The concept of what would be considered a ‘home’ in its nature is complex to interpret, it has a wide meaning and to an extent creates injustices such as unlawful evictions as its place under the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (PIE) remains protracted. This leaves people’s livelihoods compromised and their constitutional right to adequate housing infringed. But does this apply to students who live in university residences? This case delves into the definition of what would constitute a home for the purposes of accommodation provided by a university to its students and, if so, whether they would fall under the protections against unlawful deprivation of housing in PIE and the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution).
UCT applied to court
The University of Cape Town (“UCT”) had offered accommodation to 5 students (“the students”) at its Philip Kgosana residence (“the PK residence”) in Mowbray for the 2024 academic year, subject to the provision that they would not be accommodated for the entire year due to maintenance that would be taking place at that residence. The students took occupation of the residence but failed to vacate when it was time for them to do so. UCT applied to the high court for the eviction of the students and obtained the order on 13 June 2025 which required them to move out by 31 August 2025, failing which the sheriff of the court was authorised to evict them from the PK residence. The students subsequently applied for leave to appeal and for an extension of the eviction date. Some negotiation took place between UCT and the students which resulted in a settlement agreement being made an order of the court on 6 August 2025, in terms of which inter alia the students undertook to vacate by 20 December 2025. On 11 December 2025 and with their eviction date rapidly approaching, the students instituted 3 separate applications to stay the eviction order. In support of their respective cases, they filed affidavits setting out their personal circumstances and reasons as to why they would be left homeless if they were forced to leave the PK residence. Each of the applications was dismissed. The students did not move out by 20 December 2025. The sheriff therefore executed the eviction order on 22 December 2025 and placed their belongings in a parking lot owned by UCT and which is adjacent to the hockey fields below the M3 highway. The students proceeded to erect a tent in the parking lot, parked a vehicle next to it and took occupation of the tent and the vehicle. They did not dispute that their occupation of the parking lot was unlawful. UCT went back to the high court in February 2026 and applied for the enforcement of the court orders granted on 13 June 2025 and 6 August 2025. The case is University of Cape Town vs S.M.L and others (2026/026100) [2026] ZAWCHC 193, in which the students are cited as the respondents.
Read the case here:
https://www.saflii.org/za/cases/ZAWCHC/2026/193.html
Compelling students to vacate parking lot
UCT sought a number of orders. Firstly, to enforce the eviction orders by compelling the students to vacate the parking lot and not to re-occupy any UCT property in future without its permission. Secondly, and in the alternative, an order in terms of the common law rei vindicatio remedy in order to reclaim possession of the parking lot by requiring the students to vacate it and not to occupy any UCT property in future without its consent. Thirdly, authority for its Campus Protection Services and the South African Police Service (SAPS) to remove the students and their belongings from the parking lot if they failed to leave. Lastly, an interdict preventing any further unlawful occupation of any UCT property by the students without its consent.
UCT argued that the court must interpret the undertakings made by the students in the eviction orders to include an undertaking not to unlawfully re-occupy not only the PK residence, but also any other property owned by UCT. It also argued that, by moving into the parking lot, the students acted in bad faith and in disregard for the eviction orders even though they swore in their personal circumstances affidavits that they would leave the PK residence.
Student residence not a home
UCT relied on the judgment by the Supreme Court of Appeal (SCA) in Stay at South Point Properties (pty) Ltd v Mqulwana and others (UCT intervening as the amicus curiae) [2023] ZASCA 108; 2024 (2) SA 640 (SCA) in which it was called to determine whether the provision by a university to its student constitutes a home, so as to render PIE of application. It held that the student accommodation in question at the time did not constitute a ‘home’ for purposes of PIE on 3 (three) grounds: firstly, such students came from homes in order to study at the university and as such they have other homes other than the residence; secondly, the provision of student accommodation is for a limited time only and solely for purposes of accommodating such students for the duration of the academic year; and, thirdly, considerations equity required such students to yield the benefit of university accommodation to the new students coming to the university in terms of the larger policy framework of higher education. The SCA held that the purpose built student accommodation of limited duration in that case did not constitute a ‘home’ based on the above grounds and therefore fell outside PIE. For that reason, UCT contended that the students are not entitled to any protection under PIE. As a consequence, the unlawful occupation of a parking lot by the students following the breach of an undertaking to vacate in the eviction orders to vacate a university residence, also cannot have protections under PIE.
What is a ‘home’ – an academic study
The court considered the rights of persons under Section 26(3) of the Constitution which offered protection from being evicted from their homes without a court order and the responsibility on the court to consider all relevant circumstances when making a determination. A key factor is what constitutes a ‘home’ for the purposes of PIE which has, unfortunately, not been defined.
