Factual
background
The
background to the applicant's claims is that on 23rd
October 2014 the applicant and respondent entered into a lease
agreement in terms of which the applicant let to the respondent the
business premises consisting of three bars, namely, Terrace, Corner
Bar and Brass Rail Bar situate at Selborne Hotel, Bulawayo. The
following terms and conditions of the written lease agreement are
pertinent to the present application:
(a)
Clause 1 stipulates that the lease period was to commence from 1st
October 2014 to 30th
October 2015.
(b)
Sub-clause 3.1 stipulates that monthly rental in the sum of
US$3,500=, exclusive of VAT, is payable in advance by the 7th
day of
each month.
(c)
Sub-clause 27.1 stipulates that notwithstanding the provisions of
clause 3 of the lease, for the first four months, from October 2014
to February 2015, the monthly rental is US$2,000= and that the lessee
shall make an initial payment of US$5,500= by the 31st
of
October 2014.
(d)
Sub-clause 19.1 stipulates that should the lessee
fail to pay rentals on the due date or commit any breach of any term
or condition of the lease, then the lessor shall have the right to
forthwith cancel the lease and re-take possession of the leased
premises without prejudice to any amount due and payable to the
lessor.
(e)
Clause 12 stipulates that any indulgence shown by the lessor by
accepting late payment of rentals shall not be regarded as a waiver
by the lessor of its rights under the lease.
(f)
Clause 26 stipulates that the written lease agreement constitutes the
whole agreement between the parties and no representations not stated
in the lease shall be binding on the parties and any variations not
reduced to writing and signed by both parties shall be of no force or
effect.
It
is not disputed that the respondent breached sub-clause 27.1 of the
lease by failing to pay the sum of US$5,500= by the 31st
of
October 2014. The respondent further breached sub-clause 3.1 by
failing to pay monthly rental in advance by the 7th
of each month. The respondent had accumulated rental arrears in the
sum of US$18,133=03 by the 15th
of
May 2015. This fact is verified by the schedule of payments in
paragraph 7 of the plaintiff's declaration. On 20th
November 2014, the applicants' legal practitioners addressed a
letter to the respondents in the following terms:
“Pure
Treatment Investments (Pvt) Ltd
46
Lawley Road
Suburbs
Bulawayo
Dear
Sirs,
RE:
BREACH OF CONTRACT: CANCELLATION OF LEASE AGREEMENT
We
write you at the instance of our client, Byrggen Hotels (Pvt) Ltd,
whose representative advised us that you have not paid rentals for
two months and you have fallen into arrears in the sum of US$4,000=.
You
are in breach of contract and we have instructions to notify you, as
we hereby do, that the lease agreement is terminated forthwith in
terms of clause 19.1. You are directed to render vacant possession of
the premises to our client and pay the sum of US$4,000= plus our
costs failing which legal action shall be taken against yourselves
without notice. This will be at a cost to your pocket.
Be
guided accordingly.
Yours
faithfully
CALDERWOOD,
BRYCE HENDRIE & PARTNERS”
This
letter of demand was responded to swiftly by the respondent's legal
practitioners who replied, on 21 November 2014, in the following
terms:
“Messrs
Calderwood Bryce Hendrie & Partners
Bulawayo
RE:
PURE TREATMENT INVESTMENTS (PVT) LTD v BRYGGEN HOTELS (PVT) LTD
We
refer to the above matter and to your letter dated 20th
November 2014, which has been handed to us for our attention and
reply.
On
a strictly without prejudice basis our client accepts that it has
fallen into rent arrears. Such default will be made good in full or
in part on or before the end of November 2014. We note from your
letter that you advise that the lease agreement has been terminated
forthwith and that our client must vacate the premises. This
extraordinary measure appears to be anchored on clause 19.1 of the
lease agreement between the parties. This clause, in our view, with
respect, is violent, and, in any event, it does not give your client
the right to evict ours without due process of law. In any event,
clause 3.3 provides that in the case of a default our client shall be
given two months written warning, this procedure has not been
followed….,.
Our
client operates a business and it is common knowledge that the
business environment in this country is operating far below
expectation and the environment is tough such that targets are rarely
realised, if at all. Our instructions are that your client has
not helped our client's situation as we lay out below.
Our
client has been unable to use to maximum benefits the Brass Rail Bar
because of a roof leak; there is also a leak at the Corner Bar and
the Terrace Bar. These leaks prevent our client from putting these
bars into maximum use, thus affecting his revenue turnover. During
the course of November electricity was cut at the premises, due to no
fault of our client, as a result, our client was thrown out of
business for one and half days. This incident affected our client in
a big way, such that he lost business. Your client must accept and
take responsibility for these incidents that have negatively affected
our client's business.
