Abstract

Keywords

Eviction; home; student accommodation.

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1 Introduction

In July 2023 in the case of Stay at South Point Properties (Pty) Ltd v Mqulwana 1

* Sarah Fick. LLB LLM PhD. Senior Lecturer, Faculty of Law, University of the Western Cape, South Africa. E-mail: sfick@uwc.ac.za. ORCiD: https://orcid.org/0000-0002-2663-3725. A version of this paper was presented at the South African Property Law Teachers Colloquium held at the University of Cape Town from 2-3 November 2023. Thank you to the participants for their valuable feedback on this topic. Also, the author expresses gratitude to the anonymous peer reviewers for their insightful comments and constructive feedback, which significantly contributed to the refinement of this manuscript. Their thoughtful recommendations have greatly enhanced the clarity and rigour of the analysis.

1 Stay at South Point Properties (Pty) Ltd v Mqulwana (UCT Intervening as Amicus Curiae) (1335/2021) [2023] ZASCA 108 (3 July 2023) (hereafter Stay at South Point).

This note identifies five shaky pillars that the decision rests on and argues that these pillars may be too weak to uphold the judgment. Importantly, the note does not aim to determine whether a residence should in fact be considered a home. Rather the note intends to highlight the problems with the reasoning of the court in coming to its conclusion.

The note first discusses the facts and the decision of the case. Then it identifies and critically analyses the five shaky pillars of the case. Based on this discussion, the note subsequently explores four broader questions raised by the case. Finally, the note concludes.

2 Facts

The matter involved an eviction application of university students from student accommodation known as "New Market Junction". 4

4 Stay at South Point para 2.

University of Technology (CPUT) to be used for student accommodation. 5

5 Stay at South Point paras 2-3.

All of the respondents, including those with permission to return, refused to vacate the building at the end of November 2020. 10

10 Stay at South Point para 3.

By the time the matter came before the SCA two years later, the case had become moot. 17

17 Stay at South Point para 5.

from student accommodation" and the fact that "the rights and duties of students provided with accommodation by CPUT is an issue of recurring controversy". 19

19 Stay at South Point para 5. A court would generally hear a moot matter only if a decision would be in the public interest. See Loots "Standing, Ripeness and Mootness" 7-20 – 7-22.

3 Finding of the SCA

The substantive part of the SCA judgment is only four pages long. It starts with an explanation that PIE and the protections against eviction it provides are applicable only to evictions from "homes". This is due to the fact that PIE was enacted to give effect to section 26(3) of the Constitution, a right that is explicitly limited to the protection of the home-interest. 20

20 Stay at South Point paras 6-9. For the finding that PIE applies only to evictions from homes, see Ndlovu v Ngcobo, Bekker v Jika 2002 4 All SA 384 (SCA) para 20.

This Court in Barnett held that the sensible and ordinary meaning of home is a place with 'regular occupation coupled with some degree of permanence'.

The SCA then gave three main reasons for finding that student accommodation cannot be a home. 23

23 Stay at South Point para 12.

There is then no basis to seek the protection of PIE. Eviction does not render the students homeless. 26

26 Stay at South Point para 12.

Secondly, the court found that the nature and purpose of student accommodation is "temporary" and "transitory" and that students are aware of this. 27

27 Stay at South Point para 13.

Equity requires that those who have had the benefit of accommodation should yield to those who have not.

This last factor could not have any application on the twenty-one students who had permission to reoccupy the following year.

For these reasons the court found that the residence was not the respondents' home. 29

29 Stay at South Point para 17.

4 Evaluation of the court's reasoning: five shaky pillars

Several issues emerge from the reasoning that this decision is based on. First, there is the blanket factual assumption that students in student accommodation all have primary residences elsewhere and will not be homeless if evicted. Second is the fact that the court and the appellant seem to believe PIE is applicable only to evictions that will cause homelessness. Third is the notion that the residence is not their home because they have homes of origin. Fourth is the notion that the residence is not their home because of the nature and purpose of the accommodation. Fifth is the notion that the residence is not their home due to equity considerations.

