Malan v City of Cape Town

Ms Johanna Malan, a 74-year-old widow, had occupied a municipal rental property in Manenberg since 1979 under a public housing lease inherited from apartheid-era arrangements. After her husband’s death, she concluded a lease directly with the City of Cape Town. In 2008 the City cancelled her lease, alleging arrears in rental payments and reports from SAPS of illegal activities occurring on the property. Ms Malan did not vacate, and eviction proceedings were instituted under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). She disputed the validity of the cancellation, admitted to rental arrears but argued she had attempted to make payment arrangements, denied knowledge of illegal activities, and challenged the constitutionality and public-policy compatibility of several lease clauses that allowed termination without affording an opportunity to rectify breach.

Leave to appeal was granted, but the appeal was dismissed. The eviction order granted by the Western Cape High Court was confirmed. No order as to costs was made.

The case is significant for clarifying how contractual principles operate within public rental housing schemes and how lease provisions must be interpreted and applied in light of section 26 of the Constitution. It confirms that municipalities cannot rely on apartheid-era lease clauses to effect arbitrary or summary evictions and emphasises that public housing leases are instruments for fulfilling constitutional obligations, not ordinary private contracts.