MATHONSI J: The applicant has been leasing stand 729 of the
remainder of Greencroft in the district of Salisbury, otherwise known as 729
Lomagundi Road, Greencroft Harare, from the respondent by virtue of written
lease agreement signed in October 2009. The said lease agreement terminated by
expiration of time on 30 September 2012 but the applicant continued in
occupation while paying rentals which were happily accepted by the respondent.
The applicant has now approached this court on a certificate
of urgency seeking the following relief:
“Terms of Final Order Sought
That you show cause to this Honourable Court why a
final order should not be made in the following terms:
1. That the Urban Council's
(Model) (Use and Occupation of Land and Buildings) By Laws, 1979 RGN 109/79 be
declared ultra vires s 18(1)(a) of the Constitution of Zimbabwe to the
extent that they deprive an individual from (sic) protection of the law.
2. That the Urban
Council's (Mode) (Use and Occupation of Land and Buildings) By Laws 1979 RGN
109/79 be declared invalid on the grounds of inconsistence with the general law
prohibiting resort to self-help without resort to due process of the law, for
being grossly unreasonable and for being vague.
3. That the respondent's
notice Annexure “C” be set aside as being invalid for being inconsistent with
the provisions of the Administrative Justice Act [Cap 10:28].
4. That the respondent shall
not summarily evict the applicant without a valid court order issued by a
competent court.
5. The respondent shall pay
costs of suit.
Interim Relief Granted
Pending the determination of this matter, the applicant is
granted the following relief:
6. The respondent is
interdicted from summarily evicting the applicant from stand 729 Lomagundi
Road, Harare.”
The respondent leased out the property to the applicant for
the purpose of selling cars and any other purpose incidental to that purpose.
Although the written lease agreement expired on 30 September 2012, the
respondent allowed the applicant to remain in occupation and selling cars and
continued to accept rentals including the rental for the month of January 2013.
The respondent also generated a list of approved car sales in Harare as at 1
December 2012 showing that the applicant was also such approved car sales
dealer appearing on that list.
To the applicant's chagrin, on 9 January 2013, the
respondent served it with a notice which reads in relevant part as
follows:
“Notice in terms of clause 18 (2) of the Urban
Council (Model) (Use and Occupation of Land and Buildings) By Laws 1979
Statutory Instrument 109 of 1979: Vacate Municipal Land
TAKE NOTICE that you are using and/or occupying Council
land illegally as you do not have either a lease with or the permission of the
Council.
FURTHER TAKE NOTICE, that within 48 hours from service of
this notice upon you, you must do the following:
(i)
Depart from the land;
(ii)
Remove all your property from the land;
(iii)
Demolish any structures you may have erected on the land and remove all the
rubble from the land.
If you fail to comply with this notice steps will be taken
by either Council or its appointed agent to summarily evict you and demolish
any structures on the land and you will be liable to pay all the expenses
incurred.
Yours faithfully
DIRECTOR OF URBAN PLANNING SERVICES”
It has been argued on behalf of the applicant that a “tacit
relocation” was created when the respondent allowed the applicant to remain in
occupation of the premises after the expiration of the lease on 30 September
2012, especially as the respondent continues to accept rent payment. For that
reason the applicant has a case for seeking an interdict pendent lite
or an interim interdict against the respondent barring the latter from acting
in terms of the notice given on 9 January 2013 which prompted the applicant to
bring this urgent application.
The respondent has opposed the application and in his
opposing affidavit, Dr Tendayi Mahachi, the Town Clerk, states that when the
lease agreement expired on 30 September 2012 it was not renewed. Although not
aware that rent payments were received, he assumed that the applicant paid
these in bad faith in order to legitimise its stay at the premises. While
acknowledging that the applicant was listed as one of the approved car dealers,
Dr Mahachi asserts that it enjoyed such status because the respondent had given
it until 31 December 2012 to wind up its operations.
Dr Mahachi produced a copy of a letter dated 1 October 2012
written to the applicant by the respondent's city treasurer which reads
thus:
“The Manager
Washmate Motor Centre
Stand No 729 STL
Lomagundi Road
Harare
Dear Sir/Madam
Re: NOTICE OF
TERMINATION OF LEASE AGREEMENT – STAND 729 GREENCROFT LOMAGUNDI ROAD
Please be advised that at its meeting on the 2nd
August 2012, Council under item 59 of the Environmental Management Committee
minutes dated 10th July 2012 expressed concern at the proliferation
of car sales along road verges which had created unsightly developments in
addition to inconveniencing abutting property owners. As a result, Council
resolved to evict, do away with all legal and illegal car sales.
