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By Ashton Naidoo / Partner / Mooney Ford Attorneys

Student accommodation in South Africa is a significant aspect of the higher education landscape. With a growing student population and increasing demand for quality housing, the provision of suitable accommodation for students has become a crucial concern. Providers in South Africa have however been facing challenges with students refusing to vacate their accommodations, either at the end of the academic year or when their studies come to an end. This issue has become a recurring problem, with various cases highlighting the complexities surrounding the eviction of students from privately-owned student housing facilities. There are several key factors contributing to this problem, including but not limited to limited affordable housing options, financial constraints of students, the legal framework, and disputes over rental increases. However, the recent landmark decision by the Supreme Court of Appeal has now made it a little easier for student accommodation providers to recover their property.

In the case of Stay At South Point Properties (Pty) Ltd v Mqulwana and Others, the Appellant, a student accommodation provider, appealed against a ruling by the Western Cape Division of the High Court, Cape Town. The Court had discharged a rule nisi and dismissed the Appellant’s Application to evict the Respondents, who were students occupying the Appellant’s student residence without consent.

The Appellant owned and managed a student residence called New Market Junction, which provided accommodation for students enrolled at the Cape Peninsula University of Technology (CPUT). The Respondents were students studying at CPUT during the 2020 academic year. The University of Cape Town (UCT) intervened as an amicus curiae in the appeal.

The Appellant had leased the residence to CPUT for student accommodation purposes, and the Respondents were initially allocated accommodation by CPUT until the end of November 2020. However, they refused to vacate the residence after receiving notice from CPUT to do so. The Appellant sought an eviction order based on rei vindicatio, but the Respondents argued that the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) applied to the proceedings.

To better understand the legal arguments proposed by both parties, one must be familiar with the legal terms PIE and rei vindicatio.

PIE is a significant piece of legislation that aims to regulate evictions and protect the rights of occupants, particularly in cases of unlawful occupation. This legislation plays a crucial role in safeguarding the rights of occupants and striking a balance between the rights of property owners and the need to protect vulnerable individuals from capricious evictions. It aligns with the constitutional protection against eviction without due process, as enshrined in Section 26(3) of the South African Constitution.

The legal concept of rei vindicatio is based on the principle that a person who has ownership or a valid right to property has the legal entitlement to possess and enjoy that property. If someone else possesses or wrongfully withholds the property, the owner can bring an action of rei vindicatio to reclaim it.

The central issue in the appeal was whether the provision of student accommodation by CPUT constituted a “home” for the students, thereby falling under the jurisdiction of PIE. The Court considered the temporary nature of student accommodation, the finite period of occupation, and the fact that students had alternative homes to go to when not occupying student residences.

The Court, therefore, held that PIE did not apply to the Respondents’ occupation of the property. It determined that the student accommodation provided by CPUT was a residence of limited duration and specific purpose, and not a “home” within the meaning of PIE. The Appellant was thus entitled to evict the Respondents based on rei vindicatio. The Court upheld the appeal, but since the Respondents had already vacated the property by that time, no eviction order was issued with the Court simply stating that the Applicant had been entitled to secure the eviction. Each party was ordered to bear their own costs.

In conclusion, the Court’s judgment declared that PIE did not apply to the Respondents’ occupation of the student accommodation. The case has important implications for student accommodation providers and the interpretation of PIE in the context of student housing as it clarifies the distinction between a residence and a home in the context of student accommodation and reaffirms the rights of property owners to seek eviction based on rei vindicatio.

Photo by Brooke Cagle on Unsplash