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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 449/2024
In the matter between:

JOHANN ELS APPELLANT

and

DANIEL WOUTER VENTER FIRST RESPONDENT
MELANIE CHRISTINA VENTER SECOND RESPONDENT
Neutral citation: Els v Venter and Another (449/2024) [2025] ZASCA 163
(27 October 2025)
Coram: SCHIPPERS, GOOSEN, KGOELE and KATHREE-
SETILOANE JJA and MODIBA AJA
Heard: 1 September 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and released to SAFLII. The date and time for hand -down of the judgment
is deemed to be 11h00 on 27 October 2025.

Summary: Statutory interpretation – Consumer Protection Act 68 of 2008 –
meaning and effect of ‘transaction’, ‘service’ and ‘rental’ – whether residential lease

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agreement concluded ‘in the ordinary course of business’ of lessor – whether order
to vacate property constitutes an eviction.

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__________________________________________________________________

ORDER
__________________________________________________________________

On appeal from: Western Cape Division of the High Court, Cape Town (Slingers
J, sitting as court of first instance):

1 The appeal succeeds in part.
2 Paragraph 49(iv) of the High Court’s order is set aside.
3 Save as aforesaid, the appeal is dismissed with costs on the scale as between
attorney and own client.

__________________________________________________________________

JUDGMENT
__________________________________________________________________
Schippers JA ( Goosen, Kgoele and Kathree -Setiloane JJA and Modiba AJA
concurring)

[1] The centra l issue in t his appeal is whether a residential lease agreement
concluded between the appellant and the respondents , constitutes an agreement for
consideration in the ordinary course of business , as contemplated in the Consumer
Protection Act 68 of 2008 (the Act). The High Court of South Africa, Western Cape
Division (the High Court) held that the Act does not apply to the lease agreement.
The appeal is with its leave.

[2] The facts can be briefly stated. The respondents are married, and are the
registered owners of Erf 5[....] D[...] Z[...], located at 1[...] G[...] Street, D[...] Z[...],

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Winelands Golf Estate, Stellenbosch (the property). Prior to relocating to Australia
in 2018, the property was their primary residence. Not knowing whether their move
to Australia would be permanent, they decided to let the property. On 1 December
2020 they concluded a lease agreement with the appellant for three years, ending on
31 December 2023 (the first lease). The appellant complied fully with his obligations
under the first lease.

[3] In February 2023 the appellant asked the respondents to extend the first lease.
At that point, the respondents had decided that they were going to settle in Australia
and would sell the property. They informed the appellant accordingly and told him
that any further lease would be subject to a notice period of three-months for
termination by the landlord. Upon expiry of that period, the appellant would have to
vacate the property . They did not want a lease to stand in the way of its sale. The
appellant agreed to this.

[4] On 4 August 2023 the parties entered into a new written lease agreement for
a further period of three years, which commenced on 1 January 2024 and would have
terminated on 31 December 2026 (the second lease). Clause 29.2 of the second lease
provided:
‘The Landlord shall be entitled to terminate this agreement on 3 (three) months’ written notice to
the Tenant before termination date.’

[5] The second lease also provided that the appellant would pay costs on an
attorney and own client scale , in the event of the respondents taking any action
against him to enforce the obligations under the lease. The respondents a ppointed
their friend, Mr Deon Roos, who lives in Stellenbosch, to manage the second lease.

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[6] Following the conclusion of the second lease, the property was marketed . It
was sold on 19 December 2023. In terms of t he deed of sale , the purchasers were
granted vacant possession of the property on 1 April 2024.

[7] On 21 December 2023 , in terms of clause 29.2 of the second lease, the
respondents served a notice of termination on the appellant (the termination notice).
In terms of that notice, the appellant was required to vacate the property by 31 March
2024.