Accordingly, you are hereby formally served with a
three (3) months' notice that the Agreement of Lease subsisting with the City
shall be terminated on the 31st December 2012. You are therefore
being accorded this opportunity to wind up tour (sic) businesses and ensure
that you vacate the stand by the closer (sic) of business on Monday 31st
December 2012 (sic), failing which you shall be evicted without further notice
and at your own cost.
Also ensure that all your outstanding rentals are paid up
as at the date of termination.
Yours faithfully
CITY TREASURER”
The letter in question bears what appears to be two
different signatures dated 1 October 2012. It does not show the name of the
signatories which presumably signified receipt of the letter. Neither does it
show where it was served except that it bears the address of the premises
leased to the applicant.
Dr Mahachi states that the applicant occupied the premises
until 30 September 2012 by virtue of the written lease agreement. Its stay
subsequent to that was validated by the City Treasurer's letter of 1 October 2012
which allowed the applicant to remain in occupation until 31 December 2012.
Therefore, as the applicant remained in occupation after 31 December 2012 the
respondent issued a notice in terms of s 18 (2) of Statutory Instrument 109/79
which notice it was entitled to issue because the applicant occupied the
premises without the consent and/or authority of the respondent.
In order to succeed in an application for an interim
interdict, the applicant must establish the following:
(1) A prima facie right to the relief
claimed, even though open to some doubt;
(2) A well-grounded apprehension of irreparable
harm if the interim relief is not granted and the applicant ultimately succeeds
in establishing that right;
(3) A balance of convenience in favour of granting
the interim relief; and
(4) The absence of any other satisfactory
remedy.
The papers before me show that the last three of the above
cited requirements for the grant of an interim interdict do exist. This is
because the respondent has already given notice of its intention to summarily
evict the applicant from the premises and demolish any structures on the land
such action being imminent, there is a well-grounded apprehension of
irreparable harm.
The dispute between the parties over the premises certainly
does not give rise to a train smash situation on the part of the respondent
regard being had to the fact that the applicant has operated a car sales
business at the same place since 2009 by virtue of a valid lease agreement.
Even after the expiry of that lease the respondent still allowed the applicant
to conduct that business, albeit in a state of what the respondent called
“winding up” for another three months until 31 December 2012. In my view, the
balance of convenience would seem to favour the applicant.
It would appear that there would be no other remedy
available to the applicant short of the interim relief that is sought. Indeed
Mr Kwaramba, for the respondent did not advance any argument against
the satisfaction of the last three requirements for an interim interdict.
It is however the requirement for a prima facie
right which is strongly contested. Mr Chitapi,for the applicant
advanced a lot of arguments on that point but they all boil down to the
applicant's assertion that it is entitled to remain in occupation of the
premises because, although the lease agreement terminated by effluxion of time
on 30 September 2012, it was relocated after that by the conduct of the
parties. In that regard, Mr Chitapi submitted that the respondent
continued to accept rent from the applicant and even published a notice in the
newspaper in December 2012 which notice listed all car sale garages which were
operating legally in Harare, which conduct he claimed, shows tacit relocation
of the lease.
Mr Chitapi strongly argued that once the lease
agreement had been relocated, all its provisions remained in force including
the dispute resolution provision, clause 11, providing that the parties shall
make every effort to resolve disputes amicably by negotiation and in the event
that negotiation fails, the dispute must be referred to arbitration. He went on
to say that it was incompetent for the respondent to revoke s 18 of the
regulations (SI 109/79) on 9 January 2012 without reference to arbitration. In
any event the applicant is now challenging the statutory instrument.
Regarding the notice of termination dated 1 October 2012,
the applicant's case is that it was simply not served upon it and can therefore
not be relied upon.
What I therefore have to decide is whether, the applicant
has a right, even if open to doubt, which it can seek to protect. If it does,
then interim relief must be granted but if the conclusion is that no such right
exists then the application must fail.
It is common cause that the relationship between the
parties was governed by the written lease agreement which expired by effluxion
of time on 30 September 2012. An agreement for a fixed period of time
terminates by effluxion of time at the end of the fixed period and no notice is
necessary. In the event of a lease, if nothing is said by the parties and the
tenant continues to pay rent then a tacit relocation may be presumed.