This section critically analyses these five shaky pillars of the decision. In doing so it aims to point out the cracks in the pillars that have the potential of causing the judgment to collapse.

4.1 Blanket factual assumption of alternative accommodation

The first pillar, identified above, is that the court assumed that all students have accommodation elsewhere and will therefore not be homeless if evicted. Such an assumption might make sense theoretically, especially when one considers the fact that the court is making the point in conjunction with the point that the purpose of the accommodation is not for the residence to be a permanent home. However, this assumption is not in line with the reality faced by many South African students and contradicts the students' submission in the High Court that an eviction would leave them homeless. 32

32 Snyman 2022 https://www.derebus.org.za/cput-students-gets-a-piece-of-the-pie/.

Moreover, their parents might not want them to move back. 33

33 In such situations the court would have to determine whether people can be considered to have alternative accommodation with their families where their families are not prepared to take them in. This is explored elsewhere and it is concluded that this might be the case in some instances. See Fick 2015 Stell LR 678-690.

Perhaps it is more worrying that the court made a blanket assumption regarding the housing situation of ninety-nine students. This contradicts its earlier jurisprudence in City of Johannesburg v Changing Tides 74 (Pty) Ltd 34

34 City of Johannesburg v Changing Tides 74 (Pty) Ltd 2012 6 SA 294 (SCA).

Unlike in Stay at South Point, the North Gauteng High Court in Tshwane University Technology v All Members of the Central Student Representative Council of the Applicant 36

36 Tshwane University Technology v All Members of the Central Student Representative Council of the Applicant (67856/14) [2016] ZAGPPHC 881 (22 September 2016).

4.2 Applicability of PIE to evictions that will not lead to homelessness

The second shaky pillar in Stay at South Point is the court's statement that: 39

39 Stay at South Point para 12.

There is then no basis to seek the protection of PIE. Eviction does not render the students homeless.

This suggests that the respondents should seek the protection of PIE. However, that is not how PIE operates. PIE is an eviction mechanism. It provides the procedure for evicting unlawful occupiers from their homes. 40

40 See the long title of PIE.

because the person is of the opinion that the occupiers will not be left homeless. This is up to the court. Similarly, the occupiers would not need to raise PIE as a defence. When applicants are allowed to choose which protections respondents are entitled to, they will always opt for the least protection.

Moreover, the court seems to suggest that PIE applies only if the eviction would cause homelessness. This has similarly been alluded to by some academics. 41

41 Cramer and Mostert 2015 Stell LR 591; Viljoen 2020 Stell LR 203.

The protection afforded in s 26(3) must therefore always, without exception, be read against the backdrop of the right to have access to adequate housing, enshrined in s 26(1). Thus where a person, facing a demolition order, does not adduce any evidence that he or she would not, in the event of his or her dwelling being demolished by order of a court, be able to afford alternative housing, s 26(1) is of no avail to him or her.

However, it must be kept in mind that Lester was not an eviction matter. It was an application for an order authorising the demolition of the appellant's home. 44

44 The demolition order did not include an order to vacate the building and neither does s 21 of the National Building Regulations and Building Standards Act 103 of 1977 authorising the order. See the high court order, Ndlambe Municipality v Lester (92/2011) [2012] ZAECGHC 33 (3 May 2012) para 122.

Moreover, the court in Stay at South Point Properties, while referring to Lester, seems to use the matter only as support for the finding that PIE applies only to homes and not to find that PIE applies only when there is a risk of homelessness: 45

45 Stay at South Point para 9, emphasis added.

Although the substantive provisions of PIE reference the occupation of land, it is plain that PIE gives effect to the constitutional protections against the peril of homelessness. It follows that, if the occupation of land does not constitute the home of an occupier, PIE does not find application. Further support for this proposition is found in Lester v Ndlambe Municipality and Another. There, this Court stated that s 26(3) needs to be read against the backdrop of s 26(1), that is, the right of access to adequate housing. It has been found that where one cannot demonstrate that one would be without alternative accommodation, and thus be rendered homeless, the protection of s 26(3) does not find application.