Having
said all this, our client still wants to continue with the lease
agreement. As said supra,
the default shall be made good on or before the end of the current
month. May your client also attend to the defects outlined above.
Yours
faithfully
DUBE-BANDA,
NZARAYAPENGA & PARTNERS”
It
is clear that the respondent did not, at the outset, dispute that
they owed arrear rentals.
In
another letter addressed to the respondent's legal practitioners on
1st
April 2015, the respondent was advised of the applicant's decision
to cancel the lease agreement by reason of breach of the terms of the
lease. The respondent continued to blame the harsh economic
environment in a letter dated 25th
April 2015. The respondent alluded to the xenophobic attacks in
neighbouring South Africa which they claimed led to cancellation of
musical shows and loss of anticipated revenue. In subsequent
correspondence, the
respondent sought to have the amount of rentals reduced. This request
was refused and arrears on rentals escalated.
On
28th
April 2015, the applicant's legal practitioners addressed a letter
to the respondent as follows:-
“Pure
Treatment Investments (Pvt) Ltd t/a Sekunjalo
46
Lawley Road
Suburbs
Bulawayo
Dear
Sirs,
RE:
TERMINATION OF CONTRACT
We
thank you for your letter of the 2nd
instant received on even date.
Our
client's instructions are that there is no error in calculation. In
fact, the receipts show that you have paid US$13,500= and not
US$19,500= as suggested in your letter. Find attached hereto copies
of the receipts of payment for the period in question.
Further,
we are advised that you have not paid the April rentals. Furthermore,
your response failed to address the other issues raised in our letter
in respect of stolen drinks, insulting customers and reimbursement of
customers.
We
shall proceed to issue summons on the basis of breach of contract.
Yours
faithfully
CALDERWOOD,
BRYCE HENDRIE & PARTNERS”
This
letter elicited a venomous response from the respondents, who, on
19th
May 2015, addressed the following letter to the applicant's legal
practitioners:-
“Calderwood,
Bryce Hendrie & Partners
Bulawayo
ATTENTION:
MR Z. NCUBE
Dear
Sir,
'Erstwhile
Legal Practitioners', the term you coined befits your status too
well.
We
are not amused by your stupid and silly accusations you come up with
at any given opportunity seeking to divert attention from real
issues. First, it was the issue of “stolen” drinks and then “the
abuse of clients” now authoring threatening letters to your client.
Stop being over-zealous and acting like a crazy headless chicken, we
are not criminals please treat and respect us as such.
We
know they call you Taliban but do not behave like ones to us. Maybe
this is why your clients refer you as that “useless one”. Get
your act together and behave like a learned legal practitioner. If
there are any threats or your clients are being abused simply make a
police report. We expect better behaviour from you.
Yours
faithfully
PURE
TREATMENT SERVICES”
From
the tone of this letter, which clearly did not address the issue of
the arrear rentals and the alleged breach of contract, the applicant
and respondent were not resolving the dispute. It is my view that the
respondents were needlessly abusing a legal practitioner doing his
job.
Summons
were issued against the respondent on 12th
June 2015 and appearance to defend was filed. The application for
summary judgment was lodged on 20th
July 2015.
WHETHER
THE RESPONDENT HAS RAISED A BONA
FIDE
DEFENCE
The
central issue for determination is whether the applicant's claims
are unassailable, or, put differently, whether the respondent has
raised a bona
fide
defence to the claims.
The
cancellation clause in the written lease agreement, sub-clause 19.1,
confers upon the applicant the right to cancel the lease and evict
the respondent from the leased premises in the event of the
respondent failing to pay monthly rental on due date or committing a
breach of any of the terms of the lease. Any failure by the
respondent to pay monthly rental on due date or any breach of any
other term of the lease would trigger the process of cancellation of
the written lease. The respondent has not disputed that it breached
sub-clause 3.1 and 27.1 of the lease agreement by failing to effect
the initial of US$5,500= by 31st
October 2014. The accumulation of rental arrears, totalling
US$18,133=03 as at 15 May 2014, is irrefutable proof that the
respondent violated the terms of the lease agreement thereby
entitling the applicant to exercise its right to cancel the lease.
I
must point out that the harsh economic environment leading to the
late payment of rentals is a moral issue for the parties. The court
notes that the prevailing economic situation affects those in
Zimbabwe in business across all the financial and industrial sectors.
