NDOU
J: The plaintiff seeks the termination of a lease agreement between the
parties and eviction of the defendant from the premises subject matter of the
proceedings. The plaintiff further claims holdover damages and costs of
suit on a higher scale. The salient facts of the matter are the
following. The plaintiff has leased the property commonly referred to as
number 4 Derby House (“the premises”) since 1976 to the defendant. The
defendant is operating a hair salon known as Modern Hair Salon. On 20 May
2009, the plaintiff gave the defendant a notice to terminate the lease (“the
notice”) formulated as follows:
“Re: Notification to terminate lease
We hereby give
three (3) months notice to terminate lease as from the 1st June 2009
to 30 August 2009 when you will hand over the shop keys to Fort Group head
office. The reason for termination of the lease is that the owner now
intends to use the shop himself. [sic]
Yours faithfully
[Signed]
FORT ENTERPRISES (PVT) LTD”(Emphasis
added)
It is beyond dispute that the original lease between the parties expired in
2003 and was not renewed. The defendant was therefore a statutory tenant
in terms of the Commercial Premises Rent Regulations, Statutory Instrument 676
of 1983 (“the Regulations”). Before considering the evidence adduced by
the parties I propose to deal with the preliminary legal point raised in the
defendant's heads of argument. The defendant seeks to rely on the
provisions of clause 4 (b) of the original lease. She cannot do so as a
statutory tenant. As alluded to above, the original lease expired in 2003
and was not renewed. The defendant averred in paragraph 2 of the heads of
argument that she is a statutory tenant. In the circumstances, the
notice should be in terms of section 22(2) of the Regulations. Section
22(2) provides.
“No order for
the recovery of possession of commercial premises or for the ejectment of a
lessee therefrom which is based on the lease having expired, either by the
effluxion of time, or in consequence of notice duly given by the lessor, shall
be made by a court, so long as the lessee:
(a)
Continues to pay the rent due, within seven days of date; and
(b)
Performs the other conditions of the lease; unless the
court is satisfied that the lessor has good and sufficient grounds for
requiring such order than that:
(i) The lessee has declined to agree to an increase in rent; or
(ii) The lessor wished to lease the premises to another person.”
In casu,
the lessor says that it intends to use the premises to operate a
butchery. The plaintiff called one witness, one Simbarashe Nhopi in
support of its case. He is its Administration Manager. He testified
that the plaintiff used to run a butchery from a leased property along Fort
Street and 13th Avenue. The said premises have been recovered
by the land lord thus necessitating the plaintiff to seek alternative premises
to operate its butchery business. The plaintiff decided to recover its
premises from the defendant hence the notice. The decision was informed
by the fact that the premises were ideally located near Unit Village Flea
Marketing and further near a busy public transport drop off/pick up
point. The butchery would therefore be exposed to many people.
Further, the premises had an extra room which would be ideal for fitting a cold
room. He conceded that there were attempts to raise rentals during the period
2003 to 2010 and also that at some stage the plaintiff instituted proceedings
to evict the defendant for rent arrears. He, however, distanced those
issues from the current matter. He said the current matter is premised on
business considerations. He said that in 2010 the parties reached an
agreement on increased rentals which the defendant failed to honour. I am
satisfied that Mr Nhopi gave a credible explanation why the plaintiff seeks to
recover the premises. His testimony has adequately proved that the
plaintiff has good and sufficient reasons to recover its premises. In Kingstons
(Pvt) Ltd v LD Ineson (Pvt) Ltd SC-9-08 at page 6 of the
cyclostyled judgment ZIYAMBI JA stated:
“Our courts
have held that the landlord need do no more than assert his reasons in good
faith and then to bring some small measure of evidence to demonstrate the
genuineness of his assertion and it rests upon the lessee who resists ejectment
to bring forward circumstances casting doubt on the genuineness of the lessor's
claim. See Film & Video Trust v Mahova Enterprises
1993 (2) ZLR 191; see also Newman v Biggs 1945 EDL 51 and 54
and 55 … It was correctly submitted on behalf of the appellant, that the
Regulations were enacted for the protection of tenants. See Moffat
Outfitters, supra at 154C – D [Pvt Ltd v Hoosein
& Ors 1986 (2) ZLR 148 SC]. However, the protection afforded is
meant to be from unscrupulous landlords – not those who are genuine in their
desire to reclaim their property for their own use.”
Mr Nhopi's testimony shows that the
plaintiff genuinely reclaimed the premises for its own use. The defendant
dwelt a lot on the history of the relationship of the parties between 2003 and
2010. In this long period of around seven years one would expect rent
increases especially bearing in mind that the substantial part of that period
was during the hyper inflation era. The plaintiff's conduct has to be
viewed in that context. The same goes to the previous legal proceedings
instituted by the plaintiff against the defendant. These actions do not
impeach the genuineness of the plaintiff's desire to reclaim the premises for
its own use. In her own evidence the defendant states that withheld part
of the agreed rental to induce the plaintiff to effect repairs on the
premises. The legal proceedings to recover perceived rent arrears have to
be viewed in that context and have nothing to do with the current
proceedings. In the circumstances, the plaintiff made out a case for the
relief sought. I, however, hold that the plaintiff did not justify costs
on higher scale and holdover damages.
Accordingly, it is hereby ordered that:
(1)
The termination of the lease agreement between the parties is confirmed.
(2) An order is granted for the eviction of the defendant and all those claiming
through her from number 4 Derby House, Bulawayo within fourteen days of service
of this order.
(3) In the event that the defendant fails to comply with the order in paragraph 2,
above, the Deputy Sheriff, Bulawayo be and is hereby ordered and directed to
evict the defendant and all those claiming through her from the above-mentioned
premises.
(4) The defendant pays the plaintiff costs of suit on the ordinary scale.
Cheda & Partners,
plaintiff's legal practitioners
Webb,
Low & Barry, defendant's legal
practitioners
