Stay at South Point Properties (Pty) Limited v Mqulwana and Others (WCC) (unreported case no 622/2021, 13-5-2021) (Baartman J)

The COVID-19 pandemic has become synonymous with a ‘new normal’ of uncertainty. The higher education system in South Africa (SA) has not been exempted from the unpredictable effects of this ‘new normal’.

A dismal reality for many university students who occupy university residences are that they could be called on to vacate their residences, at any time with little or no prior notice and consequently be left with no place of refuge.

Recently, in the case of Stay at South Point Properties (Pty) Limited, the Western Cape Division of the High Court in Cape Town, considered whether a university residence constitutes a home for purposes of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) and consequently whether the applicant had to comply with the provisions of PIE to evict the university students from the residence.

Background

The 90 respondents were enrolled as students for the 2020 academic year at the Cape Peninsula University of Technology (the university) and lived in the student residence New Market Junction (the residence).

The students occupied the residence in terms of a head lease agreement concluded between the applicant, Stay at South Point Properties (Pty) Limited (South Point) and the university. The university had provided South Point with a list of students to be accommodated at the residence for the 2020 academic year. The respondents were included on this list.

South Point alleged that the university concluded their final examinations on 24 December 2020 and that the respondents were expected to vacate the residence 72 hours thereafter. The students had failed to vacate the premises and as a result thereof South Point – as the owner of the residence – sought to evict the students through the rei vindicatio.

On 22 January 2021, De Villiers AJ issued a rule nisi calling on the respondents to show cause as to why they should not be evicted from the student residence. The return day of the rule nisi was heard by Baartman J. The legal issue before Baartman J was whether South Point should have approached the court in terms of the rei vindicatio or in terms of PIE.

Submissions made by the applicant and respondent

The submissions made by South Point was that the need to comply with the provisions of PIE did not arise as the student residence did not serve as the primary residence of the students and accordingly, the eviction would not render them homeless.

Conversely, the respondents submitted that the provisions of PIE did find applicability as the residence constituted their home for the academic year and the relief sought by South Point would render the students homeless. The respondents further submitted that their occupation of the residence was lawful.

The current legal position

In the matter of Barnett and Others v Minister of Land Affairs and Others 2007 (6) SA 313 (SCA), Brand JA held that PIE only applies to evictions of persons from their homes.

Similarly, in the matter of President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd (Agri SA and Others, Amici Curiae) 2005 (5) SA 3 (CC), Langa ACJ held that in terms of the preamble of PIE, ‘no one may be evicted from their home, or have their home demolished, without an order of the court made after considering all the relevant circumstances’. Consequently, the primary question that the court had to consider was whether the residence would qualify as the respondents’ home for purposes of PIE.

In Barnett, the court considered whether the ‘cottages on the sites that were put up by the defendants for holiday purposes’ constituted their home in the context of PIE. The court found that the cottages do not constitute a home for purposes of PIE in that although one can have more than one home, the term home requires an ‘element of regular occupation coupled with some degree of permanence’. The court further held that this rational was in accordance with the ratio in Beck v Scholz [1953] 1 All ER 814, where the court held that ‘the word “home” itself is not easy of exact definition, but the question posed, and to be answered by ordinary common sense standards, is whether the particular premises are in the personal occupation of the tenant as his or her home, or, if the tenant has more than one home, as one of his or her homes. Occupation merely as a convenience for such occasional visits … would not … according to the common sense of the matter, be occupation as a home’.

In Tshwane University Technology v All Members of the Central Student Representative Council of the Applicant and Others (GP) (unreported case no 67856/14, 22-9-2021) (Wentzel AJ), the court held that there can be little doubt that a student residence is not like holiday cottages and that a student residence satisfies the requirement of a ‘home’ as so defined.

‘It is the place where [the students] stay for the majority of the year; although they may not regard it from the point of view of their domicile as their permanent home, it is their home for the majority of the year’.

Findings by the court

The court was of the view that a home refers to more than a convenient lodging and accepted that the residence was more than just a convenient lodging in that for a particular academic year it constitutes the home of the respondents. The court further held that the students who are accommodated in a particular residence for an academic year occupy the residence for that year with the required elements of regularity and a degree of permanence.

In addition, the court found that it was not uncommon for students to move furniture into the residence and consequently recapitulated the ratio of the court in the Tshwane University of Technology matter.

In the Tshwane University of Technology matter, the court held that a student residence is not like a holiday cottage and satisfies the requirement of a home as so defined as it is the place where the students stay for the majority of the year. The court further held that although one cannot ‘regard it from the point of view of their domicile as their permanent home, it is their home for the majority of the year’.

Accordingly, given that a tertiary education residence constitutes a home to its residents and given that the respondents had occupied the residence for the 2020 academic year it followed that they could only be evicted through an application in terms of PIE. Baartman J further held that the substantive and procedural protection that PIE provides was not afforded to the respondents.

Conclusion

Although leave to appeal to the Supreme Court of Appeal has been granted, it is to be seen whether the SCA agrees with the ratio of the court a quo. For now, however, it cannot be disputed that for many university students who view their university residence as a place of refuge, a shelter and home from the high demands and pressures of seeking a tertiary education this judgment comes as a protection against eviction.

Robyn Snyman LLB (Stell) is a candidate legal practitioner at Herold Gie Attorneys in Cape Town.

This article was first published in De Rebus in 2022 (Jan/Feb) DR 34.