The
plaintiff is the owner of a business complex in the central business
district known as Bulawayo Centre where is located premises measuring
in total 844,9 square metres which it let out to the first defendant
by a written lease agreement signed on 7 and 8 March 1999 but the
lease was to subsist from 1 September 1999 for an initial period of
five years in terms of clause 1.1.
It
was to be renewed for another period of five years at the expiration
of the initial period in terms of clause 1.2. as read with clauses 3
and 4 of the lease agreement.
In
terms of clause 3(c), the tenant had the right to renew the lease at
the expiration of the initial five year period for a renewal period
of another five years provided that the tenant was not in breach of
any of the terms of the lease at the time the tenant sought to
exercise the right of renewal. Whichever way, clause 3(f) of the
lease agreement gave the lease an indefinite lifespan terminable on
its terms. It reads:
“If
the tenant fails to give notice as provided in sub-clause (e) above,
this lease will continue from the termination date of the lease
period (or the renewal period) on the same terms and conditions but
subject to three calendar months' written notice of termination by
either party and the rent shall be determined in terms of clauses 5
and 31 hereof. However, the landlord may, during the last three
months of the lease period (or the renewal period) give the tenant no
less than two calendar months' notice to terminate this lease on
the termination date of the lease period (or the renewal period).”…,.
Following
a lengthy, but turbulent, relationship spanning
over a decade, the plaintiff instituted summons action against the
defendants on 21 July 2014 for the confirmation of the cancellation
of the lease agreement entered into between the parties, the eviction
of the first defendant and “all persons claiming title or
occupation through it”, outstanding rent and operating costs, as
well as holding over damages.
The
defendants entered appearance to defend following service of summons
upon them on 28 July 2014, and in their joint plea they denied
liability to the plaintiff in any amount including value added tax.
While not challenging the arbitral award fixing fair rent or being
involved in the arbitration process giving rise to it, the defendants
averred in paragraphs 10 and 11 of the plea as follows:
“10.
Ad
Para 5
10.1
The 1st
defendant denies that it is indebted to the plaintiff in the sum of
US$506,395=84 or in any other sum and puts plaintiff to the proof
thereof.
10.2
1st
defendant avers that the plaintiff has failed to articulate how it
arrives at the said figure of US$506,395=84 in clear and simple
terms.
10.3
The plaintiff has failed to state the amount apportioned to rent and
the period for which such rent is claimed.
10.4
Plaintiff has also failed to state the amount apportioned to
operating costs and what such operating costs are and the period for
which they are claimed.
10.5
1st
defendant further avers that plaintiff's claims prior to 21 July
2014 are, in any event, prescribed or that the plaintiff is not
entitled to back date the rentals to any date prior to the
arbitrators determination.
10.6
1st
defendant further avers that the parties agreed to a rental of $600=
per month for the period commencing the date of dollarization and
that the arbitrator's determination only applies for the period
where there was no such agreement.
11.
Ad
Para 7
1st
and 2nd
defendants aver that they ceded their rights and obligations in the
lease agreement to one Gersham Gara and Multishade (Private) Limited
with the knowledge of the plaintiff and therefore denies (sic)
any liability to the plaintiff.
WHEREFORE
defendants pray that plaintiff's claim be dismissed with costs.”
The
issues for trial were agreed by the parties at a pre-trial conference
held before a judge. They are;
1.
Whether the lease agreement between the parties should be cancelled.
2.
Whether the 1st
defendant and those claiming occupation through the first defendant
should be evicted from the premises.
3.
Whether the defendants owe arrear rent and operating costs and the
amounts thereof.
4.
Whether the plaintiff is entitled to interest on any outstanding
amount and the rate thereof.
5.
Whether the plaintiff is entitled to levy value added tax on amount
due.
6.
Whether the plaintiff is entitled to hold-over damages and operating
costs from 1 August 2014 to date of eviction.
7.
Whether the defendant is liable to pay costs of suit on an attorney
and client scale.
