MAFUSIRE J: This was a
civil appeal. It was against the judgment of the magistrate's court sitting at
Masvingo on 28 September 2016. The facts, the dispute and the issues were all
very straightforward. But the pleadings, the trial, the judgment, the appeal,
the heads of argument, and even the submissions on the day of hearing, were,
with all due respect, replete with confusion on some fundamental aspects of the
claim, chief of which being the applicability or inapplicability of the Rent
Regulations, 2007, Statutory Instrument 32 of 2007 [“the rent regulations”]. This
shall soon become apparent.
The respondent's claim
[plaintiff in the court a quo] was for
the ejectment of the appellant [defendant in the court a quo], and all those claiming occupation through him, from a
certain house, one of many such properties owned by the respondent in the
township, or settlement, known as Mashava, some 40km west of the City of
Masvingo. The appellant had got into
that house, as had several other people from all walks of life, through a lease
between himself and the respondent. The houses had become redundant in the
early 2000 when the respondent, a mining concern, had gone bankrupt and had
ceased operations. It had become heavily indebted to central government. So
central government had placed it under reconstruction in terms of the
Reconstruction of State-Indebted Insolvent Companies Act, Cap 24:27 [“the Reconstruction Act”]. In line
with the provisions of that Act, one Afaras Gwarazimba [“Gwarazimba”], was
appointed administrator. All this was
common cause.
Also common cause was that
in or about 2013 the respondent's sole or major shareholder, the Zimbabwe
Mining Development Corporation, [“ZMDC”], a statutory corporation or
parastatal, poured $1,2 million into the respondent to resuscitate its
operations. In anticipation of re-opening of the mines the respondent gave
notice to all such persons as were occupying its houses to vacate for its workforce.
The appellant was one such occupant. He ignored or neglected or refused to move
out. So did several others. The respondent sued for eviction. That was the
matter in the court a quo.
The first confusion is
traced right back to the respondent's summons. Either the rent regulations did,
or did not apply, in the sense that either the respondent was an entity exempt
from their application by reason of it being one of the entities listed in
sub-section [2] of s 2, or, in the sense that the area where the houses were
built was not one of those listed in sub-section [1].
By sub-section [2] the
rent regulations do not apply to the letting of a dwelling by:
[a] the State or a local authority;
[b] any
authority, board, commission, council or other like body, having corporate
personality and established for public purposes directly by an Act of
Parliament;
[c] an
absentee landlord, whose absence is for six months for purposes of holiday,
business, health or the like;
[d] a
landlord in respect of new dwellings constructed after the inception of the
rent regulations the rentals in respect of which would be controlled for the
next ten years by the Rent Board.
By sub-section [1] the rent regulations apply only
to the following areas:
[i] an
area where a municipality or town council has been established;
[ii] any
designated part of a rural district council;
[iii] an
area set aside as a township;
[iv] a
local government area as defined.
After describing it as
the plaintiff, and a company under reconstruction, the particulars of claim said
the respondent was the owner of various properties currently being occupied by
the appellant, and several others. It was then stated, inter alia, that the respondent “… was the local authority for the Mashava area, where these houses are
located …” It was further stated that the respondent now required the
houses for its employees as it had resumed operations and that, despite demand,
the appellant and the other persons had refused or ignored to move out.
The reference to the
respondent being “… the local authority
for … Mashava …” was plain confusion. In terms of the Housing and Buildings
Act, Cap 22:07, a local authority is
either a municipal council, a town council, or a local board, established in
terms of the Urban Councils Act, Cap
29:15, or a rural district council established in terms of the Rural
District Councils Act, Cap 29:13. The
respondent is none of these. It is just a private company with limited
liability, and registered in terms of the Companies Act, Cap 24:03, even though ZMDC, a parastatal, is a shareholder.
It seems the reference to
the respondent being a local authority was intended to place it beyond the
reach of the rent regulations.
But the confusion did not
end there. Either the rent regulations applied or did not apply. If they applied,
then the respondent could not move for ejectment from the court without having
demonstrated compliance with s 30. If they did not apply, then the basis of its
claim would be markedly different. The applicable law would be the common-law,
not the rent regulations. One major difference would be this. Instead of justifying
eviction on the need to house its employees, a requirement under the rent
regulations, the respondent would necessarily need to plead the determination
of the lease, either by effluxion of time, breach, mutual agreement, notice, vis majeure, or on some other basis.
