IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2024-008279
In the matter between:
WARREN RIGELSFORD Plaintiff/
and
SIFISO CALVIN BIYA First Defendant
RAPHAAHLE SHIRLEY BIYA Second Defendant
WATT-PRINGLE AJ:
1. This is an application for summary judgment.
2. In his combined summons, the plaintiff claims arrear rental and damages for
holding over respectively, interest and costs. Defendants filed a plea in response
to which the plaintiff made application for summary judgment. The p laintiff
(1) REPORTABLE:
(2) OF INTEREST TO OTHER JUDGES:
(3) REVISED.
30 November 2025 ……………………….
DATE SIGNATURE
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delivered an affidavit confirming the facts alleged in his particulars of claim and
asserting that the defendants have no bona fide defence.
3. First defendant delivered an answering affidavit resisting summary judgment at
a time when his former attorney had withdrawn and no new attorney had been
appointed. That affidavit does however appear to have been drafted with
assistance from a legal professional.
4. Despite the matter being properly set down, the defendants failed to deliver
heads of argument or a practice note. Counsel who appeared for the defendants
when the matter was first called on Monday 26 May 2025, informed the court that
he had been briefed very shortly before the hearing, as had his instructing
attorney and that neither of them had yet had the opportunity to ac quaint
themselves with the papers. By agreement the matter stood down until 10h00 on
Thursday 29 May 2025 to enable the defendants leg al representatives to
consider whether they elected to argue the matter on the papers as they stood
or possibly request a postponement to file further papers.
5. When the matter was called on the Thursday the court was informed that counsel
intended to argue the matter on the papers as they stood , and the matter
proceeded.
6. The plaintiff is the owner of a property in Kempton Park (the property) which
was occupied by the defendants ( a married couple) pursuant to a lease
concluded on 6 November 2018 (the lease). The lease was for a period short of
twelve months, commencing on 12 November 2018 and expiring on 31 October
2019, subject to a right of renewal which had to be exercised on two months’
notice prior to the expiry date . The rental was R30,000 per month and the
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defendants were liable for the municipal charges in respect of electricity, water,
refuse and sewage.
7. The defendants neither exercised the right to extend the lease on notice, nor did
they vacate the property and their tenancy continued on a month-to-month basis
on the same terms as had applied prior to the expiry of the written lease.
8. From February 2020, the defendants fell into arrears. As of February 2023, their
indebtedness had grown to R 619 946.27, but in March 2023, payments in the
amounts of R200 000 and R3000 were made on 16 and 18 March 2023
respectively.
9. On 23 February 2023, the defe ndants were given written notice of summary
termination of the lease agreement and notice to vacate the property by 26 March
2023. In the particulars of claim the allegation is made that the lease terminated
on 23 February, alternatively 26 March 2023. It seems to me that the plaintiff was
not entitled summarily to terminate the month-to-month lease agreement, but
nothing turns on that, firstly because both the notice to terminate and the notice
to vacate were ignored by the defendants who continued to hold over . The
plaintiff’s purported summary termination of the lease had no legal effect, but the
one month’s notice to vacate in my view constitutes reasonable notice of
termination of the month-to-month lease.
10. The balance outstanding as of March 2023 was R119 946.27, being the arrears
less the total payments totalling R500 000 made in March 2023.
11. The balance of the plaintiff’s claim is R382 949.98 comprising rental at R30 000
per month, and municipal charges (excluding assessment rates and taxes) up to
the end of January 2024.
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12. The reconciliation of all rental and municipal charges less payments received
accompanied the letter of termination to the defendants, and it discloses that
rental lower than R30 000 was levied up to November 2020, whereafter rent was
charged at R30 000 per month, despite a 6% per annum escalation rate agreed
in the lease agreement. It would therefore appear that in terms of the month-to-
month lease, the plaintiff simply held the rent at R30 000 per month.
13. It appears both from a note on the plaintiff’s reconciliation and from
correspondence between the plaintiff and the first defendant attached to his
affidavit resisting summary judgment, that the lower rental was because of
credits being accorded to the defendants in lieu of certain painting and other
improvements to the leased premises.