Still, this last statement seems to confuse the matter. That PIE applies only in matters where evictions cause homelessness cannot be correct. As

stated above, while PIE gives effect to section 26(1) and (3) of the Constitution, it also simply provides the procedure for evictions from homes. This is clear from the act's long title. It is the only mechanism available for private persons to evict unlawful occupiers living on their urban properties. 46

46 Section 4(1) of PIE reads: "Notwithstanding anything to the contrary contained in any law or the common law, the provisions of this section apply to proceedings by an owner or person in charge of land for the eviction of an unlawful occupier." More specific acts apply in some cases, primarily with regard to agricultural land, including Land Reform (Labour Tenants) Act 3 of 1996 and Extension of Security of Tenure Act 62 of 1997.

Moreover, the court is enjoined to consider all relevant circumstances before granting an eviction. This suggests that homelessness is not the only factor that may bar an eviction. An eviction (or an immediate eviction) might not be just and equitable, despite the availability of alternative accommodation. Factors such as the location of the alternative accommodation may also play a role. This was confirmed by the court in Grobler v Msimanga, 50

50 Grobler v Msimanga 2008 3 All SA 549 (W).

It will also not be just and equitable that families, and especially school children, are uprooted and removed to a different area which would cause huge disruption to schools and persons travelling to and from their employment.

In fact, PIE emphasises the importance of considering all relevant circumstances, including "the rights and needs of the elderly, children,

disabled persons and households headed by women". 52

52 Sections 4(6) and 4(7) of PIE.

This is in line with Barnett, where the SCA supported the notion that a person can have more than one home, thereby insinuating that PIE would apply to an eviction even where there is no risk of homelessness. 53

53 Barnett para 38.

4.3 Applicability of PIE to second homes

The third shaky pillar to consider is the fact that the court seems to find that PIE cannot be applicable because the respondents have homes elsewhere. However, the same court had previously found that having a home elsewhere does not prevent a finding that the place someone is being evicted from is his/her home. The SCA found in Barnett that: 55

55 Barnett para 38.

I agree with the defendants' argument that one can conceivably have more than one home.

Hence, a finding that the respondents' homes of origins still constitute their homes does not negate a finding that the student residence is their home.

Moreover, applying Barnett to student accommodation, the court in Tshwane University Technology v All Members of the Central Student Representative Council of the Applicant 56

56 Tshwane University Technology v All Members of the Central Student Representative Council of the Applicant (67856/14) [2016] ZAGPPHC 881 (22 September 2016) para 65.

There can be little doubt that a student residence is not like holiday cottages and satisfy the requirement of a 'home' as so defined. It is the place where they 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.

In fact many university students leave their parental homes for university never to return, except for social visits. In such a situation their homes of origin might constitute alternative accommodation but cease to be their homes. This would have the effect that the student accommodation

becomes their only home during their university years. The same applies to students who grew up in children's homes or foster care or do not feel safe to go back to their parental homes.

Moreover, the fact that someone has two homes does not mean that an eviction would not cause any hardship. A person's second home might be in another country or may be extremely inadequate, especially when it comes to tertiary studies. This would make it difficult for the person to return to and may affect some of the person’s rights negatively.

4.4 Effect of the nature and purpose of the accommodation on whether a place is a home

The fourth shaky pillar of the decision is the assumption that the nature and purpose of a place is determinative of whether it can be someone's home. That this is not the case is clear from early eviction matters in which PIE applied to evictions from places that were not intended to be anyone's home. This includes City of Cape Town v Rudolph 57

57 City of Cape Town v Rudolph (8970/01) [2003] ZAWCHC 29 (7 July 2003).

There can be no doubt that the shelters erected by Respondents are their homes.

