CHEDA J: This is a civil trial. On the 23rd of March 2010,
plaintiff issued out summons against defendant wherein it claimed the
following:
''(a) An order confirming the cancellation of the
agreement of lease between Plaintiff and Defendant jointly or individually on
account of failure to pay rent and operating costs at all or within 7 days of
due date.
(b) An order that the Defendant and all those
claiming through it vacate stand number 44 Lobengula Street, Bulawayo.
(c) If the Defendant does not vacate within 48
hours of service of this order, the Deputy Sheriff, Bulawayo be and is hereby
allowed to evict the Defendant and all those claiming through it.
(d) An order that the Defendant pays a sum of
ZAR75 000.00 being the rental due as at 28 February 2010.
(e) An order for payment of hold over damages at
ZAR11 000.00 per month or ZAR 366.60 per day from 1 March 2010 to date of
eviction.
(f) An order that the Defendant pay costs of suit
on attorney-client scale.''
The
facts and background of this matter are that both parties are registered companies
in terms of the laws of Zimbabwe On the
1st of September 2009 Plaintiff leased out its property being No. 44
Lobengula Street to defendant for the payment of R11 000 being rent per
month. Defendant's defence was that the agreement is not valid as plaintiff used undue
influence over it which resulted in it
agreeing to pay rentals of R11 000 per month.
It was further its argument that the said agreement was a ploy to
unlawfully increase rent.
Plaintiff led evidence from Mr
Simbarashe Nopi who is the Administration Manager. His evidence was that the two parties entered
into a lease agreement which was due to expire on the 31st of
December 2009 and he signed on behalf of the plaintiff while Mrs Phillipa
Toriro signed on behalf of defendant. It
was his evidence that rent was agreed to, at R11 000 per month and no duress or
influence was made to bear on the defendant.
It was further his evidence that defendant only paid a full payment for
the month of September 2009. The said
payment was as per the lease agreement the parties had signed, but, thereafter
its payments were less and far between.
In other words the rentals were erratic.
Plaintiff had asked for $200 per month but it was negotiated and the
parties finally agreed on the figure of R11 000 which was agreed to
amicably. Defendant's payment pattern,
to them, was a breach of the agreement and they handed them over to their legal
practitioners for the recovery of rent and cancellation of the lease
agreement. Before their legal practitioners
had acted on their instructions, they were summoned to appear before the Rent
Board. The parties appeared and were
advised to attempt an out of court settlement.
This was after the Rent Board was advised by plaintiff that the rentals
issue had been referred to their legal practitioners.
His
evidence was very straight forward and simple to follow. I find that this witness was honest and stood
his ground under cross- examination.
Plaintiff then closed its case.
Defendant opened its case by
calling its chief executive officer Mrs Phillipa Toriro. Her evidence was that prior to the signing of
the lease agreement, the property was being leased by Tip-Top Fish & Chips
which was being operated by her mother. Both Plaintiff and Tip Top Fish & Chips'
directors are the same people and they are family members including Mrs Toriro. This business ran into financial problems in
paying rent which resulted in plaintiff cancelling the then lease agreement and
defendant then took it over.
It
was her evidence that indeed, she, on behalf of defendant entered into a lease
agreement with plaintiff, but, it was not freely entered into as plaintiff had
insisted that in order for them to open the premises they should sign a new
lease agreement. It is, this pre-
condition, which, according to her was undue pressure on defendant. It is further her evidence that when she
went to sign the lease agreement, her object was to take it to the Rent Board
as evidence that plaintiff had illegally increased rent.
She
admitted that defendant had been erratic in its payment and even to date they
were five months in arrears. Asked by
plaintiff's legal representative why defendant was not paying rent, her
explanation was that its Chinese client had not paid them for the November and
December 2010 services.
Defendant
also called Systa Denga. Her evidence
was very brief. She told the court that
she was present when Mr Nopi came to lock the premises. She knew nothing about the lease agreement as
she was only a witness. Her evidence therefore
did not add any probative value to the defendant's case. It therefore, warrants no comment save to say
that Mr Nopi denied locking the premises.
The
question that falls for determination is:
(1) whether or not the lease agreement is valid
or not; and
(2) If it is valid, whether or not defendant had
breached it.
