REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 14359 /2022
In the matter between:
FAUSTO GUISEPPE DI TRAPANI Plaintiff
and
HAOTIAN WU Defendant
JUDGMENT
KAZEE AJ
[1] This matter concerns a dispute between a landlord and tenant over arrear rental
and a counterclaim for improvements effected on the property during the
subsistence of the lease between the parties . Over the 1 5 years that the
defendant occupied the premises and made improvements thereto, the
relationship between the parties deteriorated , and the defendant was ultimate ly
evicted from the property following a court order dated 8 September 2021 (case
number 44242/2018).
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/N
______________ _ ______
DATE SIGNATURE
25 June 2025 25 June 2025
[2] The issues for determination include:
i. Whether a right of first refusal for the purchase of the property existed
between the plaintiff and defendant, and if so, whether the defendant
was given the opportunity to exercise the offer .
ii. The legality and quantum of the rent escalation in December 2017?
iii. Whether the defendant obtained consent for the renovations and
improvements to the property totalling R 914,684.00 and, if so, whether
the defendant is entitled to compensation therefor .
iv. If the plaintiff was enriched due to the improvements to the property?
Background to the claim and counterclaim
[3] The terms of the initial lease agreement are common cause. The plaintiff and
defendant entered into a two -year written lease agreement in January 2010 ,
amended by an addendum dated 3 February 2010. Rent was set at R 20,000 a
month, plus utilities, with an agreed minimum escalation of 10% at the end of the
two years, should the plaintiff renew the lease.
[4] The relevance of the lease addendum is that, amongst other changes, clauses
24 and 27 of the lease agreement were deleted. The pla intiff states this is
because the parties wanted to remove any obligations he may have toward the
leasing agent, Jawitz Properties, in the future. The defendant contends that the
true reason for deleting these clauses is that the parties reached an oral
agreement that the defendant would put in an offer to purchase the property as
soon as his financial position allowed hi m to obtain a home loan. I will return to
the parties’ testimony below.
[5] Following the expiry of the two -year term of the lease in 2012, the plaintiff
renewed the agreement on a month -to-month basis and the rent was increased
by 10% to R 22,000. In August 2015, the plaintiff relocated to Canada, and his
mother managed the property, including the collection of rent and inspection of
the property on his behalf. The plaintiff’s mother is a qualified estate agent and
the plaintiff trusted her in this role. The rental remained constant until December
2017, when it was increased to R 28,000. 00. It is also common cause that the
defendant was an erratic payer and frequently paid less than the total rental,
skipped monthly payments , or paid for more than one month ’s rent at a time.
[6] On 18 May 2018, the plaintiff’s attorneys wrote to the defendant placing the
defendant on terms and noting that he owed arrear rental of R 36,000 .00 and
informing the defendant of the plaintiff’s intention to sell the property at R 3,6
million. The letter afforded the defendant 24 hours to submit an offer to purchase,
failing which the property would be placed on the open market. The defendant
put in a written , cash offer at R 3,3 million, which the plaintiff rejected . The rental
continued at R 28,000 .00 per month until the defendant’s eviction in December
2021. At the time of the eviction , the defendant owed the plaintiff over R1 million.
Taking into account prescription, the plaintiff has claimed R 896,000 .00 in the
particulars of claim. The property was ultimately sold on 5 March 2022 for R 3
million.
[7] The defendant’s counterclaim is based on an alleged verbal agreement between
the parties entered into within the first two years of the lease. Based on the
alleged right of first refusal, the defendant made several substantial
improvements to the property. This included fixing the leaking roof, refurbishing
the kitchen in 2014 at a cost of R 394,684 .00 and enclosing the balcony, painting
and waterproofing in 2016 for R 520,000. 00. All the improvement s are supported
by invoices and other vouchers. As stated, the plaintiff does not deny the
construction ; however, the necessity of the improvements is challenged and the
obligation to reimburse the defendant the expenses incurred is disputed. In the
alternative to the contractual damages claim based on the right of first refusal,
the defendant alleges that t he plaintiff was unjustifiably enriched as a result of
the improvements to the property. This, pleads the defendant, is evident from the
sale of the pro perty in March 2022. The defendant alleges that the market value
of the property increased from R 2,6 million to R 3,514,983.00 and that the
property was ultimately sold for R 3 million. The defendant accordingly claims
R 914,684.00 for contractual damages and , in the alternative, an unjustified
enrichment claim of R 400,000.00.
The evidence by the Parties
[8] Both parties testified at the hearing and did not call any additional witnesses.