In my view, this moral issue does not absolve or indeed exonerate
parties from complying with contractual obligations. Such an approach
would lead to chaos in business and many would seek to escape from
their obligations on the flimsiest of excuses.
In
the opposing affidavit, deposed by Dave Ncube, on behalf of the
respondent, the deponent contends that there are triable issues and
that the matter should proceed to trial because of the following
defences raised in pleadings:-
“19.1
The respondent disputes the amount claimed by the applicant as arrear
rentals.
19.2
Respondent's failure to pay monthly rentals timeously was explained
to applicant and applicant condoned.”
The
defences raised by the respondent in the opposing affidavit are not
bona
fide
and cannot defeat the applicant's claim for summary judgment. The
Supreme Court, in Kingstons
(Pvt) Ltd v Ineson (Pvt) Ltd
2006 (1) ZLR 451 (S), had occasion to outline the nature of defences
that ought to be raised to successfully oppose summary judgement as
follows (per head note);-
“In
summary judgment proceedings, not every defence raised by a defendant
will succeed in defeating a plaintiff's claim. What the defendant
must do is to raise a bona fide defence, or a plausible case, with
sufficient clarity and completeness to enable the court to determine
whether the affidavit discloses a bona fide defence. The defendant
must allege facts which, if established, would enable him to succeed.
If the defence is averred in a manner which appears in all
circumstances needlessly bald, vague or sketchy that will constitute
material for the court to consider in relation to the requirement of
bona fides. The defendant must take the court into its confidence and
provide sufficient information to enable the court to assess the
defence. He must not content himself with vague generalities and
conclusory allegations not substantiated by solid facts.”
At
page 452E, the court went on to state that:-
“Care
must be taken, in a suit for ejectment, not to elevate every alleged
dispute of fact into a real issue which necessitated the taking of
oral evidence, for to do so might well encourage a lessee against
whom ejectment is sought to raise fictitious issues of fact thereby
delaying the resolution of the matter to the detriment of the
lessor.”
In
the instant case, the respondent has not denied that it breached the
lease agreement. The respondent boldly avers that it disputes the
amount of arrear rentals. If the respondent had a bona
fide
defence, the court would have been duly furnished with documentary
proof to establish that the respondent had paid all the rentals on
time. The respondent alleges, without substantiating, that the
applicant condoned the breach and late payment of rentals. The
correspondence between the applicant and the respondent proves beyond
dispute that the respondent blamed his problems on the economic
conditions prevailing in the country. In any event, the written lease
agreement provides that any indulgence which may be shown to the
lessee by the lessor shall not be taken as a waiver of the lessor's
rights to cancel the agreement by reason of a material breach of the
terms of the lease.
See
the case of Agricultural
Finance Corporation v Pocock
1986
(2) ZLR 229 (SC).
I
have no doubt that the respondent failed to raise a bona fide defence
to the applicant's claims. The respondent's perceived defence
carries no prospects of success if the matter were to proceed to
trial. The alleged defences raised in the respondent's opposing
affidavit cannot be proved at trial. In Hales
v Doverick Investments (Pvt) Ltd
1998 (2) ZLR 235 (H)…, MALABA J…., held that:-
“Where
a plaintiff applies for summary judgment against the defendant and
the defendant raises a defence, the onus is on the defendant to
satisfy the court that he has a good prima facie defence. He must
allege facts, which if proved at the trial, would entitle him to
succeed in his defence at the trial. He does not have to set out the
facts exhaustively but he must set out the material facts with
sufficient clarity and in sufficient detail to allow the court to
decide whether if these facts are proved at trial, this will
constitute valid defence to plaintiff's claim. It is not sufficient
for the defendant to make vague generalizations or to provide bald
and sketchy facts.”
It
is my view that the respondent failed to establish a bona
fide
defence to the plaintiff's claims. His defence is nothing more than
a general and vague assertion. In such a scenario it is only
appropriate to grant the application for summary judgement. In the
result, the following order was made after hearing argument from both
parties:-
1.
Summary judgment with costs at an attorney and client scale be and is
hereby entered in favour of the applicant against the respondent for
payment of the sum of US$18,133=03 plus interest thereon at the
prescribed rate of 5% per annum calculated from the date of issuing
summons to date of payment in full.
2.
Eviction of the respondent and those claiming through it occupation
from the premises, the Terrace Bar, Brass Rail Bar and Corner Bar
situated at the Selborne Hotel, Corner
George Silundika and Leopold Takawira, Bulawayo.
3.
Payment of hold-over damages was US$3,500 =, exclusive of VAT, from
the date of issuing summons to date of eviction.