Whatever the case, the
determination of the lease would be the justification for the eviction if the
common-law applied. This is so because one of the incidents of ownership of a
thing is the owner's entitlement to the exclusive possession of the res. The law presumes possession of the
thing as being an inherent nature of ownership. Flowing from this, no other
person may withhold possession from the owner unless they are vested with some
right enforceable against the owner: see Silberberg
and Schoeman's The Law of Property,
5th ed., at p 243. Otherwise an owner deprived of possession against
his will can vindicate his property wherever found, and from whomsoever holding
it: see Chetty v Naidoo.
A lease, for its
duration, suspends the owner's entitlement to the exclusive possession of the
thing. It is a contract. It regulates the rights and duties of the landlord and
the tenant. Its essential terms are that in return for rentals, the landlord
undertakes that the tenant shall have the use and enjoyment of the property.
The tenant is obliged to restore the property to the landlord on termination.
If the tenant fails to do so, then the landlord, among the other remedies
available to him, may move for the tenant's eviction: Silberberg & Schoeman's, supra,
at p 427 – 429; see also The Trustees in
Mashonaland of the Church of the Province of Central Africa v Timms.
In this country, in
relation to dwellings, it is the rent regulations, made under the Housing and
Building Act, that limit the landlord's common-law rights to evict a tenant
whose lease has terminated: Timms'
case, supra, at p 314A – C.
In
casu,
the respondent's summons said absolutely nothing about the lease. So, was its
mast nailed to the rent regulations or the common-law?
To that confusion the applicant
pleaded, after requesting further particulars, which were refused. But he added
more confusion. He took a declinatory plea, raising two points in limine. The first was that the
respondent had no locus standi to
bring the proceedings, given that it was a company under reconstruction; that
as such, it was under the direction and control of the administrator who
necessarily had to authorise the commencement of the proceedings in accordance
with s 6[b], as read with s 18[1][e], of the Reconstruction Act, and that
no such authority had been attached.
The applicant's second
point in limine was that the
respondent had not complied with s 30[2][e]
of the rent regulations in that it had not attached a certificate from the
appropriate rent board stating that the requirement for the applicant to vacate
the house was fair and reasonable and that the date to move out as specified in
the certificate had passed.
Section 30[2][e] of the rent regulations prohibits the
court from issuing an eviction order on the basis that the lease has expired,
either by effluxion of time, or in consequence of a notice having been duly
given, so long as the lessee continues to pay rent within seven days of due
date and performs the other conditions of the lease, unless:
“[e] the appropriate [rent]
board has issued a certificate to the effect that the requirement that the
lessee vacate the dwelling is fair and
reasonable on some other ground stated therein, and the date specified in
the certificate for the vacation of the dwelling has passed.” [purposefully
highlighted by myself]
The appellant's special
plea added more confusion in that the first point in limine was thoroughly misconceived. Nowhere in the
Reconstruction Act, certainly not the sections cited, is there a requirement
that every time the respondent commences proceedings, Gwarazimba's
authorization thereto, and the terms imposed by him, if any, have to be
attached.
Section 6 of the
Reconstruction Act deals with the effect of a reconstruction order. In
Paragraph [b] the effect is that no
action or proceeding shall be proceeded with or commenced against the company
except by leave of the administrator who may impose terms.
Section 18[1][e] empowers the administrator to bring
or defend any action or other legal proceedings in the name, and on behalf of the
company.
At any rate, Order 4 r 1
of the Magistrate's Court [Civil] Rules authorises a party to institute or
defend legal proceedings, inter alia,
either in person, or by a legal practitioner. The respondent's action was
instituted by a legal practitioner. Rule 2 then states, unambiguously, that it
shall not be necessary for any person to file a power of attorney to act.
Admittedly, the Rule permits the authority of any person acting for a party to
be challenged. If that happens, such authority has to be produced within the prescribed
times. However, in casu, the
appellant's challenge was not on the authority of the legal practitioner to act
for the respondent. It was on the legal capacity, or locus standi, of the appellant to sue without displaying Gwarazimba's
authorisation.
The appellant's second
point in limine was ill-conceived
because it undoubtedly assumed the respondent was proceeding in terms of the
rent regulations.