[8] The appellant responded to the termination notice on the same day ie,
21 December 2023 . He conceded that the respondents were entitled to issue the
termination notice, but referred to the principle ‘huur gaat voor koop’ (an existing
lease agreement takes precedence over a subsequent sale of property) which, he said,
meant that the second lease was transferred to the new owner , who knew of its
existence. The respondents’ agent, Mr Roos, replied that there was no contract
between the new owner and the appellant, and that he knew that the property had
been sold , which was the reason for the termination notice. Subsequently, the
appellant raised the same issues with the first respondent . He again conceded that
the respondents were entitled to issue the termination notice, but said that he had
hoped the new owner would have done so when the property was transferred . The
first respondent replied that the appellant should negotiate with the new owners, who
were going to occupy the property by 1 April 2024. These facts are common ground.

[9] There was no further communication between the parties until the respondents
received a letter from the appellant’s attorneys on 28 January 2024. In this letter it
was contended that the second lease fell within the ambit of s 14 of the Act; that it
could only be terminated on the ground of a material breach by the appellant; that

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its termination was unlawful and invalid; and that the appellant would hold the
respondents to the terms of the second lease.

[10] After multiple failed attempts to resolve the dispute, the respondents filed an
urgent application in the High Court. They sought a declaration that the second lease
was valid; that the Act did not apply; that the termination notice had properly been
given; and that the appellant should vacate the property by 1 April 2024.

[11] Before the High Court, the appellant stated that he understood that the sale of
the property would be subject to the second lease. Further, he contended that the
lease constitutes a fixed -term agreement concluded in the ordinary course of
business, as contemplated in the Act; and that it could not be terminated in
circumstances where he had not materially breached its terms.

[12] The High Court granted the relief sought by the respondents. It made an order
that the termination notice was valid; that the appellant and those holding title under
him, should vacate the property by 31 March 2024; and that the appellant should pay
the costs of the application on the scale as between attorney and own client.

The relevant provisions of the Act
[13] The starting point is s 5(1) of the Act. It states, inter alia:
‘5(1) This Act applies to–
(a) every transaction occurring within the Republic, unless it is exempted by subsection (2), or in
terms of subsections (3) and (4).’

[14] Section 1 defines a ‘transaction’, inter alia, as follows:
‘(a) in respect of a person acting in the ordinary course of business-

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(i) an agreement between or among that person and one or more other persons for the supply
or potential supply of any goods or services in exchange for consideration; or
(ii) . . .
(iii) the performance by, or at the direction of, that person of any services for or at the direction
of a consumer for consideration.’

[15] The Act defines ‘service’ as including but not limited to:
‘. . .
(e) the provision of-
(v) access to or use of any premises or other property in terms of a rental.’

[16] The Act defines ‘rental’ as follows:
‘“rental” means an agreement for consideration in the ordinary course of business in terms of
which temporary possession of any premises or other property is delivered, at the direction of, or
to the consumer, or the right to use any premises or other property is granted, at the direction of,
or to the consumer, but does not include a lease within the meaning of the National Credit Act.’1

[17] The term ‘ordinary course of business’ is not defined in the Act. However, it
defines ‘business’ as ‘the continual marketing of any goods or services’ ; and
‘market’, when used as a verb, as meaning to ‘promote or supply any goods or
services’.

[18] The Act states that a ‘supplier’ means ‘a person who markets any goods or
services’; and that
‘“supply”, when used as a verb–
(a) in relation to goods, includes sell, rent, exchange and hire in the ordinary course of business
for consideration; or

1 Emphasis added.

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(b) in relation to services, means to sell the services, or to perform or cause them to be performed
or provided, or to grant access to any premises, event, activity or facility in the ordinary course of
business for consideration.’

[19] The Act defines ‘consumer’, inter alia, as follows:
‘“consumer” in respect of any particular goods or services means–
(a) a person to whom those particular goods or services are marketed in the ordinary course of the
supplier’s business.’

[20] Section 14(2)(b)(ii) of the Act, on which the appellant relies, provides:
‘If a consumer agreement is for a fixed term–
(a) . . .
(b) despite any provision of the consumer agreement to the contrary–
(i) . . .
(ii) the supplier may cancel the agreement 20 business days after giving written notice
to the consumer of a material failure by the consumer to comply with the agreement, unless
the consumer has rectified the failure within that time.’