At
the commencement of the trial, counsel for the plaintiff applied to
amend the summons
and particulars of claim by substituting the figure of $333,209=47 as
arrear rent thereby removing operating costs which are now claimed
together with hold over damages.
Only
Simon Moyo, a partner in charge of Commercial Management at Knight
Frank, the estate agent of the plaintiff, gave evidence on behalf of
the plaintiff. The import of his evidence is that the first defendant
took occupation of the premises by virtue of a lease agreement
aforesaid. He drew attention to clause 3(c) of the lease agreement
providing for the tenant's right to renew the lease on the same
terms and conditions contained in the written lease and to clause
3(f) which I have already made reference to above. He then made the
point that the lease did not terminate owing to that provision even
though the tenant did not exercise the option to renew it upon
expiration. The relationship of the parties remained governed by the
written covenant. Simon Moyo stated that a dispute over fair rent
arose between the parties after the tenant refused to accept the
rental stipulated by the landlord. The dispute had to be resolved by
referral to arbitration after referral to the Rent Board and the
Administrative Court failed to settle the impasse. It was referred to
an arbitrator, as provided for in clause 5(a) of the agreement, which
reads:
“In
the event of the parties being unable to agree the rent and/or the
annual escalation rate for each succeeding year in terms of clause 4,
the rent shall be determined by an arbitrator appointed in terms of
clause 31 hereto, who shall thereupon fix as the applicable rent the
open market rent for the leased premises on the basis provided for in
this clause.”
He
stated that the decision of the arbitrator is final and binding upon
the parties as set out in clause 31(j) which also entitled either
party to make an application to this court for enforcement of the
arbitral award.
The
appointed arbitrator was Angelbert G.M. Nyandoro of Iwe-Neni Real
Estate, who was appointed by the Chairman of the Royal Institute of
Chartered Surveyors (Zimbabwe Group) to arbitrate the dispute between
the parties regarding the rentals payable for shops 31-34 at Bulawayo
Centre measuring 844,9 square metres in extent. Those who
participated at the arbitration, according to the arbitral award
dated 28 March 2014, were representatives of both the landlord and
the tenant, the latter being represented by P
Madzivire,
a legal practitioner at Joel
Pincus Konson & Wolhuter
and
Gersham Gara. Simon Moyo referred to the arbitral award, pages 27 to
37 of exhibit 1, which fixed the fair rent at;
(i)
$1,47 per square metre per month from July 2009 to December 2009
($1,242= per month);
(ii)
$4,16 per square metre per month from January to December 2010
($3,515= per month);
(iii)
$4,72 per square metre per month from January to December 2011
($3,988= per month);
(iv)
$5,38 per square metre per month from January to December 2012
($4,546= per month);
(v)
$5,62 per square metre per month from January to December 2013
($4,783= per month); and
(vi)
$5,75 per square metre per month from January to June 2014 ($4,858=
per month).
He
stated that the arrear rentals being claimed by the plaintiff have
been computed using those fixed rates for all the time that the fair
rent remained outstanding as the bickering between the parties raged
on. He referred to the schedule of outstanding rent; page 52 of the
bundle of pleadings, showing the sum of $333,209=47 being claimed for
the duration of that period.
The
arbitral award, dated 28 March 2014, was received immediately
thereafter, and, although the defendants received their own copy, the
plaintiff took the trouble to advise them about the new development
in June 2014 and to demand payment of the arrears which were then due
within 14 days in terms of clause 6(b) of the agreement. It provides:
“6(a)
The rent shall be payable by the tenant monthly in advance, without
need for demand and without any deductions whatsoever, on the first
day of each month at the offices of Knight Frank in Bulawayo, or such
other place in Bulawayo as shall from time to time be notified to the
tenant in writing by the landlord. The payment of rent to any
unauthorized person in any unauthorized manner shall be at the entire
responsibility of the tenant and shall not relieve the tenant from
his obligation to pay rent in accordance with the provisions of this
agreement.
