The Rental Housing Act 50 of 1999 (“the Act”) governs all residential lease agreements in South Africa. Section 5(5) of the Act states that should a tenant remain in the leased property subsequent to the date of expiry of the lease agreement, the parties are deemed to have entered into a periodic lease on the same terms and conditions as the expired lease except that at least one month’s written notice must be given by either party of the intention to terminate the lease. What does “one month’s written notice” mean?
In the recent judgment handed down by the Western Cape High Court in Luanga v Perthpark Properties Ltd 2019 (3) SA 214 (WCC) the question was whether a notice period for the termination of a residential lease agreement runs from the first day of a month and terminates on the last day of that month, as opposed to running from a particular date to the corresponding date in the next month.
In the Perthpark case the tenant remained in occupation of the premises after expiry of the lease agreement. The lease continued on a month-to-month basis in accordance with the Act. Perthpark (the landlord) gave notice to Luanga on 4 May 2017 of cancellation of the lease and that the lessee had to vacate the property by 5 June 2017. Luanga remained on the premises and Perthpark was subsequently granted an eviction order. On appeal to the Western Cape High Court, Luanga argued that the notice period must correspond to the month-to-month lease period, which runs from the first to the last day of every month. If the termination notice specified a different period (4 May to 5 June), the lease was not validly terminated and the eviction was also invalid, because the occupier was not an unlawful occupant for purposes of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (“PIE”).
Section 5(5) of the Act refers to notice of one calendar month. The Western Cape High Court held that the one-month notice requirement is peremptory and must be properly complied with. In common law a “month” in lease contracts for an indefinite period runs from the beginning to the end of each month, and the notice period referred to in the Act must be understood to indicate a notice given before the end of the month, to terminate the contract at the end of the next month. The court held that this interpretation accords with the common law and constitutional values; affords protection to both the landlord and tenant; creates legal certainty; and benefits the tenant because the end of the month is an easier time to vacate the premises.
Because the notice in the Perthpark case was not properly given in terms of the peremptory provisions of the Act, it was void ab initio and Luanga was therefore still a lawful tenant.
A landlord who is required to give a tenant “one month’s written notice” under the Act must therefore be aware that the notice period runs from the first day of a month and terminates on the last day of that month, even if the notice is already given during the previous month.