In City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd, 59

59 City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012 2 SA 104 (CC)

The problem is that some recent court jurisprudence seems to suggest just this – that the nature of the property can exclude it from being classified as a home. This is suggested by the findings of the High Court regarding Airbnb accommodation (short-term home rental). The court, in Yussuf vs Ye Khan Investments CC, 61

61 Yussuf v Ye Khan Investments CC (1355/2011) [2011] ZAWCHC 416 (1 November 2011) (hereafter Yussuf).

I am unpersuaded that a guest house qualifies for protection in terms of the Pie Act because occupants in a guest house are occupying the premises for a fixed period of time with the express consent of the owner or the person in charge of the premises. This is a commercial property, like a hotel, which provides for short term occupation of persons who are visitors and not to

persons who are long term occupiers of land or property because they have nowhere else to live.

In fact, the wording in Stay at South Point Properties is very close to the wording used in Yussuf:

the provision of student accommodation is for a finite period of time and it has a limited and defined purpose, that is, to accommodate students for the duration of the academic year and thereby assist them to study at the university. The arrangement is by its nature temporary and for a purpose that is transitory.

The court in Yussuf seemed to rely heavily on Shoprite Checkers (Pty) Ltd v Jardim, 63

63 Shoprite Checkers (Pty) Ltd v Jardim 2004 1 SA 14 (O) (hereafter Shoprite Checkers) 502.

Respondents have referred me to a decision in the matter of Shoprite Checkers (Pty) Ltd v Jardim, 2004 (1) SALR p.502 where the Court held that the provisions of the Pie Act are not applicable to ejectment of persons occupying non-residential properties.

However, this reliance is misplaced. The issue in Shoprite Checkers was completely different. It was not whether PIE applied where non-residential properties were being used as homes, but whether PIE applied to evictions from non-residential properties of non-residential occupiers. The court indicated that the property was not being used as a home and this point seemed to be significant to its findings: 65

65 Shoprite Checkers para 13.

Die ruimte wat die onderwerp vorm van die huurkontrak, word nie vir behuisingdoeleindes verhuur of benut nie.

Hence, in Shoprite Checkers the finding was that PIE applies only to homes, not that commercial property cannot be a home. 66

66 See Shoprite Checkers para 13.

It is not the nature of the property but the use thereof that should determine whether it is a home. Commenting on Yussuf, Van der Merwe and Pienaar 67

67 Van der Merwe and Pienaar 2014 ASSL 947.

It is submitted that the name of or label attached to the particular premises should not be the distinguishing factor, but that the actual use to which the property is being put should be scrutinized instead.

They also point out that just a few weeks after Yussuf was decided by the High Court, the Supreme Court of Appeal, in City of Tshwane Metropolitan

Municipality v Mamelodi Hostel Residents Association 68

68 City of Tshwane Metropolitan Municipality v Mamelodi Hostel Residents Association (025/2011) [2011] ZASCA 227 (30 November 2011).

Excluding or including certain properties per se, on its usual definition, would not suffice.

In the same vein, Cramer and Mostert, 70

70 Cramer and Mostert 2015 Stell LR 595.

In South Africa, with its broad socio-economic spectrum, a circumstantial understanding of the concept, rather than a hard-and-fast definition, is prudent. Standards as to what constitutes a home should vary depending on the circumstances.

That said, the nature and purpose of the property is not irrelevant to the determination of whether a place is a home. It might help to determine this question. Places that are ordinarily not occupied as homes may be less likely to be someone's home. Within that category a distinction can also be made between places that were never intended to accommodate persons (such as office buildings) and those specifically intended to be used as temporary accommodation. The nature of these places weighs on the side of them not being considered homes. 71

71 Like in Stay at South Point and Yussuf.

Another point to consider is that it is unlikely that the short-term, student-accommodation nature of a private rental apartment would exclude it from the protection of PIE. This further brings into question this line of reasoning of the court.