(b)
In the event of the rent for any review or renewal period not being
determined before specific date the tenant shall continue paying rent
at the monthly rate paid immediately prior to such review or renewal
period. Upon agreement or determination of the rent for such period
the tenant shall, within fourteen (14) days of such agreement or
determination, pay to the landlord in the specified manner any
arrears resulting from such increased rents not having been paid
since the commencement of such period.”
The
witness testified that in line with the foregoing provisions, the
tenant was notified of the arrears that had accumulated as a result
of the dispute in respect of both rent and operating costs and was
asked to pay within the requisite fourteen (14) days. The arbitrator
had determined the fair rent backdated to July 2009 when the dispute
arose but the tenant refused to sign the addendum incorporating the
new rental and did not bother to pay the rent arrears of $333,209=47
as required.
He
went on to say that the landlord computed the operating costs and
interest as appears on pages 37-38 of exhibit 1. Operating costs are
claimed from July 2014 to date in the sum of $266,665=68 to date
which figure incorporates holding over damages which are also due in
terms of clause 32(a) and (b). Interest is determined in terms of
clause 30(f) which states that the interest rate on arrear rent or
any other amount due shall be at the monthly compounded rate of 2%
per annum above the current lending rate charged by the landlord's
Bank. It is that rate which was used to calculate the interest being
claimed.
The
defendants breached clauses 6(a) and (b) by failing to pay the fixed
fair rent thereby entitling the plaintiff to approach this court in
terms of clause 30(a)(i) and (ii) which provides:
“In
the event of:
(i)
The rent being in arrears after the seventh (7th)
day of the month for which it is due, whether the same has been
legally demanded or not; or
(ii)
Any payment in terms of clauses 7, 8, 9, or 21(d) thereof being in
arrears -
the
landlord shall be entitled to cancel this lease forthwith, without
prejudice to any right of action or remedy by the landlord for the
recovery of rent, damages or other relief arising out of the
provisions of this agreement…,.”
The
other clauses referred to in that clause relate to payment of rates
and taxes, good tenancy deposit, payment of electricity, water,
refuse, sanitation and other charges as well as insurance. Default in
payment of those, which the witness said encompass what has been
referred to in this action as operating costs, entitles the landlord
to cancel the lease in terms of clause 30(a). Where the landlord
litigates in that regard, clause 30(b) entitles it to recover costs
on the scale of legal practitioner and client as well as collection
commission. The witness said it was on the strength of clause 30 that
the plaintiff instituted the summons action aforesaid. Clause 32
allows for the recovery of holding over damages. It reads:
“32(a)
Should the landlord cancel this lease and should the tenant dispute
the landlord's right to do so and remain in occupation of the
leased premises pending the determination of such dispute, the tenant
shall, nevertheless, continue to pay all rents and other amounts due
to the landlord in terms of this agreement on the due dates thereof
and the landlord shall be entitled to accept and recover such payment
without prejudice to the landlord's claims for cancellation then in
dispute, and the tenant shall otherwise continue to observe all
obligations imposed upon him by the agreement.
(b)
Should such dispute between the landlord and the tenant be determined
in favour of the landlord, such payments shall be deemed to be
amounts paid by the tenant on account of damages suffered by the
landlord by reason of the unlawful holding over by the tenant.”
Regarding
the claim for value added tax, he said that although at the time the
lease agreement was drafted there was no legislation imposing the
payment of such tax, it has since come into effect. The landlord is
required to pay value added tax on amounts due for rent at the end of
each month even where receipts have not been made from the tenant. As
a statutory requirement, the landlord is therefore enjoined to levy
that tax on the tenant who cannot lawfully refuse to pay it.
Commenting
on the defendant's assertion that they ceded their rights and
obligations under the lease to one Gersham Gara and Multishade (Pvt)
Ltd, Simon
Moyo said
that the defendants were not allowed to unilaterally cede the lease.
