MAVANGIRA
J:
The
application before this court is for an order of ejectment of the
respondent from the property known as 46 Van Praagh Avenue, Milton
Park, Harare. The application is based on an alleged breach by the
respondent of a lease agreement in terms of which it is a lessee of
Stand 4343 Salisbury Township of Salisbury Township Lands, also known
as 4b Van Praagh Avenue, Milton Park. The said property is owned by
the applicant.
The
respondent raised a preliminary issue on the basis of which it
contended that this application is fatally defective. It contended
that the applicant filed a similar application in the Magistrates
Court which application was opposed by the respondent. The said
application was referred to trial by the presiding magistrate. The
respondent contends that the instant proceedings are an attempt to
clandestinely disguise an appeal or review of the magistrate's
ruling.
The
respondents state that the application in the Magistrates Court was
withdrawn on 4 November 2010 before the instant application was filed
in this court on 8 November 2010 with the applicant seeking the same
relief on the basis of similar allegations. The respondent contends
that the applicant's failure to comply with the Magistrates Court's
directive is fatal to the instant application.
In
response to this preliminary issue the applicant's stance is that
the application before this court is a different application as the
one before the Magistrates Court sought not only the respondent's
ejectment but also the payment of outstanding rentals. It further
contends that the withdrawal of the application in the Magistrates
Court was properly done in terms of the rules of court and was
accepted by the respondents. The withdrawal thus has no prejudicial
effect on any application, including the instant application, or
action the applicant may bring. The applicant has in this regard
relied on the provisions of the Magistrates Court Rules. In terms of
Order 33 Rule 5(1) of the Magistrates Court Rules, (Civil Rules,
1980):
“The
withdrawal or dismissal of an action or a decree of absolution from
the instance shall not be a defence to any subsequent action.”
This
preliminary issue was not persisted with in the respondent's heads
of argument. I take it that the respondent has abandoned this issue
and properly so in my view.
The
respondent also raised the issue that the applicant's legal
practitioner who swore to the founding affidavit had no proper
authority to do so. In its opposing affidavit, the respondent
contends that this is because the legal practitioner had not been
granted power of attorney to that effect. However in heads of
argument it is contended that the legal practitioner had no authority
because the matters deposed to in the founding affidavit are not
within her personal knowledge but are based on inadmissible hearsay
evidence.
In
response the applicant states firstly, that the deponent was properly
authorized to depose to the affidavit and to bring the application on
behalf of the applicant through a power of attorney granted by the
applicant. Secondly, that the deponent was in any event authorized to
depose to the affidavit by operation of law. Reference is made in
this regard to Rule 227(4) of the High Court Rules, 1971 which
provides:
“(4)
An affidavit filed with a written application –
(a)
Shall be made by the applicant or respondent, as the case may be, or
by a person who can swear to the facts or averments set out
therein....”
Thirdly,
the applicant has placed reliance on TFS
Management Co (Pvt) Ltd v
Graspeak
Investments
(Pvt)
Ltd & Anor
2005 (1) ZLR 333 (H) where at 338 B–C GOWORA J as she then was,
stated:
“It
would be an absurdity for Mr Lloyd (legal practitioner) to be given
the mandate to sue for the claim and not to have authority to depose
to an affidavit in the name of the applicants where such affidavit
would be in relation to matters particularly within his knowledge and
necessary for purposes of the successful performance of his mandate
on behalf of the applicants. The affidavit was deposed by him in his
capacity as legal practitioner for the applicants, in circumstances
that are related to the due performance of that mandate.”
In
casu
the applicant's legal practitioner in swearing to the founding
affidavit stated inter
alia:
“The
facts deposed to hereunder are within knowledge and are both true and
correct to the best of my knowledge, information and belief.”
In
the applicant's heads of argument the submission is made that the
facts deposed to by the applicant's legal practitioner are within
the deponent's knowledge having been fully advised of same and
instructed by the applicant.
In
the circumstances, I find no reason for making a finding that the
deponent to the founding affidavit in casu
does not fall within the parameters of Rule 227(4) or that her
situation is not within the realm adverted to in the TSF
Management
case. I thus find no merit in this preliminary issue either.
On
the merits, clause 2 of the lease agreement provides inter
alia,
rent is payable monthly in advance.
It
is contended by the applicant that the respondent is in breach of
this clause of the agreement in that he has, as from 2008, been
making lump sum payments for rentals without the consent of the
applicant thereby unilaterally altering the lease agreement.
Furthermore, that the payments were also constantly made late. The
applicant contends that she is entitled to cancel the lease agreement
in terms of clause 9 of the agreement which provides:
“Should
the Lessee fail to pay the monthly rental on due date, or commit a
breach of any of the other terms and conditions of the lease, . . .
then and in such an event the Lessor shall have the premises without
prejudice to any claim it may have for arrear rent, or for damage for
breach of contract, or both.”
The
respondent opposes the application on the following bases.