[21] A ‘consumer agreement’ is defined in the Act. It means ‘an agreement
between a supplier and a consumer other than a franchise agreement’.

Is the lease one in the ordinary course of business?
[22] The approach to statutory interpretation is settled. The inevitable starting point
is the language of the provision , understood in the context in which it is used and
having regard to the purpose of the provision .2 Recently this Court affirmed this
approach and said:
‘Interpretation begins with the text and its structure. They have a gravitational pull that is
important. The proposition that context is everything is not a licence to contend for meanings

2 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 ALL SA 262 (SCA);
2012 (4) SA 593 (SCA) (Endumeni) para 18.

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unmoored in the text and its structure. Rather, context and purpose may be used to elucidate the
text.’3

[23] The Act provides that ‘rental’, ie an arrangement to rent premises or the act
of renting premises, is ‘an agreement for consideration in the ordinary course of
business’, in terms of which temporary possession of premises is delivered to the
consumer. On its plain wording , the Act requires that the letting of premises must
fall within the ‘ordinary course of business ’ of the lessor , and the lessee must be a
‘consumer’, ie a person to whom ‘services are marketed in the ordinary course of
the supplier’s business’.

[24] In other words, the lessor firstly, must be in the business of letting or hiring
premises. That much is clear from the Act’s definition of business, which means ‘the
continual marketing of any goods or services’. In turn, ‘service’ includes, but is not
limited to ‘access to or use of any premises or other property in terms of a rental’.

[25] Secondly, the rental or lease agreement must fall within the lessor’s ‘ordinary
course of business’ . Black’s Law Dictionary defines ‘course of business’ as ‘the
normal routine in managing a trade or business’.4 The word, ‘ordinary’ means ‘as a
matter of regular practice,5 of common occurrence,6 or usual.7 The concept ‘ordinary
course of business’, is defined as the ‘normal and routine day -to-day operation s
consistent with the past p ractices and customs of the business’.8 These day-to-day
operations are obviously not once-off transactions.

3 Capitec Bank Holdings Ltd and Another v Coral Lagoon Investment 194 (Pty) Ltd and Others [2021] ZASCA 99;
[2021] 3 ALL SA 647 (SCA); 2022 (1) SA 100 (SCA) para 51. See also Mbambisa and Others v Nelson Mandela Bay
Metropolitan Municipality [2024] ZASCA 151; (2025) 46 ILJ 277 (SCA); 2025 (3) SA 112 (SCA).
4 Bryan A Garner Black’s Law Dictionary 11 ed (2019).
5 Oxford English Dictionary <https://www.oed.com>.

5 Oxford English Dictionary <https://www.oed.com>.
6 Collins English Dictionary <https://www.collinsdictionary.com>.
7 Cambridge English Dictionary <https://dictionary.cambridge.org>.
8 <https://ca.practicallaw.thomsonreuters.com>.

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[26] Whether a lease is within the lessor’s ordinary course of business is an
objective test that requires an examination of the relevant transaction in its factual
setting. This depends on what business is conducted by the supplier in question and
how it is carried on. The issue is not whether the transaction is ordinary, but whether
it is carried out in the ordinary course of the supplier’s business.

[27] Applied to the present case, the respondents are not in the business of letting
property for consideration. They were not engaged in any trade, or business – the
continual marketing of services – when they concluded the second lease with the
appellant. Thi s is not a case where property was let from rental housing stock.
Rather, the first respondent, a software engineer and the second respondent , a civil
engineer, in 2018 rented out their family home in South Africa after moving with
their children to Australia. They did not want to sell the property immediately in
case their move was unsuccessful. Put simply, the second lease constitutes an
agreement between private individuals, concluded to protect an asset pending its
sale, after the respondents decided to settle in Australia. That is also how the
appellant understood the transaction.

[28] Thus, the appellant is not a ‘consumer’ as contemplated in the Act. The
respondents are not suppliers, and the second lease is not an agreement concluded in
the course of any trade or business conducted by them for consideration, let alone in
the ordinary course of business. Solely for these reasons, the appeal falls to be
dismissed.

