GOWORA J: The applicant is the registered owner of a warehouse
situate at Tobacco Sales Floor Complex, Gleneagles Road, Harare.
The applicant carries on business at the said premises as a tobacco auction
floor. On 11 July 2007 the applicant concluded a written agreement with the
respondent in terms of which the latter leased from the applicant a portion of
the warehouse; to wit an area of 1241.91 square metres. The lease was to endure
for a period of three years, commencing on 1 June 2007 and terminating on 31
May 2010. On 14 December 2009 the applicant addressed a letter to the
respondent and informed it that it would not be renewing the lease as the
premises were required by the applicant for its own use. A further letter was
written to the respondent on 29 April 2010 again reiterating its position that
it intended to use the area occupied by the respondent and that consequently
the lease would not be renewed at the expiry of the lease period. The applicant contends that it intends to use
the premises for its expansion program and that this constitutes good and
sufficient grounds for this court to grant an order for the ejectment of the
respondent from the premises it is occupying.
The respondent
denies that the applicant is entitled to an order for its eviction on several
grounds. Firstly, it argues that the lease agreement was verbally extended when
the applicant accepted payment for rent for the month of June 2010. The
respondent also contends that during the currency of the written lease
agreement a pattern of behaviour had emerged on the part of the applicant,
where each time the applicant considered that there were arrear rentals, the
applicant would send a written notice to the respondent requiring it to vacate
the premises on the basis of the alleged arrears. Hence, upon receiving the two
notices of December 2009 and April 2010 it made the decision that it would not
vacate the leased premises.
Secondly, the respondent avers that the applicant's former Managing
Director had advised it to ignore the
notice to vacate and consequently, based on that advice, a decision was made to
ignore the notice. The respondent also considers that the reason why the
applicant seeks its eviction is because the parties had initially negotiated to
set up a partnership in the respondent's business. This fell through and it is
the belief of the respondent that this is the motive for the applicant to
actively seek the eviction of the respondent from the premises. The respondent
therefore doubts that the applicant is acting in good faith.
Lastly, the respondent contends that there exist disputes of fact
such that this court cannot, on the papers decide whether or not the lease was
renewed with Mr Mangena and that the court would need to hear from Mr Mangena
on the issue relating to the alleged renewal. If the lease was not renewed then
the respondent would be a statutory tenant and the applicant would need to show
that it was acting in good faith.
In answer to the
papers filed by the respondent, the applicant filed together with its answering
affidavit, an affidavit from the Chairman of the Tobacco Industry Marketing
Board. The affidavit was commissioned by an R Gunn whom both parties agree is a
member of the board of directors of the applicant. The respondent has therefore
in its heads of arguments raised a point in
limine challenging the admissibility of the affidavit in question. The respondent contends that the said Gunn is an
interested party in these proceedings and that as such, the affidavit
commissioned by him should not considered by this court as Gunn cannot be
considered as unbiased. According to the respondent, Gunn has a pecuniary
interest in the proceedings before me and consequently the affidavit he
commissioned is tainted and should not be regarded.
Per contra, the
applicant contends that by virtue of the provisions of s 3 of the schedule to
the regulations, the affidavit is exempted from the prohibition contained in S
2 of the Justices of the Peace and Commissioners of Oaths (General) Regulations
, 1998 S.I 183/98. The prohibition contained in s 2 is as follows;
“(1) No justice of the peace or commissioner of oaths shall attest
any affidavit relating to a matter in which he has any interest.
(2) Subsection (1) shall not apply
to the affidavits specified in the schedule.”
The schedule to the regulation lists a number of persons who are
exempted from the prohibition contained
in s 2 above. The applicant contends that Gunn is covered by the exemption
contained in s 3 of the schedule which is to the following effect:
“ 3. Affidavits attested to by
a person who is neither a legal practitioner nor a member of the Public Service
and whose only interest therein arises
out of his employment and in the course of his duty.”
Gunn is not a legal practitioner nor is he a member of the Public
Service. He is a director in the
applicant. Apart from being a director of the applicant, I have not been given
anything to suggest that he has interest in the applicant extending beyond his
occupation of a seat on the board of directors. Miss Hove suggests that by virtue of his being a director he has a
pecuniary interest in the resolution of the matter as it would be in the
interests of the applicant for the respondent to be ejected from the premises.
It is generally accepted that the word interest must be given a
limited meaning, and cannot be extended to cover the remote and indirect
interest that an employee of an attorney has in the matters dealt with in the
attorney's office.
