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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NO: A213/2024
In the matter between
BRIDGET MARY NAUDE NO 1st Appellant
ANTHONY COTTERELL NO 2nd Appellant
ANITA BHIKA NO 3rd Appellant
In the capacities as the Trustees of the Vancot Trust, TM335
And
ANITA VAN DER MERWE 1st Respon dent
TERTIUS PRETORIUS 2nd Respondent
And all those occupying unit 2[...], A[...] Park Village,
Brackenfell through them
THE CITY OF CAPE TOWN 3rd Respondent
Date of Hearing: 15 November 2024
Date of Judgment: 20 January 2025 (to be delivered via email to the respective
counsel)
JUDGMENT
DUMINY,AJ
1. This is an appeal against the judgment and order of the Magistrates’ Court,
Kuils River, dismissing an application by the appellants for the eviction of the first
and second respondents and all those occupying unit 2[...], A[...] Park Village,
Brackenfell (“the property”) , through them. The first respondent is a 66 -year-old
woman and the second respondent is referred to in the papers as her partner or
common -law h usband. They live together , and the second respondent is the
breadwinner and cares for the first respondent , circumstances that will be referred to
later in this judgment.
2. The central issue is whether Section 5 (5) of the Rental Housing Act, 50 of
1999, (“the RH Act”) applies to a notice terminating a months -to-month lease , for
breach. The facts from which it arises are summarised below.
3. The Appellants are the trustees of the Vancot Trust. It is not in issue that they
are the owners of the property.
4. In March 2013 they concluded a lease with the first respondent for a period of
one year from 1 March 2013 to 28 February 2014 in respect of the property . The
initial term of the leas e expired, and the respondents remained in occupation on a
month -to-month basis , on the same terms as before. The second respondent
evidently lives in the same unit with the first respondent.
5. Clause 9.1 of the lease p rovides that should the tenant fail to pay rental
promptly, the landlord shall be entitled to summar ily terminate the lease by written
notice to the tenant.
6. By October 2019 the first respondent had fallen in arrears with the payment of
rental. It is common cause that on 10 October 2019 a letter requiring her to pay the
arrears within seven days failing whi ch the lease would be cancelled, was delivered
to her. The first respondent did not do so . On 22 October 2019 a further letter was
delivered to her cancelling the lease and requiring her to vacate the premises by 31
October 2019 . The respondents failed to vacate the premises, and remain ed in
occupation , but the first respondent failed to pay any further amounts in respect of
rental at this time.
7. On 5 May 2021 the appellants’ attorneys addressed a letter to both the
respondents referring to the 2019 correspo ndence and demanding payment of the
arrears which by that time amounted to R115 070.3 1, within 20 business days, failing
which the lease would be cancelled.
8. The respondents did not comply and on 3 June 2021 the appellants’ attorneys
addressed a further letter to them cancelling the lease and requiring them to vacate
the property.
9. The present application was instituted on 15 July 2021 . It is not in dispute that
the appellants have complied with the formal requirements of section 4 of the
Preventi on of Illegal Evictions Act, 19 of 1998 (“the PIE Act”).
10. The answering affidavit was delivered nearly 2 years later, on 10 July 2023. In
the interim, the respondents remained in occupation of the premises. Although
details thereof are scan t, it appears that the appellants instituted separate
proceedings for recovery of the arrears and obtain ed judgment against the first
respondent . It is apparent that the respondents have made certain payments to the
appellants but it is not clear whether the arrears have been fully settled. It is common
cause that the respondents remain in occupation of the property without the
appellants’ consent. It is alleged that they that they continue to pay only a nominal
rental , and not an agreed rental .
11. The Learned M agistrate dismissed the application for eviction on the basis
that sec 5 (5) of the RH Act (“sec 5 (5)”) applied, and that the correspondence of May
and June 2021 did not satisfy the requirements of that provision .
