Els v Venter and Another (449/2024) [2025] ZASCA 163 (27 October 2025)

Case Note

Els v Venter and Another (449/2024) [2025] ZASCA 163 (27 October 2025)

Supreme Court of Appeal of South Africa; Coram: Schippers JA (with Goosen, Kgoele and Kathree-Setiloane JJA and Modiba AJA concurring). Heard on 1 September 2025; delivered on 27 October 2025.

Reportability

This judgment is reportable because it provides authoritative guidance on the meaning of pivotal terms in the Consumer Protection Act 68 of 2008 (CPA), including “transaction”, “service”, “rental”, and, critically, “in the ordinary course of business”. The Supreme Court of Appeal clarifies that a residential lease concluded by a private owner who is not in the business of letting property does not fall within the ambit of the CPA. The decision thereby delineates the boundaries of the CPA’s reach in the landlord-tenant context, a recurring issue in residential leasing disputes.

The judgment is also significant in its treatment of termination clauses vis-à-vis section 14 of the CPA. It confirms that, even where parties label an agreement as “fixed-term”, section 14 only applies to “consumer agreements” in the ordinary course of a supplier’s business and is further constrained by the 24-month cap in regulation 5(1) of the Consumer Protection Regulations, 2011, absent demonstrable financial benefit to the consumer. This reasoning provides important certainty for drafting and enforcing residential leases, particularly for private lessors.

Finally, the court addresses the proper characterisation of an order compelling a tenant to vacate by a particular date. It holds that such an order, even if framed as declaratory, may constitute an eviction and must comply with the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). By setting aside the High Court’s vacate-date order, the SCA affirms procedural safeguards for occupants and the necessity of a just and equitable inquiry under PIE, reinforcing constitutional eviction jurisprudence.

Cases Cited

Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All South African Law Reports 262 (SCA); 2012 (4) South African Law Reports 593 (SCA).

Capitec Bank Holdings Ltd and Another v Coral Lagoon Investment 194 (Pty) Ltd and Others [2021] ZASCA 99; [2021] 3 All South African Law Reports 647 (SCA); 2022 (1) South African Law Reports 100 (SCA).

Mbambisa and Others v Nelson Mandela Bay Metropolitan Municipality [2024] ZASCA 151; (2025) 46 Industrial Law Journal 277 (SCA); 2025 (3) South African Law Reports 112 (SCA).

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another [2011] ZACC 33; 2012 (2) Butterworths Constitutional Law Reports 150 (CC); 2012 (2) South African Law Reports 104 (CC).

Legislation Cited

Consumer Protection Act 68 of 2008, sections 1, 2(1), 3, 5(1), 14(2)(a) and 14(2)(b)(ii).

Consumer Protection Regulations, 2011 (Government Notice R293, Government Gazette 34180, 18 April 2011), regulation 5(1).

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, sections 4(7) and 4(8).

National Credit Act 34 of 2005.

Rules of Court Cited

No rules of court were expressly cited.

HEADNOTE

Summary

The appellant, a tenant in a residential property in Stellenbosch, resisted a three-month termination issued by the private owner-lessors under a clause in a second written lease. He contended that the lease was a “fixed-term” consumer agreement governed by section 14 of the Consumer Protection Act 68 of 2008, which would permit cancellation by the supplier only for material breach by the consumer after notice. The High Court rejected the CPA argument, upheld the termination, and directed the tenant to vacate by a specified date.

On appeal, the Supreme Court of Appeal held that the CPA’s definition of “rental” and “service” applies only to agreements concluded by a supplier “in the ordinary course of business,” and that the private lessors, who had let a former family home pending sale and were not in the business of letting, were not suppliers. Consequently, the appellant was not a “consumer” under the Act, section 14 did not apply, and the termination clause was enforceable according to its terms.

The SCA, however, set aside the portion of the High Court’s order requiring the tenant to vacate by a fixed date. It reasoned that such an order effectively constituted an eviction, for which the PIE Act requires a just and equitable inquiry and compliance with statutory safeguards. Save for that, the appeal was dismissed with attorney-and-own-client costs pursuant to the lease.

Key Issues

The first issue was whether the residential lease fell within the ambit of the CPA as a “rental” constituting a “transaction” and “service” provided “in the ordinary course of business.” This required determining whether the private lessors were “suppliers” engaged in the continual marketing of services and whether the tenant was a “consumer” to whom services were marketed in that ordinary course.

The second issue concerned the applicability of section 14 of the CPA to the lease. The court had to decide whether the lease was a qualifying “fixed-term consumer agreement,” whether the 24-month cap in regulation 5(1) applied, and whether section 14(2)(b)(ii) could preclude termination without material breach when the agreement itself included a three-month termination clause triggered by the landlord.

