Does The Consumer Protection Act 68 of 2008 govern residential lease agreements?
The Supreme Court of Appeal answered it definitively in Els v Venter and Another [2025] ZASCA 163, handed down on 27 October 2025. This article outlines the facts of the case and explains what the court's ruling confirms on the legal standing.
Facts of the Case
Mr and Mrs Venter owned a property and rented it out to Mr Els for a three-year period from 1 December 2020 to 31 December 2023. Towards the end of the lease, as the subject property was put up for sale, the Venters informed Mr Els that an extension of the lease would be subject to a clause allowing them to terminate on three months' notice.
A subsequent lease agreement was entered into by the parties with commencement and termination dates of 1 January 2024 and 31 December 2026 respectively, inclusive of the early termination clause.
The property was subsequently sold in 2023 and the Venters exercised their right to terminate the lease agreement with Mr Els. Mr Els, however, stated that the lease was a fixed-term consumer agreement under section 14 of the CPA and could not be terminated except for material breach.
The High Court held that the CPA did not apply and that the termination notice in terms of the lease agreement was valid. An appeal was brought before the Supreme Court of Appeal.
The questions before the Supreme Court of Appeal were whether the CPA applied and whether the High Court's order amounted to an eviction.
The Consumer Protection Act 68 of 2008 and its Definitions
The arguments in dispute were whether the lease was a "consumer agreement" under section 14 of the CPA, and whether the Venters qualified as "suppliers" acting within the "ordinary course of business."
Section 1 of the CPA defines the relevant terms as follows:
Consumer means, in respect of any particular goods or services:
(a) a person to whom those particular goods or services are marketed in the ordinary course of the supplier's business; (b) a person who has entered into a transaction with a supplier in the ordinary course of the supplier's business, unless the transaction is exempt from the application of this Act by section 5(2) or in terms of section 5(3); (c) if the context so requires or permits, a user of those particular goods or a recipient or beneficiary of those particular services, irrespective of whether that user, recipient or beneficiary was a party to a transaction concerning the supply of those particular goods or services; and (d) a franchisee in terms of a franchise agreement, to the extent applicable in terms of section 5(6)(b) to (e).
Consumer agreement means "an agreement between a supplier and a consumer other than a franchise agreement."
Supplier means "a person who markets any goods or services."
It is noteworthy that the parties entered into a lease agreement for the purpose of renting out a property for private residential use. The definition of "consumer" would accordingly not be met by Mr Els, as no particular goods or services were afforded to him within the Venters' ordinary course of a business. Further, the Venters do not meet the definition of "supplier" as they were not marketing any goods or services — they were renting out a property that was vacant. As such, no consumer agreement was concluded.
The SCA upheld this part of the High Court's ruling in that the CPA did not apply to private residential lease agreements.
What was significant was the aspect of the High Court's order which was set aside: Mr Els was ordered to vacate the property by a specific date, confirming that this resulted in an eviction order, as the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) had not been adhered to.
What "Ordinary Course of Business" Means in Practice
The phrase "ordinary course of business" is the pivot on which the entire CPA analysis turns, yet the Act does not define it directly. What the CPA does define in section 1 is "business" — as the continual marketing of any goods or services. The SCA in Els v Venter confirmed that this definition is the correct starting point, and that a transaction falls within the ordinary course of business when it forms part of the normal, routine, day-to-day operations of a supplier, consistent with that supplier's past practices and customs.
Applied to residential leasing, the question is not simply whether a landlord is receiving rental income. The question is whether the letting activity is continuous, commercial in character, and part of an established pattern of supply. A landlord who owns rental units and markets them to tenants as an ongoing activity — whether through a managing agent or directly — is engaged in the continual marketing of a service. That landlord is a supplier for purposes of the CPA, and the leases they conclude are consumer agreements governed by the Act.
The position of a private homeowner who lets out a property once, or temporarily while abroad, is materially different. The SCA found that the Venters were not continually marketing a service. Their letting arose from a specific personal circumstance and was not embedded in any broader commercial enterprise. On those facts, the threshold was not met.
Does the Number of Properties a Landlord Owns Matter?
Not on its own. The SCA confirmed that the test is an objective one, based on the nature and continuity of the letting activity rather than the size of a landlord's property portfolio. A landlord who continually markets a single property for rental, deriving income from it as an ongoing activity, may well fall within the Act. A landlord with multiple properties who lets them in circumstances that are isolated, private, and not part of a commercial leasing enterprise may not. What matters is whether the letting is systematic and commercial in nature. Each case turns on its own facts, and an objective assessment of all relevant circumstances is required.
When Does The Consumer Protection Act Apply to a Lease Agreement?
Understanding when the CPA does apply is as important as knowing when it does not. The Act covers a residential lease where the landlord leases property in the ordinary course of business — meaning systematically, commercially, and as an ongoing activity. A landlord who owns multiple rental units and derives income from letting as a business would ordinarily fall within the Act's scope.
Where the CPA does apply, section 14 imposes meaningful protections for tenants. Fixed-term leases are capped at 24 months unless a longer term demonstrably benefits the tenant. A landlord must provide written notice of renewal or termination no less than 40 and no more than 80 business days before the agreement's expiry date. A tenant may cancel a fixed-term lease on 20 business days' notice to the landlord, and the landlord's recourse is limited to a reasonable cancellation penalty — the landlord cannot refuse the cancellation outright.
These protections do not apply where the landlord is not in the business of letting. That is the line Els v Venter confirms.
The PIE Act is A Separate and Mandatory Step
Even where a lease has been validly terminated, a landlord cannot obtain an order compelling a tenant to vacate without complying with PIE. The SCA's decision on this point is a practical warning to all landlords and their legal representatives.
PIE defines eviction broadly as depriving a person of occupation against their will. An order fixing a vacation date — even one framed as a declaratory order rather than a formal eviction — falls within that definition if the occupier has not yet been found to be in unlawful occupation. A court dealing with a PIE application must consider whether eviction is just and equitable and must determine appropriate dates for vacating and enforcement.
Contractual termination and physical removal are two distinct legal steps. Conflating them produces orders that cannot stand, as the High Court's order in this case demonstrated.
Clarification on the CPA in Private Residential Lease Agreements
This judgment once again clarifies the position in the landlord-tenant relationship: the CPA does not apply unless the landlord is in the business of letting. For private homeowners renting out a property on a once-off basis, contractually agreed terms, including early termination clauses, remain enforceable. For tenants, CPA protection under section 14 is not automatic and depends entirely on the nature of the landlord's leasing activity.
Both parties should also bear in mind that even where the CPA does not apply, the PIE Act remains in full force. Lawful termination of a lease does not authorise removal. The correct eviction procedure must still be followed.
Van Deventer & Van Deventer Incorporated Attorneys — Consumer Protection Attorneys
The interaction between the Consumer Protection Act, residential lease agreements, and the PIE Act raises practical questions for landlords, tenants, and property practitioners across South Africa. For assistance in the interpretation, the drafting, and the enforcement of lease agreements and subsequent evictions, contact us.
Co-Authored by: Muazz Docrat
