Eviction And The Consumer Protection Act.

In Costa v N.L.D.C.J and Others, the Western Cape High Court considered whether tenants could resist eviction by relying on the Consumer Protection Act 68 of 2008 (CPA). The case raises important questions about when a private landlord is regarded as operating “in the ordinary course of business” and how courts balance contractual rights with the protection of occupiers.

Ms Costa owned a residential property in Camps Bay, which she leased to the first respondent. The tenants accumulated arrear rental of R1,407,500, allegedly sublet the property without authorisation, and refused Costa reasonable access to inspect defects and conduct remedial work. Costa cancelled the lease and demanded that the occupiers vacate, but they remained in possession.

The respondents argued that the CPA applied to the lease. They relied on section 14, which generally requires 20 business days’ notice before cancellation of a fixed-term consumer agreement. The court rejected this argument. Costa’s lease was a once-off transaction involving her personal property, rather than part of a continuing business of marketing and letting residential properties. Her purpose of earning income to pay her children’s tuition did not change the nature of the transaction. The contractual seven-business-day period therefore applied.

The court also found that Costa’s breach notice and cancellation were separate and clear communications. The cancellation was unconditional and unequivocal. The tenants’ complaints about defects could not justify continued occupation, especially because they had prevented reasonable inspections and the Rental Housing Tribunal had dismissed their claim for rental remission.

Under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, the court still had to consider whether eviction would be just and equitable. The respondents provided little evidence of personal hardship or possible homelessness. Their occupation of an expensive Camps Bay property, income from subletting, and offer to purchase it for R11 million indicated that alternative accommodation was available. Their unpaid occupation caused serious financial prejudice to Costa.

The court accordingly ordered all occupiers to vacate, while setting a date that accommodated the children’s examination commitments. The decision illustrates that consumer protection cannot be used to defeat a validly cancelled lease where the landlord is not acting in the ordinary course of business.