The third issue was the character of the High Court’s order compelling the tenant to vacate by a specified date. The question was whether such an order was merely declaratory of the legal position or whether it amounted to an eviction order that must comply with the procedural and substantive requirements of the PIE Act, including a just and equitable assessment.

Held

Held, that the CPA did not apply to the lease because the lessors were not acting “in the ordinary course of business.” They were private individuals who had let their former family home incidentally while relocating and preparing for a sale; they did not continually market leasing services, and the transaction was not part of any day-to-day commercial letting enterprise.

Held, further, that section 14 of the CPA could not assist the tenant. Even aside from the inapplicability of the CPA to the transaction, the lease—running for 36 months—did not conform to the 24-month cap for fixed-term consumer agreements in regulation 5(1), absent demonstrable financial benefit to the consumer. In any event, the agreement was not a “consumer agreement” as defined, so section 14(2)(b)(ii) could not invalidate the contractual three-month termination clause.

Held, however, that the High Court’s directive requiring the tenant to vacate by a fixed date was, in substance, an eviction order. Such an order must comply with the PIE Act, which mandates a just and equitable inquiry and empowers the court hearing a PIE application to determine appropriate dates for vacation and execution. The SCA accordingly set aside the vacate-date paragraph but otherwise dismissed the appeal with attorney-and-own-client costs.

THE FACTS

The respondents, married to each other, owned a residential property in the Winelands Golf Estate, Stellenbosch. They relocated to Australia in 2018 and, uncertain about the permanence of the move, decided to let their family home rather than immediately sell it. On 1 December 2020, they concluded a lease with the appellant for a three-year term ending 31 December 2023. The tenant complied fully with the first lease.

In February 2023, the tenant sought an extension. By then, the owners had decided to settle in Australia and intended to sell the property. They communicated that any extension would be subject to a landlord’s right to terminate on three months’ written notice and that, upon expiry of that period, the tenant would be required to vacate. The appellant agreed to those terms, and on 4 August 2023, the parties concluded a second written lease, for a further three-year period commencing 1 January 2024 and ending 31 December 2026. Clause 29.2 granted the landlord the right to terminate on three months’ written notice prior to the termination date. The lease also contained an attorney-and-own-client costs clause. A friend of the owners residing locally, Mr Deon Roos, managed the lease.

The property was marketed and sold on 19 December 2023, with vacant possession to be given by 1 April 2024. On 21 December 2023, the lessors invoked clause 29.2 and issued a termination notice requiring the tenant to vacate by 31 March 2024. On the same day, the tenant acknowledged the lessors’ right to issue the notice but invoked the principle of “huur gaat voor koop,” indicating that the lease took precedence over the sale and would be transferred to the purchaser. He nevertheless accepted the notice’s validity in correspondence and was urged to liaise with the purchasers about occupation arrangements.

Thereafter, on 28 January 2024, the tenant’s attorneys adopted a different position. They asserted that the lease fell within section 14 of the CPA as a fixed-term consumer agreement and could be cancelled only for material breach after notice. The lessors launched urgent proceedings in the High Court, seeking declaratory relief that the CPA did not apply, that the termination was valid, and that the tenant should vacate by 1 April 2024. The High Court upheld the lessors’ position on the CPA and termination and ordered the tenant to vacate by 31 March 2024 with costs on an attorney-and-own-client scale. With leave, the tenant appealed to the SCA.

THE ISSUES

The primary legal question was whether the second lease constituted a “transaction” for the supply of a “service” by a “supplier” to a “consumer,” “in the ordinary course of business,” as those terms are used in the CPA. The court had to decide whether a residential lease by a private owner of a former family home, pending sale, meets the statutory threshold for the Act’s application.

A second issue concerned the effect of section 14 of the CPA on the enforceability of the three-month termination clause. The court was asked to determine whether the lease was a “fixed-term consumer agreement” within the meaning of section 14 and regulation 5(1) of the Consumer Protection Regulations, such that a supplier would be constrained to cancel only for material breach by the consumer after 20 business days’ notice.

A third issue related to the nature and permissibility of the High Court’s order that the tenant vacate the property by a specified date. The court had to decide whether that order was, in truth, an eviction order subject to the procedural and substantive protections of the PIE Act or merely a declaratory statement of legal consequences following cancellation of the lease.

ANALYSIS

The SCA approached the interpretive questions by applying the well-established Endumeni methodology, emphasising the primacy of the text read in context and in light of purpose. It reiterated that while context and purpose matter, they cannot be used to produce meanings unmoored from the statutory language. The relevant CPA definitions are anchored in the concept of a “transaction” for the supply of goods or services by a person acting “in the ordinary course of business,” and the definitions of “service,” “rental,” “supplier,” “supply,” and “consumer” interlock around that core idea of an ongoing commercial enterprise.

