Erf 0[...] Malanshof CC v Tshisikule and Another (2024/037824) [2025] ZAGPJHC 1198 (24 November 2025)

Case Note

Erf 0[...] Malanshof Randburg CC v Albertina Tshisikule & Another
Case No: 2024-037824
High Court of South Africa, Gauteng Division, Johannesburg
Date: 24 November 2025

Reportability

This case is reportable as it addresses the crucial application of the Rental Housing Act 50 of 1999, specifically section 5(5), which pertains to the rights and obligations of landlords and tenants following the expiration of a written lease. The judgment contributes significant insights into what constitutes a continued relationship under tacit consent and the procedures surrounding summary judgments in disputes involving arrear rentals and holding-over damages. Its principles are likely to influence future cases involving residential lease agreements, establishing a precedent on how similar facts may be interpreted under South African law.

Cases Cited

1. Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 423F-H
2. Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture 2009 (5) SA 1 (SCA)
3. Breytenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 (T)
4. Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 627 (A) at p657
5. Bowring NO v Vrededorp Properties CC and Another 2007 (5) SA 391 (SCA)
6. Myeni v Organisation Undoing Tax Abuse NPC 2019 JDR 2599 (GP)
7. Sharma v Hirschowitz and Another 2020 (3) SA 285 (GJ)
8. Spring Forest Trading CC v Wilberry (Pty) Ltd 2015 (2) SA 118 (SCA)

Legislation Cited

• Rental Housing Act 50 of 1999

Rules of Court Cited

• Uniform Rule 32
• Rule 18(6)

HEADNOTE

Summary

In this case, the plaintiff sought summary judgment for overdue rent and holding-over damages against the defendants following their occupancy of a residential property without a formal lease agreement post-expiration. The court had to consider the implications of the tacit renewal of the lease under the Rental Housing Act, which allows for an automatic transformation into a periodic lease when a tenant remains in occupation with the landlord's tacit consent after a fixed-term lease expires.

Key Issues

The key legal issues addressed include the implications of tacit consent for lease agreements, the validity of oral agreements as defenses in rent disputes, the definition of necessary parties in litigation regarding non-joinder, and the criteria for evidence supporting summary judgment applications.

Held

The court held that the defendants, despite their assertions of an oral agreement and non-joinder claims, failed to establish a bona fide defense. The plaintiff's application for summary judgment was granted, reinforcing the obligation of the defendants to pay the arrear rental and holding-over damages, as the continued occupation constituted a periodic lease governed by the statutory provisions.

THE FACTS

The defendants, Albertina Tshisikule and Tshipuliso Barnabas Tshisikule, were occupants of premises owned by the plaintiff, Erf 0 [...] Malanshof Randburg CC, under a lease that had expired on 31 July 2016. Despite the lack of a written renewal, they continued to occupy the property and make rental payments with the plaintiff's tacit consent, thereby laying the foundation for a periodic lease as stipulated by the Rental Housing Act. The plaintiff contended that non-payment of rent since May 2022 warranted summary judgment as they were owed R130,894.86 in rental arrears and R310,992.49 in holding-over damages due to the defendants’ unauthorized occupancy after cancellation of the lease.

The defendants countered the claims by asserting that no valid lease existed post-2016 and introduced a purported oral agreement with the landlord that allowed their continued occupation without rent. Furthermore, they challenged the proceedings’ validity based on the ground of non-joinder regarding the absence of the plaintiff's former estate agent, raising issues that warranted examination.

THE ISSUES

The legal issues for the court to consider centered around whether there was a valid lease agreement in place post-2016 under the provision of the Rental Housing Act, the consequences of the defendants remaining in occupancy, the merits of the defendants’ claims of an oral agreement, and the relevance of non-joinder concerning the plaintiff's former agent in the context of the claims made.

ANALYSIS

The court examined the nature of the defendants’ continued occupancy, applying section 5(5) of the Rental Housing Act to determine whether such occupation constituted a lease under tacit consent. It concluded that the premises' continued occupation indicated the tacit agreement of a periodic lease, obligating the defendants to adhere to the original lease terms, particularly regarding rental payments.

Moreover, the argument presented by the defendants regarding a non-joinder of the estate agent was dismissed as irrelevant because it did not pertain to the direct legal interests of the absent party, nor did it affect the claim for outstanding rental. The court also scrutinized the alleged oral agreement posited by the defendants, finding it lacking in detail and inherently improbable given the context of their payment history and the formalities prescribed in the lease’s non-variation clause.

The court firmly established that any oral agreement could not supersede the tenant's obligations under the statutory provisions establishing a deemed periodic lease nor any lawful non-variation clause, highlighting the conflict between informal arrangements and formal lease agreements recognized by law.

REMEDY

The court granted the plaintiff's request for summary judgment, ordering the defendants to pay R130,894.86 in arrear rental, R310,992.49 in holding-over damages, with interest at the contractual rate, and costs on an attorney-client scale. This judgment reinforced the legal obligations of the parties within the bounds of statutory tenancy provisions.

LEGAL PRINCIPLES

The case established several key legal principles:

1. The operation of section 5(5) of the Rental Housing Act creates a periodic lease by law when a tenant occupies premises after the expiration of a written lease with the landlord's tacit consent.
2. Non-joinder arguments must demonstrate that an absent party has a direct and substantial interest in the outcome of the proceedings for them to be material.
3. Oral agreements cannot overturn the formal stipulations provided in signed lease agreements and statutory provisions, especially when there are compelling non-variation clauses in effect.

This decision elucidates significant aspects of landlord-tenant law in South Africa and the necessity of formalizing agreements to avoid disputes and ensure legal enforceability.