Introduction

The power structure between landlord and tenant is imbalanced. It was common that landlords would evict tenants without notice should they be dissatisfied with the. The Consumer Protection Act, 2008 (“CPA”) was enacted to develop the common law agreement between landlord and tenant. This development mitigated the imbalance by giving tenants rights which were not available to them under common law and limiting those of the landlord. This article will examine whether a landlord can just evict a tenant and what protection is given to the tenant in such situations.

What is the Consumer Protection Act?

The Consumer Protection Act was enacted to ensure that consumers are provided with protective measures and are not exploited by suppliers. It promotes and protects the interests of all consumers, and ensures accessible, transparent and efficient redress for consumers who are subjected to abuse or exploitation in the marketplace. The Act applies to consumers and persons that provide goods or services as their ordinary course of business.

Is a tenant a consumer?

The CPA defines a consumer as a person who has entered into a transaction with a supplier in the ordinary course of the supplier’s business.

Does the CPA apply to lease agreements?

A transaction means where a person acting in the ordinary course of business supplies goods and/or services to consumers for consideration.

Section 5 of the CPA applies to transactions concluded within South Africa. However, not all transactions fall within the scope of the CPA. Transactions such as; in terms of which goods or services are promoted or supplied to the State, transactions where a consumer is a juristic person and the annual turnover or the value of its assets exceed R2 million, transactions that would constitute a credit agreement under the National Credit Act, but the goods or services that are the subject of the credit agreement are not excluded. 

CPA defines rental as an agreement for consideration in the ordinary course of business, in terms of which temporary possession of any premises or other property is delivered, at the direction of, or to the consumer, or the right to use any premises or other property is granted, at the direction of, or to the consumer, but does not include a lease within the meaning of the National Credit Act. If the landlord is in the business of leasing property, and the transaction is not between the State or where a consumer is a juristic person their turnover or assets are not more than R2 million then the Consumer Protection Act will apply to the lease agreement.

Can my landlord evict me without notice?

Section 14(b)(ii) states that if a consumer agreement is for a fixed term the supplier may cancel the agreement 20 business days after giving written notice to the consumer of a material failure by the consumer to comply with the agreement unless the consumer has rectified the failure within that time. This means that if a landlord wishes to evict a tenant he/she needs to first give the tenant a letter of demand stating what the tenant did that will lead to a cancellation of the lease agreement. e.g. the tenant did not pay rent or too many noise complaints, etc.  Should the tenant not pay the rent or continues with the noise within 20 business days then the landlord can cancel the agreement. Often the letter would state the issue and notice of cancellation however it is not necessary for the landlord to inform the tenant of the 20 business days rule all they have to do is give the tenant a notice of the breach. Should the tenant then rectify the issue before the end of 20 business days, then the landlord cannot evict the tenant. Business days are calculated as Monday to Friday excludes the weekend and public holidays. 

Conclusion

The CPA applies to residential leases concluded between a natural person CPA and to commercial leases concluded between a juristic entity with an asset or turnover value less than R2 million. As a tenant, you are afforded protection by the Act. In terms of the CPA, a landlord cannot evict you without notice. The notice does not have to state the period the tenant has it only needs to state the breach of the contract.  Tenants need to be careful and ensure that when a landlord is evicting them, due process was followed.