14. Defendants in their plea do not dispute the lease agreement but allege that the
lease agreement expired and “was superseded by the offers to purchase dated
18 March 202 0 and 20 November 2021 which required the Defendants to pay
occupational rent in the sum of R30 000 to the Plaintiff’s conveyancers. ” The
defendants deny concluding any other lease agreement (presumably a reference
to the month-to-month lease agreement, which clearly preceded any offer to
purchase on the dates alleged by the defendants ) and state that the offers to
purchase are attached to the plea marked B1.
15. Attached to the plea is an unmarked annexure being an offer to purchase in the
name of Ba-Biya Geomatics & Civils Trading (Pty) Ltd (whereafter the names of
the defendants, originally included in manuscript, are crossed out) and another
document, apparently part of the offer to purchase , which lists the details of the
defendants, thus contradicting the identi ty of the purchaser as per the
agreement. The latter document contains information required for the purpose of
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transfer, and records that unless inconsistent with the offer to purchase, it is
deemed to be incorporated therein. The offer to purchase was signed by the
plaintiff on 18 March 2020 and by the first defendant only, on 18 February 2020.
16. A further offer to purchase is attached to the plea. It lists the plaintiff as seller and
the defendants as the purchasers. Confusingly, it then records: “In the event of
a legal personae, represented by BaBryn Family Trust...” (with an IT registration
number.)
17. This offer to purchase is signed both by the plaintiff and seemingly by both
defendants on 20 November 2021. In terms of this agreement occupation was to
be granted on registration of transfer. There is no allegation by any party that
transfer ever took place. I was informed from the bar that the defendants have
since institution of the action vacated the property.
18. By February 2023 the defendants had fallen into arrears with payment of rent
and municipal accounts for water and electricity. Some of the arrears were made-
up in two payments totaling R500,000, leaving a balance of R119,000. Written
notice was given on 26 February 2023 for the defendants to vacate the premises
by no later than 26 March 2023. They failed to do so.
19. In consequence of the fact that the plaintiff considered the lease as at an end
with effect from 23 February 2023, alternatively 26 March 2023, he claims
damages based on the defendants’ holding over beyond that date and for the
period up to 30 January 2024 when the summons was served.1
1 As to the nature of a damages claim based on holding over, see Hyprop Investments Ltd and Another
v NCS Carriers and Forwarding CC and Another 2013 (4) SA 607 (GSJ) at para 42.
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20. Plaintiffs claim is in two parts, claim A and claim B. Claim A is for arrears up to
termination of the lease agreement. Claim B is a damages claim for holding over.
21. Both claims are liquidated claims. The rental is as per the month-to-month
agreement, save for credits allowed, as referred to above. The balance is made
up of amounts levied by the municipality for services. The municipal charges
constitute disbursements for which the defendants were liable under the lease
agreement and under the month-to-month lease thereafter.
22. The case argued on behalf of the defendants was essentially that from when the
first offer to purchase was signed, the party entitled to occupation and li able for
occupational rental was the named purchaser, a company , and not the
defendants. That agreement also provided for occupational rent of R30 000 per
month.
23. As pointed out by counsel for the plaintiff, the flaw in that proposition was that
pursuant to the offer to purchase, the purchaser was only entitled to occupation
from date of transfer o r such other dat e as the parties might agree after all
suspensive conditions had been fulfilled. The suspensive conditions clause was
inchoate in that there were blanks required to be filled in without which the clause
was meaningless and those spaces were left blank. There was in any event no
allegation of an agreement that the purchaser would take oc cupation on any
given date. There was therefore no allegation or evidence on the basis of which
to conclude that the parties to the purchase agreement ever agreed to an
occupation date. Therefore, the occupation enj oyed by the defendants was not
pursuant to any change in tenant and simply extended their “holding over” period.
