Venter and Another v Els and Another

The applicants, a software engineer and a civil engineer, moved to Australia in 2018 and leased their primary residence in Stellenbosch to the first respondent from December 2020 to December 2023. When the respondent sought to renew the lease beyond December 2023, the applicants informed him of their decision to sell the property as their move to Australia had become permanent. A new lease was concluded containing clause 29.2, which entitled the landlord to terminate on three months' written notice. In furtherance of selling the property, the applicants concluded a sale agreement requiring vacant occupation by 1 April 2024 and gave the respondent three months' notice on 21 December 2023. The respondent initially appeared to accept the notice but subsequently, through attorneys, contended the lease was a fixed-term agreement subject to the Consumer Protection Act (CPA) and that section 14 thereof prohibited early termination.

• Whether the application was correctly brought as an urgent application in terms of Rule 6(12) of the Uniform Rules of Court.
• Whether the provisions of the Consumer Protection Act 68 of 2008, particularly section 14(2)(b), apply to a fixed-term residential lease agreement.
• Whether the lease agreement was concluded in the ordinary course of the applicants' business for purposes of the CPA.
• Whether section 14(2)(b) of the CPA overrides an early cancellation clause agreed between the parties.

1. Non-compliance with the Rules of Court is condoned and the application is heard as urgent under Rule 6(12). 2. Clause 29(2) of the lease agreement is valid and binding on the respondent. 3. The three months' written notice given on 21 December 2023 validly cancels the lease with effect on 31 March 2024. 4. The respondent and all those holding title under him are directed to vacate the property on or before 31 March 2024. 5. Costs on an attorney and own client scale, including costs of 29 February 2024, are to be borne by the respondent.

The Consumer Protection Act 68 of 2008 applies only to lease agreements concluded in the ordinary course of the lessor's business. An objective evaluation of all relevant facts is required, including factors such as whether the person has a registered business, the nature of the business, the nature of goods normally supplied, frequency of transactions, and whether there is ongoing advertising. A once-off or temporary lease of a primary residence by individuals who are not in the business of letting property does not constitute a transaction 'in the ordinary course of business' for purposes of the CPA, and such leases are not subject to the early termination protections under section 14.

If the CPA were to apply to the lease agreement, section 14(2)(b) should not be read as providing the only circumstances in which the lease may be terminated. Such an interpretation would go beyond protecting consumers against unconscionable practices and could unfairly prejudice suppliers. Section 14(2)(b) should rather be seen as factoring in extra protections for the consumer by nullifying contractual terms contrary to its provisions, not as an exhaustive code for termination of fixed-term agreements. Interpreting it as identifying potential void contractual clauses would achieve consumer protection while promoting a sustainable marketplace.

This judgment provides authoritative guidance from the Western Cape High Court on the application of the Consumer Protection Act to residential lease agreements. It clarifies that not all fixed-term residential leases fall under the CPA's section 14 protections — only those concluded in the lessor's ordinary course of business. The court adopts an objective multifactorial test for determining 'ordinary course of business', providing practical criteria. This is significant for landlords and tenants in determining whether CPA protections apply to residential leases, particularly where owners lease their property temporarily rather than as a commercial enterprise.