Els v Venter: The CPA’s “Ordinary Course of Business” Requirement Strictly Construed

Myuree Mollison

Are you a tenant facing termination of your lease, or a landlord uncertain whether the Consumer Protection Act applies to your rental arrangement?

The Supreme Court of Appeal’s recent judgment in Els v Venter and Another (449/2024) [2025] ZASCA 163 (27 October 2025) provides important guidance on the boundaries of consumer protection in residential leasing. The judgment also highlights a critical distinction between the lawful cancellation of a lease and the physical eviction of an occupier.

The appellant tenant entered into a residential lease with the respondent landlords in respect of a property in Stellenbosch. The landlords had relocated to Australia and were letting out their former family home while determining whether their move would become permanent.

The parties had previously concluded a lease agreement, followed by a further lease commencing on 1 January 2024 and ending on 31 December 2026. The second lease contained a clause permitting the landlords to terminate it on three months’ written notice.

After the property was sold, the landlords served a termination notice requiring the tenant to vacate. The tenant resisted the termination, contending that the lease fell within the Consumer Protection Act 68 of 2008 (“the CPA”) and could therefore not be cancelled by the landlords except in the event of a material breach by the tenant, after the required notice and opportunity to remedy.

The central issue before the Supreme Court of Appeal was whether the lease constituted a consumer agreement concluded in the ordinary course of business, as contemplated by the CPA.

If the CPA applied, the landlord’s ability to cancel the fixed-term lease would be restricted by section 14 of the CPA. If the CPA did not apply, the contractual termination clause allowing cancellation on three months’ written notice would remain enforceable.

The Court confirmed that the CPA does not automatically apply to every residential lease.

For the CPA to apply, the lessor must be acting as a supplier in the ordinary course of business. This requires more than the once-off or incidental letting of a private home. The Court emphasised that the lessor must be engaged in the business of letting premises, involving the continual marketing or supply of rental services.

On the facts, the respondents were not property investors or commercial landlords conducting a rental business. They were private homeowners who let their family home as a temporary measure after relocating to Australia and pending a decision regarding the future of the property.

The Court therefore found that the lease was not concluded in the ordinary course of the landlords’ business, and the CPA did not apply.

Because the CPA did not apply, the tenant could not rely on the CPA’s fixed-term agreement protections to resist termination.

The contractual clause allowing the landlords to cancel the lease on three months’ written notice was therefore valid and enforceable. The landlords had validly cancelled the lease in terms of the agreement.

The Court also noted that, even if the CPA had applied, the lease term raised a further difficulty. Section 14 of the CPA generally limits fixed-term consumer agreements to a maximum period of 24 months, unless a longer period can be justified by a demonstrable financial benefit to the consumer.

This serves as an important reminder for landlords and practitioners who regularly conclude residential lease agreements as part of a rental business. If the CPA applies, lease terms and termination provisions must be carefully drafted to comply with the Act.

Although the landlords had validly cancelled the lease, the Supreme Court of Appeal set aside the High Court’s order directing the tenant to vacate the property by a specific date.

The reason was that the order was, in substance, an eviction order. Eviction from residential property is regulated by the Prevention of Illegal Eviction from and

The Court confirmed that a court cannot bypass the PIE Act procedure when ordering the physical removal of an occupier. Even where a lease has been validly cancelled, an occupier may not simply be removed through a contractual enforcement order that has the practical effect of eviction.

The judgment reinforces that the PIE Act procedure cannot be contracted out of or avoided. A landlord who has validly cancelled a lease may still need to institute formal eviction proceedings if the tenant refuses to vacate. In those proceedings, the court must consider all relevant circumstances and determine whether eviction is just and equitable, including the appropriate date for the occupier to vacate.

For private homeowners who let their property once-off or incidentally, the CPA may not apply if the letting is not part of a rental business.

However, this does not mean that the landlord can summarily remove a tenant after cancellation. If the tenant refuses to vacate, the landlord must still follow the appropriate eviction procedure under the PIE Act.

For landlords who let property as part of a business, the CPA may apply. This is particularly relevant where landlords continually market or supply rental accommodation as part of their ordinary business activities.

Where the CPA applies, fixed-term leases must comply with section 14. In particular, suppliers should be cautious about early cancellation clauses, 20-business-day breach notices, renewal notices, and lease periods exceeding 24 months unless a longer term can be justified by a demonstrable financial benefit to the tenant.

Tenants should not assume that the CPA automatically applies to every residential lease. The availability of CPA protection depends on whether the landlord was acting in the ordinary course of a rental business.

That said, tenants remain protected by the PIE Act where eviction is sought. A valid cancellation of the lease may affect the tenant’s right to remain in occupation, but it does not entitle a landlord to bypass the legal eviction process.

Practitioners should be careful to distinguish between three separate questions:

1. whether the CPA applies to the lease;
2. whether the lease has been validly cancelled; and
3. whether the landlord is entitled to an eviction order under the PIE Act.

These are related but distinct enquiries. A valid cancellation does not automatically result in eviction, and an eviction order should not be sought or granted without compliance with the PIE Act.

Els v Venter confirms that the CPA’s “ordinary course of business” requirement is a meaningful legal threshold. The CPA is aimed at regulating suppliers operating in the marketplace and does not necessarily extend to private, once-off letting arrangements between individuals.

At the same time, the judgment reinforces that the lawful cancellation of a lease and the physical eviction of a tenant are separate legal processes. Landlords must ensure that lease termination is contractually valid and, where the tenant refuses to vacate, that the correct eviction procedure is followed.

For tailored advice on ensuring that your rental agreements are legally sound, or for assistance with lawful lease terminations and eviction proceedings, contact the property law team at Marto Lafitte & Associates Inc.