The South Gauteng High Court in Johannesburg has ordered a Gauteng couple to pay their landlord more than R440,000 after they continued living at a Malanshof property in Randburg long after their lease expired — and long after they stopped paying rent.
Albertina Tshisikule and Tshipuliso Barnabas Tshisikule moved into the property in July 2009, renewing their lease several times until the final written renewal expired in July 2016. After that, they stayed on with what the court described as the landlord’s “tacit consent”, and for several years they continued paying rent without dispute.
The situation changed dramatically when rental payments stopped. The landlord eventually cancelled the standing arrangement in May 2022 after persistent non-payment. Even then, the couple remained in occupation until the end of October 2023, triggering a legal dispute that has now ended in a costly judgment against them.
How a Periodic Lease Came Back to Haunt the Couple
The landlord argued that Section 5(5) of the Rental Housing Act protected his position. The section states that when a tenant stays on after a lease expires, with the landlord’s tacit consent and without a new written contract, the arrangement automatically becomes a periodic lease governed by the same terms and conditions as the expired one.
In short, the old rules still applied — including the obligation to pay rent.
According to the landlord, the couple accumulated over R130,000 in unpaid rent and more than R310,000 in holding-over damages. Holding-over damages are penalties charged when someone continues occupying a property unlawfully after a lease is cancelled. Combined, the total soared beyond R440,000.
The Couple’s Defence Falls Apart in Court
The couple tried to counter the claim by arguing that the lease relationship ended completely in 2016. They also insisted that an oral agreement had been concluded in 2021, supposedly allowing them to remain in the house without paying rent.
Judge Leonie Windell was not persuaded. She ruled that the couple’s argument ignored the clear authority of Section 5(5), which automatically revived the old lease terms as long as the tenants stayed on with tacit consent.
Their claim of an oral agreement also failed. South African contract law requires anyone relying on such an agreement to specify key details such as who made the agreement, when it was made, and where it was made. None of those particulars were provided.
The judge noted that it would make little sense for the landlord to launch and pursue eviction proceedings if he had, in fact, agreed to a rent-free arrangement.
“None of the defendants’ defences meet the threshold for resisting summary judgment,” Judge Windell said. “On the other hand, the landlord has established its claims for arrear rental and holding-over damages on the papers.”
Final Order: Pay Up — With Interest
Judge Windell ordered the couple to settle the full amount owed, along with two percent interest calculated from October 2023 until the final payment is made.
The case serves as a sharp reminder that staying on after a lease expires doesn’t mean the contract evaporates. In South African property law, tacit consent carries legal weight — and as this couple discovered, the rent meter never stops running.
