South African court makes it more difficult for homeowners to evict unlawful occupiers

A recent Western Cape High Court ruling has warned South African property owners that unlawful occupiers can gain legal protection under eviction laws if a property becomes their “home”, even after a lawful eviction order.

The Western Cape High Court has officially redrawn one of the most important lines in eviction law: the point at which unlawful occupation becomes a legally protected “home”.

According to Van Deventer Dowlath & Marx Incorporated associate director, Jason Berkowitz, this ruling is a reminder that eviction strategy can change overnight – sometimes in ways landlords don’t anticipate.

The issue in question arose during the 2026 case of University of Cape Town v S.M.L and Others, which was heard in the Western Cape High Court.

Berkowitz, who regularly appears in court in eviction and real estate matters, said the case shows just how quickly a matter can escalate.

What may start as a straightforward enforcement of ownership can quickly become a process governed 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,” he explained. “It’s whether the space has become the occupier’s home – because once it has, the entire legal framework changes.”

In this case, UCT secured an eviction order against a group of occupiers in its student accommodation. The parties agreed, in a settlement approved by a court order, on a date by which the premises would be vacated.

When that date passed without compliance, the Sheriff carried out the eviction. “Ordinarily, that would have been the end of the matter,” Berkowitz said.

Instead, several of the occupiers moved onto a nearby UCT‑owned parking lot. They erected a tent, brought their belongings, and continued living on the property without consent.

UCT returned to court, asking either to enforce the existing eviction order or to rely on its common‑law rights as owner to remove the occupiers.

However, the court focused on a different and ultimately decisive issue – whether the parking lot had become their “home”?

High Court warns ownership alone does not decide eviction cases

The court in the UCT case accepted that the occupation was unlawful. That issue was not in dispute, 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.”

“Once PIE applies, the court has to consider all relevant circumstances, including the risk of homelessness, before deciding whether eviction is just and equitable.”

PIE does not define “home”, Berkowitz pointed out, which leaves it up to the courts to determine based on the facts.

“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.”

UCT relied on the Supreme Court of Appeal’s decision in Stay at South Point Properties v Mqulwana and Others, where the SCA held that student accommodation is generally not a home for the purposes of PIE.

“Again, the High Court didn’t dispute that principle. But it did stress that the SCA’s finding is not a fixed rule,” Berkowitz said.

“It reflects a typical situation – one where students have homes elsewhere and occupy university accommodation for a limited purpose.”

The court in the UCT examined the occupiers’ circumstances closely. For some, there really wasn’t any other realistic alternative accommodation.

This is because the addresses they’d formerly given to UCT were either outdated or no longer available. On that basis, the court accepted that the parking lot, despite its nature, had become their home.

Landlords can still face PIE hurdles after a lawful eviction

From a landlord’s perspective, Berkowitz said, one of the most difficult aspects of the judgment is that the occupiers’ conduct didn’t carry the weight one might expect:

• They had agreed to vacate
• That agreement had been made an order of court
• They had been lawfully evicted
• Their continued occupation was plainly in breach of that process

Even so, Berkowitz stressed that the court in this case held that this does not determine whether PIE applies.

“Unlawfulness – even in the face of a court order – doesn’t automatically remove constitutional protection. If the occupiers have established a home and would face homelessness if evicted, PIE still applies.”

The application was dismissed, not because the occupiers were entitled to remain indefinitely, and not because UCT lacked rights as owner.

Rather, it was dismissed because the eviction had not been pursued under the correct statutory framework, he said. “Any further eviction would need to be brought afresh under PIE.”

Berkowitz added that this judgment is a clear warning for South African property owners, investors and managing agents.

“Circumstances can change quickly. A matter that starts off as a simple enforcement of ownership can turn into a PIE matter overnight.”

“Getting the approach right from the outset is often the difference between a matter being resolved efficiently and one becoming drawn out and expensive.”