CHEDA J: This is an urgent chamber application
whose relief is as follows:
“Terms of final Order
That you show cause to this
Honourable Court why a final Order should not be made in the following terms:
IT AND IS HEREBY ORDERED THAT:
1) The Deputy Sheriff is herby directed
and authorised to remove such of the respondents and any persons claiming
through any of the respondents, together with their goods and properties as may
remain on the premises by or after the 1st April 2011, from the
property known as VICTORIA HOUSE, OR VICTORIA FLATS, 103 HEBERT CHITEPO STREET,
BULAWAYO.
2) The Deputy Sheriff be and is hereby
authorised and directed to; thereafter; lock and secure the property against
re-entry or re-occupation by taking such measures as she deems necessary.
3) The Respondents shall, jointly and
severally, the one paying, the others to be absolved, pay the costs of this
Application.
INTERIM RELIEF
GRANTED
Pending the determination of
this matter, the Applicant be and is hereby granted the following relief:
a. IT IS DECLARED that the Applicant has
the right to remove the Respondents and all persons claiming through them from
the property known as VICTORIA HOUSE, OR VICTORIA FLATS, 103 HEBERT CHITEPO
STREET, BULAWAYO at the expiry of the notice to vacate.
b. IT IS ORDERED THAT the respondents and
all persons claiming through them, together with their goods and properties,
shall vacate Victoria House by 31 March 2011.”
Applicant was represented by Dipti
Jateen Madhoo. It is a duly registered
company which owns an immovable property known as stand number 1053 Bulawayo
Township otherwise known as Victoria House or Victoria Flats, 103 Hebert
Chitepo Street, Bulawayo [hereinafter referred to as “the property”].
Applicant purchased the property
from Guelder Rose Investments (Pvt) Ltd [hereinafter to as “Guelder –
Rose”]. Upon transfer to itself there
were tenants in occupation of the property of which either all or some of them
are still tenants to date. However, from
the list provided by CB Richard Ellis, who are the Estate Agents and has always
been managing the property, it is clear that there are some tenants who are not
recognised tenants. It therefore appears
that this property does not have clearly recognised tenants, in other words
tenants or occupants do as they please.
It is applicant's argument that
although there is no written lease agreement it was an implied term that tenants
should pay rentals, operational costs comprising of rates , garbage removal and
other levies which they have not been paying and as such they owe a total of
$25165.69 in operational costs. In
addition thereto, they are in arrear rentals and as such they are in breach of
their terms and conditions of their lease agreements.
It was applicant's further argument
that the property is in a dilapidated stated which resulted in its condemnation
by the Bulawayo City Council. To that
end the Bulawayo City Council wrote a letter in the following manner:
“City Of Bulawayo
Ref: BC/44
29 September 2008
Victoria House
No. 101 Hebert Chitepo Street.
Stand No. 1052 BT
BULAWAYO
Dear Sir/Madam
RE:
UNSIGHTLY/DILAPIDATED AND DANGEROUS BUILDINGS
A recent inspection on the
above-mentioned stand revealed a contravention of the Model Building By-Laws of
1977, Chapter 2, Section 48a and 49.
The above-mentioned premises
are now a danger to the health of persons occupying or using the building,
source of unpleasant odours, disfigurement to the neighbourhood and offensive
or embarrassing to the people living or working on the premises or in the
neighbourhood.
You are therefore advised to
make a major facelift to the property, or demolish the structure within 21 days
of the date of this letter.
Failure to comply will result
in Council entering upon the premises and taking the necessary action and
charge you the costs thereof. This is in
terms of Chapter 21 Section 56 of the Model Building By-Laws.
Yours faithfully
(Signed)
DIRECTOR OF HOUSING
AND COMMUNITY SERVICE
c.c Acting Town Clerk
Chamber Secretary
A/Director of Health Ser ices
A/Principal Building officer”
(My emphasis)
Applicant notified respondents of
its desire to repossess the property in order to effect repairs, but, respondents
ignored, neglected or refused which resulted in a meeting between the parties
aimed at resolving this impasse. It is further their argument that some of the
respondents including one Roy Sibanda was very abusive and threatening. The court has taken judicial notice that Roy
Sibanda is a member of Affirmative Action Group, an organisation that purports to
protect the interests of black businessman.
He is however, not a tenant of applicant but seems to have surrogated
himself the power of representing respondents which unfortunately has resulted
in his abuse of the applicant. He has
not responded to these allegations which therefore mean that they are true. In view of that, he is strongly warned to
conduct himself within the confines of the law otherwise applicant and all
others whose rights have been violated by him should take appropriate legal
action against him in order to safeguard their proprietary rights.