According
to plaintiff the lease agreement was reached after negotiations and defendant
then made its first payment in fullfilment of the agreement. This payment was not made without prejudice,
in my view, it was, therefore, made in fulment of one of the terms of
conditions of the agreement.
In
order for a lease agreement to be valid, the following essential elements
should be present:
(1) the parties must agree on the purpose of the
contract, i.e that the leasor is to give and the leasee to receive the lease
and enjoyment of property, see Kessler v
Krogmann 1908 TS 290 at 297.
(2) The identity of the property, see Kessler's
case (supra); and
(3) Rent merces
should be agreed upon, see Neebe v
Regulation of Mining Rights 1902
TS 65 at 86 and Uitenhage Divisional Unit
v Port Elizabeth Municipality 1944 EDL (I) at 10.
The parties agreed on the
purpose of the contract i.e that the property was to be used as a restaurant. The property was known, therefore, the second
and third requirements were fulfilled.
The
question of rent should be agreed upon.
There was to be consensus. It is
plaintiff's agreement that rent was agreed upon while on the other hand
defendant maintains that although it was agreed upon, it was under duress. Agreement may be express or implied. It is implied where the lessor informs the
lessee the figure he is expected to let the property for and thereafter the
lessee although not expressly agreeing to pay the rent stipulated by the lessor,
occupies the property, see Wepnener v
Schraader 1903 TS 629 and Gibson and
another v Sanders 1915 EDL 174.
In casu defendant led plaintiff to believe
that the rent was agreed upon and confirmed this position by paying the first
month's rent. At that stage there was no
doubt that there was consensus and therefore the parties were at ad iden.
The lease agreement was therefore lawfully put in place. In her own words, she admitted that she
deliberately misled plaintiff. If she
did so, surely, it will be improper to allow her to benefit from her own
deceit.
When
initially asked why she signed the agreement her answer was that she did so
under duress, but, later, on she changed her mind and told the court that she
signed in order to take the agreement to the Rent Board in order for them to
take appropriate action against plaintiff.
While giving evidence, she unwittingly revealed that she took one, a Mr
Ndlovu who is a former employee at the Rent Board as her ''legal adviser.'' Mrs Toriro did not strike the court as an
honest witness, she was dodging questions and above all very evasive which made
her a poor witness. She admitted that
she misled plaintiff when she signed the agreement. I find that she is a stranger to the truth
and the kind of person whose tongue the truth sits with a lot of discomfort.
She cannot be believed and her evidence is rejected.
I
find that the parties entered into a valid agreement as there was no undue
influence being made to bear on defendant.
Infact the former leasee, i.e Tip Top Fish & Chips of which she was
also a director and / or share holder was erratic in its payments, this led to
defendant taking over the premises.
She
also argued that she was a statutory tenant under Statutory Instrument 676/1983
Commercial Premises (Rent) Regulations, 1983.
In order for one to benefit under these regulations they should be
paying rent. A leasee has no right to
continue in occupation of the Landlord's property without paying rent. Even in a situation where rent is disputed
the lessee is obliged to pay the minimum rentals which it views as fair. In Surpline
Investment D/L v Forestry Company of
Zimbabwe HH 70/2007 (cyclostyled) judgment, Mukarau JP also dealt with this principle.
It,
therefore, stands to reason that defendant's failure to pay rentals as agreed
upon in the lease agreement is clearly a breach of the said lease
agreement. For that reason, the
application succeeds and the following order is made:
(a) The lease agreement between the parties is
cancelled.
(b) Defendant and all those claiming through it
should vacate stand number 44 Lobengula Street, Bulawayo within 48 hours of
service of this order.
(c) In the event that Defendant does not vacate
the premises within 48 hours of service
of this order, the Deputy Sheriff, Bulawayo be and is hereby ordered to evict
the Defendant and all those claiming through it from the said premises.
(d) Defendant pays a sum of ZAR75 000.00 being
the rental due as at 28 February 2010.
(e) An order for payment of hold over damages at
ZAR11 000.00 per month or ZAR 366.60 per day from 1 March 2010 to date of
eviction.
(f) An order that the Defendant pay costs of suit
on attorney-client scale.''
Cheda and
Partners, Plaintiff's Legal Practitioners
Messrs Marondedze Mukuku,
Ndove & Partners, Defendant's Legal
Practitioners
