, or have their home demolished
without an order of court made after considering all the relevant circumstances;
AND WHEREAS it is desirable that the law should regulate the eviction of unlawful occupiers
from land in a fair manner, while recognising the right of land owners to apply to a court for an
eviction order in appropriate circumstances.’ (My emphasis.)

[8] Section 2 of PIE provides as follows:
‘This Act applies in respect of all land throughout the Republic.’
Section 4(7) of PIE states:
‘If an unlawful occupier has occupied the land in question for more than six months at the time
when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion
that it is just and equitable to do so, after considering all the relevant circumstances, including,
except where the land is sold in a sale of execution pursuant to a mortgage, whether land has
been made available or can reasonably be made available by a municipality or other organ of
state or another land owner for the relocation of the unlawful occupier, and including the rights
and needs of the elderly, children, disabled persons and households headed by women.’ (My
emphasis.)

[9] Although the substantive provisions of 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 v Ndlambe Municipality and Another.2 There, this Court stated that
s 26(3) needs to be read against the backdrop of s 26(1), that is, the right of access to
adequate housing.3 It has been found that where one cannot demonstrate that one
would be without alternative accommodation, and thus be rendered homeless, the
protection of s 26(3) does not find application.

[10] What then is a home? This Court in Barnett4 held that the sensible and ordinary
meaning of home is a place with ‘regular occupation coupled with some degree of
permanence’. At para 37 it further said:
‘I believe it can be accepted with confidence that PIE only applies to the eviction of persons
from their homes. Though this is not expressly stated by the operative provisions of PIE, it is
borne out, firstly, by the use of terminology such as “relocation” and “reside” (in sections 4(7)
and 4(9)) and, secondly, by the wording of the preamble, which, in turn establishes a direct
link with section 26(3) of the Constitution (see eg Ndlovu v Ngcobo; Bekker and Another v Jika
2003 (1) SA 113 (SCA) paragraph 3).’

[11] The central issue in this appeal is whether, given what this Court has held a
home to be for the purposes of s 26(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.

[12] 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.

[13] Second, the provision of student accommodation is for a finite period of time
and it has a limited and defined purpose, that is, to accommodate students for the

2 Lester v Ndlambe Municipality and Another [2013] ZASCA 95; 2015 (6) SA 283 (SCA); [2014] 1 All
SA 402 (SCA).
3 Ibid para 17.
4 Barnett and Others v Minister of Land Affairs and Others [2007] ZASCA 95; 2007 (6) SA 313 (SCA);
2007 (11) BCLR 1214 (SCA) para 38.

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. Students
who are assisted by CPUT with accommodation are well aware that this valuable
benefit is of limited duration.

[14] Some legislative background is relevant to the third feature of the
accommodation afforded to the respondents by CPUT. The amicus advanced
submissions which placed the provision of student accommodation within the context
of the Higher Education Act 101 of 1997 (HEA). UCT, for example, provides student
accommodation, both on and off campus, to 8 040 students of some 28 000 students
who are registered at the university. The amicus submitted that student
accommodation is primarily an incident of the right to access to higher education, and
higher education institutions, such as UCT, regulate access to student accommodation
in terms of its institutional rules.

[15] In this regard, the amicus referred to the Policy on the Minimum Norms and
Standards for Student Housing at Public Universities5 (the Policy). The Policy, in
relevant part, states as follows:
‘The Policy is applicable to all public universities and privately owned accommodation
accredited by public universities. These Norms and Standards should be incorporated into the
criteria developed by each public university and stipulated in the university’s policy and rules.
Private providers shall establish clear and comprehensive standard lease agreements after
consultation with relevant University officials and student representatives. Universities should
rate and differentiate off-campus student accommodation according to standards set by each
University.’ (My emphasis.)

[16] This legislative backdrop is relevant to the third feature of the accommodation
afforded to the respondents. This is particularly so in the context of the current 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 full well that
each and every year new students come to the university who legitimately look to the
university for the very assistance that the respondents enjoyed. Equity requires that

5 Policy on the Minimum Norms and Standards for Student Housing at Public Universities, GN R 897,
GG 39238, 29 September 2015.

those who have had the benefit of accommodation should yield to those who have not.
And nothing about the position of the respondents suggests that this equitable
principle should not continue to apply. It is also for this reason, as the amicus reminded
us, that student accommodation forms part of the larger policy framework of higher
education.