They did approach the landlord with that request but it was rejected
out of hand. Instead of handing back the premises if the defendants
were no longer interested, they pretended as if they were in
occupation when, as it now turns out, it was Gersham Gara
masquerading as the first defendant. The arrangement between the
defendants and Gersham Gara has nothing to do with the plaintiff
which continues to regard the first defendant as the tenant which
should be evicted together with those claiming through it.
Simon
Moyo presented his evidence very well and with dignity. He was aided
by documentary evidence including the lease agreement governing the
relationship between the parties and the schedules showing how the
amounts claimed are computed as well as the arbitral award forming
the basis of the arrears.
I
embrace his evidence.
The
presentation of that evidence and its credibility did not stop
counsel
for
the defendants making an application for absolution from the instance
at the close of the plaintiff's case. She did a critique of the
plaintiff's case starting from what may have appeared as confusion
arising from the amendment of the plaintiff's claim at the
commencement of trial, through the contents of the summons and
particulars of claim right up to the provisions of the lease
agreement which the defendants argued could no longer be relied upon
by the plaintiff because it has expired.
I
agreed with counsel for the plaintiff that this was now a new case
for the defendants as it traversed what they had pleaded.
Counsel
for the defendants submitted that because of the criticism made
against the plaintiff's case nothing was left of it upon which a
reasonable court applying its mind reasonably could find for the
plaintiff. She submitted that both the claims for rent and for
operating costs have not been proved and that the claim for interest
was abandoned. The claim for confirmation of cancellation of the
lease agreement is meaningless while that for eviction is misplaced
because, to the knowledge of the plaintiff, there is a new occupant
at the premises who is not the first defendant.
She
submitted that the plaintiff has therefore failed to prove a prima
facie
case, and, as such, absolution from the instance should be granted.
While
the arguments advanced on behalf of the defendants warrant a closer
examination in deciding the matter, they, however, were made
prematurely. The attack on the contents of the summons and
particulars of claim should have, in all fairness, been raised as an
exception to the summons or as a preliminary point and not at the
close of the case for the plaintiff.
The
test for absolution has been stated in a number of cases. In United
Air Charterers v Jarman
1994 (2) ZLR 341 (S)…, it was said that:
“The
test in deciding an application for absolution from the instance is
well settled in this jurisdiction. A plaintiff will successfully
withstand such an application if, at the close of his case, there is
evidence upon which a court directing its mind reasonably to such
evidence could or might (not should or ought to) find for him.”
The
same principle was stated in another way in Supreme
Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd
1971 (1) RLR 1 (A) 5D. The court stated:
“The
test therefore boils down to this: Is there sufficient evidence on
which a court might make a reasonable mistake and give judgment for
the plaintiff? What is a reasonable mistake in any case must always
be a question of fact, and cannot be defined with any greater
exactitude than by saying that it is the sort of mistake a reasonable
court might make – a definition which helps not at all.”
See
also Walker
v Industrial Equity Ltd
1995 (1) ZLR 87 (S)…,.; Nestoros
v Innscor Africa Ltd
2007 (2) ZLR 267 (H)…,.; Manyange
v Mpofu & Others
2011 (2) ZLR 87 (H)…, where Patel J…, made the point that:
“In
principle, a reticent defendant should not be allowed to shelter
behind the procedure of absolution from the instance. And, in
practice, the courts are loathe
to decide upon questions of fact without hearing all the evidence
from both sides, and have usually inclined towards allowing the case
to proceed. See Theron
v Behr
1918 CPD 443 at 451; Erasmus
v Boss
1939 CPD 204 at 207; Supreme
Service Station (Pvt) Ltd (1969) v Fox & Goodridge (Pvt) Ltd
1971 (1) RLR 1 (A) at 5-6. Moreover, at this stage of the trial, it
is not
pertinent to evaluate the weight of the evidence adduced or the
preponderance of probabilities, save where such findings are manifest
from the evidence already heard. See Quintessence
Co-ordinators (Pty) Ltd v Government of the Republic of Transkei
1993 (3) SA 184 (TK) at 185.”