12. Section 5 (5) of the RH Act provides as f ollows:
“If on the expiration of the lease the tenant remains in the dwelling with the
express or tacit consent of the landlord, the parties are deemed, in the
absence of a further written lease, to have entered into a periodic lease, on
the same terms and conditions as the expired lease, except that at least one
month's written notice must be given of the intention by either party to
terminate the lease.”
13. Neither of the respondents remained in the dwelling with the express or tacit
consent of the appellants after October 2019. The issue is whether sec 5 (5) is
nevertheless applicable .
14. Sec 5 (5) was considered by Binns -Ward, J in Magic Vending (Pty) Ltd v
Tambwe 2021 (2) SA 512 (WCC). In para [14] he held that the provision did not apply
where a lease containing a forfeiture clause is terminated by the landlord by reason
of the lessee’s failure to pay the rent and that sec 5 (5) has no bearing on a
landlord’s right to terminate a lease on account of a material breach of contract by
the lessee (518 A -B).
15. In Stevens v Chester and Others (Case nr 14796/2020) [2021] ZAWCHC 61
(16 March 2021) Hockey, J concurred with the reasoning of Binns -Ward, J in Magic
Vending v Tambwe , but sought to distinguish that case on the basis that it had dealt
with a written lease, albeit that it operated on a month -to-month basis, and that the
landlord in that matter was t herefore entitled to rely on the breach clause. However,
Hockey, J considered that where a lessee remains in occupation with the express or
tacit consent of the landlord after the expiration of the fixed term lease, and there is
no further written lease, the parties are deemed in terms of sec 5 (5) to have entered
into a periodic lease on the same terms as the expired lease, save that one month’s
written notice had to be given by either party to terminate the lease (para [16]).
16. In my respectful view, this distinction is not sound. In terms of s ec 5 (5) , the
deemed lease is on the same terms and conditions as the expired lease. If the latter
contained a forfeiture clause (or cancellation clause), so does the former. In Magic
Vending v Tambwe it was foun d that notice of termination does not apply to
cancellation for breach. In principle , it make s no difference whether the breach
clause is found in an extant lease (whether written or oral) or in a relocation deemed
to be on the same terms.
17. In my respectfu l opinion th e approach in Magic Vending v Tambwe was
correct. Termination on notice involves the exercise of a right by either party in terms
of the contract. Although this may be rare, the parties can exc lude the right of one or
more parties to terminate on notice by agreement (see e.g. Golden Lions Rugby
Union v First National Bank of SA Ltd 1999 (3) SA 576 (A) ; Transnet Ltd v Rubinstein
2006 (1) SA 591 (SCA) ). Whether a contract can be terminated on notice is a matter
of interpretation (Trident Sales (Pty) Ltd v AH Pillman & Son (Pty) Ltd 1984 (1) SA
433 (W) at 441D – G). The position was explained as follows Putco Ltd v TV
&Radion Guarantee Co (Pty) Ltd 1985 (4) SA 809 (A) at 827G H – 828B , dealing with
the construction of the language of the contract and its context :
“Where an agreement is silent as to its duration, it is terminable on reasonable
notice in the absence of a conclusion that it was intended to continue
indefinitely. The inclusion in the agreement of three specific grounds for
termination does not exclude termination by reasonable notice. The logical
consequence of an argument that only three specific grounds for cancellation
of the agreement exist would be that, provided those grounds for cancellation
do not arise, the agreement would continue indefinitely. This would not be a
proper construction to place on the agreement as it ignores the intention of
the parties when entering into the agreement, and such intention is paramount
(cf Trident Sales (Pty) Ltd v A H Pillman & Son (Pty) Ltd 1984 (1) SA 433
(W).) ”
18. This passage demonstrates the difference between termination on notice at
the election of a party regardless of breach, and cancellation for breach. In the
present case , different provisions of the lease deal with these matters ; clause 2 of
the schedule contains the following note:
“NB. Two calendar months written notice must be given prior to expiry of the
lease. If the lease is not going to be renewed. At expiry of the lease
agreement and no renewa l lease. Enter into, 2 (two) months’ notice period by
any party will be adhered to.”
