Naude N.O and Others v Van Der Merwe and Others (A213/2024) [2025] ZAWCHC 16 (20 January 2025)

Naude N.O and Others v Van Der Merwe and Others (A213/2024) [2025] ZAWCHC 16 (20 January 2025)

Section 5(5) of the Rental Housing Act does not apply to the termination of a lease for breach where the lease contains a cancellation clause. The respondents remained in occupation without the express or tacit consent of the appellants after October 2019, and the contractual breach clause governed the termination....

Source-derived case information.

Citation
[2025] ZAWCHC 16
Parties
Appellant: Bridget Mary Naude NO; Appellant: Anthony Cotterell NO; Appellant: Anita Bhika NO; Respondent: Anita Van Der Merwe; Respondent: Tertius Pretorius; Respondent: City of Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
20 January 2025
Case Number
A213/2024
Procedural Posture
Civil Appeal / Appeal From Magistrates’ Court Judgment
Outcome
Appeal upheld; eviction order granted against the first and second respondents and all those occupying through them.
Judges
W R E Duminy, DM Thulare
Legal Topics
Rental Housing Act, Eviction, Lease Termination, Prevention of Illegal Eviction Act, Notice Requirements
Land and Property Civil Procedure Rental Housing Act Eviction Lease Termination Prevention of Illegal Eviction Act Notice Requirements

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Parties

Bridget Mary Naude NO

Appellant

Anthony Cotterell NO

Appellant

Anita Bhika NO

Appellant

Anita Van Der Merwe

Respondent

Tertius Pretorius

Respondent

City of Cape Town

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrates’ Court Judgment

Legal Issues

  1. 1 Does section 5(5) of the Rental Housing Act apply to termination of a month-to-month lease for breach?
  2. 2 Was the eviction notice compliant with statutory and contractual requirements?
  3. 3 Is it just and equitable to grant an eviction order in the circumstances of the respondents, particularly considering the first respondent's health and vulnerability?

Ratio Decidendi

Section 5(5) of the Rental Housing Act does not apply to the termination of a lease for breach where the lease contains a cancellation clause. The respondents remained in occupation without the express or tacit consent of the appellants after October 2019, and the contractual breach clause governed the termination. The Magistrate erred in finding that section 5(5) required one month's notice in these circumstances. The respondents failed to pay rent and did not comply with notices to vacate. The evidence established that the respondents could afford alternative accommodation and did not engage with the City’s offer of emergency housing. The first respondent’s health and vulnerability were...

Court Disposition

Appeal upheld; eviction order granted against the first and second respondents and all those occupying through them.

Orders

  • The First and Second Respondents, and anyone occupying the property through them, are evicted from the property situated at unit 2[…], SS39/2007, SS A[…] Park Village 2[…], Welgelee Street, Brackenfell.
  • The First and Second Respondents and anyone occupying the property through them must vacate the property by no later than 28 February 2025.