The brief background facts to this matter are largely common cause. I set them out as follows:

In 1994, the applicant entered into a lease agreement with the first respondent in respect of certain premises situate at Number 9 Market Street, Eastlea, Harare (“the premises”).

The lease agreement was constantly renewed over the years with the last renewal being agreed upon on 20 June 2007 for a further three years. Thus, the lease agreement between the parties is due to expire by effluxion of time on 31 March 2010.

It was a specific term of the agreement between the applicant and the first respondent that the applicant would not sublet the premises without the written consent of the lessor.

In 2008, the applicant and the second respondent reached an understanding in terms of which the second respondent moved onto and took occupation of part of the premises….,.

In January 2009, the first respondent wrote to the applicant, summarily terminating the lease agreement and seeking the ejectment of the applicant from the premises. This was on the allegation that the applicant was subletting the premises to the second respondent without the prior written consent of the lessor and in breach of the specific term of the lease agreement against sub-letting.

When the applicant tendered rentals for the month of February 2009, these were rejected on the basis that the lease agreement had been cancelled.

This, in turn, prompted the applicant to approach this court seeking;

(i) Firstly, an order holding the first respondent to the lease agreement on the basis that it was not sub letting to the second respondent as alleged; and

(ii) Secondly, an order ejecting the second respondent from the premises.

The application was opposed by both respondents.

In opposing the application, the first respondent contended that it had proceeded in terms of the lease agreement to summarily cancel the lease agreement as the applicant was in breach. It justified its action by relying on clause 21 of the lease agreement which provides that:

“If the lessees shall fail to pay the rent on the due date or at the latest within ten days thereafter or if the lessees shall commit any other breach of the terms or conditions of this lease then the Municipality shall have the right, in its discretion, summarily to terminate this lease and retake possession of the Stand without payment of any compensation whatsoever and without prejudice to any claim which it may have against the lessees for rent already due or for any damages which it may suffer by reason of such breach or termination.”

The second respondent's opposition to the application is, in my view, somewhat curious.

The second respondent is the alleged sub-lessee and it objects to the continuation of the lease agreement between the applicant and the first respondent. While admitting, as contended by the applicant, that it took occupation of the premises in anticipation of a joint venture between itself and the applicant, the second respondent does not proffer any defence as to why it should not be evicted from the premises at the instance of the applicant.

Instead, and curiously so as I have observed above, it adopts and pleads the case of the first respondent that the applicant was in breach of the lease agreement, indeed, epitomizing the proverbial stranger who mourns louder than the bereaved.

It further avers, that, in February 2009, when the applicant's rentals were turned down, this was because it had paid these in respect of the property. It however falls short of alleging that it is now the tenant in respect of the property.

In its opposing affidavit, the first respondent does not admit any formal relationship with the second respondent. It simply maintains that the applicant's rentals for February 2009 were not accepted as its lease had been cancelled.

I believe it is pertinent, at this stage, that I dispose of the issue between the applicant and the second respondent.

As observed above, the applicant is seeking the eviction of the second defendant from the premises on the basis that the proposed joint venture between the parties has failed.

This is not disputed by the second respondent which then proceeds to aver, that, after the joint venture had failed to materialize, the applicant demanded rentals from it, thereby creating the sublease.

The totality of the averments made by the second respondent, even if proved, do not constitute a defence to an order for eviction at the instance of the applicant. Thus, in the event that I find for the applicant and hold the first respondent to the agreement, I must perforce order the eviction of the second respondent from the premises on the basis that the second respondent has failed to proffer a defence to the applicant's claim.

The issue that remains for my determination is between the applicant and the first respondent: it is whether the first respondent was justified in summarily cancelling the lease agreement without first affording the applicant a chance to respond to the allegations that it was sub-letting the premises to the second respondent.

It is trite that even where a lease agreement grants the lessor the right to cancel the lease on account of breach and to re-take possession of the leased premises, as was the position between the applicant and the first respondent, such cancellation is always subject to the control of and confirmation by the court.

The lessor has to approach court for the confirmation of its cancellation of the agreement and for the eviction of the tenant. The right to summary termination of the lease agreement, no matter how clearly worded, does not oust the jurisdiction of the court to grant the eviction order.

The existence of the grounds for and the validity of the cancellation of the lease agreement are always subject to validation and confirmation by the court which alone can order the eviction of the defaulting tenant.