Given the dispute of fact and the reliance by both parties on the plaintiff’s mother
and what she may or may not have communicated to the defendant, it is unclear
why the mother was not called to testify.
[9] On the material issues, the plaintiff was adamant that he did not purchase the
property with the intention of resale or “flipping the property” and that the
defendant did not raise the possibility of buying the property with the plaintiff.
The parties gen erally communicated by text or e -mail every two to three months.
The plaintiff testified that he was indeed aware of the renovations to the property
and that the renovations to the kitchen were made before he left for Canada, and
he had seen the reconfigur ation of the kitchen when he inspected the property.
He maintains that he did not give prior consent for the renovations to be made.
The plaintiff confirmed that the defendant pointed out the changes to him and he
acknowledged them. The plaintiff added t hat he expected the renovations to be
removed, even though it must have been obvious that the cabinetry and additions
were fixed and not movable items.
[10] The plaintiff described the dismal state of affairs the property was in following the
eviction of the defendant in December 2021. The plaintiff’s mother carried out
the inspection and noted that the geyser had been removed, the water mains
were turned off, and in the kitchen the fixtures were removed, the gas stove was
removed, the aircon units were removed which exposed the r ooms to the
elements and the extractor fan was removed. The state of affairs was reported
to Bedfordview police station (SAPS) but this did not go anywhere. The plaintiff
did not explain the nature of the report made and did not indicate whether he
obtained a case number from the SAPS.
[11] Under cross -examination, the plaintiff confirmed that his mother had the authority
to sign all necessary documents while he was in Canada and to this effect, he
concluded a special power of attorney in her name in September 2022, after the
defendant’s eviction.
[12] The defendant testified that he raised the question of purchasing the property
from the plaintiff in 2015 or 2016 in a discussion about having the roof fixed. After
the plaintiff relocated to Canada, the defendant raised the issue of purchasing
the property with the plaintiff’s mother and the last time he recalled raising the
topic was in 2018, on his return from a trip to China.
[13] Concerning the improvements to the property, the defendant stated that he is not
certain of the dates when the improvements were communicated to the plaintiff ,
but that he let the plaintiff know before the contractors started working on the
property. The defendant confirmed that the roof was fixed during 2010 or 20 11
after moving into the premises and the kitche n and balcony in the years
thereafter. The defendant was adamant that he would not have spent that kind
of money on improving the property if he was not going to purchase the property.
On vacating the property, the defendant confirmed that he removed the
improvements that he made to the property and placed the original appliances,
including the geyser in the garage for re -installation. The defendant stated that
all appliances left behind were in working order and that he purchased a new
stove , similar to the one installed by the plaintiff, in the k itchen. As he had
installed the solar geyser s, he took this with him on vacating the property and
took his furniture and other movables . The defendant was clear that neither the
plaintiff nor his mother at any point instructed the defendant to stop the
renovations.
[14] The defendant’s testimony is clear that he believed the offer to purchase signed
in 2018 was an agreement of sale at a purchase price of R 3,3 million. This is
not the case and is evident from the content of the OTP. The defendant
negotiated with the plaintiff’s mother, who he believed had the requisite authority
and understood that his signature concluded the sale agreement.
[15] In cross -examination , the defendant further explained that two offers to purchase
were made on the property. The first was in 2015, when he signed a document
in the presence of the plaintiff and his brother which he believed constituted an
offer to purchase the property, before he commenced with the renovations to the
kitchen. The plaintiff informed the defendant that he would give the document to
his brother to continue with the necessary arrangements but nothing came of this
and the defendant did not fo llow up on the issue. This evidence was not put to
the plaintiff and his response to this allegation is unknown. The second offer was
the written OTP in March 2018.
[16] It is apparent from the oral evidence that the parties’ relationship deteriorated
over the decade and a half . What was discussed and may have been agreed to
in the early years of the lease , was not reduced to writing , and the defendant
contends that an oral or tacit agreement was concluded.
[17] This leaves the question of the outstanding rental , whether the defendant can
claim reimbursement s for the improvements effected on the property , and what
if anything, is to be made of the right of first refusal .
The primary claim for outstanding rental
[18] On the primary claim for outstanding rental, the defendant does not dispute the
arrears and that he did not pay rental to the pla intiff between December 2017
and the eviction in December 2021 (save for two months in March and April
2018).
[19] The defendant explained that he refused to pay the rental because the plaintiff
unjustifiably increased the rental by 21% from R 22,000 to R 28,000 per month.