According to the learned author RH Christe, Business
Law in Zimbabwe, 2nd Ed, Juta & Co Ltd at p 273:
“The requirement that a lease be for a specified time calls
for slightly fuller treatment. Commonly the time is specified as a fixed number
of months or years, or until a fixed date, but there is no reason why it should
not be specified as continuing until the happening of a certain event. In all
such cases the lease terminates at the end of the fixed period or on the
happening of the event, without the necessity of notice by either party: Tiopaizi
v Bulawayo Municipality 1923 AD 317 325, a case on a contract of
employment decided according to principles equally applicable to contracts of
lease. The same passage in De VILLIERS JA's judgment in Tiopaizi's
case points out that if, at the end of the fixed period, the landlord permits
the tenant to remain in occupation the lease will continue (but not in respect
of an option to renew: Chibanda v Hewlett 1991 (2) ZLR 211)
by what is known as tacit relocation until terminated by reasonable notice; H
& J Investments (Pvt) Ltd v Space Age Products
(Pvt) Ltd 1987 (1) ZLR 242. A landlord who does not wish
this to occur may protect himself by giving the tenant notice at any time
before the end of the fixed period, the tenant not being entitled to demand
reasonable notice because the only object of the notice is to reaffirm the
duration of the lease and make it clear that the landlord does not consent to
the tenant's continued occupation.” (The underlining is mine)
The learned author, Cooper, The South African Law of
Landlord and Tenant, (1973 ed) defines a tacit relocation at p 319, a
passage quoted with approval by SANDURA JP (as he then was) in Chibanda
v Hewlett 1991 (2) ZLR 211 (H) at 216 C, as follows:
“A tacit relocation is an implied agreement to re-let and
is concluded by the lessor permitting the lessee to remain in occupation after the
termination of the lease and accepting rent from the lessee for the use and
enjoyment of the property.”
In the present case I must decide whether there was tacit
or express relocation. This is because, while Mr Kwaramba for the
respondent bases the respondent's case on a letter dated 1 October 2012
addressed to the applicant in which the lease is extended to 31 December 2012
which would mean an express relocation, Mr Chitapi for the applicant
denies the existence of such letter or that it was served properly upon the
applicant.
I have stated that the letter was addressed to the business
premises of the applicant and not the domicilium citandi et executandi
given in the expired lease agreement, which the applicant contends was not
proper service in terms of the agreement. The applicant further argues that the
letter was not served at all. I have already said that a copy of the letter is
appended with two signatures and a date of receipt which is 1 October 2012.
If the letter of 1 October 2012 was served on the applicant
and the applicant did not contest its contents, then its silence would mean
acquiescence and the terms of the letter would be applicable. The letter makes
it clear that the lease agreement would not be renewed and that the applicant
had until 31 December 2012 to wind up its operations.
The letter was signed for, presumably at the applicant's
business, a clear indication that it was received, just a day after the lease
agreement expired. The applicant did not do anything to challenge its contents.
Instead it continued paying rent as required by that letter. To then say that
the letter was not received, is in my view, self-serving under circumstances
suggesting otherwise. I am satisfied that, on a balance of probabilities, the
respondent has proved that the letter of 10 October 2012 was served on the
applicant.
The issue of whether or not this was proper service in my
view is not important bearing in mind that the lease agreement containing the
address for service in Emerald Hill Harare, had expired. The point is made by
RAMSBOTTOM J in Doll House Refreshments (Pty) Ltd v O'Shea
& Ors 1957 (1) SA 345 (T) 348 F-H, which is quoted with approval in Chibanda
(supra) at 216 F-H that:
“It is, I think, clear that a relocation after a lease has
expired is a new contract which may be express or tacit. If the re-letting is
express the question which of the terms of the expired lease form part of the
new contract is a question of interpretation as is explained in Webb v
Hipkin 1944 AD 95.Where the relocation is tacit, there is a
presumption that the property is re-let at the same rent and that those
provisions that are incident to the relation of landlord and tenant are
renewed. But provisions that are collateral, independent of and not incident to
that relation are not presumed to be incorporated in the new letting.”
I make a finding that the respondent expressly relocated
the lease agreement by its letter of 1 October 2012 to 31 December 2012 which
letter was drawn to the attention of the applicant by service upon an
individual, or is it individuals, who signed for it on the same date. To say
that the respondent intended to import into the “new contract” the provision in
the expired lease relating to service of correspondence at 70 Broadland Road
Emerald Hill, Harare would be stretching the imagination to elasticity limit.