19. This is echoed in clause 1.8 which provides that if the lease is not renewed
after the fixed period “… then the Tenant and the Landlord agree that a mutual 2
(two) calenda r month s’ notice shall be given in writing to terminate the rental
agreement.”
20. These provisions should be contrasted with clause 9 which deals with breach
and cancellation.
21. Sec 5 (5) was again considered by Van Zyl, AJ, in SOHCO Property
Investments NPC v Stemmett and Others (case nr 12553/2020) [2023] ZAWCHC
127 (16 May 2023) . The respondent s in that case contended that the applicant had
been obliged to give one calendar month’s written notice to remedy a breach, and
not 20 business days as provided for in the lease, on the strength of that section.
The Learned Judge concluded that the section was clearly not applicable to the
termination of a lease on the grounds of breach (para [52]). She considered the
decision in Stevens , and declined to follow it on the basis that it was clearly wrong
(para [60]). She relied on the decision in Hendricks NO and Anoth er v Davids and
Four Others (case nr A221/2021 , judgment delivered on 12 April 2022) stating the
following in para [63]:
“The Court defined the narrow point as being whether section 5 (5) of the
Rental Housing Act affects the rights of a landlord to cancel a lease
agreement on account of a lessee’s breac h. The Court followed the decisions
in Tambwe and Transcend [i.e. Transcend Residential Property Fund Limited
v Nanziwe To lbat and Others , Case No 14638/2017 WCC ], and concluded
that section 5 (5) of the Rental Housing Act did not override the provisions of
the breach clause in so far as it concerned the right to cancel the lease on
account of breach.”
22. Hendricks NO v Davids is a judgment of two judges of this Division and its
ratio decidendi is bin ding on this Court unless we consider it to be clearly wrong . In
my respectful opinion, it is correct and we are obliged to follow it. Applied to the
present case, it means that sec 5 (5) of the Rental Housing Act is not applicable and
that the Learned Mag istrate erred in dismissing the application on that basis.
23. On appeal to this Court, the respondents did not advance any case based on
the PIE Act and relied solely on the contention that sec 5 (5) of the RH Act had not
been complied with. In the Court a quo they delivered affidavits dealing with the poor
health of the first respondent , contending that she would be left homeless if evicted
from the property.
24. It is necessary to consider whether granting an eviction order in this case
would be just and equitable, and if so, to consider the date of eviction ( City of
Johannesburg v Changing Tides 74 (Pty) Ltd 2012 (6) SA 294 (SCA), Occupiers,
Berea v De Wet NO 2017 (5) SA 346 (C C), para [47] to [48]).
25. The appellants submit that there is no genuine concern that the respondents
will be left homeless if an eviction order were to be granted. They submit that on the
respondents ’ own version they can afford alternative accommodation. These
propositions were supported by evidence of the financial position of the first
respondent and of property rentals in the same area as the subject property . They
were not contested before us on behalf of the Respondents, and can therefore be
accepted .
26. The City of Cape Town filed an affidavit of investigations undertaken into the
personal circumstances of the respondents, in June 2022. It stated in the affidavit
that the second respondent could be provided with emergency accommodation if he
was not able to obtain it himself , and he was required to advise the City whether he
accepted its offer, or not, within 15 days. It is apparent that the second respondent
did not do so , and neither he nor the first respondent have taken any steps to
engage with the Cit y or to find a solution to their accommodation needs.
27. Regarding the personal circumstances of the first respondent, a report by a
psychiatrist, Dr van Zyl , was submitted pursuant to an application in April 2024. In his
report, Dr van Zyl states that he has been treating the first respondent as an
outpatient since November 2022. She suffers from a long -standing major depressive
disorder . He has tested her cognitive function twice , in June 2023 and February
2024 . The results indicate advanc ed dementia . It is a condition which is likely to
worsen over the next few years even with the use of medication. Dr van Zyl believes
that due to her clinical condit ion she should access residential care as soon as
possible.