The court further relied on the Ndlovu v Ngcobo, Bekker and Another v Jika [2002] ZASCA 87; [2002] 4 ALL SA 384 (SCA); 2003 (1) SA 113 (SCA) judgment where the SCA interpreted a ‘home’ for the purposes of PIE to mean ‘any other form of temporary or permanent dwelling or shelter’ other than the buildings listed in PIE. Also cited was the Johannesburg Housing Corporation (Pty) Ltd v Unlawful Occupiers, Newtown Urban Village [2012] ZAGPJHC 230; 2013 (1) SA 583 (GSJ); [2013] 1 All SA 192 (GSJ); 2013 (3) BCLR 337 (GSJ) in which it was held that a ‘home’ “does connote a shelter against the elements providing some of the comforts of life with some degree of permanence.” In the judgment of Barnett and Others v Minister of Land Affairs and Others [2007] ZASCA 95; 2007 (6) SA 313 (SCA); 2007 (11) BCLR 1214 (SCA), para 37 and 38 the SCA held that it was conceivable to have more than one home and that the terms required an element of regular occupation coupled with some degree of permanence. The court disagreed with the interpretation of the Stay at South Point judgment relied on by UCT. It held that that judgment did not establish a strict principle that the eviction of a person from student accommodation did not find application in PIE, as that judgment clearly made provision for the applicability of PIE in cases where the student accommodation did, on the facts of the matter, constitute a home for that student. Therefore, where it is demonstrated that the student accommodation has replaced the student’s home or that the student has no other home besides the student accommodation, the student accommodation would be that student’s home and the student would therefore be entitled to the protection under PIE. On that basis, the court held that where the facts establish that any property belonging to a university – including a parking lot – is the home of an unlawful occupier, they would be entitled to protection under PIE.The court held that any undertakings provided by the students in the eviction orders to vacate the PK residence could not reasonably be interpreted to include an undertaking not to occupy any other property belonging to UCT. Consequently, even if they did breach such undertakings regarding the PK residence, that breach would not deprive them of protection under PIE if the facts demonstrate that they have established homes in the parking lot.
Did UCT pass the test?
The court concluded that the parking lot had become the students’ homes and PIE was therefore applicable. The personal circumstances of each of the students therefore had to be considered to determine whether the students would be rendered homeless if they were ordered to vacate the parking lot. The first respondent moved out of the parking lot. The second and third respondents appeared in person and testified that they are married to each other and have minor children. The second respondent was accepted to study at UCT and was placed at its Obz Square residence. The third respondent testified that she and their children no longer live in the parking lot. There was thus no basis on which to grant any order against these 3 (three) students. In its papers, UCT listed residential addresses that it had on record for the remaining 2 (two) students – being the fourth and fifth respondents – and argued that their eviction from the parking lot would not render them homeless as they could return to those homes. The court relied on their stay affidavits to determine whether that was in fact the case. The fourth respondent stated in his stay affidavit that his mother had passed away which left him and his sister homeless. In his stay affidavit, the fifth respondent stated that his parents have passed away and was also left homeless. Neither had homes to return to and would therefore be left homeless if they were evicted from the parking lot. The court found that the addresses listed by UCT are, on a balance of probabilities, no longer the addresses of the fourth and fifth respondent. They would therefore be homeless if they were evicted from the parking lot. They are entitled to protection under PIE and UCT would have to file a fresh application in terms of PIE for their eviction from the parking lot as the application before the court was not brought in terms of PIE but was, instead, an application to compel the students to comply with the eviction orders. The court therefore rejected the first 3 (three) orders sought by UCT. The last form of relief sought by UCT, the final interdict, was also rejected. UCT was unable to establish the crucial requirement that the first, second and third respondents would return to the parking lot or any other property owned by UCT in the future. The court deemed it inappropriate to grant such an order against the fourth and fifth respondents in the circumstances, as such a determination ought to be sought in any eviction proceedings which UCT may elect to institute against them. UCT’s court challenge against the students was dismissed, with no order made as to costs.
The right to adequate housing
The judgment illustrates the value courts place on their obligation to safeguard the right to adequate housing and the underlying constitutional imperative and, almost more importantly, the extensive consideration given by presiding officers to the specific and individualised circumstances of a person facing the prospect of homelessness.
In doing so, the judgment has developed the jurisprudence to include student accommodation under the PIE umbrella. Protection which is conventionally considered to be available to occupants of a landlord’s residential property could be available to occupants of an educational institution’s property, in factual circumstances similar to our case.
The judgment may find relevance amidst the current protests by students at the Cape Peninsula University of Technology. It has been reported in the media that some of the students are reluctant on vacating the residences. If so, it would be interesting to observe whether it will be applied to assist the students or whether it would allow the educational institution to balance the scales.
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