The appellant went on to plead
over to the merits. He denied breaching the lease agreement. He challenged the
respondent's claim that it required the houses for its employees when it was
even failing to pay their arrear salaries. He denied that the respondent was a
local authority as envisaged by the Housing and Building Act. Finally, he
alleged that the real reason why the respondent wanted him and others out of
the houses was so that it could re-let them to third parties at higher rentals.
The confusion in the
appellant's plea on the merits was that the breach of lease which he was denying
was not part of the respondent's claim. It had not been pleaded. Furthermore,
for him to challenge the respondent's claim that it required the houses for its
own employees; to say that the respondent was not a local authority, albeit
correct, and to assert that the only reason why it required its houses back was
so that it could re-let them at higher rentals, only betrayed the predominant
confusion permeating this whole matter, namely whether or not the rent
regulations applied. In other words, if the rent regulations did not apply,
then the respondent did not need to explain why it required its houses back, or
what it might do with them afterwards. As indicated already, under the
common-law, an owner only needs to show the expiry or lapse of the lease as the
contract that suspended the owner's entitlement to its exclusive right of
possession.
The parties listed their
issues for trial separately. It seems there was no consolidation afterwards.
The respondent's issues were:
1. whether
it required its houses for its employees; and
2. whether
it had been recapitalised to commence operations.
The respondent's issues
were characteristic of the prevailing confusion. Issue 1 evidently echoed the
rent regulations. Issue 2 did not stem from the pleadings. And it also echoed
the rent regulations.
The appellant's issues
were:
3 whether
the respondent had complied with the provisions of s 6[b] and s 18[1] [e] of the
Reconstruction Act;
4 whether
the respondent had complied with s 30 of the rent regulations;
5 whether
the respondent required the houses for its own use.
The same confusion
abounded.
But be that as it may,
the special plea was apparently set down for argument well before the trial on
the merits. Whether or not the rent regulations apply in any given case is a
factual issue, not a legal point. The appellant's special plea was dismissed a
whole month before the trial. The magistrate who dismissed it was not the same one
that conducted the trial on the merits.
The reasons for the
dismissal of the special plea were not on record. But such dismissal should
have buried the points in limine and
put paid to any further confusion because the appellant did not appeal. Strangely,
that did not happen. The confusion persisted, right up to the day of the appeal
hearing.
At the trial, the respondent's main witness, Wilson Museva [“Museva”],
was its properties manager. His testimony was basically that the respondent
wanted its houses back for its artisanal employees who either had no
accommodation, or that which they had was not commensurate with their grades.
He was clear that the basis of the respondent's claim was not the non-payment
of the rentals. But he was led to say that the appellant had not paid rent for a
considerable period and was $11 037 in arrears. Museva also said that the appellant's
lease with the respondent had long since expired some several years before. In
cross-examination, Museva refused to be drawn into answering questions
unconnected to the basic reason why the respondent wanted its houses back.
The one major confusion
at the trial was the respondent's attempt to lead evidence on the appellant's
non-payment of rentals. It had actually called a second witness from the
finance department apparently to prove this. The appellant objected. The court upheld
the objection. It ruled that the aspect of arrear rentals was not part of the
respondent's claim.
Cross-examination and the
defence case straddled on a lot of extraneous issues. These mainly related to
how the respondent should be non-suited for failure to call Gwarazimba to
testify or to produce his authority to sue; how the respondent had failed to show
a good and sufficient reason for wanting its houses back; how, demonstrably, it
wanted the houses back to re-let them out to Great Zimbabwe University at
higher rentals; how the respondent had plenteous accommodation for any of its employees
who might need it; how the respondent was in no capacity to re-open and
commence operations any time soon, and so on.
The confusion at the
trial and the persistent reference to the requirements of the rent regulations is
most surprising because Mr Chuma, for
the respondent, in his response to the appellant's application for absolution
from the instance, seemed to have eventually grasped the nub of the matter. He had
written as follows:
“Mashava area where these properties
are situated is neither a municipality, nor town council, nor a designated area
in terms of the Rural District Councils Act, or a township in terms of the
Communal Lands Act nor is it a local government area. As a result and because
it is not governed by the said Act the provisions of Section 22[2] which
provides that before a lessor can eject a tenant, he must show “good and
sufficient cause” does not apply. Ipso
facto, the issue of the Plaintiff
requiring the houses for its employees, is not even a legal requirement.
