The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE Act) is a piece of legislation that was promulgated to give effect to s 26 of the Constitution. It affords protection to unlawful occupiers by prescribing procedures and processes that landowners must adhere to when they want to evict an unlawful occupier from their premises. Section 26 of the Constitution provides the right to housing and that no persons may be evicted or have their home demolished without a court order. The PIE Act does not specifically refer to the word ‘home’, however, case law has established that the Act applies to all eviction process of persons from their ‘home’ (see Barnett and Others v Minister of Land Affairs and Others 2007 (6) SA 313 (SCA)). Considering that the Act does not refer to the word ‘home’ and provides no definition of what a ‘home’ is, there seem to be misconceptions that the PIE Act consistently applies to all premises used for residential purposes.

The courts continue to clarify the meaning of ‘home’ in terms of the Act and the scope of the application of the Act. In Barnett, the court held that ‘home’ is a place with regular occupation with some degree of permanence. ‘PIE applies to all evictions from buildings or structures utilised for dwelling purposes (see Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA)). Structures that do not form the function of a dwelling do not fall under PIE (see Shoprite Checkers (Pty) Ltd v Jardim 2004 (1) SA 502 (O) at 506E … )’ (M Moolla ‘Having a slice of PIE – understanding the Act’ 2016 (Oct) DR 24). ‘If commercial property is utilised for dwelling purposes, PIE applies, holiday homes do not fall under PIE (see Barnett and Others v Minister of Land Affairs and Others 2007 (6) SA 313 (SCA) at 328B – C)’ (Moolla (op cit)).

In the case of Stay at South Point Properties (Pty) Ltd v Mqulwana and Others 2024 (2) SA 640 (SCA), an appeal was bought by the appellants against an order from the Western Cape Division of the High Court in Cape Town. The appellants sought an order from the court a quo using the rei vindicatio to evict the respondents from a student accommodation that they refused to vacate after completion of their academic year. The court a quo held that the PIE Act was applicable in eviction of the respondents and the appellant could not rely on the rei vindicatio to evict the respondents. They had to follow the procedures and process of the PIE Act, hence the appeal. When the appeal was bought before the Supreme Court of Appeal (SCA) the respondents were no longer in occupation of the residence, however, it was decided that the appeal must proceed to provide clarity on the issue as the issue of students refusing to vacate student accommodations is a recurring issue. There needed to be precedent on whether the PIE Act is applicable or not and what approach landowners must follow. ‘The Supreme Court of Appeal (SCA) had to decide whether student accommodations can be described as a “home” for the purposes of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE)’ and whether the procedures and processes laid out in the Act should be followed (B Scriba, B Meyer and C Grobler ‘Your “home away from home” is not in fact your home: Students be warned’ (www.cliffedekkerhofmeyr.com, accessed 2-2-2025). See also J Berkowitz ‘How does South African law define “home” in eviction cases?’ (https://fwblaw.co.za, accessed 2-2-2025)).

In determining whether the PIE Act was applicable and whether evicting the students that occupied the residence would render them homeless, the SCA held that student accommodations have three features that do not make them a ‘home’ for purposes of the PIE Act and refused to offer them protection afforded to unlawful occupiers under the said Act. The court held that student accommodations are temporary accommodations that do not displace, nor do they replace, the homes from which students come; therefore, they will not be homeless if evicted. The court clarified two important aspects regarding the application of the PIE Act. If the occupation of land does not constitute the ‘home’ of the unlawful occupier, the PIE Act does not apply. In addition to that in instances where the unlawful occupier cannot demonstrate that they will be homeless then the Act also does not apply. ‘The SCA concluded that the student residence was not a home to students. Rather, it was “a residence, of limited duration, for a specific purpose, that is time-bound by the academic year, and that is, for important reasons, subject to rotation”’ (Scriba, Meyer and Grobler (op cit)). The PIE Act, therefore, does not apply to student accommodations. It seems students that are renting student accommodations for the duration of an academic year can be simply evicted by the landowners by using the rei vindicatio and do not need to comply with the procedures and processes laid down in the PIE Act as student accommodations are not recognised as ‘homes’ for purposes of the PIE Act.

Sanele Ndlovu LLB LLM (UJ) is a legal practitioner at the University of Johannesburg Law Clinic and a lecturer at IIE MSA.

This article was first published in De Rebus in 2025 (March) DR 17.