MATHONSI J: On 30 September 2010, the
applicant, through its legal practitioners, addressed a letter to “Mambiro
Fibre” which reads in part as follows:
“RE: 3 MONTHS NOTICE TO VACATE WAREHOUSE NO. 9
WELLBECK ROAD THRONGROVE, BULAWAYO.
We refer to the
above matter and advise that we represent our client Trots Investments (Pty)
(sic) Ltd.
Our client informs
us that you are the tenants at its premises at the above address, and currently
in occupation of the said premises. We
advise that our client is in need of its premises for its personal use to house
its Earth Moving Equipment. In terms of
the rent regulation (sic) you are accorded (60) sixty days notice from 1st
of October 2010 to vacate the said premises for our client's personal use and
thus you must vacate before midday on 31 December 2010.
We hope you will
find the above in order.
Yours faithfully
(Signed)
CHEDA AND PARTNERS”
That
letter obviously has its problems in that although the heading gives 3 months
notice to vacate, the body of the letter gives 60 days notice. As if that was not enough, there is also a
contradiction in that if the 60 days were to run from 1 October 2010 it would
expire on 29 November 2010 and not 31 December 2010.
Assuming there was a typing error
and that 60 days was meant to read “90 days”, as Mr Mlala for the applicant would like us to believe, the notice
period would run from the date the letter was served on the recipient. It is not clear when the said letter was
served because Mr Samuel Mambiro who occupies the premises in question says the
letter was received in the third week of October 2010. If that is the case, and the applicant did
not dispute it, the 3 months notice would certainly not expire on 31 December
2010 but much later than that.
For that reason the notice, in its
present form is defective. The situation
is also compounded by the fact that on 29 November 2010, before the notice
period had expired, the applicant launched this application seeking the
following order;
“IT BE AND IS HEREBY
ORDERED THAT:
1. The three months notice given the
Respondent by the Applicant to vacate No. 9 Wellbeck Road, Thorngrove be and is
hereby confirmed.
2. The Respondent be and is hereby ordered
to comply with notice and vacate the premises mentioned above by 31 December
2010.
3. Failure to comply with paragraph 1
(sic) above the Deputy Sheriff, Bulawayo be and is hereby ordered to evict the
respondent and all those claiming through it immediately.”
The
applicant sought to justify approaching the court before the notice period had
expired by saying in paragraph 8 of the founding affidavit of Titus Ncube that:
“The action of the Respondent
has raised eyebrows, in that its conduct is likely to be interpreted as when
the time for vacation lapses, the Respondent will not vacate the premises.”
It
is not clear what the applicant expected the tenant to do after receiving the
notice. The letter itself did not demand anything of the tenant except to
vacate when the time came. Before that
time came, the applicant had already rushed to court.
I
agree with Mr Mazibuko for the
Respondent that the application was made prematurely and at a time when the
applicant did not have a cause of action against the tenant. As stated by KORSAH JA in Ngani v Mbanje and another; Mbanje and
another v Ngani 1987 (2) ZLR 111(S) at 115 A –C:
“It
is clear from the record that the notice of motion proceedings, initiated by
the respondents on 27 April 1987 were commenced before their right to eject the
appellant on 1 May 1987 accrued to them.
Therefore the respondents had no cause of action against the appellant
at the time the initiating process was filed at the registry, and the fact that
the application was entertained some six days after a right of action had
accrued to the respondents does not affect the relative positions of the
parties at the time of commencement of the action. 'There can be no action before anything is
due and owing'. Voet, Book 5, 1.27. It follows, therefore, that the Respondents
had no right in law to launch proceedings for the ejectment of the appellant
before the expiry of the period stipulated in the agreement of sale: South
African Hotels Ltd v Wienburg 1950(1) SA 516(C) at 520.”
There
was no basis at all for the applicant to file a court application the way he
did on 29 November 2010. It had given
notice to vacate which had not expired and therefore it had no cause of action
to litigate at the time. It matters not
that the notice has since expired and the respondent has not vacated because
the application before me must be looked at as at the time it was instituted. If at that time, the applicant had no right
of action, the inquiry should end there.
The applicant's action cannot be validated in retrospect.
Therefore
the point taken by the respondent in limine on the lack of a
cause of action goes to the root of the application which for all intents and
purposes was a nullity. The cause of
action could only accrue to the applicant at the time the respondent was required
by the notice to vacate. In November
2010, the applicant did not have a right to eject the respondent and therefore
had no business issuing this application.
No
amount of flummery with legal niceties such as 'declarator' as argued on behalf
of the applicant will change that position.
A party does not approach the court seeking confirmation of a notice to
vacate rented premises. The courts do
not regulate the parties' day to day activities of that nature and cannot be
called upon to confirm the validity of a notice letter written by a landlord.
It
is a serious abuse of court process. I
therefore uphold the objection in limine.
Having
come to that conclusion, I find it unnecessary to deal with the two other
points taken in limine on behalf of the respondent namely that
the applicant has sued a non-existent entity Mambiro Fibre (Pvt) Ltd and that
insufficient notice was given. I must
mention though that those points are also well founded.
In
the result, the application is dismissed with costs.
Cheda and partners, applicant's legal
practitioners
Messrs Calderwood, Bryce
Hendrie and partners, respondent's legal
practitioners.
