Student Accommodation and PIE - Does Student Accommodation Qualify as a Home?
A key right in South African constitutional law is access to adequate housing enshrined in Section 26 of our Constitution. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE Act) helps enforce this right by requiring court orders which considered all relevant circumstances for the evictions.
While PIE typically applies to residential evictions, exceptions to this general rule exist. In the court case of Stay at South Point Properties (Pty) Ltd vs Mqulwana and Others, the question was: does student housing count as a "home" under the PIE Act?
In the Mqulwana case, the respondents (students) were all studying at the Cape Peninsula University of Technology and refused to vacate their student accommodation at the end of the 2020 academic year. The appellant in the South African Supreme Court of Appeal ("SCA"), Stay At South Point Properties (PTY) LTD (the owner), leased a residence known as New Market Junction to Cape Peninsula University of Technology (CPUT) for purposes of providing student accommodation. After an attempt to remove the student forcefully by private security guards, the owner approached the court for an order to evict the students from the residence, relying upon the rei vindicatio to do so.
The rei vindicatio is the remedy for the owner (the applicant) who is reclaiming possession of his property from the person in control of it without the owner's consent (the defendant). The applicant needs to prove that he is the owner of the property (movable or immovable) in question and that the defendant is currently in control of it. It is not necessary for the owner to prove that the defendant is unlawfully in possession of the property.
The students opposed the owner's application on the basis that PIE applied to the proceedings and that the owner's application is, therefore, defective and should be dismissed with costs.
PIE states that a court may grant an order for eviction of an unlawful occupier after considering all relevant circumstances, such as whether alternative accommodation has been made available for the relocation of the unlawful occupier as well as the rights and needs of among others, children, the elderly and disabled persons, giving effect to our Constitutional right of not being evicted from your home without a court order, thereby protection against homelessness, one of our basic human rights.
It follows then that if the occupation of land does not constitute the home of the occupier, PIE does not apply, and that section 26(3) should also be read in conjunction with section 26(1) of the Constitution, as was found in the case of Lester v Ndlambe Municipality and Another. This court held that the ordinary meaning of home is a place with 'regular occupation coupled with some degree of permanence' and, therefore, PIE would apply to evictions of persons from their homes.
The crux of the Mqulwana case was, in fact, "what is a home" and whether the student accommodation by CPUT to its students constitutes a home for purposes of applying PIE.
The court considered the following three important features of the accommodation afforded by CPUT to the students to formulate its decision.
1. The students came from other homes to study at the university. Unless otherwise demonstrated, student accommodation does not displace or replace the family homes from which students come. Therefore, PIE would not apply because eviction does not render the students homeless.
2. The student accommodation provided is for a limited period of time, and it has a limited and defined purpose to accommodate students only for the duration of the academic year to assist them in studying at the university. The arrangement is by its nature temporary, and the students who CPUT assists with accommodation understand this benefit is of limited duration.
3. Because of the 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 that each year, new students come to the university who legitimately look to the university for the very assistance that the students (the respondents) enjoyed. Fairness or equity requires that those students who have had the benefit of accommodation should yield to those students who have not. Nothing about the position of these students (the respondents) suggests that this fair principle should not continue to apply. It is also for this reason that student accommodation forms part of the larger policy framework of higher education, which placed the provision of student accommodation within the context of the Higher Education Act 101 of 1997 (HEA), following 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.
The SCA held that the student accommodation made available to these students indicates that this accommodation is not a home. The accommodation is merely a residence of a limited duration for a specific purpose that is time-bound by the academic year, and that is, for important reasons, subject to rotation; therefore, PIE did not apply to these students' occupation of the property.
The court held further that the owner was entitled to evict these students in reliance upon the rei vindicatio and that the high court's refusal to order these students' (the respondents) eviction was, therefore, in error and further accordingly upheld the appeal.