On the statutory definitions, a “service” includes the provision of access to or use of premises in terms of a “rental.” A “rental,” however, is expressly described as “an agreement for consideration in the ordinary course of business” by which temporary possession or use is delivered to the consumer. The Act defines “business” as “the continual marketing of any goods or services,” and a “supplier” as a person who “markets any goods or services.” Reading these together, the court held that for the CPA to apply to a residential lease, the lessor must be in the business of letting premises—engaged in the continual marketing of such services—and the lessee must be a consumer to whom those services are marketed in that ordinary course.

Applying those concepts to the facts, the respondents were not in the business of letting property. They were a software engineer and a civil engineer who temporarily let their family home when relocating abroad and, after deciding to settle in Australia, let it again pending sale to avoid an encumbrance on the sale process. The lease was a private arrangement to protect an asset rather than a commercial activity of letting stock. Objectively viewed, the transaction did not fall within “the normal and routine day-to-day operations” of a leasing business; it was not part of a continual marketing of rental services. Accordingly, the appellant was not a “consumer” and the respondents were not “suppliers” for purposes of the CPA.

The section 14 argument failed on two levels. First, because the CPA did not apply at all to this lease, the section could not be invoked to invalidate the contractual termination clause. Second, even if the CPA had applied, the lease did not qualify as a “fixed-term consumer agreement” as contemplated by section 14 and regulation 5(1). The term was 36 months, exceeding the 24-month regulatory cap, and there was no basis shown for any demonstrable financial benefit to the consumer justifying a longer period. The court also emphasised that section 14 only regulates “consumer agreements,” and the lease in question was not such an agreement as defined.

The SCA then turned to the vacate-date order. It held that directing a tenant to vacate by a specified date is, in substance, an eviction order, as it deprives a person of occupation against their will. Such an order triggers the safeguards of the PIE Act, including the requirement that a court, after considering all relevant circumstances, determine a just and equitable date for vacation and for execution if necessary. The High Court’s vacate-date order was inconsistent with that framework. It also risked contempt consequences and improperly encroached on the powers of a court seized with a PIE application to undertake the statutorily mandated just and equitable inquiry.

REMEDY

The court granted the appellant limited success by setting aside paragraph 49(iv) of the High Court’s order, which had compelled the appellant and those holding title under him to vacate the property by 31 March 2024. The SCA concluded that this portion of the order amounted to an eviction and had been issued without compliance with the PIE Act’s requirements, including a just and equitable assessment and the determination of appropriate dates under sections 4(7) and 4(8).

In all other respects, the appeal was dismissed. The SCA affirmed that the CPA did not apply to the lease because it was not concluded “in the ordinary course of business,” and thus section 14 of the CPA did not regulate its termination. The termination notice given under clause 29.2 of the lease was valid, and the lease was cancelled with effect from 31 March 2024, as declared by the High Court.

As to costs, the SCA ordered that costs follow the result and be paid on the scale as between attorney and own client, in accordance with the contractual costs clause in the lease. The appellant’s partial success was not substantial enough to warrant a different costs order, particularly given the opportunistic nature of his CPA reliance in the face of the parties’ clear contractual arrangements.

LEGAL PRINCIPLES

The CPA applies only to transactions for the supply of goods or services by a supplier acting “in the ordinary course of business.” A “rental” within the CPA presupposes that the lessor is engaged in the continual marketing of the service of providing access to premises for consideration. Private, incidental letting of a family home pending sale does not meet this threshold. In such circumstances, the lessor is not a “supplier,” the lessee is not a “consumer,” and the CPA does not regulate their agreement.

Section 14 of the CPA governs only “fixed-term consumer agreements,” which must, absent justification, not exceed 24 months as per regulation 5(1) of the Consumer Protection Regulations. The section’s protection—restricting cancellation by the supplier to instances of material breach after notice—cannot be invoked where the underlying agreement is not a consumer agreement concluded in the ordinary course of the supplier’s business, or where the term exceeds the regulatory cap without demonstrable consumer benefit. Contractual termination clauses in non-CPA residential leases remain enforceable according to their terms.

An order directing a person to vacate property by a specified date is, in effect, an eviction and engages the PIE Act. Courts must ensure compliance with PIE’s procedural and substantive requirements, including the just and equitable inquiry under section 4(7) and the setting of appropriate dates under section 4(8). A court should not pre-empt that process by issuing vacate-date orders outside the PIE framework, and doing so risks both contempt consequences and the circumvention of constitutionally informed eviction safeguards.