[17] 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.

[18] 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.

[19] As the respondents have now vacated the property, we 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. As to costs, the appellants rightly did not seek a costs order against the
respondents.

[20] In the result, the following order is made:
The appeal is upheld with no order as to costs.
The order of the high court is set aside and replaced with the following:
‘(a)
It is declared that the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 did not apply to the unlawful occupation by
the respondents of their student accommodation, and the applicant was entitled
to secure their eviction.
(b)
Each party to pay its own costs.’
________________________
N P MALI
ACTING JUDGE OF APPEAL

Appearances

For the appellant:

D C Joubert SC
Instructed by:

Cliffe Dekker Hofmeyr, Cape Town

Claude Reid Attorneys, Bloemfontein

For the respondents:
R Nyman with N Mashava
Instructed by:

Herold Gie Attorneys, Cape Town

McIntyre Van der Post, Bloemfontein

For the amicus curiae:
M O’Sullivan with T Sarkas
Instructed by:

Fairbridges Wertheim Becker, Cape Town

Lovius Block Incorporated, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
3 July 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and
does not form part of the judgments of the Supreme Court of Appeal
Stay At South Point Properties (Pty) Ltd v Mqulwana and Others (UCT intervening as amicus
curiae) (1335/2021) [2023] ZASCA 108 (3 July 2023)
Today, the Supreme Court of Appeal (SCA) upheld an appeal with no order as to costs against
the order of the Western Cape Division of the High Court, Cape Town (the high court), which
discharged a rule nisi and dismissed the appellant’s application to evict the respondents. The
respondents had been called upon to show cause why they should not have been evicted from
the student residence which they continued to occupy without the consent of the owner of the
property.

The appellant was the owner and the manager of a residence, known as New Market Junction
(the residence). It was a residence for students enrolled at the Cape Peninsula University of
Technology (CPUT). The respondents were all students who were studying at CPUT during
the 2020 academic year. The University of Cape Town (UCT) was admitted as an amicus
curiae in the appeal. The appellant leased the residence to CPUT for purposes of providing
student accommodation. The respondents were allocated accommodation by CPUT in the
residence until the end of November 2020. However, they remained in occupation of the
residence and refused to vacate, after CPUT gave them notice to do so within 72 hours of
their last examination of the 2020 academic year, in terms of its procedures. When the
respondents resisted their forcible removal, the appellant approached the high court for an
order to evict the respondents from the residence. The appellant relied upon the rei vindicatio
to do so.

The respondents contended that the appellant was non-suited on the basis that the provisions
of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE)
applied to the proceedings brought by the appellant and to the extent that the appellant failed
to bring the eviction proceedings in terms of PIE, the application was fatally defective. The
appellant contended that the residence did not constitute the respondents’ home, and if
evicted, they would not be rendered homeless, because they had homes to go to. Thus, the
appellant submitted that PIE did not find application.

Although the respondents were no longer in occupation of the residence at the
commencement of the hearing in the SCA, both parties agreed that the appeal ought to have
proceeded because of the wider and far-reaching implications of the eviction of students from
student accommodation. The SCA was also persuaded that it should hear the appeal, because

the rights and duties of students provided with accommodation by CPUT was an issue of
recurring controversy.

The central issue in the appeal was whether, given what the SCA has previously held a home
to be for the purposes of s 26(3) of the Constitution and its implementation in PIE, the provision
of student accommodation by CPUT to its students constituted a home, so as to render PIE
of application.

The SCA found that there were three important features of the accommodation afforded by
CPUT to the respondents which were relevant. First, the students came from homes in order
to study at the university. Thus, eviction did not render the students homeless, as the
respondents had homes other than the residence. Second, the provision of student
accommodation was for a finite period of time and it had a limited and defined purpose: to
accommodate students for the duration of the academic year and thereby assist them to study
at the university. Third, those who benefitted from the accommodation knew full well that each
year new students came to the university for the very assistance that the respondents had
enjoyed. Equity required that those who have had the benefit of accommodation should yield
to those who have not.

The SCA thus found that the features of the student accommodation made available to the
respondents indicated that that accommodation was not a home. It was a residence, of limited
duration, for a specific purpose, that was time-bound by the academic year, and that was, for
important reasons, subject to rotation.

The SCA held that it followed 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 was upheld.

~~~~ends~~~~