- A Camps Bay tenant withheld rent from August 2024 over alleged maintenance failures, with arrears reaching R1,407,500 by June 2026.
- The Western Cape Rental Housing Tribunal dismissed her claim for a 30 percent rental reduction, finding that the landlord had not been given reasonable access to investigate the alleged defects.
- The High Court in Cape Town ordered the tenant, her husband and other occupants to vacate by 30 November 2026, allowing time for their children’s school examinations to conclude.
A landlord should not be expected to continue providing accommodation without receiving rent from a tenant who can afford alternative housing, Acting Judge W Amien has found in ordering the eviction of a family from a Camps Bay property.
The tenant had withheld rent over alleged maintenance failures, with arrears reaching R1,407,500 by June 2026. The High Court in Cape Town found that the landlord had been denied reasonable access to inspect the property and that the tenant had no valid defence to remaining in occupation after the lease was cancelled.
In a judgment delivered on 12 October 2026, Judge Amien granted the eviction order but gave the family until 30 November to vacate, taking the children’s schooling into account.
Judge finds landlord faced financial prejudice
The dispute arose from a lease agreement concluded in July 2020 between the property’s registered owner, Tania dos Santos Sousa Costa, and the first respondent. The lease was extended in March 2023 for a further three years, from August 2024 to July 2027.
Monthly rent increased from R60,000 in August 2024 to R62,500 from August 2025 and was due to rise to R65,000 from August 2026.
The tenant began withholding rent in August 2024, alleging that the landlord had failed to maintain the property properly. The withheld money was paid into the trust account of the tenant’s attorneys, with a payment schedule reflecting R393,000 deposited into the account.
Costa said she had been denied access to inspect the property after requesting entry to assess the maintenance complaints. She subsequently issued a notice of breach on 4 March 2025, requiring payment of R300,000 in arrears and an undertaking that the property would no longer be sublet without her consent or used for commercial purposes.
When the breach was not remedied, she cancelled the lease on 26 March 2025 and required the occupants to leave. They remained in the property.
Judge Amien found that the tenant’s continued occupation was causing financial prejudice to the landlord while the tenant was earning income by subletting part of the property without consent.
“The respondent’s continued occupation of the property is further causing financial prejudice to the applicant while the first respondent is enjoying income generated from subletting part of the property,” the judge said.
The court was informed that the tenant was charging R3,600 a night for subletting part of the property. She had also made an offer to purchase the home for R11 million, which the landlord rejected. Judge Amien found that these circumstances indicated that the tenant could afford alternative accommodation.
The judge said it would be unjust to expect Costa to continue providing accommodation without rental payments, particularly when the tenant was generating income from subletting the property. The outstanding rent for August 2024 to June 2026 amounted to R1,407,500.
Consumer Protection Act defence rejected
The tenant opposed the eviction, arguing that the Consumer Protection Act required the landlord to give 20 business days’ written notice to remedy a material breach before cancelling the fixed-term lease.
The landlord maintained that the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) applied and that the lease had been validly cancelled after the tenant failed to remedy the breach within the contractual period.
Judge Amien found that the Consumer Protection Act did not apply because the landlord was not renting out the property in the ordinary course of business.
Although Costa had relocated to Angola for work and rented out the property to generate income towards her children’s tuition fees, the judge found that this did not make her a property rental business. The transaction involved a privately owned asset rather than property let from rental housing stock.
The judge also rejected the argument that the cancellation notice was invalid. The notice of breach and cancellation had been issued separately, on 4 March and 26 March 2025. The lease had therefore been validly cancelled, leaving the respondents without a legal right to remain in the property.
Tribunal dismissed rental reduction claim
The tenant had lodged complaints with the Western Cape Rental Housing Tribunal over the alleged maintenance defects and sought a 30 percent reduction in rent.
In its ruling on 19 August 2026, the tribunal directed the occupants to give the landlord, her representatives and properly appointed contractors reasonable access, on reasonable prior notice, to inspect the property and carry out necessary maintenance.
The tribunal dismissed the claim for rental remission, citing the occupants’ continued use of the property and their failure to provide reasonable access needed to investigate and remedy the alleged defects.
Judge Amien accepted the tribunal’s findings, noting that the landlord had not been afforded reasonable access to assess the complaints and determine what repairs were required. The court consequently found that the respondents had no valid defence to their continued unlawful occupation.
Children’s schooling delays eviction
Although the court found that eviction was justified, Judge Amien was required under Section 4(7) of PIE to consider whether it would be just and equitable, including the availability of alternative accommodation and the rights and needs of children.
The judge noted that the respondents had provided limited information about their financial circumstances and had not completed the City of Cape Town’s questionnaire used to assess whether an eviction would render them homeless.
The tenant’s subletting income and previous R11 million offer to purchase the property supported the finding that the family could afford alternative accommodation.
However, the couple’s minor children lived at the property and attended private schools in Cape Town. The eldest was in Grade 12, with final examinations due to finish by 27 November 2026.
Judge Amien found that requiring the family to leave immediately could disrupt the children’s education. The judge therefore balanced the landlord’s financial prejudice against the children’s best interests and the time needed for the family to find alternative accommodation.
The court ordered the respondents and all other occupants to vacate the property by 1pm on 30 November 2026.
If they fail to leave, the sheriff is authorised to evict them on 2 December 2026, with assistance from the South African Police Service if necessary. The first and second respondents were also ordered to pay the landlord’s legal costs on an attorney-and-client scale, including counsel’s fees.
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