KAMOCHA J: The applicant in this matter seeks an order from this court in the
following terms:
“It is hereby ordered that:-
(1)
First respondent and all persons claiming through it shall vacate premises
presently known as Portuguese Club, corner Lady Stanley Avenue and Jacaranda
Road, Bulawayo within 7 days of the making of this order failing which the
Deputy Sheriff for Bulawayo be and is hereby authorized and directed to evict
them;
(2)
The first respondent shall pay the costs of this application but only if it
opposes it.”
The property at the centre of this dispute
is known as stand 11752 Kenilworth, Bulawayo. The first respondent
hereinafter referred to as Portuguese Club entered into a lease agreement with
the City of Bulawayo in respect of the said property for a period of 25
years. The Portuguese Club has been the lease holder for a period of more
than 13 years. According to the Portuguese Club that lease still subsists
and is still in force.
While the lease between the Portuguese
Club and the City of Bulawayo was still valid and in force the latter entered
into yet another lease agreement with the applicant contending that the second
lease was entered into with the blessing of the Portuguese Club which, as
expected, hotly disputed that and contended that there were only some
negotiations which did not come to fruition as the Portuguese Club and Football
Club Windermere failed to agree on the consideration or monetary compensation
in favour of the Portuguese Club.
The issues for the determination of this
court were these:
(a)
Was the lease agreement between the Portuguese Club and the City of Bulawayo
ever terminated? and
(b)
Was the cession agreement between Football Club Windermere and the Portuguese
Club perfected?
The parties were in agreement that the
above issues can be answered by going through the various letters filed of
record in this matter. I propose to reproduce some of them in
extenso hereunder.
On 30 May 2007 one A P Da Silva a representative of the Portuguese Club
addressed a letter to Football Club Windermere in the following terms:-
“Dear Sir,
Re: Purchase of Portuguese Club
I refer to your
letter dated 1st March 2007 and we have not had any further
communication from you as to your meeting with Mr Magagula, Director of
Housing, City of Bulawayo on the outcome of your proposal. Since March
2007 there has been a rapid decline in the Zimbabwe Dollar i.e. inflation has
risen sharply since our discussion. We need to have another meeting so
that by negotiations we can adjust our purchase price to meet the current
inflation rates.
Please advise what your intentions are.
We await your early reply.
Yours faithfully
A.P. Da Silva”
(My emphasis)
Football Club Windermere responded to the above letter on 21 June 2007 in the
following terms and the letter was marked for the attention of Mr A.P. Da
Silva.
“Re: Portuguese Club
I refer to your
letter dated 30th May 2007 which I received yesterday the 20th
June 2007.
As per our
conversation of the 20th of May 2007, I confirm that all the
necessary City Council requirements have been met. All what remains is
for us to agree on the purchase price. I also confirm that the
initial agreed figure of $200 million has been eroded by inflation and
therefore I propose a new figure of $1.4 billion subject to discussion.
We will always
work together with the Portuguese community and that your social practice and
protocol at the club will not be interfered with.
I am looking forward to hearing from you at your earliest convenience.
Yours sincerely
Mr O. Sibanda
Managing Director”
(Emphasis added)
The first of the two letters supra established that the parties were engaged in
negotiations concerning the purchase price of the Portuguese Club. A
figure had been suggested which was eroded by inflation before the parties
could reach a final agreement on it. Consequently it was imperative that
parties meet again to negotiate and agree on a new purchase price to cater for
the current inflation rates.
In the second letter Mr O. Sibanda the Managing Director of Football Club
Windermere appreciated that the parties needed to agree on the purchase
price. He was also alive to the fact that the figure of $200 million
discussed previously had been eroded by inflation and even proposed a figure of
$1.4 billion for discussion at the parties' next meeting.
