Stay At South Point Properties (Pty) Ltd v Mqulwana and Others (University of Cape Town intervening as amicus curiae)

Stay At South Point Properties (Pty) Ltd (the appellant) owned and managed New Market Junction, a student residence leased to Cape Peninsula University of Technology (CPUT) for student accommodation. Ninety respondents were CPUT students allocated accommodation in the residence until the end of November 2020. After CPUT gave notice to vacate within 72 hours of their last examination, the respondents refused to leave. The 79th to 90th respondents were granted permission to remain for the 2021 academic year but were required to vacate for maintenance and decontamination, which they also refused. On 12 January 2021, the appellant attempted forcible removal using private security guards. When the respondents resisted, the appellant applied to the High Court on 15 January 2021 for an eviction order relying on rei vindicatio. The respondents were no longer in occupation by the time of the appeal hearing, but both parties agreed the appeal should proceed due to wider implications for student evictions.

• Whether the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) applies to student accommodation at higher education institutions
• Whether student accommodation constitutes a 'home' for purposes of section 26(3) of the Constitution and PIE
• Whether the appellant was entitled to evict the respondents using the rei vindicatio without complying with PIE procedures
• Whether the appeal had become moot given the respondents had vacated, and if so, whether it should still be heard

The appeal was upheld with no order as to costs. The high court order was set aside and replaced with: (a) a declaration that PIE 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. No actual eviction order was made as the respondents had already vacated the property.

PIE does not apply to student accommodation at higher education institutions because such accommodation does not constitute a 'home' for purposes of section 26(3) of the Constitution. A 'home' requires 'regular occupation coupled with some degree of permanence'. Student accommodation lacks this permanence because: (1) students have existing homes elsewhere and are not rendered homeless by eviction; (2) student accommodation is temporary, provided for the limited purpose of facilitating study during the academic year; and (3) student accommodation is subject to necessary rotation to ensure equitable access for incoming students. Where occupation of land does not constitute a home, PIE does not apply and owners may evict using the rei vindicatio without complying with PIE's procedural requirements.

The Court made several non-binding observations: (1) The provision of student accommodation forms part of the larger policy framework of higher education under the Higher Education Act 101 of 1997 and the Policy on Minimum Norms and Standards for Student Housing at Public Universities; (2) Student accommodation is primarily an incident of the right to access to higher education rather than the general right to housing under section 26 of the Constitution; (3) Equity requires that students who have benefited from accommodation should yield to those who have not, given the scarcity of student housing; (4) The University of Cape Town's provision of accommodation to 8,040 of its 28,000 students illustrates the widespread scarcity of student housing in the higher education sector; (5) Appeals may be heard despite being moot where they raise issues of recurring controversy with wider and far-reaching implications, particularly regarding recurring issues affecting students' rights and duties.

This case is highly significant in South African law as it definitively establishes that student accommodation at higher education institutions does not constitute a 'home' for purposes of section 26(3) of the Constitution and PIE. It clarifies the scope and application of PIE in the context of temporary, purpose-specific accommodation arrangements. The judgment provides crucial guidance to all universities and student housing providers regarding their rights to evict students without following PIE procedures. It balances constitutional housing rights against the practical realities of university administration and the equitable distribution of scarce student accommodation resources. The case also demonstrates the Court's willingness to hear moot appeals where they raise issues of recurring controversy and public importance, particularly in the higher education sector where student housing scarcity is a persistent problem.