That Plaintiff wants its house back, upon its say so, is enough ground.” [my emphasis]
The one essential thing
Mr Chuma overlooked in his espousal
of the law though was the determination of the lease agreement. But despite
such succinct exposition of the real issues, incredibly the case remained off
track. Unbelievably, the confusion persisted in both the closing submissions by
counsel, and, with all due respect, in the court's judgment as well.
In its judgment, the
court a quo first identified the
issues as being:
i] whether the plaintiff required the
houses to house its employees;
ii] whether the plaintiff had been
recapitalised to commence operations;
iii] whether the plaintiff required the house
for its own use and [if so, whether] the defendant should be evicted.
Plainly, the court's
re-statement of the issues reflected the on-going confusion. However, we shall
not belabour the point. Suffice it to say that those were not the real issues.
The one and only issue was whether the respondent was entitled to evict the
respondent. On this, the respondent had to show that the lease had terminated.
On the question of the rent regulations, it was the appellant that had claimed that
they applied. So, the onus had been on him to prove that they applied. He had failed.
His special plea had been dismissed a month before the trial.
The judgment of the court
a quo did touch on a pertinent point.
It said in part:
“It
is important to note that there is no valid lease between the parties, if there
had been one then the defendant's right of occupation would have been derived
from a Lease Agreement between him and the plaintiff. In addition, it is the
plaintiff's evidence that defendant is in rental arrears of $11 037.00 according
to Mr Museva the Properties Manager of the plaintiff. Although this was
disputed, the defendants did not produce any receipt to prove that despite the
fact that the Lease has expired he has continued to pay the rent due within 7
days of the due date contrary to the plaintiff's claims. As such I am of the view that the defendants not being a holder
[sic] of a valid Lease Agreement or up to date payer of rentals he
disentitled himself to the protection normally entitled to tenants.” [my emphasis]
Aside the obvious mix up with
the issue of outstanding rentals and the tacit reference to a statutory
tenancy, the crux of the matter was whether or not the defendant still retained
the right to remain in occupation. His right to remain in occupation could only
derive from a valid lease. If he no longer had one then he no longer had the
right. That was what the court had to decide.
Regrettably, the actual
judgment of the court a quo went back
to the rent regulations. It ruled that the respondent's notice to the appellant
to vacate the house had been in accordance with s 30[2][c] of the rent regulations; that there was no evidence that the
respondent wished to lease the house to a third party, and that the respondent
had proved that it genuinely required the premises for its own use. This was a misdirection.
In his appeal to this
court, the appellant raised six grounds. Grounds 1 to 3 were couched as
follows:
1 that
the magistrate erred in finding that the plaintiff could institute the
proceedings without attaching the leave from the administrator stating the
conditions imposed by him;
2 that
the magistrate erred in finding that Museva could represent the plaintiff
without the leave from the administrator;
3 that
the magistrate erred in finding that the rent regulations, particularly s
30[2][e] thereof, did not apply.
On the day of hearing,
the appellant abandoned all the above. This followed an objection by the
respondent. The objection was on the basis that these grounds had been the
subject of the special plea which had been disposed of, well before the trial,
and about which the appellant had not appealed. The appellant was out of time
to raise them as grounds of appeal. He had not applied for condonation.
The appellant's
withdrawal of these grounds, though very late in the day, was proper. It had
been manifestly inappropriate for him to have included them in the first place.
The only explanation for this could be the confusion dogging the case.
The appellant's remaining
grounds of appeal 4 to 6 were these:
4 that the magistrate erred in finding
that there was no valid lease between the parties despite the respondent having
acknowledged the existence of one;
5 that the magistrate erred in dealing
with the issue of rentals since it had never been in issue for determination and
had never been respondent's cause of action;
6 that the magistrate erred in finding
that the respondent needed the house for its employees when it had admitted
letting out houses to Great Zimbabwe, court officials and third parties even after
the commencement of the proceedings.
Only ground 4 was
relevant.