4.5 Effect of equity on whether a place is a home

The fifth shaky pillar of the case is the notion that equity can be used to determine whether a place is a home. The court discussed the student housing scarcity in higher education and found that: 74

74 Stay at South Point para 16.

Equity requires that those who have had the benefit of accommodation should yield to those who have not. And nothing about the position of the respondents suggests that this equitable principle should not continue to apply. It is also for this reason, as the amicus reminded us, that student accommodation forms part of the larger policy framework of higher education.

Equity plays an important role in eviction matters. However, the court relied on equity considerations at the incorrect stage of the inquiry. PIE provides that: a "court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances." 75

75 Sections 4(6) and (7) of PIE. Emphasis added. S 6(1) provides the same with slightly different wording. The measure of "just and equitable" gives effect to s 172(1)(b), which reads: "When deciding a constitutional matter within its power, a court…may make any order that is just and equitable."

The "equity" considerations that the court took into account had nothing to do with the factual question of whether a residence is a home. Instead, the court seemed to be of the opinion that equity considerations require that it not be considered a home. This type of reasoning muddles the two enquiries - whether the place is a home and whether an eviction would be just and equitable - and should be avoided. As is further discussed below, 76

76 See section 5.3.

Moreover, its statement that "nothing about the position of the respondents suggests that this equitable principle should not continue to apply" suggests that it was in fact balancing the interests of the parties, something that should occur when applying PIE.

5 Broader questions raised by the case

This section considers the broader questions raised by the Stay at South Point case. Four questions are considered. One, whether faulty reasoning by a court is problematic if the outcome is correct. Two, whether the court is suggesting that some types of properties should be excluded from the

protection of PIE. Three, whether the court's interpretation of "home" is too narrow. Four, whether courts should decide moot matters.

5.1 Is faulty reasoning problematic if the outcome is correct?

It was argued above that equity considerations should not play a role in determining whether a place is a person's "home" and, hence, whether PIE should apply. Instead, equity considerations should be taken into account in the application of PIE when a court is determining whether an eviction would be just and equitable. The equity considerations regarding the nature and purpose of student housing in higher education highlighted by the court suggest that an eviction would be just and equitable. This implies that despite its shaky legal reasoning the outcome of the decision would have been the same had the court found that the residence was the students' home and applied PIE.

One might wonder whether it matters that the court made mistakes in its judgment if it would have led to the same outcome – an eviction. It does matter. It matters because if this case is used as precedent in future cases the outcome might not be the same had PIE applied. In applying equity considerations to the threshold requirement, the court creates precedent for barring all student accommodation from the application of PIE. This is undesirable, as it prevents the courts from considering the relevant circumstances of each case individually, which would better suit "the spirit of the post-Apartheid eviction law". 77

77 Van der Walt 2007 JQR 2.3. Here Van der Walt is suggesting that the court in Barnett should rather allow the application of PIE, even where the place is not a primary home.

5.2 Is the court suggesting that some types of properties should be excluded from PIE?

A further question arising from the case is whether the court is suggesting that evictions from certain places would always be just and equitable and should therefore not have to go through the entire tedious PIE process. This is reminiscent of the application of the housing right in European Convention on Human Rights, where the idea is that the proportionality of evictions need not be determined on a case-by-case basis but rather that the legislature had already performed the balancing act and found that the eviction would be proportional. 78

78 Fick and Vols 2016 EJCL 47-48.

direction that the courts are moving in – that evictions from certain properties would always be just and equitable? If this is the case, then the court must clearly state this instead of hiding inside the "home" requirement. Only then could one properly engage with such a development. 81

81 Transposing a European concept such as that into South African law might not be ideal, due to the inequality prevalent in South Africa.

