CHEDA J: This
is an application whose relief is for the eviction of respondent under case
number HC 2231/08 while respondent was the applicant in case number
2187/08. These two matters were
subsequently consolidated under case number HC 167/09.
The facts of the matter are largely
common cause in that the parties entered into a lease agreement of number 123
George Silundika Avenue, Bulawayo a property owned by applicant. The agreement of lease was to commence on 1
September 2004 and terminate on 31 July 2005.
It was however renewed for a
further one year thus terminating on the 31st July 2006. It was further allowed to run for another
year. In January 2008 applicant resolved
to terminate the agreement on the 30th April 2008 after giving
respondent a 3 months' notice.
Respondent made further representations, a meeting was held on the 2nd
July 2008 which resulted in the parties agreeing that the lease terminate on
the 30th September 2008. This
is the allegation under case number HC 2231/08.
Notwithstanding the agreement,
respondent refused to vacate the premises on the 30th September 2008
as has been previously agreed.
Under case number HC 2187/08,
respondent who was then applicant filed a court application, the relief sought
was that he be allowed to continue with his business at the said property, the
verbal agreement of 15 years lease entered into by the parties be declared
binding and that the purported agreement that he vacates the property on the 30th
September 2008 be declared unlawful.
In support of this application, he
asserted that in June 2005, applicant through its representative had advised
him to purchase the entire shareholding of applicant. It was during the said negotiations that a
verbal agreement was agreed that he leases the property for 15 years. It is further his argument that applicant
through its agent CB Richard Ellis advised him of a new lease agreement.
As the issue was the same, related
to the same property and the same parties the parties agreed that the two
matters be consolidated therefore avoiding a duplicity of applications.
Applicant's argument is that despite
the indulgence given to respondent, as a result of numerous negotiations which
resulted in the extension of the lease up to 30 September 2008, he still
refused to vacate the property. He
continues to occupy this property to this date without paying rent. They further argued that respondent was given
adequate notice to vacate but has defied the said notice.
Respondent on the other hand has
argued that despite the notice which was given to him, the parties went further
and entered into a verbal agreement which allowed him to lease the property for
a further 15 years with a view to purchase it.
It was his further argument that the applicant should not evict him in
the manner he is doing as he is a statutory tenant.
The main issues as I see them are:
(1) whether
or not respondent was given proper notice to vacate;
(2) whether
there was an agreement that he should lease the property for a further 15 years
with a view to purchase it, and
(3) whether
or not he is a statutory tenant to an extent of being protected under the
Commercial Rent Regulations Statutory Instrument 32/07.
The general rule is that a reasonable notice to terminate the
lease must be given by either party, see Tshabalala
v Van der Merwe 1926 NPD 75 at
78. The period of notice must be such
that the lessor has a reasonable opportunity of letting his premises or the
lessee of finding other premises. In casu, respondent was given notice to
vacate the premises on the 30th September 2008 and he acknowledged
this notice by signing the said letter.
In the said letter he stated that he was not going to vacate the
property as he had signed the lease under
coercion. He, however, changed
his stance on this point at a later stage.
The question of duress therefore does not arise. By his action, it is clear that he was
deliberately defying the notice to vacate.
In any event a notice to terminate or resign is an unilateral
act, not requiring acceptance and once given it is final and cannot be
withdrawn except by consent, see Potgietersrust
Hospital Board v Simons 1943 TPD
269 at 274. At that stage, respondent
was properly notified to vacate the property – on the 30th September
2008.
The second issue is whether or not there was a verbal
agreement that respondent should lease the property for a further 15
years. He, however, does not tell the
court the terms and conditions of the lease, namely the duration of the lease
and the rent among other conditions.
This, therefore, does not qualify as a valid lease, see Stewart v Vosloo 1965 (1) SA at 104 (H) where it was stated that the parties
must agree on;
(1) the
purpose of the contract, that the lessor is to give and the lessee to receive
the use and enjoyment of the property;
(2) the
identity of the property; and
(3) the
rent.
Two of the essential elements are present. I find that respondent's argument is fraught
with difficulties with regards to the third element as it is clear that rent to
be paid was not agreed upon.
Respondent also argued that to show his sincerity about the
supposed 15 year lease with a view to purchase the property, he obtained a
second mortgage bond. The bond in
question was in 2005 yet the supposed verbal lease was in 2008. This is inconsistent, as there would not have
been the issue of purchase in 2005 when he was purely a tenant without
more. There is nothing to show that
there was a verbal agreement, other than his mere say-so. The common principle in our law is that
respondent having asserted that there was a verbal agreement, the burden of
proof shifted upon him which he has failed to do.
He has further argued that applicant should have complied
with the conditions required of a statutory tenant. While it is true that statutory tenancy
requires a different approach vis-a-vis,
an ordinary tenant, a person who seeks to be covered by such an umbrella should
also fulfill a certain obligation namely that he should be paying rent, see Elher (Pty) Ltd v Silver 1945 WLD 271 and Marshall
v Ivory 1951 (2) SA 555. In this case respondent has admitted that he
has been carrying out business in applicant's premises from October 2008 to
date without paying rent. This, to say
the least is absurd. Such a person cannot with all due respect, seriously seek
the protection of the courts. If he was bona fide, he would have paid rent into
court. For a tenant who occupies and
uses a commercial property for over 2 years without paying rent is a serious
indictment to all the ethos of business.
Respondent has failed on a balance of probabilities to show
that there was a 15 year lease of the property and that the notice for him to
vacate the property is valid.
I, therefore, find that applicant has made a good case for
itself and is entitled to take the property for its own use as outlined in Mobil Oil Zimb (Pvt) Ltd v Chisipite Service Station (Pvt) Ltd 1991
(2) 82 (5).
Accordingly the application succeeds and the following order
is made:
It is ordered that:
- The respondent together with all
those claiming through it who occupy the applicant's property be and are
hereby directed forthwith to vacate the property being stand 464 Bulawayo
Township of Bulawayo Township Lands situate in the District of Bulawayo,
which is situated at 123 George Silundika Street, Bulawayo (hereinafter
referred to as “the property” and to give possession of the same to the
applicant.
- In the event that the respondent
and/or any others should fail to vacate the said property within 24 hours
of the service of this order upon the respondent then, the Deputy Sheriff of
this honourable court be and is hereby directed and authorized to evict
and eject the respondent together with all those claiming through it from
the property and to restore the property to the applicant.
- The costs of this application
shall be borne by the respondent on a legal practitioner and client scale.
Joel Pincus Konson & Wolhuter, applicant's legal practitioners
Shenje & Company Legal Practitioners,
respondent's legal practitioners