What puzzled us though was
that, having successfully torn into the appellant's incompetent grounds of appeal
1 to 3, thereby forcing him to withdraw them, and after disposing of grounds 4
and 5 as being irrelevant, since the aspect of rentals had not been an issue
[which was not quite correct, because ground 4 was relevant], respondent's
counsel, amazingly, failed to grasp that ground no. 6, the one he said was the
only legitimate ground remaining for determination, was still the same issue of
the rent regulations in another form.
Whether or not the
respondent wanted its houses back for its own employees, or whether or not it
wanted to re-let them to third parties at higher rentals, are aspects relevant
to the “good and sufficient grounds”
principle of the Commercial Premises [Rent] Regulations, SI 676/1983, or the “fair and reasonable” requirement of the
rent regulations.
If the court a quo, before another magistrate, and
before the trial, had ruled out the inapplicability of the rent regulations; if
the appellant did not appeal that decision, and, to cap it all, if the
appellant withdrew grounds 1 to 3 which dealt with inter alia that aspect of the rent regulations, ground 6 had no
business remaining on record.
The respondent's major
argument, both in the heads of argument and in oral submissions, was
misconceived. At one point during the hearing, we expressly drew attention to
the dichotomy between the rent regulations and the common-law requirements for
eviction, and enquired whether in the light of the appellant's withdrawal of
grounds 1 to 3, there still remained any basis for the parties to continue arguing
on the “good and sufficient grounds”
or the “fair and reasonable requirements”,
the principles imported by the commercial and domestic rent regulations
respectively. Mr Mazonde, for the
appellant, insisted that there was. He referred to cases such as Moffat Outfitters [Pvt] Ltd v Hoosein &
Ors; Checkers Motors [Pvt] Ltd v Karoi Farmtech [Pvt] Ltd; Boka Enterprises [Pvt] Ltd v Joowalay & Anor; Film & Video Trust v Mahovo Enterprises [Pvt] Ltd; Kingstons Ltd v L D Ineson [Pvt] Ltd and Tobacco Sales Floor Ltd v Swift Debt Collectors [Pvt] Ltd.
With all due respect,
that was unnecessary clutter. All these cases dealt with evictions under the
commercial rent regulations, not the common law. In casu, the applicability of the rent regulations not being in
issue, those cases were irrelevant. In Timms
above, a case cited in Boka Enterprises and Tobacco Sales Floor, BEADLE CJ, at p 314A –
C, had this to say:
“When the respondent entered into
this lease she knew perfectly well the lease expired in May, 1973. She is,
therefore, trying to resile from her common law and moral obligations by relying on the Rent Regulations. Were there no Rent Regulations under the
common law, she would have no right to remain in occupation. It is
quite true that the Rent Regulations do allow a statutory tenant to evade his
common law and his moral obligations by remaining in occupation, but it does
seem to me that the protection given to tenants to evade common law and moral obligations should not
be extended further than is necessary to comply with the spirit of the
Regulations.”
[my emphasis]
The only point that
should have concerned the parties from the beginning to the end should have
been whether or not the respondent still had a valid lease agreement with the
appellant; whether this had been pleaded; and whether the evidence in the court
a quo had sufficiently canvassed it.
As demonstrated above, a
valid lease excludes an owner's entitlement to exclusive possession of the res. The court a quo made a specific finding that the appellant's lease had been
determined. We have examined the record and assessed the evidence. The court
was correct. Museva said in his evidence-in-chief that when the appellant
occupied the house as a tenant, it had been explained to him that, among other
things, at some point the respondent would reclaim the house. He said the
appellant had been duly served with a notice to vacate. In fact, the aspect of
the notice was common cause.
In cross-examination,
Museva maintained that the appellant's lease had expired in or about 2008 and that
he had never had it renewed. Of course, the appellant disputed this. Both
Museva and the appellant were quizzed extensively on it in cross-examination. The
appellant said on inception, he had been given a lease which would expire
within a year. On whether or not he had had the lease renewed, the appellant prevaricated.
He claimed to have had the lease, and those of several others, renewed by some
member of parliament. But according to his testimony, that alleged renewal had only
been in the year prior to the proceedings. That would be 2013. Yet he had
started staying in the house in 2006.
In our view the evidence
established, on a balance of probabilities that, firstly, the appellant's lease
had been determined by effluxion of time. It had been for one year from 2006.
