WHETHER A TENANT MAY WITHHOLD RENTAL WHEN A LANDLORD FAILS TO MEET LEASE OBLIGATIONS

In South African law, it is commonly known that rental is payable in arrears unless a lease agreement stipulates otherwise. Most lease agreements specifically prohibit a lessee from withholding rental, which alters the legal principle of rental being withheld in circumstances of a failure to perform by the landlord. This article serves to set out when a tenant may refuse to pay or withhold rental and further what the landlord’s rights are.

Who are the parties to a lease?

Prior to diving into the legal position, it is first necessary to understand the key role-players to any lease agreement. Whilst this may seem obvious, it goes to the very heart of the parties’ obligations and how they must perform pursuant to the lease.

The primary parties to a standard lease agreement are the landlord (also called the lessor) who owns or manages the property, and the tenant (also called the lessee) who rents and uses the property. In consideration for the landlord providing peaceful and undisturbed possession of the property, the tenant pays rental to the landlord.

The landlord is ordinarily responsible for all maintenance and upkeep of the property, ensuring that the property is at all times fit for purpose, habitable and is in receipt of essential services (including municipal supply of water, electricity and waste removal).

The tenant is responsible first and foremost for the payment of rental to the landlord, for ensuring they report any damage to the property requiring repairs timeously, and for use of the property in terms of the agreed usage set out in a lease agreement.

What is the legal position under South African law?

The default position under South African law is that rental payments are due after the landlord has fulfilled its obligations, such as granting beneficial occupation of the leased premises. The tenant has a duty to pay rent unless the landlord’s non-performance materially impacts the use and enjoyment of the property.

Even then, the tenant may only withhold rental if the lease agreement has not adjusted this principle. The lease may, for example, stipulate that rent must be paid monthly in advance, and in such cases, specific legal implications apply.

In the case of Tudor Hotel Brasserie & Bar (Pty) Ltd v Hencetrade 15 (Pty) Ltd (793/2016) [2017] ZASCA 111, the Supreme Court of Appeal considered whether or not a tenant could withhold rental in circumstances where the landlord failed to granted full and undisturbed beneficial use of the property concerned.

Hencetrade 15 (Pty) Ltd, the landlord, instituted eviction proceedings against Tudor Hotel Brasserie & Bar (Pty) Ltd, the tenant, from leased hotel premises (the property) due to unpaid rental. The landlord submitted that the tenant had breached the lease agreement by failing to make rental payments. The tenant countered by arguing that its obligation to pay rent was suspended because the landlord had not provided beneficial occupation of the entire property. Specifically, the landlord had retained part of the property for storage purposes, impacting the tenant’s full use of the space.

The High Court ordered the tenant’s eviction from the property. In doing so, the High Court relied on the judgment of Arnold v Viljoen (1954), which held that a lessee in occupation must pay full rental without withholding, with their remedy being a claim of rental abatement or damages.

On appeal, it was argued that the landlord’s failure to provide full beneficial occupation meant that the reciprocal obligations of the tenant to make payment were not due. This stance, however, contravened a provision of the written lease agreement, which set out that rental must be paid monthly in advance without any right of deduction or set-off.

The SCA dismissed the tenant’s appeal. It was held that even in circumstances where a landlord has not materially met its obligations in terms of the lease agreement, the inclusion of a clause which prohibits the withholding of rental means the tenant cannot elect to not make payment until the landlord has met its obligations. Effectively, where a tenant agrees to such clause being in the lease agreement, the tenant has waived its own right to withhold rent consequential to non-performance.

The correct avenue for a tenant in such position is to place the landlord in breach and to enforce its remedies in terms of the lease agreement, which may include damages or other relief against the landlord.

What can’t landlords do when a tenant fails to pay rental?

The rights of a landlord against a defaulting tenant are not absolute. In circumstances where a tenant is in default, and whilst tempting to do so, the landlord cannot do any of the following:

1. Lock the tenant out or change the locks without providing the tenant with new keys;

2. Seize or attach the tenants goods without a competent court’s order;

3. Threaten or otherwise intimidate the tenant into paying rental;

4. Disconnect essential services to the property; or

5. Obstruct the tenant’s entry into the property.

If a landlord does any of the above, they may find themselves on the wrong side of the law and may actually have relief granted against them, which may also be accompanied by criminal charges against them in the wrong circumstances.

What is a landlord’s relief against a defaulting tenant?

Where a tenant refuses to pay rental, the landlord will be obliged to give notice to the defaulting tenant affording them an opportunity to make payment of the arrears, which timeline is normally twenty business days. In the event of non-payment within the timeline, the lease will be summarily cancelled and the tenant is obliged to vacate the property.

But what happens where the tenant fails to do so?

A landlord’s relief effectively comes down to one of two options against a defaulting tenant who remains in unlawful occupation of the property:

1. Eviction proceedings brought in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (commonly known as the “PIE Act”); and

2. Instituting and pursuing a rental interdict summons.

These proceedings are not mutually exclusive and may be pursued parallel to one another.

The eviction application

If the tenant does not respond to the notice or refuses to pay, the next step is to apply to a competent court for an eviction order. The court application process involves filing the necessary paperwork and providing evidence of the unpaid rent and attempts to resolve the issue. The court will then schedule a hearing, where both the landlord and tenant can present their case.

In the event an order is granted, the tenant will be given a date by which they must finally vacate the property. If they fail to do so, the landlord may call upon the Sheriff of the High Court to forcefully carry out the removal of the tenant.

A misconception is that this process is a quick one. Contrarily, this is a process which in may circumstances can take months from instituting of the application to date of final order. Importantly, a tenant also has a right to appeal such an order granted, which may delay the process further. Additionally, any appeal will suspend the operation of the eviction order granted.

The rent interdict summons

The rent interdict summons is a form of relief which seeks enforcement of the landlord’s tacit hypothec, which is a form of real security a landlord has over the movable goods of a tenant.

A functional aspect of an automatic rental interdict is that it allows a landlord to include in its summons whereby they claim the outstanding rental owed, interdicting the unpaying tenant from removing any furniture and/or any effects thereto until such time as the debt is extinguished and/or the landlord agrees to allow the tenant to remove the items. The interdict is binding on the tenant and any efforts to remove any property will contravene such interdict and may attract contempt of court charges against them.

The sheriff must take and inventory of the moveables at the property which are not allowed to be removed. This is what is known and referred to as the “attachment” process.

The sheriff cannot attach the necessary beds or clothing of the tenant, necessary furniture and/or tools used for the debtor’s trade.

It is only once judgment has been obtained against the judgment debtor by the landlord, and the hypothec has been “perfected” (or confirmed by the court) will it be permissible for the movables be removed from the property and sold by way of auction.

Conclusion

The remedies which a landlord may have are not unlimited, and require proper legal guidance to prevent running afoul of the law or attracting unwanted proceedings against them. Our team specialises in navigating these proceedings for both landlords and tenants. Contact our offices at info@rouxlegal.com to schedule a consultation.

By Cameron Phillips

(Senior Associate)

3 August 2026

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