The respondent was merely allowing the applicant to remain
in occupation for purposes of winding up its business. It clearly would not
have intended to be saddled with difficult and harsh provisions relating to
service of the notice at an address other than the premises re-let to the
applicant. I am fortified in that view by the pronouncement of SANDURA JP (as
he then was) in Chibanda (supra) at 218 A-B in relation to a
tacit relocation that a lessor should not be taken to have agreed to the
importation of a term that is too onerous unless he has done so in express
terms. In casu, the respondent relocated the lease expressly and did
not expressly import the domicilum citandi et executandi which was
given in the expired lease into the relocation.
I therefore come to the inescapable conclusion that the
respondent was not required to deliver the notice at an address other than the
premises re-let. In that regard, the applicant was aware of the terms of the
relocation and in particular of the fact that it had until 31 December 2012 to
vacate.
The conduct of the applicant is also consistent with a
party which was aware of the day of reckoning. Although the lease had expired
on 30 September 2012, it did not do anything visible to try and renew the
lease. Although the applicant was aware of the notice given to all car sales
operators by the respondent, which notice was published in the newspaper in
December 2012, it did nothing to challenge that notice until it was served with
a notice in terms of the regulations which the respondent revoked. I say the
applicant was aware of the published notice because it specifically says so in
paragraph 6 of its founding affidavit which reads:
“In or about October and November 2012 the respondent
started demolitions of car sale garages which it deemed illegal. It is common
knowledge that the respondent published a notice in the newspaper in December
2012 in which it publicized the names of car sale garages which were legally in
operation …”
What the applicant omits is to mention that the notice in
question, as published in the newspaper had the following preamble:
“Pursuant to the on-going crackdown on illegal car sales,
illegal billboards, vending and other illegal activities, below is a list of
registered car sales/parking garages operating in the City.
Their operations were approved by the City Council and
validated via the issuance of leases. Operators are advised to cease
operations when their leases expire. Operators not on this list must cease
immediately.
Failure to comply with this notice will result in
UNRELANTING ENFORCEMENT ACTION being taken against defaulters.”
Rocket science is not required to deduce that the
applicant, which is one of those operators listed on the notice, was aware that
the lease had not only terminated but that even the express relocation up to 31
December 2012 was not going to be considered for renewal at all. Accordingly
the applicant was left with no right whatsoever to protect at law.
That brings me to the issue of the applicant's signal
failure in this application to disclose material facts which it was aware of. I
have already found that the letter of 1 October 2012 relocating the lease
agreement for a fixed period up to the end of year 2012 was indeed served on
the applicant. It was therefore imperative for the applicant to disclose the
existence of that letter in its founding affidavit. It did not.
By his own admission the applicant did have sight of the
newspaper publication that I have cited above which means that it was aware
that the respondent had specifically directed that the applicant should cease
operations on 31 December 2012. This was a very material fact which the
applicant was obliged to disclose in its application. It again did not.
Instead, the applicant elected to attach a document omitting the preamble
damning in its effect on the applicant's case.
Indeed, true to its outlook, when the applicant was served
with a notice in terms of the regulations on 9 January 2013, which notice
advised of its imminent summary eviction, the applicant proceeded the following
day on 10 January 2013 to pay the rent for January 2013. In doing so, the
applicant was clearly not acting in good faith because it was aware of the position
of the respondent. It cannot therefore be allowed to rely on the payment of the
January 2013 rent to build a case which it does not have.
This court has repeatedly stated that the utmost good faith
must be shown by litigants making applications of this nature in placing all
material facts before the court so that the court can make an informed
decision: N & R Agencies (Pvt) Ltd &
Anor v Ndlovu & Anor HH 198/11, Shungu Engineering (Pvt)
Ltd v Songondimando & Ors HH 99/12 and Graspeak
Investments v Delta Corporation (Pvt) Ltd 2001
(2) ZLR 551 (H) 554 D.
I conclude that the applicant has not shown to my
satisfaction that it has a prima facie right which it can protect
through the medium of a temporary interdict. While the applicant is at liberty
to contest the propriety of SI 109/79 that does not translate to a prima
facie right which entitles the applicant to interim relief of an
interdict.
Accordingly the application is dismissed with costs.
T H Chitapi & Associates, applicant's legal
practitioners
Mbidzo Muchadehama & Makoni,
respondent's legal practitioners