It had not been renewed. Therefore, it had lapsed. There was no proof that
another lease had been incepted in the year preceding the trial as the appellant
claimed, or at all. The onus had been on him to prove this. He failed to
discharge it.
Secondly, and more
importantly, it was apparent that the appellant occupied the house at the
respondent's pleasure. He took occupation on the understanding that whenever
the respondent wanted its house back, he would have to vacate. The respondent
was not into real estate. The houses had been built for its own employees. It
was only because of the downturn in its business that the houses had become
white elephants. The respondent had been deserted by a large number of its
employees. In order to cut down on its losses, a decision had been taken to
lease the houses to third parties. The appellant had been one such.
Of course, the appellant would
be entitled to a reasonable notice. This had been duly given. There was no
contest on whether or not the notice had been given, or on whether or not the
period thereof had been reasonable. Therefore, the lease between the appellant
and the respondent had been determined. It being the only basis for suspending
the respondent's entitlement to the exclusive ownership of the house, the
appellant had no basis for resisting eviction.
The appellant was not a
statutory tenant. The issue of statutory tenancy does not arise. There is no
such thing as statutory tenant under the common-law. A statutory tenant, as the
name says, is a creation of statute. He or she or it is created by the rent
regulations, both domestic and commercial: see Timms, supra, at p 314.
Having been satisfied
that the evidence in the court a quo
sufficiently canvassed the issue of the determination of the lease agreement,
what remains is to consider whether the pleadings did so too.
The basic and fundamental
principles of pleadings is threefold:
1 to
ensure that the parties know the point or points of issue between them so that
they know what case they have to meet;
2 to
assist the court by defining the limits of the action;
3 to
place the issues raised in an action on record so that a judgment on such
action may bar further litigation on the same issues again;
see
Hackleton Investments [Private] Limited v
Time Bank of Zimbabwe Ltd and Beck's Theory and Principles
of Pleading in Civil Actions, 5th ed., at p 32.
Pleadings
must be brief and concise. They must be couched in summary form. They should
state facts, and relevant facts only. Evidence and/or law are/is not pleaded: Beck, supra.
A
summons should disclose a cause of action. Cause of action means the
combination of facts that are material for the plaintiff to prove in order to
succeed: see Dube v Banana. The facts must enable
the court to reach a conclusion regarding the point in issue: see Controller of Customs v Guiffre and Patel v Controller of Customs & Excise.
In casu, the respondent's summons, as
stated earlier, averred that it was the owner of the house occupied by the
appellant; that it now wanted its house back and that the appellant had ignored
its notice to vacate.
Admittedly,
such thrift in the formulation of the cause of action can be perilous. However,
this case was proceeding in the magistrate's court, not the High Court, where,
comparatively, formalism is less stringent. But at any rate, the cause of
action was sufficiently disclosed. Among other things, although the lease and
its determination were not expressly pleaded, in our view, the averment that
the respondent had demanded that the applicant should vacate the house, was
sufficient to inform the court that whatever right the appellant had previously
obtained to occupy the respondent's house, it had since been terminated. So
this averment was speaking to the determination of the lease agreement. We are
fortified in this finding by how the appellant went on to plead. Undoubtedly, he
quite understood that the respondent was pleading the determination of the
lease. In his plea on the merits he stated:
“1 The
Defendant avers that he has not breached the conditions of the lease agreement.”
Of
course, the respondent's cause of action was not breach, but termination on
notice.
When the matter came to
trial, the evidence covered both termination on notice and by effluxion of
time. Therefore, we are satisfied that the respondent proved its case. The
appellant should not seek to evade his common law and moral obligations by remaining in occupation.
Regarding
costs, we agonised over whether to follow the general rule that they should
follow the event, or whether to deprive the respondent given that, in our view,
it had been both the major architect and genesis of the confusion that
permeated this case. However, having regard to the appellant's common law and moral obligations as a tenant to
give up rented premises upon the expiry of the lease, and his refusal to do so,
we felt it unnecessary to penalise the applicant for having taken steps to
evict him.
In the circumstances, the
appeal is hereby dismissed with costs.
5 April 2017
Hon
Mawadze J concurred: ____________________
Ndlovu &
Hwacha,
legal practitioners for the appellants
Chuma, Gurajena & Partners, legal practitioners
for the respondent
