Procedural Law-viz conflict of fact re onus of proof.
Procedural Law-viz proof of service.
Law of Contract-viz conflict of fact re onus of proof.
Law of Contract-viz proof of service.
Law of Property-viz lease re notice to vacate template.
Procedural Law-viz cause of action re proof of service.
Procedural Law-viz summary judgment re lease agreement.
Procedural Law-viz summary judgment.
Procedural Law-viz summary judgment re eviction iro lease agreement.
Procedural Law-viz summary judgment re eviction iro agreement of lease.
Law of Property-viz eviction re lease agreement iro summary judgment.
Law of Property-viz eviction re agreement of lease iro summary judgment.
Agency Law-viz estate agents.
Law of Property-viz lease agreement re notice of termination.
Law of Property-viz agreement of lease re notice of cancellation.
Procedural Law-viz dispute of fact re summary judgment.
Procedural Law-viz summary judgment re disputes of fact.
Procedural Law-viz rules of evidence re onus.
Procedural Law-viz summary judgment re dispute of facts iro onus of proof.
Procedural Law-viz rules of evidence re documentary evidence.
Procedural Law-viz summary judgment re documentary evidence.
Law of Property-viz lease agreement re notice of termination iro the Commercial Rent Regulations.
Law of Property-viz notice of cancellation re Commercial Rent Regulations iro statutory notice period.
Procedural Law-viz summary judgment re conflict of fact iro material dispute of facts.
Law of Contract-viz termination re notice of cancellation iro proof of service of notice.
Law of Contract-viz cancellation re notice of termination iro service of notice on a proxy.
Procedural Law-viz summary judgment re triable factual issue.
This
is an application for summary judgment.
The
bulk of the facts in this case are not in dispute. It is common cause that on
27 June 2005 the parties concluded an Agreement of Lease wherein the applicant
company let its property, known as Shop No.3 at Fingaz House measuring 84,75
square metres in extent, to the respondent company.
The
applicant's claim is for the eviction of the respondent and all those claiming
occupation through it from the premises.
The
respondent admits refusing to vacate the premises but denies that it received
the three months notice as alleged by the applicant.
In
a bid to prove its case, the applicant has..., filed a copy of the written
notice from is letting agents. The notice reads -
“Dear
Sir
Re: NOTICE TO TERMINATE LEASE – SHOP3 FINGAZ HOUSE,
HARARE
We
write to advise that your landlord intends to use for owner occupation
purposes/carry out refurbishment in the space that you are currently leasing.
In
accordance with the Commercial Rent Regulations you are hereby given three
months notice effective 1 November 2007 to 31 January 2008 to vacate the leased
premises, and please ensure that the keys are handed over to our offices by no
later than 12 noon on 31 January 2008 or earlier.
Yours
faithfully
Signed
F.Makoni
– Commercial Management
For
and on behalf of KNIGHT FRANK ZIMBABWE
I.........,
(blank) representing......., (blank) confirm receipt of the original copy of
this letter.
SIGNED........,
(blank) Date......., (blank)
cc
Landlord”
It
is pertinent to note that the portion where the respondent was supposed to sign
acknowledging receipt of the written notice is not signed. We therefore have,
on the papers, proof that the notice was written but there is no proof that it
was served on the applicant or its proxy.
This,
undoubtedly, raises a triable factual issue.
That being the case, the application for summary
judgment cannot succeed. It is, accordingly, ordered that the application be
and is hereby dismissed with costs.
By denying receipt of the
alleged notice the respondent is raising a material dispute of fact thereby
casting the onus of proof on the applicant.
The
applicant alleges that on 26 October 2007 it instructed its letting agent,
Knight Frank Zimbabwe, to give the respondent three months notice to vacate the
premises on the grounds that it required the premises for its own use. As a
result, Knight Frank Zimbabwe gave the respondent the required three months notice
extending from 1 November 2007 to 31 January 2008.
The applicant's complaint is that despite the
expiration of the notice period the respondent has steadfastly refused to vacate
the premises in terms of the notice to vacate.