The law regarding lease agreements
is that, in return for the right to use and enjoy the property let to him/her, a
leasee is under an obligation to pay rent.
Rent is an essential element of a lease agreement, see Estate Ismail v Sayed 1965(1) SA 393(C)
at 397 A-B. A tenant who occupies
premises without paying rent can not be properly defined as a leasee.
Respondents on the other hand have
argued that the matter is;
1) not properly before the
courts because the deponent to the founding affidavit is not authorised to do
so as the names are different,
2) that they were not given proper notice
to vacate,
3) there is no urgency in the matter as
the Bulawayo City Council 's letter dates back to 2008,
4) they have been paying rent not through
CB Richard Ellis but to Khoza consultants,
5) that they had the right of first
refusal, and
6) applicant sought their eviction by
application instead of an action
I propose to examine these issues in seriatim
(1) MATTER
NOT BEING PROPERLY BEFORE THE COURT
On the 3rd day of
February 2011 applicant resolved to evict respondents from the property and
duly appointed Jateen Madhoo to represent it in that issue. For respondents to argue that they should
have appointed someone else without justifying their argument is not tenable at
law. It is clear to me, that the
applicant's representative uses three names.
For that reason the company resolution is indeed properly placed before
the court. In my, view, the company resolution
is legal.
(2) REASONABLE
NOTICE TO VACATE
On the 30 November 2010 applicant through
its legal practitioners of record notified all the respondents to vacate the
property at the end of February 2011 as developmental work was due to commence
on the 1st of March 2010. On the 17th December 2010
respondents advised applicant by letter that they were not going to vacate the
premises on the basis that they had a right of first refusal on the property. Despite the fact that they did not agree with
applicant's attempt to repossess the property, that on its own is not a reason
enough to nullify the said notice.
Infact respondents responded to the notice in time, thereby attending to
a meeting where one Roy Sibanda attended and turned out to be abusive of the
applicants' legal practitioners. Suffice,
to say that his abusive behaviour did not help respondents, but, if anything
further alienated then from applicant's attempt to conduct a civilized meeting.
It is further respondents' argument
that the notices to vacate were defective as they did not disclose the
particulars of the landlord. This
argument lacks merit as respondnets have always known that there is a landlord
hence their reference to a lease agreement, which agreement cannot exist in the
absence of another party, in this instance a landlord. This argument therefore falls on its face and
is not worth pursuing.
(3) URGENCY
Respondents
argued that this is a 2008. They,
therefore query why it was now being brought up as an urgent matter. The
property was condemned not to be suitable for human habitation as was back as
September 2008. The defect remains to
date. In my opinion, the fact that it
remains in that state, on its own renders it urgent. The urgency increases by each day as long as
the defect remains unattended to. Attempts
to correct the defects were frustrated by respondents, this also makes the
matter urgent.
Logically, the matter becomes urgent
when irreparable harm or no other alternative exists which is the position in
casu. The matter is for all
intents and purposes extremely urgent.
The building poses a health hazard and is delilapidated as observed by the
Bulawayo City Council. Therefore, there
would be no reason to further postpone the renovations. Urgency may either be time or economic
related see Silver's Trucks (Pvt) Ltd and
another v Director of Customs and excise 1999 (1) ZLR 532 (HC).
(4) RENTALS
It is
applicant's assertions that respondents have not been paying rentals to CB
Richard Ellis, who are the appointed estate agents. But respondents have argued that they have
been paying rent to Khoza Consulatants.
Applicant has submitted proof from CB
Richard Ellis which shows that respondents have not been paying rent and other
operational costs. Payment of rent is an
essential element of a lease, see Estate
Ismail v Sayed 1965 (1) SA 393 (c) at 397 A-B. Our law is very clear on that point, namely
that in return for the right to the use and enjoyment of the property let, the
leasee has an obligation to pay rent timeously, failing which they will be in
breach of the contract. Indeed it is
clear that respondents have been occupying this property without paying rent ,
this, without more is a breach of the lease agreement. Respondents have no right to continue
occupying the property without paying rent.
(5) RIGHT
OF FIRST REFUSAL
Respondents have also argued that
the property should not have been sold to applicant as they have a right of
first refusal. They, however did not
furnish the court with any proof thereof.