Maybe the answer does not lie in barring the use of PIE for certain types of properties where the delay in eviction would cause great hardship and/or where the type of property suggests that it is unlikely that the property is a person's home. In such circumstances, perhaps the solution should rather be that section 5 of PIE applies to these properties. This section sets out the "urgent proceedings for eviction". 82

82 Title of the section.

I say section 5 "should" apply because it is unclear from section 5 if it would apply to all such urgent matters. Section 5(1) reads:

Notwithstanding the provisions of section 4, the owner or person in charge of land may institute urgent proceedings for the eviction of an unlawful occupier of that land pending the outcome of proceedings for a final order, and the court may grant such an order if it is satisfied that—

(a) there is a real and imminent danger of substantial injury or damage to any person or property if the unlawful occupier is not forthwith evicted from the land;

(b) the likely hardship to the owner or any other affected person if an order for eviction is not granted, exceeds the likely hardship to the unlawful occupier against whom the order is sought, if an order for eviction is granted; and

(c) there is no other effective remedy available.

It is uncertain whether financial hardship or the hardship of new students requiring accommodation would qualify as "substantial injury or damage to any person or property". If not, it is suggested that this section be amended to include such.

5.3 Is the interpretation of "home" too narrow?

Section 26(3) of the Constitution provides that no one may be evicted from their "home" unless a court has ordered the eviction after considering all the relevant circumstances. That the place must be the person's home is therefore a threshold requirement for the protection of the right. The Constitutional Court, in De Reuck v Director of Public Prosecutions (Witwatersrand Local Division), 83

83 De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) 2004 1 SA 406 (CC).

because the limitation of the rights in the Constitution takes place at another stage, not at the threshold level. 84

84 De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) 2004 1 SA 406 (CC) para 48.

This is different from the court's interpretive approach in Stay at South Point. Instead of adopting a wide interpretation, the court excluded several categories of occupiers including persons who do not face homelessness, persons with second homes, persons occupying properties with a certain nature and purpose, and persons occupying properties who should not do so for equity reasons. Perhaps in Stay at South Point the court has interpreted the threshold requirement of "home" too narrowly, thereby unnecessarily limiting the protection of the right. 87

87 Boggenpoel and Mahomedy have similarly argued that "one should be careful not to interpret the term 'home' too narrowly." Boggenpoel and Mahomedy 2023 PELJ 21.

The court's narrow interpretation seems to be out of step with the initial case law limiting PIE to eviction from homes. In Ndlovu v Ngcobo, Bekker and Another v Jika 88

88 Ndlovu v Ngcobo, Bekker v Jika 2002 4 All SA 384 (SCA).

Interestingly, even this interpretation has been criticised as "narrow" in that it excludes the occupation of rudimentary structures or the occupation of land without (permanent) structures from the protection of PIE. 90

90 Boggenpoel and Mahomedy 2023 PELJ 21-23. This excludes persons like the applicants in Ngomane v City of Johannesburg Metropolitan Municipality 2020 1 SA 52 (SCA), whose "pile of loose wooden pallets, cardboard boxes and plastic sheets" were confiscated. The applicants used these to create shelter for themselves each night and dismantled them every morning. The court found that "not even the most generous interpretation of the words 'building or structure' … can lead to the conclusion that the material confiscated falls within their meaning. There were simply no buildings or structures." This prevented an interpretation that the place where

in a call for a more nuanced approach in such cases, that advocates for seeing a home as "more than a physical structure that provides shelter from the elements." 91

91 Boggenpoel and Mahomedy 2023 PELJ 22; interpreting Fox O'Mahony Conceptualising Home 4 with reference to Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC) para 17. See also, Fox O'Mahoney 2013 IJLBE 161-163.

Such an approach would be in line with Van der Walt's 92

92 Van der Walt 2007 JQR 2.3.

Would it not perhaps be better to accept that PIE also applies to the unlawful occupation of holiday homes or second homes that are occupied only intermittently, and then decide the matter on the equity of allowing the eviction in view of all the circumstances? I prefer the latter approach and I think it better suits the spirit of the post-apartheid eviction law under s 26(3), even (or perhaps particularly) when it applies to occupiers with whom one feels little sympathy, such as in this case.