24. The existence of the subsequent offer to purchase dated more than a year later
is consistent with there having been no attempt to execute the first one. The party
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relying on both agreements, namely the defendants, failed to take the court into
their confidence as to what had become of those agreements, nor was the ir
argument predicated on the company becoming an occupier of the premises
pursuant to the first offer to purchase canvassed in the affidavit resisting
summary judgment. Nor for that matter does the first defendant in his affidavit
explain why the existence of the second offer to purchase which provided for
occupation on registration of transfer constitute a ny kind of defence to the
plaintiff’s claims.
25. It was clear that at least by February 2023, the parties regarded the defendants’
occupancy of the premises as having been pursuant to a month-to-month lease
agreement based on the terms of the original written lease agreement. The
existence of the first and second offers to purchase does not feature in that
correspondence and this remains unexplained.
26. The plea goes no further than to say that the first written lease agreement was
superseded by the first and the second offers to purchase. Copies are attached,
but the plea fails to sp ell out how the defence is fashioned based on those two
documents.
27. The affidavit resisting summary judgment fares no better. The defendants allude
in the ir affidavi t resisting summary judgment to certain improvements to the
property for which the defendants apparently feel entitled to reimbursement ,
assuming that these have not already been credited as rent reductions. There is
no reference to this in the defendants’ plea. Any such claim ought to have the
subject of a counterclaim which would ordinarily have been delivered together
with the defendants plea, in which the defendant could have requested a stay of
the claim in convention, or part thereof . There is no such counterclaim. In any
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event, even if there was a properly art iculated counterclaim for an un liquidated
sum, that would not per se be an answer to the application for summary
judgment.2 Nothing prevents the defendants from claiming those amounts in due
course if they are so advised.
28. It their plea, the defendants incorrectly assert that in terms of the expired lease,
the plaintiff was responsible for municipal charges , which include water,
electricity, refuse collection and sewage. That plainly is not the case. Clause 4.2
provides that the lessee shall be liable for, and shall on due date thereof, pay to
the relevant authority, the charges in respect of electricity, water, refuse and
sewage. Clause 4.3 provides that the municipal account pertaining thereto will
be in the name of the lessor. For completeness, clause 4.1 provides that the
lessor will pay the assessment rates and taxes.
29. For the rest the plea contains bare denials.
30. In the affidavit resisting summary judgment, reference is made to corrections
sought to the plaintiff’s reconciliation on which the amounts outstanding are
tabulated. The defendants allege in correspondence with the plaintiff’s attorney
that their disputes are note d on the attached reconciliation. No such document
is attached to the affidavit, nor is its contents dealt with in the affidavit resisting
summary judgment.
31. I am accordingly satisfied that the defendants have no bona fide defence to the
plaintiff’s claims. I am also satisfied that the plaintiff’s claims are liquidated
claims.3
2 Citibank NA, South Africa Branch v Paul NO and Another 2003 (4) SA 180 (T) at paras 37 and 38.
3 Standard Bank of South Africa Ltd v Renico Construction (Pty) Ltd 2015 (2) SA 89 (GJ) at para 15.
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32. I was not made aware of any mora date other than the date on which summons
was served, which was 30 January 2024.
33. Plaintiff’s coun sel sought costs on scale B, wher eas the defendant’s counsel
considered that scale C would be appropriate. In my view, scale B is appropriate.
34. In the circumstances I make the following order against the defendants, jointly
and severally, the one paying other to be absolved:
1. Payment of the sum of R502 896.25
2. Interest in that amount at 11.75% per annum from 30 January 2024 to date
of payment.
3. Costs of the suit as between party and party, on scale B.
_______________________
REGISTRAR
_______________________________
CE WATT-PRINGLE
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
Electronically submitted therefore unsigned
Delivered: This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand-down is deemed to be Monday 1 December 2025.
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Date of hearing: 9 May 2025
Date of judgment: 30 November 2025
Appearances
Counsel for the Plaintiff: L Lipshitz
Attorneys for the Plaintiff : Raees Chothia Attorneys
Counsel for the First and Second Defendants: Adv Mhlanga
Attorneys for the First and Second Defendants: Precious Muleya Attorneys Inc