And
Efrolon
(Pvt) Ltd v Muringani
(2)
2013 (1) ZLR 309 (H)…,.
In
the present case, the evidence led on behalf of the plaintiff is that
the relationship of the parties is governed by the written lease
agreement which, although it ran its course, has remained valid by
virtue of clause 3(f). That lease did not terminate when the tenant
did not exercise the option to renew it but continued on the same
terms. For that reason, unless terminated by the parties on notice,
it continues to bind the parties. The failure by the defendants to
plead expiration in their joint plea resonates with that formulation.
The
evidence led by the plaintiff is that when a dispute over rent arose
between the parties, the dispute was eventually referred to
arbitration in terms of the lease agreement and an arbitral award was
issued on 28 March 2014 in terms of which rent was fixed. Although
the award was communicated to the defendants, they have not paid the
fair rent fixed by the arbitrator in breach of clause 6(b) of the
agreement. It is for that reason that the plaintiff decided to
litigate for relief aforesaid. Although the plaintiff's witness was
subjected to extensive cross-examination, it focused on discrediting
the amounts being claimed. A lot of time was devoted to demanding
proof of the various debits that were entered against the defendants'
account.
In
my view, the production of invoices on the minute details of the
claim is not the only way by which a claim may be proved especially
where the tenant is bound by clause 6(a) to pay rent “as shall from
time to time be notified to the tenant in writing by the landlord”
and such monthly notification has been given. The viva
voce
evidence of the plaintiff's witness, if
credible and supported by a rent account which was kept, should
suffice.
In
that regard, what we therefore have is evidence pointing to the
existence of a landlord and tenant relationship between the parties.
With all due respect, the timid defence that the rights and
obligations of the tenant were ceded to a third party cannot be taken
seriously. This is because the plea of the defendants does not
suggest that there was authority granted by the plaintiff for the
cession but only “knowledge.”
The
defendants would want to foist a new tenant on the plaintiff. They
may well be entitled to do that depending on the presentation of
their own case. What appeared very clear at the close of the
plaintiff's case was that there was no privity of contract between
the plaintiff and the new occupant. It was therefore for the
defendants to tell the court why and how they were released from
liability. The plaintiff has covered itself by seeking eviction of
those claiming through the first defendant.
There
was already evidence, at that stage of the trial, suggesting that the
agreement was breached by a failure to pay the stipulated rent and
the other related charges. There was nothing pointing to the falsity
of that evidence.
My
view was that there was evidence upon which a court, directing its
mind reasonably to such evidence, could find for the plaintiff
regarding what it has sued for. In arriving at that conclusion, I was
mindful of the remarks made by BEADLE CJ, which are binding on me, in
Supreme
Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd
1971 (1) RLR 1( A)…, that:
“…,
rules of procedure are made to ensure that justice is done between
the parties, and, so far as possible, courts should not allow rules
of procedure to be used to cause an injustice. If the defence is
something peculiarly within the knowledge of a defendant, and the
plaintiff has made out some case to answer, the plaintiff should not
lightly be deprived of his remedy without first hearing what the
defendant has to say. A defendant who might be afraid to go into the
witness box should not be permitted to shelter behind the
procedure of absolution from the instance.”
See
also Munhuwa
v Mhukahuru Bus Services
1994 (2) ZLR 382 (H)…,.
It
is for the forgoing reasons that I dismissed the application for
absolution and placed the defendants to their defence.
The
defendants led evidence from Wayne Allan Jones, a Director of a
family business known as Ekutulene Investments which he said is a
registered company which operated Walkers Pub and Restaurant at the
leased premises until sometime in 2011 when, tired and frustrated by
Knight Frank's demand for unreasonable rent and operating costs, he
handed over the business to his employee, Gersham Gara, free of
charge.
Wayne
Allan Jones did not attempt to contest liability as a surety.