Neither counsel
addressed the question of the exception as it relates to the director of a
company. It must be accepted that a director of a company occupies a position
materially different from that of an employee. It is common cause that in this
case Gunn is not an executive director of the applicant. According to Cilliers
& Benade
the mere fact of holding officer as a director creates no contractual
relationship between the company and the director. The articles of association
of the company also do not create such a relationship. In addition, the
occupation by a director of the position of director does not make him an agent
of the company, it also does not make him an employee unless he has entered
into a separate contract with the company as such.
Gunn is not an employee of the applicant nor could he have attested
to the affidavit in the course of his duties. It cannot be the function of
directors of the applicant to attest to affidavits. The exception therefore
does not apply to him. What remains to be decided is whether or not, as a
director of the applicant he can be said to have an interest in the matter
before me.
What is clear and obvious is that the policies of a company are
carried out and implemented through decisions made by the board of directors.
Being an artificial person the board of directors of a company is its human
agency. In the present circumstances it therefore becomes pertinent to
determine if the board, of which Gunn is a member, can be said to have an
interest such as would disqualify one of them from attesting to an affidavit in
a matter in which the company has an interest.
The case before me is not specifically to do with a financial
dispute, it is concerned rather with the applicant wishing for the lawful
eviction of the respondent from its premises. The board of the applicant would
not be performing its functions as a board if it did not ensure that this
happens as ultimately the applicant would stand to benefit in the long run from
the eviction. In ant event, it is trite that litigation involving a corporate
must be authorised by such entity. Gunn as a member of the board would have
been one of the people who actually authorised the litigation to evict the
respondent. The deponent to the founding affidavit filed on behalf of the
applicant could only have done so on the authority emanating from the board. If
the board sanctioned it, it therefore stands to reason that Gunn was aware of
the litigation to evict the respondent. The reason for the applicant seeking
the eviction of the respondent is that it has expectations of an increase in
the deliveries of tobacco to its floors. This has a financial benefit, in that
it would not make business sense for the applicant to seek to remove a tenant
from its premises unless such result would be of financial gain to it in the
long run. In any case its business is auctioning of tobacco so an increase in
deliveries can only result in more revenue for it.
What constitutes interest has been defined in a number of authorities
emanating from South Africa,
but not yet in this jurisdiction. It appears settled that interest goes beyond
social or ethical interest. Interest in the context of this matter would be
synonymous with an expectation of a favourable result from this court. Where
the person administering the oath and ultimately commissioning the affidavit
has an interest in the contents of the affidavit it is clear that there is an
element of bias on the part of the commissioner. Further where one is
associated with a party or who filed proceedings in a matter and the person
concerned is required to administer an oath to a deponent to an affidavit which
has a bearing on the outcome of the litigation brought by the party he has an
association with, then clear bias can be said to exist. A commissioner has a
duty to ensure that a deponent to an affidavit swears to the truthfulness of
the contents of the affidavit. If the commissioner himself is not just
acquainted with the facts, wishes them to be placed before the court and wishes
that the court has regard to them in the resolution of a dispute, I would
suggest that such commissioner has an interest going beyond mere social or
ethical interest. The applicant has a proprietary interest to protect, and Gunn,
as a director in the Board running the affairs of the applicant cannot be said
be said to be a disinterested party.
In the circumstances of this case, is the position contended by the
applicant that Gunn does not have an interest in the determination of this
matter in his capacity as a director of the company sustainable? The short
answer is that he would have an interest and that evidently, a board resolution
to the effect that the respondent be evicted had been passed. In my view, Gunn
has an interest in this matter and the affidavit that he attested to as
commissioner of oaths cannot be given regard to in the determination of the
dispute. It has been tainted.
I turn now to the merits of the application. The applicant has
sought the eviction of the respondent from its premises on the premise that it
has good and sufficient grounds to require the eviction of a tenant. This is
relief that is available in a situation where there is no formal lease between
the parties and the tenant has by some process become a statutory tenant. The
averment is made that the lease between the parties has expired. The applicant
did not however, in its founding affidavit refer to the respondent as a
statutory tenant.
The respondent contends in argument that this omission is fatal to
the applicant's case as it has sought to establish its case in the answering
affidavit. I note, however, that in the opposing affidavit the respondent's
chairman, Lyton Shumba makes the averment in para 11a.4 thereof to this effect:
“If the existence of the lease is proved then the question of good
and sufficient cause falls away. If the existence of the lease is disproved
then we are a statutory tenant and the applicant still has to show that it is
acting in good faith and demonstrate good and sufficient cause to evict us.”
