Recently, I have had to deal with a few transfers where the properties are tenanted and where I was asked for advice on a few issues. I then began to notice the existence of the same clause, (clause 22) in some of these lease agreements.
Two sub-clauses stood out and are of great concern.
The first sub-clause provides as follows: In the event that the Tenant is placed in breach for 3 consecutive months, the Landlord shall be entitled to terminate this Lease Agreement on 20 (Twenty) Business Days’ notice to the Tenant. In such an event the Landlord’s right to terminate shall exist regardless of whether the Tenant remedies each breach prior to the expiry of each individual Month within the 3 (Three) Month period contemplated above. (Not quoted verbatim but this is the gist of it.)
We strongly disagree with this for the following reasons:
Section 14 of the Consumer Protection Act clearly and expressly states that if a tenant is in breach, the landlord may then put that tenant to terms and give 20 business’ days’ notice to remedy the breach, and (only) if the tenant does not remedy the breach, then the landlord may cancel it. It does not provide that if the landlord has had to do this for 3 months consecutively, that the lease may then be cancelled on 20 business days’ notice, more so, even if the tenant has remedied every time.
Section 14 is therefore clearly designed to ensure that landlords may (in the case of breach by the tenant) only cancel the lease, if the tenant has been given 20 business days’ notice and if the tenant has then not remedied the breach. When it comes to terminating a lease because of breach, Section 14 is therefore prescriptive. Furthermore, the CPA also clearly states that any provision in a contract which violates any section of the Act, will be deemed as “pro non scripto”, (as if not written) and will thus be null and void. As such, it is our view that this sub-clause is null and void and unenforceable.
Why are we pointing this put? Well, herein lies our concern: If you have a tenant who is such a “repeat offender” and your landlord elects to terminate after the 3rd breach, (even though the tenant has remedied it each time within the 20 business day deadline), the Judge is most likely to throw the matter out of court and leave the landlord, not only frustrated, and out of pocket with a ton of legal costs, but also, rather peeved at you, the property practitioner, for having led him/her down this path, with a lease that does not comply with the law.
Why do we say this?
Well, firstly, the courts have a statutory duty to protect tenants’ rights, more so, due to the right to housing, as entrenched in the Constitution.
And, secondly, the name of the applicable legislation is the CONSUMER Protection Act. Not the “Supplier” Protection Act. Who do you think the Courts will favour, when interpreting Section 14?
That said, should anyone reading this, know of any High Court decision in South Africa, which has had occasion to make a ruling over this particular issue, and which has upheld this sub-clause, please share this with us as we have been unable to find such authority.
(As a side note – The Act does not deal with instances where the landlord decides to terminate early, because he/she wants to sell or retake occupation him/herself at all – something we also see often in leases. In those instances, the landlord may give notice to terminate early, because the landlord is not terminating due to a breach as this will then fall within contractual freedom between the parties.)
The second sub-clause that makes my hair stand on end, is the following: The Landlord may terminate this Lease Agreement with immediate effect and may demand that the Tenant vacate the Premises immediately and, in any event, within a period of no more than 24 (Twenty Four) hours in the event that the Landlord, the Property Practitioner or the Body Corporate become aware of the fact that the Tenant is conducting any form of criminal or illegal activity, or has contravened any law or by-law whatsoever, (my emphasis) including the Criminal Procedure Act 51 of 1977, the Counterfeit Goods Act 37 of 1997 and the Treatment of Substance Abuse Act 70 of 2008. In the event that the provisions of the above should apply, the Landlord shall not be obliged to prove the criminal or illegal activity in question, but shall be required to report such activity to the South African Police Service or other applicable body, which reporting may be done anonymously; provided that there is no obligation on the Landlord to prove such reporting to the Tenant or any third party.
In the light of our Constitutional rights, amongst others, the right to a fair trial; the right to fair administrative action, and above all, the right to be presumed innocent until proven guilty, I want to see any Judge allow a landlord to terminate under these circumstances. How on earth can anyone say that they have become aware “of the fact” that the tenant has contravened some Act, if they cannot, or need not, even prove it? This is ludicrous, plain and simple.
Once again though, we invite any reader to refer us to a High Court judgment which disagrees with these views.
In closing, if your lease does contain these clauses, and if you disagree with these views, I strongly suggest, and urge you, to seek an independent legal opinion on whether your lease should be amended. If however, you agree with these views, you should remove these clauses from any future leases, immediately.
As for existing leases, I am afraid you will need to manage your landlord’s expectations if either of these scenarios should present themselves in the future.
Robert Krautkramer
13 August 2025