Prior
to that, he had offered to pay rent of $600= per month when the
parties could not agree on a fair rent, which amount he started
paying in 2009 although he did not sign any addendum to that effect.
In fact, the last addendum that he signed was in Zimbabwean dollars.
His frustrations stemmed from the landlord's demand for
unreasonably high rent and operating costs which no business could
sustain and Zimra was also busy penalizing the defendant in assessing
taxes because it refused to accept the rent statements from Knight
Frank.
The
first defendant later proposed a rental of $900= which the plaintiff
rejected. As a result, the dispute was then referred to the Rent
Board, then to the Administrative Court, and, finally, to an
arbitrator. Before the arbitration, he decided to sell the business
whose wherewithal was worth $600,000=. After failing to secure a
buyer, mainly because no-one was willing to buy a business with a
rent dispute, he then gave it to his employee
in terms of an agreement signed on 15 August 2011…,. When he did
that he wrote to the landlord's agent, in May 2011, advising the
landlord that Gersham Gara had taken over the business but a few days
later he received a response rejecting Gersham Gara as a tenant and
pointing out that the defendants had no right to handover the
premises to a third party. This surprised him because Gersham Gara
is a very capable person who has been in the industry for a long
time. When that happened, the witness said he did not do anything but
left everything in the capable hands of Gersham Gara who assured him
that he would pursue his own lease in terms of the indigenization
laws of this country.
Therein
lies the defendants' problem.
They
knew they were bound by a lease agreement, clause 19 of which
prohibited cession, assignment or transfer of the rights contained in
that lease. That clause reads:
“19(a).
The tenant shall not sublet or give up occupation or possession of
the whole or any part of the leased premises.
(b)
The tenant shall not cede, assign or transfer any of his rights,
obligations or duties in terms of this lease.
(c)
The tenant shall not pledge or assign any of his furniture and
equipment brought into the leased premises and the same shall be
subject to the landlord's lien at common law.”
They
had approached the landlord with a request to handover the lease to
someone else but the landlord refused and demanded that they vacate
the premises and surrender the keys. Instead of doing that, they
decided to do as they pleased and brought in a third party to the
leased premises - in clear violation of the lease agreement and
disregarding the wise counsel given by the landlord's agent.
If
one had any doubt about the wrongfulness of that course of action,
such doubt dissipates immediately upon reference to the agreement the
first defendant signed with Multishade Investments (Pvt) Ltd
represented by Gersham Gara. Clause 4, dealing with liabilities,
states:
“The
company (Multishade) shall become responsible for all debts and
liabilities in respect of the business subsisting on the effective
date, and, in particular, the claims of employees for salaries,
wages, leave pay, gratuities and any other obligations whatsoever,
current
rental disputes with the landlord and their agent, suppliers accounts
and utility bills, and the company shall indemnify Ekutuleni and its
Directors
from all actions, claims or demands in respect thereof.”…,.
The
defendants were aware of their obligations towards the landlord. They
sought to be indemnified by a third party against such liabilities to
the landlord. The act of ceding rights was clearly in breach of
clause 19 of the lease as I have already said. The landlord was not a
party to the agreement with the third party and such indemnity has
nothing to do with it. It cannot be used as a weapon of defence
against the legitimate claims of the landlord arising out of a
binding lease agreement.
A
party that elects to ignore the terms of a contract that it entered
into freely, to unilaterally substitute a third party for itself in
that contract and to then seek to rely on such conduct to escape
liability in terms of the contract is engaging in an exercise in
futility. This is particularly so where the agreement of the parties
contains a non-variation clause as clause 35(b) which reads:
“This
lease constitutes the whole of the agreement between the parties and
no variation or collateral agreement shall be of any force or effect
unless and until recorded in writing in a document or series of
letters signed by the parties.”
Where
the parties have elected to restrict their own power to vary or
discharge their contract by subsequent conduct by a non-variation
clause providing that no variation of any of the terms of the
contract shall be valid unless it is in writing, the terms of the
contract shall bind the parties unless varied in writing by them.
