Can a tent legally become a home? Court says yes

• A tent can legally qualify as a home if it functions as permanent shelter, the High Court has ruled.
• Landlords cannot rely solely on ownership rights once unlawful occupation becomes protected under PIE.
• The judgment reinforces that courts assess lived reality, not legal status when considering eviction proceedings.

Court ruling redefines what counts as a home

A landmark judgment by the Western Cape High Court has sent a strong message to landlords, property owners and managing agents: when it comes to eviction law, the reality of occupation, not its legality determines whether a space is legally regarded as a home.

The ruling clarifies that even a tent erected on private property may qualify as a protected home under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) if it serves as an occupier's place of regular residence.

According to Jason Berkowitz, Associate Director at Van Deventer Dowlath & Marx Incorporated, the decision fundamentally reshapes how landlords should approach eviction proceedings.

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"For property owners, the critical question is often no longer whether the occupation is unlawful. The real question is whether the space has become the occupier's home. Once that threshold is crossed, the entire legal framework changes," says Berkowitz.

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The judgment in University of Cape Town v S.M.L and Others (2026) highlights the growing importance of understanding the constitutional protections afforded to unlawful occupiers and serves as a reminder that eviction strategy must evolve alongside changing legal interpretations.

A settlement, an eviction and then a return

The case arose after the University of Cape Town successfully obtained an eviction order against a group of occupiers living in student accommodation.

Following a court-approved settlement agreement, the occupiers were required to vacate the premises by an agreed date. When they failed to do so, the Sheriff lawfully executed the eviction. Ordinarily, that would have concluded the matter.

Instead, several of the evicted occupiers relocated to a nearby UCT-owned parking area, where they erected tents, moved in their personal belongings and continued living on university property without permission.

UCT returned to court seeking to enforce its existing eviction order or, alternatively, exercise its common-law ownership rights to remove the occupiers.

However, the Court focused on a different question entirely. Had the parking area become the occupiers' home? That distinction proved decisive.

Function over form: Why the court rejected a rigid rule

Although the occupation was unquestionably unlawful, the Court found that unlawfulness alone does not determine whether PIE applies.

Instead, the Court considered the practical reality of how the occupiers were living. Because PIE does not define the term "home", courts must examine each case on its own facts. "Our courts look at lived reality rather than paperwork," explains Berkowitz.

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"A home is not determined by ownership, a lease agreement or legal entitlement. It is determined by whether the space functions as shelter with a degree of permanence and regular occupation."

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UCT relied heavily on an earlier Supreme Court of Appeal judgment, Stay at South Point Properties (Pty) Ltd v Mqulwana, which held that student accommodation is generally not regarded as a home for purposes of PIE.

The High Court accepted that principle, but stressed it was not an inflexible rule. Rather, it reflected the typical circumstances of students who usually maintain permanent homes elsewhere.

Where the facts differ, the outcome may differ

The Court examined the individual circumstances of the occupiers rather than applying a blanket rule.

Evidence showed that several occupants no longer had realistic alternative accommodation. Addresses previously supplied to UCT were either outdated or unavailable, leaving the parking area as their only place of shelter.

On those facts, the Court concluded that the tents and parking lot had become their home for purposes of PIE. The judgment reinforces an important legal principle: every eviction matter turns on its own facts.

Landlords should therefore avoid assuming that previous cases automatically determine the outcome of future disputes.

Illegality does not end the enquiry

Perhaps the most significant aspect of the judgment is that the occupiers' conduct even after a lawful eviction, did not remove their constitutional protections.

The occupiers had:

• Agreed to vacate the property;
• Allowed that agreement to become a court order;
• Been lawfully evicted; and
• Returned to occupy university land without consent.

Despite these facts, the Court held that the enquiry did not end there.

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"Unlawfulness, even where it follows a court order, does not automatically remove constitutional protection," says Berkowitz. "If occupiers have established a home and face homelessness if removed, the protections afforded by PIE may still apply."

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The University's application was ultimately dismissed, not because it lacked ownership rights, but because it had pursued the matter under the wrong legal framework. Any further eviction would need to be instituted afresh under PIE.

Why this matters for landlords and property stakeholders

For landlords, investors, developers, property managers and managing agents, the judgment is a timely reminder that eviction proceedings require careful legal planning.

A matter that initially appears to involve straightforward unlawful occupation can quickly become subject to the constitutional safeguards contained in PIE. Failure to follow the correct statutory process can lead to costly delays, increased legal expenses and unsuccessful court applications.

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As Berkowitz notes: "Circumstances can change rapidly. Getting the legal strategy right from the outset is often the difference between resolving a matter efficiently and becoming involved in lengthy and expensive litigation."

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Property owners should therefore seek specialist legal advice before commencing eviction proceedings, particularly where occupiers may argue that a property or even an informal structure has become their home.

Important development in eviction law

The Western Cape High Court's decision represents an important development in South African eviction law. It confirms that courts will prioritise the reality of occupation over the legal status of occupation when deciding whether PIE protections apply.

For property owners, the message is clear: ownership rights remain fundamental, but they must be exercised within the constitutional framework governing evictions. As this judgment demonstrates, even a tent can become a legally protected home if the facts show that it functions as one.

Understanding that distinction may be the difference between a successful eviction and a lengthy, costly legal battle.

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