I find it mischievous therefore for the respondent's legal
practitioners to seek to argue that the applicant had not on its initial
application based its claim on the status of the respondent as a statutory
tenant. The respondent does not allege or aver that the lease agreement is
still extant. Instead, the whole tenure of the opposition is to the effect that
the written agreement had expired but that a verbal lease agreement had then
been concluded between the parties, but in the event that such lease agreement
was not established on the papers, then and in that event the respondent was a
statutory tenant and that the applicant had to establish good and sufficient grounds
for its ejectment. It is clear therefore that the respondent accepts that the
lease agreement signed by the parties on 11 July 2007 expired on 31 May 2010.
It becomes necessary then to decide whether or not the respondent
and the applicant entered into a verbal agreement as contended by the
respondent. In para 4a of the affidavit of Shumba it is averred that the lease
agreement was renewed with P Mangena the former Managing Director of the
applicant. There is no indication of who represented the respondent. The date
when the renewal was agreed is also not mentioned. All that is said is that the
lease was renewed for a further period of three years and that the rental was
set at US$ 600 per month. The deponent states that they were told that they
would receive a new written lease agreement shortly thereafter. It never
arrived.
The respondent admits that it received a notice from the applicant December
2009 requiring it to vacate the premises at the end of the lease period, but
states that the parties were embroiled in a rent dispute wherein the landlord
was demanding rent of US $1 200. The respondent was offering US $ 600. The
deponent states that by the time the reminder to vacate was sent in April 2010
the respondent had been advised by the Managing Director of the applicant to
ignore the notice and pay rentals as the lease had been renewed for a further
three years.
In argument, both written and oral, it was the contention of Miss
Hove that there are numerous disputes of facts to such an extent that this
court cannot decide the matter on the papers before it. The respondent suggests
that the matter should be referred to trial so that it can call Mr Mangena, the
applicant's former managing director to give oral evidence as to the dealings
between the applicant and the respondent, and specifically for him to come to
court and explain why he concluded a verbal lease agreement with the
respondent, its terms and why the rental was not increased. The respondent
contends further that the applicant cannot confirm or deny the existence of
lease, and that the only person who can do this is Mangena who must therefore
speak for himself. The respondent also wishes for an opportunity to cross
examine him on the issue.
The applicant strongly denies the existence of any disputes of facts
as alleged by the respondent. The applicant contends that where there is an
allegation that disputes of fact exist the law is that court, must, if possible
take a robust view and common sense approach and not take an over fastidious
view of conflicts and must seek to resolve the dispute despite apparent
conflict. See Masukusa v National Foods
Ltd & Anor 1983(1) ZLR 232 and Zimbabwe Bonded Fibreglass v Peech
1987(2) ZLR 338 (S). In Zimbabwe Bonded
Fibreglass v Peech 1987 (2) ZLR 338 (S) GUBBAY JA (as he then was) stated
at 339C:
“It is, I think, well established in motion proceedings that a court
should endeavour to resolve the dispute raised in affidavits without the
hearing of evidence. It must take a robust and common sense approach and not an
over fastidious one; always provided that it is convinced that there is no real
possibility of any resolution doing an injustice to the other party concerned.
Consequently, there is a heavy onus upon an applicant seeking relief in motion
proceedings, without the calling of evidence, where there is a bona fide and
not a merely an illusory dispute of fact.”
However, before taking a robust view, a court must have concluded or
found that in fact there are real or genuine dispute of fact that exist. See Da Mata v Otto 1972 (3) SA 858 and Checkers Motors (Pvt) Ltd v Karoi Farmtech
(Pvt) Ltd 1986 (2) ZLR 246 (S). Although
the respondent contends that the applicant was, before embarking on these
proceedings, aware that there was a dispute on an alleged renewal of the lease
agreement, I am unable on the papers before me to find that that is so. The
respondent received two letters written almost five months apart, in which the
intention of the applicant to terminate the lease at the expiry of the same was
made clear. The respondent did not acknowledge either of them nor did it put
the record straight with the applicant, if indeed a verbal agreement had been
concluded with Mr Mangena, and express its indignation and make it known that
far from the lease expiring at the end of May 2010, the position was in fact
that a new lease agreement had been concluded with Mangena. The respondent did
not do this. It claims however that it relied on the existence of such verbal
lease agreement and that as a result it did not move out of the premises.