The lessor cannot exercise self-help and retake possession of the property without a court order - even where the agreement specifically provides so: see Livingstone v Solomon 1924 SR 117; Joubert v Bester 1977 (2) SA 641 (T); Towers v Chipata 1996 (2) ZLR 261 (HC): and Bater and Another v Muchengeti 1995 (1) ZLR 80 (SC)…,.

In casu, the first respondent did not independently approach the court for the eviction of the applicant after it became aware of the alleged breach in the form of subletting.

After being served by this application, it did not seek to counter apply for the confirmation of its cancellation of the lease agreement and the eviction of the applicant.

The validity of its actions, in cancelling the lease agreement and its threat to re-take possession of the premises, have been brought before the court by the applicant, not for its confirmation but for it to be set aside on the basis that the first respondent did not give the applicant an opportunity to respond to the allegations before it acted summarily.

Thus, it appears to me that even if I were to find that the purported cancellation of the lease agreement by the first respondent was justified in the circumstances, that finding would not automatically translate into an order evicting the applicant from the premises as there is no prayer before me for the eviction of the applicant from the property.

In my view, such a finding, if I were to make it, would simply lay the foundation for the issuance of an eviction order against the applicant at the instance of the first respondent whenever it is moved to seek such an order.

It is on the basis of the above, that, in my view, it is not necessary that I make a finding as to whether or not the applicant was subletting to the second respondent and was therefore in breach of the lease agreement.

In my view, to do so would be to tie down the court that may be approached by the first respondent for an order evicting the applicant from the property.

The plaintiff issued summons claiming a decree of divorce, rights of access to the minor child, a division of matrimonial assets and costs of suit. The defendant also filed a counter-claim seeking similar relief.

I shall deal firstly with the issues raised by way of Stated Case; the first being whether the plaintiff should be interdicted from living in the matrimonial home with a boyfriend, now or in the future.

In his written submissions on this issue, the plaintiff's counsel correctly states that, strictly-speaking, this demand, coming as it does in a plea and not a counter-claim, is not before this court as claims cannot be made in a plea. He states that the matter was, however, included as an issue in the pre-trial conference and was agreed by the parties in a Stated Case and that, accordingly, this court is requested by the parties to deal with the matter.

At this juncture, I propose to deal with the issues raised by the defendant against the granting of damages in seriatim.

FAILURE BY THE PLAINTIFF TO PLEAD THE AMOUNT OF CLAIM IN ITS DECLARATION

It was the defendant's position, through its counsel, that the plaintiff not having pleaded, in its declaration, the specific amount of damages, could not be awarded the amount claimed. In other words, the defendant felt the plaintiff's claim was bound to fail on this basis alone.

The respondent has incorporated, by reference, papers it filed under case number HC5560/10, a separate application, and has argued that the present application and that filed under case HC5560/10 be heard together.

I agree with the applicant that the correct procedure would have been for the respondent to file a counter chamber application in terms of Rule 229A which reads -

The merits of plaintiff's defence to fourth defendant's claim in reconvention

The plaintiff then led evidence to the effect that he offered rentals for February 2007 which Miss Varaidzo Mateko's agents refused to accept. He, thereafter, did not tender rentals for the following months to date.  He admitted that in his plea he disputed Miss Varaidzo Mateko's title to the property and said he could not pay rentals to her. In his evidence he, again, said he did not recognise Miss Varaidzo Mateko's title to the property and could, therefore, not pay rentals to her. It is common cause that in terms of the expired lease rentals should be paid in advance on the “first day of each and every month.” He should, therefore, in spite of the refusal of rentals for February 2007, have tendered rentals for March 2007. The words “each and every month” means rent should be tendered or paid each month. The words “so long as the lessee continues to pay the rent due within seven days of the due date”, therefore, means rent should be paid or tendered for each month. Miss Varaidzo Mateko's claim in reconvention was filed on 22 March 2007. The due date for March 2007 had come and gone without a tender of rentals by the plaintiff. The seven days after the due date had also come and gone without a tender of rentals from the plaintiff.  He thus deliberately refused to pay rent for March 2007 and the subsequent months. He thus did not continue to pay rent in terms of section 30(2) of the Rent Regulations S.I.27 of 1982 which required him to continue to pay rent within seven days of the due date. The plaintiff's failure to continue to pay rent as required by section 30(2) of the Rent Regulations S.I.27 of 1982 disentitles him from seeking the protection of the Rent Regulations.

