Sharma v Hirschowitz and Others (A3064/18) [2019] ZAGPJHC 434; 2020 (3) SA 285 (GJ) (4 November 2019)

Sharma v Hirschowitz and Others (A3064/18) [2019] ZAGPJHC 434; 2020 (3) SA 285 (GJ) (4 November 2019)

The court held that the magistrate erred in awarding holding over damages at R40 000 per month, as the only reliable evidence of market rental at the relevant time was the R34 500 per month orally agreed and paid by the appellant. The oral agreement was valid and enforceable, as section 5(1) of the Rental Housing Act permits oral leases, and section 5(5) creates only a rebuttable presumption of continuation of prior terms in the absence of a written agreement. The common cause oral agreement rebutted the presumption. The rental deposit and accrued interest (R48 164) should have been set off against the amount owed. The respondents failed to prove their claims for utilities and repair...

Citation
[2019] ZAGPJHC 434
Parties
Appellant: Iqbal Meer Sharma; Respondent: Sean Hirschowitz; Respondent: Kerry Ann Hirschowitz
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 November 2019
Case Number
A3064/18
Procedural Posture
Civil Appeal / Appeal and Cross Appeal From Magistrate's Court Judgment
Outcome
Appeal upheld with costs; cross-appeal dismissed with costs; judgment of court a quo set aside and replaced.
Judges
I Opperman, HE Mkhawane
Legal Topics
Rental Housing Act, Holding Over Damages, Oral Lease Agreement, Set Off, Evidentiary Presumptions
Land and Property Civil Procedure Rental Housing Act Holding Over Damages Oral Lease Agreement Set Off Evidentiary Presumptions

Case Brief

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Parties

Iqbal Meer Sharma

Appellant

Sean Hirschowitz

Respondent

Kerry Ann Hirschowitz

Respondent

Procedural Posture

Civil Appeal / Appeal and Cross Appeal From Magistrate's Court Judgment

Legal Issues

  1. 1 Whether the magistrate erred in awarding holding over damages at R40 000 per month for November 2014 to February 2015.
  2. 2 Whether the oral lease agreement for R34 500 per month was valid and enforceable despite section 5(5) of the Rental Housing Act.
  3. 3 Whether the rental deposit and accrued interest should have been set off against the amount owed.

Ratio Decidendi

The court held that the magistrate erred in awarding holding over damages at R40 000 per month, as the only reliable evidence of market rental at the relevant time was the R34 500 per month orally agreed and paid by the appellant. The oral agreement was valid and enforceable, as section 5(1) of the Rental Housing Act permits oral leases, and section 5(5) creates only a rebuttable presumption of continuation of prior terms in the absence of a written agreement. The common cause oral agreement rebutted the presumption. The rental deposit and accrued interest (R48 164) should have been set off against the amount owed. The respondents failed to prove their claims for utilities and repair...

Court Disposition

Appeal upheld with costs; cross-appeal dismissed with costs; judgment of court a quo set aside and replaced.

Orders

  • Judgment is granted against the defendant in the amount of R20 836.
  • Interest on R20 836 at 9% per annum calculated from 28 February 2015.