The opposing affidavit is devoid of detail on the alleged renewal of
the lease agreement, but seems to have focused on the wrangles that the parties
had on rent. Despite receiving two notices, one in December 2009 and another in
April 2010 clearly spelling out the applicant's desire not to renew the lease
upon its termination, the respondent did not choose to respond. Yet it
responded to letters that were raising issues to do with arrear rentals. Prior
to the two notices referred to above, the respondent had also received notices
from the applicant seeking to terminate the lease agreement. The respondent
appears to have responded to some, but ignored others. The notices seem,
however, to bear out the contention by the respondent that during the currency
of the lease the applicant had sent various notices to the respondent,
purportedly seeking the termination, prematurely, of the lease. Certainly the
relationship appears to have been far from amicable, but, in my view, the
respondent had to show on the papers that after the expiry of the written lease
agreement it was renewed verbally as suggested in the opposing affidavit.
The respondent's failure to respond to the initial letter dated 14th
December 2009 and the remainder in terms of which it was informed of the
termination of the lease is remarkable if viewed against the backdrop of the
claim by the respondent that the lease had been renewed verbal with the
Managing Director Mr Mangena. One would have expected an immediate response
from the respondent categorically stating that the lease had been renewed and a
firm refusal to move out based on the alleged renewal. One would have, as well,
expected the respondent to have responded to the notices by advising the
applicant that it had concluded a verbal lease with the Managing Director and
consequently was disregarding the notices, especially in view of the fact that
the managing director who had brokered the lease had left the employ of the
applicant. This is especially surprising given the respondent's penchant to
respond at every turn to a perceived wrong in the past. It is therefore
inconceivable that it would have ignored two notices demanding it vacate the
premises on the basis of an expired lease agreement. Instead the respondent did
not react, all it did was to pay rent on 1 June 2010.
As part of its papers the respondent annexed papers filed in the
magistrates court by both parties. The applicant had filed an application for
the eviction of the respondent which application it subsequently withdrew. The
respondent had in turn, filed an application for a mandament van spolie after the security guards employed by the
applicant had denied access to the respondent's clients into the premises. In
an affidavit deposed to by Lyton Shumba the following statement is made in
regard to an alleged verbal lease agreement;
“On 1 of June 2010, the applicant paid rentals for the month of June
2010. A copy of the said receipt is annexed hereto as Annexure B. In terms of a
verbal lease agreement between the parties, once they accept rent the lease
would automatically be renewed for a period of three years.”
This statement in my view is
very different from the one in the opposing affidavit from the same deponent to
the effect that they had renewed the lease agreement with the former managing
director. From the statement quoted above, it is clear that the respondent says
that the payment of the rent would constitute renewal of the lease agreement.
This is a far cry from the averment that the lease had been renewed with
Mangena. It is trite that until rent or some mode of fixing the rent is agreed
upon there is not contract of letting or hiring premises.
The lack of detail on the alleged verbal lease points to a lack of
existence of any agreement between the parties, if the details had been agreed
the respondent would have been happy to provide them to the court. I find no
evidence that a verbal lease agreement was concluded between the applicant and
the respondent and in my view the respondent in the absence of renewal had
become a statutory tenant.
Both parties are
correct in arguing that the applicant can only succeed if it proves that good
and sufficient grounds exist for the respondent to be evicted from the premises
it presently occupies. The applicant is the business of tobacco auction. This
entails the acceptance of tobacco from farmers which is then auctioned through
the offices of the applicant. The applicant contends that due to an increase in
the production of tobacco it finds itself in need of more space to accommodate
the upsurge in deliveries to it premises. It is incumbent upon the applicant to
establish that indeed thee has been an increase in its business operations such
that there is need for the ejectment of not just the applicant but its other
tenants from the rented premises. In
considering what a court should have regard to when assessing what amounts to
good and sufficient grounds under the regulations BEADLE CJ in Trustees in Mashonaland of the Church of the
Province of Central Africa v Timms
1973 (1) RLR 307 (GD) at 312H-313A stated;
“The Regulations provide no yardstick as to what a court should
regard as sufficient ground for ordering the ejectment of a statutory tenant. The
application of this section was considered by the Appellate Division in the
case of Tucker v Buchan 1968 (4) SA 809 (RAD). The judgment in that case did
not attempt to itemise the grounds which a court would regard as sufficient.
The approach of MACDONALD JA, in that case clearly indicates that the court
must make a value judgment based on the merits of each particular case, and
that this is the manner in which I consider I must approach the this
matter.”