In the result, I find that the plaintiff does not have a valid defence to Miss Varaidzo Mateko's claim in reconvention for his ejectment from Lot 5 of Lots 18 and 19 Parktown Extension of Upper Waterfalls.

It is therefore ordered as follows:

1. That the plaintiff (Zenus Banda) and all those claiming occupation of Lot 5 of Lots 18 and 19 Parktown Extension of Upper Waterfalls through him must vacate the property by 31 December 2010.

2. …,.

3. …,.

4. The plaintiff shall pay all outstanding utility bills for the property in question on or before 31 December 2010.

On the other hand, the counter-claim by the second defendant is flawed in two respects.

Whilst the defendant's plea was filed on the 19^th June 2007, the counter-claim was only filed on 11th September 2009. The plaintiff's plea to the counter-claim was that it was not filed in accordance with the Rules as it was filed out of time. Reference was made to Order 18 Rule 121(1) of the High Court Rules which provides that –

“(1) A claim in reconvention shall be so described and shall be bound and filed with the defendant's plea.

(2) A claim in reconvention shall be governed, mutatis mutandis, by the rules relating to a declaration,

including rules 110 and 111.”

Therefore, on the above Rule, alone, the counter-claim fails.

(a) …,.

In their heads of argument, the first and seventh respondents also seek eviction of the applicants. They, however, did not see it necessary to file a counter-application.

The question is whether I can grant a counter-claim where there is no such counter application.

It is trite law that counter-applications are subject to the general principles applicable to applicants – Willowvale Estates CC v Bryanmore Estates Ltd 1990 (3) SA 954 (W)…., and Superior Court Practice (Nathan, Barnett & Brik) – H.J. ERASMUS (Juta 1994)….,.. Thus, the court will dismiss a counter-application if the respondent, when launching it, did not follow the general principles set out in the High Court Rules, 1971 i.e. Order 32 Rule 226 to Rule 240.

In the year 1995, the plaintiff married the defendant in terms of customary law. They had apparently commenced living together prior to the formalization of the union in terms of customary law. On 31 March 2000 their marriage was solemnized in terms of the Marriages Act Chapter 5:11]. The marriage still subsists. The marriage was not blessed with any child....,.

On 8 April 2008, the plaintiff filed a suit seeking a decree of divorce and other ancillary relief....,.

During the subsistence of the marriage, the parties acquired movable and immovable property. The movable property comprised -

(a) Two refrigerators;
(b) One three-plate stove;
(c) Two kitchen units;
(d) Dining room table and chairs;
(e) Display unit;
(f) Cupboard;
(g) One VCR and television set;
(h) Decoder and dish;
(i) Two beds;
(j) Two radios;
(k) A set of four sofa seats; and
(l) An F13 motor vehicle.

The immovable property comprised -

(a) House No. 6071 Unit 'J' Seke, Chitungwiza.
(b) Vacant stand in Norton - Adore Gold Housing Scheme.
(c) Vacant stand in Kwekwe Marshlands area.

Out of all the above property, he proposed that the defendant be awarded -

(a) The vacant stand in Norton;
(b) One fridge;
(c) Three plate stove;
(d) One kitchen unit;
(e) Decoder and dish;
(f) One bed;
(g) One radio; and
(h) Kitchen table and four chairs;

With the rest of the property being awarded to the plaintiff....,.

The defendant disagreed with the distribution of the matrimonial property as suggested by the plaintiff. She, instead, though without making a counter claim, suggested that the property be shared as follows -

For Defendant:-

(a) Stand 6071 Unit J Seke, Chitungwiza;
(b) The stand in Norton;
(c) The F13 motor vehicle; and
(d) All the movable property.

For Plaintiff:-

The plaintiff to be awarded the Kwekwe undeveloped Marshlands Stand.

In 1999, the applicant herein entered into an agreement of sale in terms of which he purchased an immovable property from the estate of the late Johanna Maria Fransisca Logan as represented by the executrix testamentary of the estate.

The immovable property, described as Stand 382 Good Hope Township of Subdivision B of Good Hope, was transferred to the applicant in April 2007 by Deed of Transfer number 1597/2007.