Firstly,
that the applicant has not cancelled the lease agreement and so there
is no basis for her to seek the respondent's ejectment from the
leased premises. Secondly, that the applicant has frustrated the
respondent's tender of rental payments through providing incorrect
or insufficient banking details as well as changing the place and
mode of payment without informing the respondent of such changes.
Thirdly, that there are serious material disputes of fact which are
not capable of resolution on the papers and that such disputes were
known to the applicant at the time of instituting the application.
Finally, that the applicant has waived her right to cancel the lease
agreement through her acceptance of rentals tendered by the
respondent and cannot now seek to cancel the lease on the basis of
past breaches which she has forgiven.
Regarding
the first ground of opposition, on the papers before this court, on
21 December 2009 the applicant wrote to the respondent in the
following terms:
“Further
to my emails dated 17 October 2009, 1 October 2009 and 18 September
….. I have received neither response nor payment of the contractual
rentals since July 2009…. Due to your breach of contract, I am now
writing to inform you that I will be taking possession of my
property, and will occupy it on the 29th
of January 2010. Meanwhile my contractors will begin various works to
ameliorate the property and the grounds.
I
thank you in advance for your cooperation and early vacation of the
premises.”
Clearly,
therefore, as submitted by the applicant's legal practitioner, and
on the basis of the above quoted letter, the applicant elected to
cancel the agreement in December 2009.
The
position was also succinctly put in the case of Thelma
Court Flats
v
McSwigin
1954 (3) SA 457 cited in the applicant's heads of argument, where
it was held that:
“A
party's election to cancel may be inferred from his conduct eg a
lessor who issues summons for ejectment thereby elects to cancel, his
conduct being inconsistent with the continuance of the lease.”
It
appears to me therefore that in addition to the letter of 21 December
2009, the applicant's election to cancel is also evinced by the
institution of these proceedings.
The
second ground is that the applicant has frustrated the respondent's
tender of rental payments.
The
applicant denies that the respondent faced problems in remitting the
rentals because when the respondent made payment in August 2010, the
bank details had not changed. Furthermore, the respondent never
communicated to the applicant that they were facing difficulties in
making the payment.
On
the papers before this court there is no proof that the difficulties
allegedly then faced by the respondent in making the payments for
rentals were communicated to the applicant. Neither is the claim by
the applicant that payment for rentals for the period September 2009
to August 2010 was only made in August 2010 after the applicant had
instituted legal proceedings, challenged. Rather the respondent
claims that there was a communication breakdown during the period
when his legal practitioner was away on holiday.
The
claim by the respondent that it promptly made payment only when the
correct banking details were made available on 3 August 2010 does not
in my view assist the respondent's defence. This is so particularly
in the absence of proof of communication to the applicant regarding
the alleged difficulties which are alleged to have been caused by the
change of mode and place of payment made by the applicant and
accompanied by incomplete or incorrect banking details. It defies
logic for the applicant to have deliberately frustrated the timeous
payment of rentals to her prejudice and thereby depriving herself of
rentals for such a lengthy period.
The
third ground that there are serious material disputes of fact does
not appear to be borne out or supported by the papers.
It
is not in dispute that the respondent has made a lump sum payment of
arrear rentals. I have already dismissed the explanation proferred by
the respondent for such conduct. It is in my view patent that such
manner of payment was clearly in breach of clause 9 of the lease
agreement. It is not all disputes of fact that matter in the
determination of applications. It is the material disputes of fact
that matter. I am not persuaded that there are such material disputes
of fact as to have required the applicants to proceed by way of
action.
The
fourth ground is that by continuing to accept rentals from the
respondent the applicant has waived her right to cancel the lease
agreement.
In
this regard the applicant's legal practitioner has in his heads of
argument aptly cited two case authorities. The first one is Parkview
Properties v
Chimbwanda
1998 (1) ZLR 408 where the following was stated by BARTLETT J at 413:
“…the
lessor must, if there is a late or partial payment, make his election
within a reasonable time and at the latest when the next payment is
tendered…”
The
second is Supline
Investments (Pvt)
Ltd v
Forestry Co of Zimbabwe
2007 (2) ZLR 280 (H) at 285 E where MAKARAU JP as she then was, held:
“It
is my view that by continuing to accept rentals from the respondent
after the letter cancelling the lease, the applicant did not waive
its right to rely on the breach by the respondent…”
In
consequence of my findings above, the application will succeed and
costs will follow the cause. The order sought by the applicant is
therefore granted as follows:
IT
IS ORDERED THAT:
1.
The respondent and all those claiming through him be and are hereby
ordered to vacate from the property known as 46 Van Praagh Avenue,
Milton Park, Harare, within 7 days of service of this order.
2.
The respondent shall pay the applicant's costs of suit.
Atherstone
and Cook,
applicant's legal practitioners.
Danziger
& Partners,
respondent's legal practitioners.