28. In view of her condition, in 2020 the first respondent granted the second
respondent power of attorney to attend to her affairs, but no application has been
made for the appointment of a curator bonis . It is of some concern that despite the
respondents and their legal representatives b eing aware of the first respondent’s
condition, she has repeatedly deposed to affidavits , including on 3 April 2024 the
founding affidavit in an application for the last report of Dr van Zyl , in which he
testifies to her advanced dementia, to be received in evidence . It is evident from the
date stamps on the latest affidavit that the first respondent, the second respondent
and the respondents’ attorney deposed to their affidavits before the same
commissioner of oaths on the same day . It seems most unlikely that the
commissioner was advised that the first respondent suffered from advanced
dementia and that there might be doubt as to whether she was able to know and
understand the contents of her affidavit.
29. Despite the second respondent having held the power of attorney referred to
above since 2020 and the present proceedings hav ing been ongoing since 2021 ,
there is no evidence that the second respondent or anyone else responsible for her
care, has taken any steps to find a suitable placement for the first respondent in a
residential care facility, or to find suitable alternative accommodation.
30. Weigh ing u p the equities, none of this can be laid at the door of the
applicants , who are under no constitutional or other obligation to provide housing to
the Respondents, who have been in occupation without the consent of the applicants
since October 2019. These eviction proceedings commenced more than three years
ago on 15 July 2021. As noted in Changing Tides , supra, para [18] , the
Constitutional Court has said that although their rights may be restricted and they
can be expected to submit to some delay, private entities are not obliged to provide
free housing for other members of the community indefinitely.
31. In my view , in this c ase justice and equity weigh substantially in favour of
granting an eviction order against the first and second respondents, and anyone that
might be occupying the property through them .
32. The remaining question concerns the date by which the respondents (an d
anyone occupying the premises through them) should vacate . The matter has
dragged on for some years . Despite my misgivings and concerns about the absence
of any evidence of steps to address the unfortunate position of the first respondent, I
think it wou ld be reasonable to direct that the respondents vacate the premises by 28
February 2025 .
33. I would accordingly uphold the appeal and directed that the order of the Court
a quo be set aside and replaced with an order in the following terms:
“1 The First and Second Respondents, and anyone occupying the
property through them, are evicted from the property situated at unit 2[...],
SS39/2007, SS A[...] Park Village 2[...], Welgelee Street, Brackenfell;
2. The First and Second Respondents and anyone occupying the
property through them, must vacate th e property by no later than 28 February
2025 ;
3. Should the First and Second Respondents and anyone occupying the
property through them, fail to vacate the property as aforesaid, the Sheriff of
this Court is authorised and directed to execute this order an d to evict the
First and Second respondents, and a nyone occupying the property through
them, from the property forthwith.
4. The First and Second Respondents are to pay the costs of this
application, jointly and severally, the one paying the other to be ab solved pro
tanto .
___________ _____
W R E Duminy, A J
Thulare , J
34. I have read the judgment of Duminy , AJ and agree that the appeal should be
upheld. Section 5 (5) of the RHA doesn't apply to a fixed term lease that has expired
but where the lessee remains without the express or tacit consent of the lessor. This
is clear from an inductive reading of the section itself. On the facts before us, the
respondents remaine d on the property without the express or tacit consent of the
appellant. Section 5 (5) of the RHA was not applicable to this matter and the
Magistrate was clearly wrong to rely on it to deny the appellant the relief sought.
35. Section 5 (5) of the RHA appli es to a situation where the agreement did not
specify what would occur when the fixed term expired. Where the agreement spoke
for itself and specified that the lease would convert to a month on month agreement,
then the terms of the agreement would apply. Where the lease agreement provided
for the notice period, that notice period would apply, having regard to the provisions
of the CPA.
36. Having considered the vulnerability of the first respondent, both as an older
person and with regard to her health, I fin d it necessary for an order that would
advance and protect her interests. I deem it meet for an additional term in the order
proposed, as follows:
5. The issue of the first respondent is referred for the attention of the Director -
General, Dep t of Social De velopment, Western Cape.
___________ _____
DM Thulare , J