There is no set criteria for determining what amounts to good and
sufficient grounds and each case must be decided on its facts. It is easier to
assess good and sufficient grounds in a situation where the landlord seeks
eviction on the basis that it requires to effect necessary renovations to the
premises. In such situation the landlord must show that there is indeed an
intention to renovate. In casu, the
applicant contends that it requires the premises for its expansion program. The
respondent on the hand has suggested that the applicant wishes to terminate the
relationship due to the acrimony between the parties over rentals.
Indeed there is evidence on the papers that during the respondent's
occupation of the premises the parties have at times been at loggerheads over
the issue of rentals. It is fair to state, however, that their differences
never escalated to the point where either party sought to terminate the lease
on the basis of their differences over what rental should be payable. The
evidence suggests that each time there would be an amicable settlement over the
rent dispute. The applicant has not, on the papers before sought the eviction
of the respondent formally through court process prior to the middle of 2010. I
therefore find it difficult to accept the contention advanced on behalf of the
respondent that the motive behind the intent to evict the respondent is due to
the parties' inability to agree on rent over the duration of the lease.
It is correct, as stated by the respondent that the applicant had
given the respondent notice on several occasions that it should vacate the
premises. The respondent has attached to its opposing papers a number of
letters either written by the applicant's officials or by its managing agents,
CBRE, in which notice to vacate the premises prior to the termination of the
written lease was given. The running theme in all the letters is that the applicant
required the use of the premises for itself. The applicant, in all the letters
produced on the record indicated that the premises were required for its
expansion program. In the founding affidavit the applicant has sought to
explain that prior to 2007 there was a decline in the volumes of tobacco being
delivered by farmers and as a result there was no need for the applicant to
have use of more space than it was in occupation of. It had in fact excess
space. A trend developed where the tobacco deliveries increased leading to a
realisation and decision by the applicant that it needed to utilise the leased
space.
The applicant
predicted that for the 2010 tobacco season there would be congestion at its
floors which would stretch the facilities and possibly lead to a health hazard.
The increased floor space, it contended would go a long way in reducing the
delays that tobacco farmers were experiencing in having their produce sold.
Apart from making these averments the applicant did not produce any documentation
in proof of the same. It was only in answer to the contention by the respondent
to the effect that the applicant did not have good and sufficient grounds for
its eviction from the leased premises that the applicant then sought to produce
documents to prove the alleged increase in deliveries. The applicant has as a
consequence attached extracts from newspapers, some of which are dated, others
are not. An extract from the Business Digest of September 3 to 9 2010 contains
an article which confirmed that as at that date a total of 113.1 million kgs of
flue cured tobacco had been sold with a value of US344.2 million at the tobacco
auction floors that were operational nation wide. The article indicated that
projected total sales were 120 million kgs for the season. An earlier article
had projected that the sales from tobacco would rake in US $274 million. The
article confirmed that sales of tobacco as at the date of the article, July 10
to 22 2010 had doubled from the same period the previous year.
The respondent has
objected to the attachment by the applicant of the newspaper clippings as well
the amplification by the applicant of the projected increase in delivery of
tobacco to its auction floors. The respondent has argued that the applicant is
seeking to make its case in the answering affidavit as opposed to the founding
affidavit. It is suggested in argument, that the applicant did not set out a
cause of action in the founding affidavit and that it was only in the answering
affidavit that it sought to make out its case.
I am not convinced that the respondent is in fact correct. The
respondent has, in its opposing affidavit, disputed that the applicant needs
the increased floor space for an expansion program. The respondent did in fact
challenge the applicant to provide the court with information as to what
percentage of expected tobacco grown was to be delivered to it. The respondent
has also challenged the applicant to show that the projected increase in
tobacco deliveries would see an increase in deliveries to the applicant itself.
I believe that the respondent is being impracticable in seeking an assurance
from the applicant that there would be an increase in deliveries to its floors.
Unless the licence to auction tobacco has been withdrawn one would expect that
any registered or licence tobacco auction can only benefit from an increase in
tobacco cropping. There is no suggestion on the papers that any farmer
intending to grow and market the crop must first register with an auction
floor. It is enough in my view that the applicant has shown that there will be
an increase in the production of tobacco.
In my view the
assessment of whether or not there is good and sufficient grounds on the papers
presented by the applicant must of necessity look at the bona fides of the
applicant. In Union Wine & Spirit
Corp Ltd v Ferreira 1948 (2) SA 647 (0) at 651-2 DE BEER J stated:
“It is difficult to see what more can ordinarily be required of a
claimant than that he should assert his good faith, and bring some small measure
of evidence to demonstrate the genuineness of his assertion. He can normally
scarcely do more, and it rests with the lessee resisting ejectment to bring
forward circumstances casting doubt upon the genuineness of his claim.”