On or about 1 October 2006, one Tsungirai Musenha and the first respondent herein filed an application, as co-applicants, in the Magistrates Court in Case No.12060/06. They cited Robert Adrian Campbell-Logan (the second respondent herein), estate late Maria Johanna Campbell-Logan, and the Registrar of Deeds (the fourth respondent herein) as the first, second, and third respondents respectively.

They contended therein that the second respondent herein had sold to them and they had purchased Stands Numbers 412 and 382.

They further contended, that, the second respondent herein was avoiding them then for the purpose of passing transfer to them of the said properties.

On or about 5 October 2006, a rule nisi was granted by the Magistrates Court in the following terms:

“A Rule Nisi be and is hereby issued returnable to this honourable court on the…, day of…,. 2006 calling upon the first and second respondents to show cause, if any, why? (sic)

1. First, second, and third respondents, and all those acting through them, should not be barred from transferring to anyone other than first and second applicants Stand Numbers 412 and 382 respectively, being subdivisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95. (sic)

2. First, second, and third respondents should not be ordered to effect transfer of Stand 412 and 382 to first and second applicants Stand Numbers 412 and 382, respectively, being sub-divisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95. (sic)

3. First, second, and third respondents, and all those acting through them, should not be barred from disposing first and second applicants in any way of their occupation of Stand numbers 412 and 382 respectively. (sic)

4. First respondent should not be ordered to pay costs of this application. (sic)

INTERIM RELIEF:

1. Pending the return date, all respondents and all those acting through them be and are hereby interdicted from disposing or transferring to anyone Stand Numbers 412 and 382 respectively, being subdivisions of the remainder of sub-division B of Good Hope held under Deed Number 6180/95.”

On 8 November 2006, the magistrate granted default judgment in the same matter for an “interdict and compelling order” in favour of the applicants therein.

On 29 November 2006, the sixth respondent issued Letters of Administration appointing the third respondent as executor dative to administer the estate of the late Maria Johanna Fransisca Campbell-Logan, for the sole purpose of effecting transfer of “a certain piece of land situated in the District of Salisbury being a remainder of subdivision B of Good Hope, being Stand Number 382 measuring 2200 square metres into the name of Cosma Chiangwa.”

On 4 July 2007, the immovable property was transferred into the name of Cosma Chiangwa, the first respondent herein by Deed of Transfer 4079/2007.

The applicant now applies for an order in the following terms:

“1. That the sale to the first respondent, by the second respondent, of Stand 382 Good Hope is null and void. (sic)

2. That the registration of Stand 382 of Good Hope Township of Subdivision B of Good Hope into the name of first respondent is null and void. (sic)

3. That the appointment of the third respondent, as Executor Dative of the estate of the late Maria Johanna Fransisca Campbell-Logan, is null and void.

4. That the applicant is the sole lawful registered owner of Stand 382 Good Hope Township of Subdivision B of Good Hope.

5. That the fourth respondent shall, within 3 days of service of this Order upon him, delete the name of the first respondent from the name of the applicant as the registered owner of Stand 382 Good Hope Township of subdivision B of Good Hope. (sic)

6. That the first, second, third, and fifth respondents shall pay costs of these proceedings jointly and severally, the one paying the others to be absolved.”

In the main, the applicant contends, that, the appointment by the sixth respondent of the third respondent as the executor dative of the estate, during the lifetime of the executrix testamentary and during a period of time when the executrix testamentary was still holding office and was not incapacitated, is not valid in law.

He further contends, that, when the second respondent sold Stand 382 to the first respondent, he (the second respondent had no title to pass and that the sale by the second respondent was done in the second respondent's personal capacity and was also done without authority.

He also contends that when the second respondent sold the property (to the first respondent) he knew that it had already been sold to the applicant as he had co-signed the agreement of sale between the applicant and the executrix testamentary.

It is also contended by the applicant that the fourth respondent registered the property into the name of the first respondent without checking his register.

Furthermore, the fifth respondent, who was the conveyancer of the property into the first respondent's name, did not conduct any checks as to title to the property before drafting and lodging conveyancing papers with the Deeds Registry. If he had exercised care he would have discovered that the immovable property belonged to the applicant as it had already been registered into the applicant's name more than two months earlier.

The applicant further contends, that, the position stated by the executrix testamentary, in the letter of 1 September 2007, is the correct position at law.

The letter raised with the sixth respondent the invalidity of the appointment of the executor dative as it was done when the executrix testamentary had not been removed from the office by a competent court or judge.<