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Many ambitious young people pack up, leave their hometowns, and flock to tertiary institutions across the country in search of not only a good education but also the experience of life in the so-called “real world,” which often comes with a lot of independence and responsibility. One of the most exciting aspects of being able to attend a tertiary institution is the opportunity to move into a residence, which provides not only a sense of security but also a sense of community with fellow students. This article shall discuss the recent developments in the Supreme Court of Appeal (SCA) case of Stay At South Point Properties (Pty) Ltd v Mqulwana and Others 2023 ZASCA 108.


In 2020, the respondents were registered students at the Cape Peninsula University of Technology (“CPUT”). The appellant is Stay At South Point Properties (Pty) Ltd (“South Point”), a private company that owned the student residence. Towards the end of November 2020, the respondents were forced to vacate their residence within 72 hours after having finished their final exams for the year. However, the students remained in occupation of their residence rooms and refused to vacate. To evict the students, South Point relied on rei vindicatio, which is the action through which an owner who is out of possession sues to recover possession of his property.

Findings of the High Court

In the high court, the contentious issue was whether South Point ought to have approached the court in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the “PIE Act”), or whether they were justified in proceeding in terms seeking relief (eviction) using the rei vindicatio.

The respondents alleged that the PIE Act was applicable as the residence was their “home” for the duration of their studies, which was often for long periods of time. However, the applicants were of the view that the accommodation was merely a form of temporary lodging.

In short, the high court found in favour of the respondents and agreed that the accommodation did constitute a “home” for the purposes of the PIE Act. Disgruntled by the finding in the high court, South Point took the matter on appeal to the SCA.

Findings of the Supreme Court of Appeal

The same legal issue was before the SCA, and on 3 July 2023, the court held as follows: with regards to the definition of a “home” the court, upon consideration of various caselaw, held that a home is a place with “regular occupation coupled with some degree of permanence”. In support of this position, the court reasoned that there are three important features of the accommodation offered to CPUT by South Point that qualified it as a “home” for students:

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.

Second, the provision of student accommodation is for a finite period of time and has a limited and defined purpose, that is, 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. Students who are assisted by CPUT with accommodation are well aware that this valuable benefit is of limited duration.

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 of the 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.”

In summary, the court reasoned that the features of student accommodation indicate that this form of accommodation does not meet the requirements of a “home” as defined in case law. This was because their occupation of the residence was for a limited duration, for a specific purpose, time-bound by the academic year, and as such, the students were subject to rotation between the residences as and when South Point deemed it reasonable.

The court held that the provisions of the PIE Act therefore did not apply, and that South Point was justified in evicting the respondents using the rei vindicatio. Further, it was held that the high court’s order was made in error and that the respondents’ eviction should have been allowed.

What effect does this judgment have on students residing in a University residence?

It is now trite that students residing in a tertiary institution’s residence do not enjoy the protections afforded to occupiers in terms of the PIE Act. It is important for students to be aware of the provisions of the agreement that regulate their occupation of the residence, especially the provisions relating to when they have to vacate.


It can be argued that the SCA ought to have taken a contextual approach to the matter as opposed to a purely textual approach. Had they conducted their inquiry in terms of the former approach, the court would have been more sympathetic to the struggles of students and, in particular, the need for stability in terms of housing. A very important factor that should have received more attention from the court is the fact that many students who make use of a residence are often from places far away from the tertiary institution, often another province. Thus, the reality of homelessness is a real and distinct possibility.