Five shaky pillars – a criticism of the reasoning on which the stay at South Point properties v Mqulwana (SCA) decision rests

Abstract

In July 2023 in the case of Stay at South Point Properties (Pty) Ltd v Mqulwana the Supreme Court of Appeal (the SCA) found that student accommodation does not constitute a "home" in terms of section 26(3) of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution). Section 26(3) of the Constitution provides that "[n]o one may be evicted from their home … without an order of court made after considering all the relevant circumstances." The students' "residence" was not their "home". This meant that they could not rely on the protection provided by section 26(3) of the Constitution or the legislation giving effect to this right, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (hereafter PIE). 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.