[29] It follows that the appellant’s reliance on s 14(2)(b)(ii) of the Act is misplaced.
In any event, the second lease is not a fixed-term agreement as envisaged in the Act.
Section 14(2)(a) provides that ‘if a consumer agreement is for a fixed term . . . that

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term must not exceed the maximum period, if any, prescribed in terms of subsection
(4) with respect to that category of consumer agreement’. Regulation 5(1) prescribes
the maximum period of a fixed-term consumer agreement – in this case, 24 months
from the date of signature by the consumer , unless a longer period is expressly
agreed with the consumer , and the supplier can show a demonstrable financial
benefit to the consumer. 9 The ten ure of the second lease is 36 months , which is
destructive of the appellant’s reliance on s 14(2)(b) of the Act. Aside from this, the
second lease is not a ‘consumer agreement’ as defined in the Act.

[30] The plain wording of the concept ‘rental agreement’ is buttressed by the
immediate context. Neither respondent is a ‘supplier’ – a person who markets goods
or services – as defined in the Act. They are not engaged in marketing goods or
services: they do not ‘promote or supply any goods or services’ to consumers. What
all of this shows, is that the Act applies only to residential leases which form the
subject of services that are continually marketed for consideration to consumers, in
the ordinary course of the business of the lessor or a person acting on its behalf or at
its direction.

[31] The above interpretation is further reinforced by the purposes of the Act.
These include the promotion and advancement of the social economic welfare of
consumers by, inter alia, establishing a legal framework for a fair , accessible ,
efficient and sustainable consumer market. The Act is also aimed at reducing and
ameliorating disadvantages experienced in accessing the supply of goods or services

9 Regulation 5(1)(a) of the Consumer Protection Regulations published under GN R293 in Government Gazette 34180
of 18 April 2011, provides:
‘For purposes of section 14(4)(a) of the Act, the maximum period of a fixed-term consumer agreement is 24 months
from the date of signature by the consumer –

from the date of signature by the consumer –
(a) unless such longer period is expressly agreed with the consumer and the supplier can show a demonstrable
financial benefit to the consumer.’

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by vulnerable, low-income consumers who live in remote areas or communities, and
whose ability to read and understand advertisements, agreements and notices is
limited because of low literacy, vision impairment or limited fluency. Its purposes
also include promoting fa ir business practices ; and protecting consumers from
unconscionable, unfair , unreasonable and unjust trade practices , and deceptive,
misleading, unfair or fraudulent conduct . In short, the Act is directed at protecting
the rights of historically disadvantaged persons who are easily exploited , and
promoting their full participation as consumers.10 Section 2(1) provides that it ‘must
be interpreted in a manner that gives effect to the purposes set out in section 3’.

[32] So construed, the Act excludes agreements such as the second lease , which
was not concluded with a supplier in the ordinary course of business, by a lessee
such as the appellant – the Chief Group Economist of Old Mutual – who is not a
vulnerable, low-income consumer. The appellant freely concluded the second lease
and was in an equal bargaining position as the respondents. He was well aware of its
terms, in particular clause 29.2, and the circumstances under which it was concluded.
More specifically, he knew that the termination notice would be given upon the sale
of the property, and in that event, undertook to vacate it.


10 The preamble to the Act states, inter alia:
‘The people of South Africa recognise-
That apartheid and discriminatory laws of the past have burdened the nation with unacceptably high levels of poverty,
illiteracy and other forms of social and economic inequality;
That it is necessary to develop and employ innovative means to-
(a) fulfil the rights of historically disadvantaged persons and to promote their full participation as consumers;
(b) protect the interests of all consumers, ensure accessible, transparent and efficient redress for consumers who

are subjected to abuse or exploitation in the marketplace; and
(c) to give effect to internationally recognised customer rights;
That recent and emerging technological changes, trading methods, patterns and agreements have brought, and will
continue to bring, new benefits, opportunities and challenges to the market for consumer goods and services within
South Africa; and
That it is desirable to promote an economic environment that supports and strengthens a culture of consumer rights
and responsibilities, business innovation and enhanced performance.’