In determining whether the increase was reasonable , I turn to the lease
agreement and the Rental Housing Act, 1999.
[20] Although the agreement lapsed in February 2012, section 5(5) of the Rental
Housing Act, 1999 applies in the circumstances and provides:
“If on the expiration of the lease the tenant remains in the dwelling
with the express or tacit consent of the landlord, the parties are
deemed, in the absence of a further written lease, 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 of the intention by either party to terminate the lease .”
[21] The lease agreement , together with the addendum thereto, is clear that the
plaintiff is entitled to increase the rent by a minimum of 10% every two years.
The plaintiff did not invoke this right between March 2012 and November 2017.
It is apparent from basic calculations submitted by the plaintiff that , had the
plaintiff elected to increase the rental by the minimum amount of 10% every two
years, the monthly rental would be more than R 28,000 by December 2017.
[22] It is self -evident that the rental of R 22,000 was no longer market -related and that
the plaintiff was within his rights to increase the rental amount. The increase to
R 28,000 was retained for the remaining four years until the defendant’s eviction.
There is little basis to the argument that, on reasonable notice of one month, the
rental increase of 21% in December 2017 was excessive.
The counterclaim and the improvements to the property
[23] The defendant argued that a right of first refusal existed between the plaintiff and
defendant and that the plaintiff did not uphold th is right when selling the property
in 2022. The existence of any such right depend s on the lease agreement and
the addendum thereto. In this case, it is common cause that the lease agreement
was terminated in 2021 and that the eviction in December 2021 followed the
termination of the lease.
[24] The defendant directed attention to the Constitutional Court judgment of Mokone
v Tassos Properties CC 2017 (5) SA 456 (CC) , in which the common law was
developed so that when parties extend a lease agreement – without stipulating
anything more – this is read to mean that all the terms of the lease, including
terms that are “ collateral, and not incident, to ” the lease agreement, such as a
right of pre -emption or first refusal, are similarly being extended , without more
required of the parties. This, however, does not come to the assistance of the
defendant in the present circumstances . Not only is there no express right of first
refusal in the agreement but any such right does not survive the valid termination
of the lease . On this basis, it is unsustainable for the defe ndant to contend that
the right of first refusal survived the termination of the lease and continued until
the sale of the property in March 2022. If a right of first refusal existed for the
duration of the lease agreement, the issue does not arise in the present case
because the property was sold after the termination of the lease agreement.
[25] I find, however, that no such agreement was reached between the parties. This
accords with the terms of the lease agreement itself, which provides in clause 26
that any amendment or variation to the terms and conditions of the agreement
“shall be in writing and signed by both parties ”. I note that even if I am incorrect
in the above analysis , it is common cause that on 18 May 2018, the defendant
was granted an opportunity to purchase the property, the defendant exercised
the right by tendering a written offer to purchase, and the plaintiff rejected the
offer. On this approach, the right of first re fusal was granted to defendant , and
the defendant duly exercised the right.
[26] Section 5(5) of the Rental Housing Act makes clear that the terms and conditions
of the written lease are deemed to apply on a month -to-month basis until the
termination of the lease. In this context, I turn to consider the improvements to
the property.
i. Clause 12 of the lease agreement provides that if the lessee makes
alterations or improvements to the premises “ with or without the consent of
the lessor, he shall in any event receive no compensation therefore and
shall either at his own expense remove same immediately at the request of
the lessor ”.
ii. Clause 17.1 states that the lessor and lessee shall, within three days before
the expiration of the lease, arrange a joint inspection of the premises with
a view to ascertaining if any damage was caused to the premises during
the lessee’s occupation thereo f. If this does not take place, the property is
deemed to be in a good and proper state of repair. This provision mirrors
section 5(3)(f) of the Rental Housing Act. It is common cause that no such
inspection took place and that the defendant removed a number of the
improvements he made to the property , some of which I have recorded
above .
[27] The lease agreement is clear in c lause 12 that no enrichment claim is available
for any improvements to the property , and this is so whether or not the plaintiff
provided his consent to the improvements. In addition, the SCA judgment of
PRASA Corporate Real Estate Solutions v Community Property Company Ltd
and Another [2024] ZASCA 35 , paragraph 26 is clear that it is impermissible for
a party to plead a claim for unjustified enrichment in general terms but that it is
For the Defendant: Adv D Sny man instructed by BDK
Attorneys
Date of Trial : 14 May 2025
Date of Judg ment : 25 June 2025