Law of Property-viz lease agreement re eviction.
Law of Contract-viz Deed of Settlement.
Procedural Law-viz default judgment re failure to file opposing papers.
Law of Contract-viz oral contract.
Law of Contract-viz verbal agreement.
Property Law-viz agreement of lease re statutory tenancy.
Law of Property-viz rent regulations re statutory tenancy.
Procedural Law-viz rules of evidence re admissions.
Procedural Law-viz appeals re appeals from decisions of an administrative body.
Procedural Law-viz appeals re appeals from decisions of an administrative body iro the Rent Board.
Law of Property-viz rent regulations re appeals from decisions of the Rent Board iro section 35 of the Rent Regulations, 2007.
Procedural Law-viz civil review re judicial deference.
Law of Property-viz agreement of lease re eviction iro certificate of ejectment.
Law of Property-viz rent regulations re eviction iro certificate of ejectment.
Law of Property-viz rent regulations re certificate of ejectment iro registration of a certificate of ejectment in the High Court.
Procedural Law-viz jurisdiction re judicial deference.
On
20 September 2005, the applicant and the two respondents concluded an agreement
in terms of which the respondents leased from the applicant an immovable
property, namely 6 Thames Rd, Vainona in Harare. The lease agreement was to
extend for a period of twelve months terminating on 31 August 2006. It is
common cause that the lease was not renewed but the parties, after some dispute,
entered into a settlement in terms of which it was agreed that the lease would
continue until 30 December 2008 after which the respondents would vacate the
premises. When the fateful day arrived the respondents did not vacate as agreed,
and, as a consequence, the applicant approached the Rent Board for a
certificate for the eviction of the respondents from the premises. On 9 April
2009 the Northern Region Rent Board issued a certificate for the eviction of
the respondents from the premises. The eviction was effective on 1 May 2009.
The
applicant has now approached this court for an order for the eviction of the
respondents from the premises.
The second respondent states, in her opposing
affidavit, that she did not refuse to vacate the premises after the settlement
between the parties and avers that there was an oral agreement for the
extension of the lease as had been the norm between the parties. She maintains
that as a result the settlement fell away and she became a statutory tenant all
over again. She admits that a certificate for her ejectment was issued by the
Rent Board and says that the certificate was wrongly issued and she intends
appealing to the Administrative Court against the decision of the Rent Board.
She stated, further, that she was entitled to be given three months' notice
before being evicted, and, further, that the person who had represented the
applicant when the settlement was entered into had no locus standi and that, as
a consequence, the Deed of Settlement was a nullity for want of a power of
attorney from the applicant.
Although both respondents
were served with the application, it is only the second respondent who has
filed papers opposing the grant of the relief being sought.
Whether
the respondent was a statutory tenant or not is not an issue that I can debate.
That was supposed to be placed before the Rent Board by the respondent. I do
not know whether or not she did so. The fact remains that the matter was placed
before the Rent Board which issued a certificate for the ejectment of the
respondent and her spouse. She is aware that an appeal lies against the
decision of the Rent Board to the Administrative Court.
She
has not appealed.
In terms of section 35 of the Rent Regulations
2007 a lessor or lessee who is aggrieved by a decision of the Rent Board may
lodge an appeal against such decision to the Administrative court.
The
respondent is before me attempting to raise a defence against the decision of the
Rent Board. That is no longer before me as it was determined by the Rent Board
that the applicant had shown good cause for her ejectment from the premises.
Apart from registering the certificate as an order of court, this court cannot
enquire into the propriety of the determination by the Rent Board as that is
function of the Administrative Court when considering the appeal.
In my view, the applicant is entitled to an
order for the eviction of the respondent from the premises. In the premises an
order will be issued in terms of the draft.
GOWORA
J: On 20 September 2005 the applicant and
the two respondents concluded an agreement in terms of which the respondents
leased from the applicant an immovable property, namely, 6 Thames Rd Vainona in
Harare. The lease agreement was to extend for a period of twelve months
terminating on 31 August 2006. It is common cause that the lease was not
renewed but the parties after some dispute entered into a settlement in terms
of which it was agreed that the lease would continue until 30 December 2008
after which the respondents would vacate the premises. When the fateful day
arrived the respondents did not vacate as agreed and as a consequence the
applicant approached the Rent Board for a certificate for the eviction of the
respondents from the premises. On 9 April 2009 the Northern Region Rent Board
issued a certificate for the eviction of the respondents from the premises. The
eviction was effective on 1 May 2009. The applicant has now approached this
court for an order for the eviction of the respondents from the premises.
Although
both respondents were served with the application, it is only the second
respondent who has filed papers opposing the grant of the relief being sought.
She states in her opposing affidavit that she did not refuse to vacate the
premises after the settlement between the parties and avers that there was an
oral agreement for the extension of the lease as had been the norm between the
parties. She maintains that as a result the settlement fell away and she became
a statutory tenant all over again. She admits that a certificate for her
ejectment was issued by the Rent Board and says that the certificate was
wrongly issued and she intends appealing to the Administrative court against
the decision of the Rent Board. She stated further that she was entitled to be
given three months notice before being evicted and further that the person who
had represented the applicant when the settlement was entered into had no locus standi and that as a consequence the deed of settlement was a
nullity for want of a power of attorney from the applicant.
Whether
the respondent was a statutory tenant or not is not an issue that I can debate.
That was supposed to be placed before the Rent Board by the respondent. I do
not know whether or not she did so. The fact remains that the matter was placed
before the rent board which issued a certificate for the ejectment of the
respondent and her spouse. She is aware that an appeal lies against the
decision of the rent board to the Administrative court. She has not appealed.
In terms of s 35 of the Rent Regulations 2007 a lessor or lessee who is
aggrieved by a decision of the rent board may lodge an appeal against such
decision to the Administrative court. The respondent is before me attempting to
raise a defence against the decision of the rent board. That is no longer
before me as it was determined by the rent board that the applicant had shown
good cause for her ejectment from the premises. Apart from registering the
certificate as an order of court, this court cannot enquire into the propriety
of the determination by the rent board as that is function of the
Administrative court when considering the appeal.
In
my view, the applicant is entitled to an order for the eviction of the
respondent from the premises. In the premises an order will be issued in terms
of the draft.
Sawyer
& Mkushi legal practitioners, for the applicant
