- The High Court held that tenants in Malanshof cannot lawfully remain after lease expiry without a valid lease, written or statutory.
- Section 5(5) of the Rental Housing Act deems a periodic lease to arise if tenants stay with the landlord’s consent.
- The court rejected the oral agreement defence and granted summary judgment for arrear rental and holding-over damages.
Tenants who continued to occupy a property in Malanshof, Randburg, after their written lease expired must pay more than R130 000 in arrear rental and over R310 000 in holding-over damages, the South Gauteng High Court in Johannesburg has ruled.
Judge L Windell delivered the judgment on 24 November 2025, finding that the tenants’ continued occupation was not protected by either an alleged oral agreement or by the absence of a new written contract.
The landlord sought summary judgment against Albertina Tshisikule and Tshipuliso Barnabas Tshisikule for arrear rental and holding-over damages. The claim followed the expiry of the last written lease renewal in July 2016, after which the tenants remained in occupation and continued making payments. The tenants argued that an oral agreement reached in 2021 allowed them to stay without paying rent.
Court applies Rental Housing Act to continued occupation
Judge Windell found that the original lease, renewed several times, had expired, but the tenants’ continued occupation and payments meant the landlord consented tacitly. The judgment states, “A tenant cannot remain in occupation of a property in the absence of a valid lease, either arising from agreement or by operation of law.”
Judge Windell explained that Section 5(5) of the Rental Housing Act “stipulates that if, upon expiry, the tenant remains in occupation with the landlord’s express or tacit consent and no further written lease is concluded, a periodic lease is deemed to arise by operation of law, on the same terms and conditions as the expired lease.”
The court rejected the argument that only a written renewal could extend the lease, emphasising, “The assertion that only a written renewal could have extended the lease is inconsistent with Section 5(5), which overrides contractual mechanisms for renewal and imports the terms of the expired lease by force of law.”
The tenants also argued that Seeff Properties, the estate agent, should have been joined in the case because of a clause in the lease. Judge Windell rejected this, stating, “A party is necessary only if it holds a direct and substantial legal interest in the order that the court may make.”
On the oral agreement defence, Judge Windell described the tenants’ version as “pleaded in the most skeletal form” and “inherently improbable.” The judgment pointed out that the lease included a non-variation clause, requiring changes to be in writing. Judge Windell held, “An informal, undocumented understanding of the kind alleged cannot override either a statutory deeming provision or a non-variation clause.”
Judge Windell orders payment of rental and damages
Judge Windell found that none of the tenants’ defences raised genuine issues for trial. The judgment concluded, “None of the defendants’ defences meet the threshold for resisting summary judgment. The supposed non-joinder is bad in law; the statutory continuation of the lease renders the ‘no written renewal’ defence untenable; and the alleged oral agreement is both factually improbable and legally incompetent.”
The court ordered the tenants to pay arrear rental and holding-over damages with interest, as well as costs on an attorney-client scale.
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