5.4 Should courts decide moot matters?

A further question raised by Stay at South Point is whether courts should moot matters at all. Stay at South Point was a moot matter. 93

93 Stay at South Point para 5.

Despite finding that the matter was of such importance that it should be heard regardless of its mootness, the court made a very brief analysis lacking in depth. This is both surprising and unfortunate. It is surprising that the court would hear a matter that it did not have to, if it was not going to commit to an in-depth analysis. It is also unfortunate, because it is very unlikely that a moot matter will be appealed against. Perhaps courts should decide moot matters only if they are willing to commit to providing a

comprehensive decision, taking full cognisance of the fact that an appeal is unlikely and precedent is being created.

6 Conclusion

This note set out to identify five cracks in the pillars upon which the Stay at South Point judgment rested. First, it criticised the blanket factual assumption that students in student accommodation all have primary residences elsewhere and will not be homeless if evicted. Second, it argued that the court's seeming understanding that PIE is applicable only to evictions that will cause homelessness is erroneous. Third, it criticised the notion that the residence is not the students' home because they have homes of origin. Fourth it found fault with the notion that the residence is not their home because of the nature and purpose of the accommodation. Fifth it argued that the equity considerations in determining whether the residence is a home were misplaced.

Apart from these points, the note discussed some broader questions raised by the case. Some recommendations arose from this discussion, that it should be accepted that it is insufficient for a case to have the correct outcome, when the outcome arises from flawed reasoning. Moreover, there is a clear need for expedience in the eviction process, especially if a delay would cause great hardship. Another issue highlighted was the idea that courts should avoid interpreting the term "home" too narrowly, thereby limiting the protection of the right. Finally, the idea was highlighted that courts should refrain from deciding moot matters if they are not prepared to commit to in-depth analyses.

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Case law

Barnett v Minister of Land Affairs 2007 6 SA 313 (SCA)

City of Cape Town v Rudolph (8970/01) [2003] ZAWCHC 29 (7 July 2003)

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012 2 SA 104 (CC)

City of Johannesburg v Changing Tides 74 (Pty) Ltd 2012 6 SA 294 (SCA)

City of Tshwane Metropolitan Municipality v Mamelodi Hostel Residents Association (025/2011) [2011] ZASCA 227 (30 November 2011)

De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) 2004 1 SA 406 (CC)

Grobler v Msimanga 2008 3 All SA 549 (W)

Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC)

Lester v Ndlambe Municipality (514/12) [2013] ZASCA 95 (22 August 2013)

Ndlambe Municipality v Lester (92/2011) [2012] ZAECGHC 33 (3 May 2012)

Ndlovu v Ngcobo, Bekker v Jika 2002 4 All SA 384 (SCA)

Ngomane v City of Johannesburg Metropolitan Municipality 2020 1 SA 52 (SCA)

Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of Johannesburg 2008 3 SA 208 (CC)

Occupiers of Erven 87 and 88 Berea v De Wet 2017 5 SA 346 (CC)

Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC)

Shoprite Checkers (Pty) Ltd v Jardim 2004 1 SA 14 (O)

Stay at South Point Properties (Pty) Ltd v Mqulwana (UCT Intervening as Amicus Curiae) (1335/2021) [2023] ZASCA 108 (3 July 2023)

S v Makwanyane 1995 3 SA 391 (CC)

S v Zuma 1995 2 SA 642 (CC)

Tshwane University Technology v All Members of the Central Student Representative Council of the Applicant (67856/14) [2016] ZAGPPHC 881 (22 September 2016)

Yussuf v Ye Khan Investments CC (1355/2011) [2011] ZAWCHC 416 (1 November 2011)

Legislation

Constitution of the Republic of South Africa, 1996

Extension of Security of Tenure Act 62 of 1997

Land Reform (Labour Tenants) Act 3 of 1996

National Building Regulations and Building Standards Act 103 of 1977

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998

Internet sources

Snyman 2022 https://www.derebus.org.za/cput-students-gets-a-piece-of-the-pie/

Snyman R 2022 CPUT Students Gets a Piece of the Pie https://www.derebus.org.za/cput-students-gets-a-piece-of-the-pie/ accessed 31 October 2023

List of Abbreviations