It is therefore quite safe to state that no agreement of sale of the Portuguese
Club had been reached between the parties that far. There would be no
basis to suggest that the cession agreement between the parties was perfected
when discussions relating to the purchase price had not yet been
finalized. Mr O. Sibanda the director of the applicant deposed to the
applicant's founding affidavit and had this to say in paragraph 8 of the
affidavit:-
“From annexures
“B” and “C” it will be evident that even on the question of compensation we
went as far to agree (sic) on a figure and also subsequently agree that such
figure had been eroded by inflation and it should be reviewed. Unfortunately,
these negotiations over the level of compensation have never been
concluded. Applicant however, places it on record that it is still
committed to paying first respondent fair compensation in respect of the
improvements and in such amount as the parties may agree or as may be fixed for
them by a third party chosen by them or determinated by the Honourable court at
the request of either party. First respondent is now refusing to
negotiate on the issue of compensation.” (Emphasis added)
The above clearly shows that there was
simply no valid agreement between the parties. Further there is nowhere
in papers filed of record where such an agreement on the purchase price was
recorded. There is no record of it because it does not exist. In
the result this court makes a specific finding that no agreement whatsoever of
sale of the Portuguese Club was concluded between the parties.
I now turn to examine the issue of whether
the lease agreement between the Portuguese Club and the City of Bulawayo was
ever terminated. The applicant and the City of Bulawayo contend that the
lease was terminated. They averred that Portuguese Club through Ben Baron
and Partners its erstwhile legal practitioners actually requested the City of
Bulawayo to terminate the lease between them and the lease was terminated
accordingly.
The Portuguese Club, on the other hand
contended that it still had a valid lease with the City of Bulawayo and
vehemently denied that it was terminated. It went on to deny that there
was a letter from Ben Baron and Partners to Council requesting it to cede its
right, title and interests to the applicant, and averred that all there was
were negotiations between it and the applicant. The applicant and City of
Bulawayo were requested to produce the letter allegedly written by Ben Baron
and Partners on no less than four occasions but nothing came out of those
requests. Council failed to produce the document which authorized it to
terminate its lease agreement with the Portuguese Club. It is difficult
to believe that the erstwhile legal practitioners of the Portuguese Club would
verbally instruct Council to cede and transfer the right, title and interest of
the Portuguese Club to Football Club Windermere. Request of that nature
are not done verbally.
It is doubtful that a written request was
ever made to council. On 12 July, 2007 Council addressed a letter to the
Portuguese Club wherein the Director of Housing and Community Services had this
to say:-
“I am pleased
to advise that Council (06/06/2007) resolved that your club be granted
permission to cede and transfer its rights, title and interest to Football Club
Windermere.
Your attention
is drawn to the fact that the said permission is specific to Football Club
Windermere and as such cannot be extended to other parties without prior
consent by the Municipality.
Yours faithfully
Director of Housing and Community
Services”
The above letter does not in any way refer
to the letter of request from the Portuguese Club. If there had been such
a letter of request the Director of Housing and Community Services would for
instance have said “I refer to your letter of request for permission to cede
and transfer your right, title and interest dated such and such date or simply
your letter of such and such date refers.”
Pursuant to its resolution of 6 June 2007
Council purported to enter into another 25 year lease agreement with Football
Club Windermere in respect of the same property stand 11752 Kenilworth on 10
September 2007. On 18 September 2007 Council wrote to the Portuguese Club
advising it that its lease would officially terminate on 30 September 2007 and
that of Football Club Windermere would commence on 1 October 2007. City
of Bulawayo claimed that it terminated its lease with the Portuguese Club on
its instructions without substantiating the claim by producing a document
wherein such instructions are embodied.
The Portuguese Club persisted from the
onset that it was unaware of such instructions to Council. It asserted
that the termination of the lease by Council was not by mutual consent.
Council unilaterally terminated the lease as there is no evidence on the papers
filed of record to suggest otherwise.
In the result this court finds that the
lease agreement between Council and the Portuguese Club was never validly
terminated and that the purported unilaterally termination of the lease was of
no legal force or effect.
Similarly, the purported lease agreement
between Council and Football Club Windermere suffers the same fate. It
has no legal force or effect.
In the result, I would dismiss this
application with costs.
Calderwood, Bryce Hendrie &
Partners, applicant's legal practitioners
D.W.
Mhiribidi & Company, 1st
respondent's legal practitioners