It is now settled law, if my
understanding of our current legal position is correct, that the right of first
refusal arises out of a contract between the landlord and tenant, see Nerger Properties (Pvt) Ltd SC 47/06 and
Makoshori v Nyamushamba and another
SC 9/06 where the Court defined it as follows;
“The essence of the right of
first refusal or the right of pre-emption is that the grantor of such a right
not to sale the object of the right to a third party unless the right has been
given an opportunity to purchase the object of the right and has not offered to
do so. See madam v Macedo Heirs and
another 1991 (1) ZLR 295 SC at 302 A-B; and Owsianick
v African Candidate Theatres (Pty) Ltd 1967 (3) SA 310(AD) at 316 C-D.”
It
must be clearly expressed, it, therefore, cannot be implied. In addition, it cannot be enforced on a third
party who purchases the property without prior knowledge of the right of first
refusal, see Central African Processed
Exports (Pvt) Ltd and others v Mcdonald and others SC 40/02 and Sommer Properties v Wilding 1984(3) SA
647 (A).
It therefore, stands to reason that a
party seeking to enforce this right must prove its existence on a balance of
probabilities.
(6) THE
RIGHT OF APPLICANT TO EVICT RESPONDENTS.
Respondents have always been aware
of applicant's intention to repossess its property. This is not only confirmed by the notices to
vacate but also by Mr L. Sibanda,
applicant's legal practitioners at a meeting held on the 17th January 2011 wherein he
informed those respondents present that his client was repossessing its
property. This meeting unfortunately turned
out to be rowdy as a result of the inclusion of one Roy Sibanda who has no locus standi in this matter, but, whose involvement seems to have
polarised the parties, the result of which is detrimental to the respondents.
Respondents argue that the method
used by applicant to evict them was improper as they claim that they are
statutory tenants. In our law in order
for one to successfully claim his/her as a statutory tenant they must comply
with the requirement to pay rent arising from the lease agreement entered into
which is one of the essential requirements of a Lease Agreement. It is through that compliance that, as they
have been paying rent they may seek and obtain protection from the courts, see Moffat Outfitters (Pvt) Ltd v Hoosein and
others 1986 (2) ZLR 148 (S) and Metro
International (Pvt) Ltd v Old Mutual Properties Investment Corporation (Pvt)
Ltd SC 244/08.
On the other hand applicant is
obliged to show good and sufficient cause for requesting an order for the
eviction of the tenant, see Marsh v Intermarket Building Society SC
59/05 and Movement for Democratic Change
v President of the Republic of Zimbabwe HH 28/07. The question then is, has applicant done so?
Applicant as the landlord has shown
that it required the property for repairs and renovations as directed by the
Bulawayo City Council. This, therefore,
is in my view a good and sufficient cause which is legally acceptable, see Dyneley
Investments (Pvt) Ltd v Stevens 1968(2) PH A215. Further, if the repairs are urgent and
carried out while the tenant remains in occupation, the landlord may require
him to vacate the premises see Mackay v
Theron 1947(1) SA 42. It will be physically impossible for such
repairs and/or renovations to be effected while respondents or any other person
is in occupation of the rented property.
The repairs or renovations were both
urgent and necessary. In view of
respondents' refusal of applicants' desire to carry out renovations, the
applicant is left with no alternative, but, to approach the courts.
Respondents' refusal must of course be
examined. They refused to give vacant
possession even when there is proof of the danger the property poses to them
which is not prudent with all due respect.
This, in my considered opinion is being unreasonable. Where a tenant becomes unreasonable in its
refusal to vacate, the landlord has a right to evict him/her from the property
as such stance is tatamount to a breach of the terms and conditions of the
lease under which he/she enjoys, see Anderson
v Byron 1953 (4) SA 395.
Having taken into account all the
circumstances surrounding this case it is clear in my mind that applicant has
made a good case for itself. Respondents
have no defence at all against applicant.
The following order is made:-
INTERIM ORDER
Pending
the determination of this matter, the Applicant be and is hereby granted the
following relief:
(a) IT IS DECLARED that the
Applicant has the right to remove the Respondents and all persons claiming
through them from the property known as VICTORIA HOUSE, OR VICTORIA FLATS, 103
HEBERT CHITEPO STREET, BULAWAYO at the expiry of the notice to vacate.
(b) IT IS ORDERED THAT the
respondents and all persons claiming through them, together with their goods
and properties, shall vacate Victoria House by the 31 March 2011.
Webb, Low and Barry, applicant's legal
practitioners
Messrs, Moyo and Nyoni,
respondent's legal practitioners