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[33] It follows that the second lease is not an agreement for consideration in the
ordinary course of business, as contemplated in the Act. The inescapable inference
to be drawn from the facts is that the appellant’s reliance on the Act is opportunistic
and contrived.

[34] What remains is the appellant's submission that ‘it is reasonable to infer that
the property was let to other parties between November 2018 and September 2020’.
It can be dealt with briefly. First, the inference has no foundation in the evidence –
it was raised for the first time in the appellant’s heads of argument. Second, the
inference is pure speculation.

The order that the appellant vacate the property
[35] It is submitted that the High Court erred in making the order in paragraph
49(iv) of its judgment, directing the appellant and all those holding title under him
to vacate the property by 31 March 2024. The appellant contends that this is an
eviction order, which is incompetent because at the stage when the respondents
sought an order that the termination notice was valid, he was not an unlawful
occupier as envisaged in the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 (the PIE Act).

[36] The respondents submit that there is nothing wrong with the High Court
declaring that the appellant should vacate the property on the date on which he
becomes an unlawful occupier. That order, the respondents say, is simply a statement
of the position in law, and the High Court stopped short of ordering the appellant’s
eviction.

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[37] Given the High Court’s finding in paragraph 48 of its judgment, that the
appellant was not in illegal occupation of the property and there was no basis on
which the court could evict him, the order in paragraph 49(iv) is inexplicable and
cannot be sustained, essentially for two reasons. First, it is in effect an eviction order:
the PIE Act defines ‘eviction’ as meaning ‘to deprive a person of occupation of a
building or structure, or the land on which such building or structure is erected,
against his or he r will’. Further, in the event that the appellant did not vacate the
property by 31 March 2024, the respondents would have been entitled to apply to
the High Court for an order holding him in contempt of the order in paragraph 49(iv).
Second, the latter order cuts across the power of a court seized with an application
under the PIE Act, to (a) make a just and equitable order under s 4(7), for the eviction
of the appellant and other persons living on the property, after considering the
relevant circumstances;11 and (b) determine a just and equitable date on which they
must vacate the property, and the date on which an eviction order may be carried out
if they fail to do so, as contemplated in s 4(8). 12 If the court intended merely to
declare the position in law, then the order in paragraph 49(iv) is superfluous, since
paragraph 49(iii) of the High Court’s order states that the termination notice
cancelled the second lease with effect from 31 March 2024.

11 Section 4(7) of the PIE Act provides:
‘If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings
are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after
considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to
a mortgage, whether land has been made available or can reasonably be made available by a municipality or other

organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of
the elderly, children, disabled persons and households headed by women.’
See City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another [2011]
ZACC 33; 2012 (2) BCLR 150 (CC); 2012 (2) SA 104 (CC) paras 37 and 39.
12 Section 4(8) of the PIE Act states:
‘If the court is satisfied that all the requirements of this section have been complied with and that no valid defence has
been raised by the unlawful occupier, it must grant an order for the eviction of the unlawful occupier, and determine-
(a) a just and equitable date on which the unlawful occupier must vacate the land under the circumstances; and
(b) the date on which an eviction order may be carried out if the unlawful occupier has not vacated the land on the
date contemplated in paragraph (a).’

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[38] Paragraph 49(iv) of the High Court’s order must therefore be set aside. The
appellant has not achieved substantial success in the appeal. There is no reason why
costs (as contractually agreed) should not follow the result.

[39] In the result, the following order is made:
1 The appeal succeeds in part.
2 Paragraph 49(iv) of the High Court’s order is set aside.
3 Save as aforesaid, the appeal is dismissed with costs on the scale as between
attorney and own client.





____________________
A SCHIPPERS
JUDGE OF APPEAL

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Appearances

For the appellant: R Randall
Instructed by: Marlon Shevelew & Associates Inc, Cape Town
Webbers Attorneys, Bloemfontein.

For the respondent: P S van Zyl
Instructed by: Vos Maree Incorporated, Stellenbosch
Honey Attorneys Inc, Bloemfontein.