See
R. H. CHRISTIE, Business
Law in Zimbabwe,
2nd
edition, Juta & Co Ltd…,.; SA
Centrale Ko-op Graanmaats Chappy Bpk v Shifren
1964
(4) SA 760 (A) (a judgment in Afrikaans whose ratio on non-variation
clauses was adopted by this court in Fillanion
v Esat & Another
HB106-03).
In
addition, in our jurisdiction, the doctrine of sanctity of contract
is sacrosanct. It was expressed succinctly by JESSEL MR in Printing
Registering Co v Sampson
19
Eq 462…, in the following words:
“If
there is one thing that more than any other, public policy requires,
it is that men of full age and competent understanding shall have the
utmost liberty of contracting and that their contracts, when entered
into freely and voluntarily, shall be held sacred and shall be
enforced by courts of justice. Therefore, you have this paramount
public policy to consider - that you are not lightly to interfere
with this freedom of contract.”
Allied
to that is the doctrine of privity of contract which is, in essence,
the cornerstone of our law of contract. It postulates that a person
who is not a party to a contract cannot be held liable or claim on it
because he is not privy
to the contract.
See
PTC
Pension Fund v Standard Chartered Merchant Bank Zimbabwe Ltd
1993 (1) ZLR 55.
I
must state, for completeness, that Roman–Dutch law, unlike English
law, recognizes an extension of the doctrine of privity of contract
by accepting the validity of a stipulatio
alteri
or
ius guaesitum tertio,
roughly, a contract for the benefit of a third party.
See,
generally, R. H. CHRISTIE, Business
Law in Zimbabwe,
2nd
edition, Juta & Co Ltd …,.
I
conclude, therefore, that the agreement entered into between the
first defendant and Multishade Investments (Pvt) Ltd has nothing to
do with the plaintiff which was not privy to it. It does not release
the first defendant from liability in terms of the lease agreement,
which lease agreement the first defendant breached by failing to pay
the stipulated rent and other charges as determined in terms of the
agreement by a lawfully appointed arbitrator. The breach entitles the
plaintiff to cancel the lease and to eviction. That agreement
entitles the first defendant to sue Multishade Investments (Pvt) Ltd
separately for indemnity and nothing more.
Gersham
Gara, who also testified on behalf of the defendants, actually
substantiated the plaintiff's claim.
This
court has to uphold the sanctity of the contract that the parties
entered into which bind the first defendant as already stated. Wayne
Allan Jones' entire testimony was concerned with questioning the
accounts, not on any other ground, but that the defendants required
to be shown all the bills emanating from the service providers. He
decried the escalation of the charges and felt that because the first
defendant did not agree to pay VAT, that tax should not be levied
against it.
Unfortunately,
VAT is a statutory levy which should be paid by operation of the law.
The tenant does not have to agree to pay it in order for it to be
levied. I conclude that the defendants are indeed liable to pay VAT.
The
same applies to interest which is provided for in the agreement. It
is not enough for the defendants to object to the production of the
letter from the Bank attesting to what the Bank
interest rate used was. Simon Moyo gave evidence on the computation
of interest and submitted schedules showing the interest due. As I
have already said, he was an impressive witness whose evidence I have
no reason to disbelieve. The claim for interest has been
established….,.
In
the result, it is ordered that:
1.
The cancellation of the lease agreement between the parties is hereby
confirmed.
2.
The first defendant and all persons claiming title or occupation
through it shall be evicted from Shop Numbers 31 to 34 Bulawayo
Centre, JMN Nkomo Street and 9th
Avenue, Bulawayo.
3.
The first and second defendants shall pay to the plaintiff, jointly
and severally, the one paying the other to be absolved the sum of
$333,209=47 being arrear rent for the leased premises, together with
interest thereon at the rate of 15% per annum from the date of
summons to date of payment.
