High Court eviction warning for property owners in South Africa
A recent ruling by the Western Cape High Court has clarified a significant aspect of eviction law: the moment when unlawful occupation turns into a legally protected “home.”
Van Deventer Dowlath & Marx Incorporated Associate Director Jason Berkowitz said that this ruling serves as a reminder that eviction strategies can change overnight, often in ways that landlords do not expect.
Berkowitz said that the case involving the University of Cape Town showed how quickly a situation can shift from a straightforward enforcement of ownership to one regulated by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE).
“For property owners, the key question is often not whether the occupation is unlawful. It’s whether the space has become the occupier’s home, because once it has, the entire legal framework changes,” said Berkowitz.
He explained that the University of Cape Town (UCT) obtained an eviction order against a group of occupants in its student accommodation.
The parties involved reached a settlement, which was formalised in a court order, specifying a date by which the premises were to be vacated.
When that date passed without compliance, the Sheriff proceeded with the eviction. “Ordinarily, that would have been the end of the matter,” said Berkowitz.
Several of the occupiers moved onto a nearby parking lot owned by UCT. They set up a tent, brought their belongings, and continued to live on the property without permission.
In response, UCT returned to court, seeking to enforce the existing eviction order or to assert its common-law rights as the owner to remove the occupiers. The Court accepted that the occupation was unlawful, which was undisputed.
The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE)
As Berkowitz explained, the real question was whether the occupiers had established a home on the parking lot because PIE applies only when a person is being evicted from their home.
Berkowitz said that once PIE applies, the Court must consider all relevant circumstances, including the risk of homelessness, before deciding whether the eviction is just and equitable.
Berkowitz said that PIE does not define “home,” leaving it to the courts to determine this based on the specific facts of each case.
“Our courts look at lived reality, not paperwork. A home isn’t defined by a lease or ownership. It’s defined by whether the space functions as a shelter with some degree of regular occupation and permanence,” he said.
Berkowitz said that UCT based its argument on the Supreme Court of Appeal’s decision in the case of Stay at South Point Properties (Pty) Ltd v Mqulwana and Others.
In this ruling, the SCA determined that student accommodation is generally not considered a home under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE).
“Again, the High Court didn’t dispute that principle. But it did stress that the SCA’s finding is not a fixed rule. It reflects a typical situation, one where students have homes elsewhere and occupy university accommodation for a limited purpose,” he said.
From the landlord’s perspective, Berkowitz said, one of the most challenging aspects of the judgment is that the occupiers’ actions did not carry the expected weight.
They had agreed to vacate the premises, and this agreement had been made an official court order.
Additionally, they had been lawfully evicted. Therefore, their continued occupation was clearly in breach of this legal process.
Berkowitz said that unlawful actions, even when facing a court order, do not automatically negate constitutional protections.
If the occupiers have established a home and would become homeless if evicted, the principle of PIE still applies.
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