I can safely state from a reading of the opposing affidavit, that apart
from the alleged rental dispute, the respondent has not brought forth any
circumstances that would cast doubt on the genuineness of the claim by the
applicant that it requires the premises for its own use. The applicant in its
answering affidavit went to great lengths to show how the tobacco deliveries
were expected to rise. It has attached clippings from all sorts of newspapers
whose running thread on the issue of tobacco is that there has been an increase
in production and hence the need for more space at auction floors to
accommodate buyers. I cannot see what more the applicant could have done or
said to establish good and sufficient grounds for the ejectment of the
respondent from the leased premises.
These courts have held that in deciding whether or not a lessor has
good and sufficient cause to seek eviction, it is only the position of the
lessor that has to be considered, that of the lessee being irrelevant for the
enquiry. As discussed above the legislation does not define what good and
sufficient cause, but more importantly it only mentions the lessor not the
lessee, reinforcing the views by the courts that the position of the lessee is
not material. See Mobil Oil Zimbabwe (Pvt)
Ltd v Chisipite Service Station (Pvt) Ltd 1991 ZLR 82. It then becomes
necessary for the lessee to 'bring forward' circumstances casting doubt upon
the genuineness of the lessor's claim. The respondent points to the abortive
proceedings in the magistrates court by Portion Muvirimi, the several letters
of notice prior to the expiry of the lease period, the letter written in June
2010 seeking legal advice on the way to evict its tenants, and the applicant's
futile attempts at interfering with the respondent's occupation immediately
following the abortive ejectment proceedings as pointers to the applicant's
good faith in seeking its ejectment. Looked at in isolation these factors could
indeed point to a lack of good faith on the part of the applicant. However,
even taking into account the fractious relationship between the parties over
the years, the main theme running through the notices issued by the applicant
to the respondent is that it required the premises for its own use. The
occasions when there were threats of eviction on the basis of the respondent
being in arrears with rent are few. I am convinced that the reason for the
ejectment is solely for the wish by the applicant to use the floor space to
accommodate tobacco growers.
Next it falls for
me to consider the length of notice that the respondent must be accorded before
it is evicted. The respondent has known from as far back as December 2009 that
the applicant required the premises for its use. In April 2010 it was again
served with notice that the applicant wished it to vacate by 31 May 2010. The
respondent chose not to respond to either notice. Instead, it paid rental in
the hope that the applicant would allow the relationship to carry on. The
respondent has suggested that a reasonable period of notice for it to vacate
would be six months. Apart from the period mentioned in the draft order the
applicant has not addressed the question of what would be a reasonable period
of notice to be accorded to the respondent in the circumstances. It merely
argued that there was no basis for granting the applicant a period of six
months notice
The respondent is
in business and would appear to have been in occupation of the premises for
quite some time. It requires time to locate space adequate for its purposes and
I would assume that would be no mean feat. The applicant has not suggested that
the tobacco season will start earlier than January or February in any given
year. In deciding what notice to give to a lessee a court must not just
consider the needs of the lessor but must also assess the hardship likely to be
suffered by the lessee if it is evicted from the premises. It is a value
judgment based on all the equities of the case. I am entitled to take into
consideration the difficulties that the respondent is likely to encounter in
securing accommodation suitable for its purposes. It seems to me that a period
of six months to allow the respondent to find appropriate accommodation, given
the length of time it has been in occupation would not unreasonable or an
inordinate period. The applicant has itself, not advanced any argument to the
court alleging any prejudice it would suffer were the respondent allowed a
period of six months to vacate the premises. In addition the lease agreement which governed
the parties' relationship itself provided for a notice period of six months. If
the respondent were ejected immediately as required by the applicant hardship
will be caused to it. I will therefore be guided by the notice period provided
in the lease and require the respondent to vacate within that period.
In the premises I find that the applicant has established that it
has good and sufficient grounds to have
the applicant evicted from its premises and an order to that effect will issue.
Accordingly an order will issue in the following terms:
IT IS ORDERED THAT:
- The respondent and all those
claiming occupation of through it shall vacate the premises situate at
Tobacco Sales Floor Complex, Gleneagles
Road within six months from the date of
service of this order.
- The respondent shall pay the
applicant's costs at a scale as between legal practitioner and client.
Wintertons, applicant's
legal practitioners
Hove
& Associates,
respondent's legal practitioners
