MAKONI
JA: This
is an appeal against the whole judgment of the High Court sitting at
Harare in which the court granted the respondent's claims for costs
of repairs and for damages for loss of income following breach of a
lease agreement between the parties.
The
judgment of the court a
quo
gives an in-depth outline of the facts of this matter. However, for
the purposes of this appeal, l will give a brief outline of the
salient facts.
The
appellant and the respondent entered into a lease agreement in terms
of which the respondent leased certain industrial premises being
Stand 143, Beverley East, Msasa, Harare to the appellant from 1 July
2004. The agreement was renewed over a period of ten years
substantially on the same terms with changes on the quantum
of rentals.
In
terms of the lease agreement, the appellant was to use the premises
for the storage and distribution of chemicals and 'allied
products.' During the period of the lease, the appellant was
expected to, inter
alia,
maintain the premises in a clean and sanitary condition; repair all
interior plumbing; re-decorate the internal walls when necessary; and
replace, if destroyed, lost or damaged, all fittings and fixtures,
window panes, door locks and the keys thereto. At the termination of
the lease, the appellant would return the premises, together with,
inter
alia,
all the keys and other property of the respondent in the 'same
good order, repair and condition
fair
wear and tear only excepted.'
In
November 2013, the lease agreement expired and the appellant returned
the property to the respondent. On 10 June 2014, the respondent
issued out summons against the appellant in the court a
quo.
In the declaration, the respondent alleged that the appellant
returned the property in a damaged state and that therefore it was in
breach of the said lease agreement. The respondent further averred
that the appellant was obliged, upon termination of the lease, to
restore the premises to the respondent in the same condition as at
the commencement of the lease, fair wear and tear excepted.
The
respondent stated that it demanded that the appellant effects the
necessary repairs to the leased property but the appellant refused to
do so. The respondent then took it upon itself to restore and repair
the premises. The respondent also stated that as a result of the
appellant leaving the premises in a deplorable state, the respondent
was not able to let out the premises to new tenants until the 1st
of May 2014. The respondent wrote to the appellant demanding payment
of costs associated with the repairs and also costs for loss of
income. Having failed to comply with the demand, the respondent
brought a claim for damages in the High Court on 10 June 2014.
The
respondent's claim was as follows:-
1.
Payment of the sum of US$27,150.78 being repair costs incurred by the
respondent in effecting repairs to the premises leased to the
appellant, which premises were damaged during the period of tenancy,
and
2.
Payment of the sum of US$25,000.00 being lost rental income due to
the respondent as a result of its leased premises being rendered
unfit for further occupation by the appellant upon termination of the
appellant's period of tenancy.
The
costs of repairs included the cost of repairing the main building
floor, electrical, plumbing, glass and lock and keys. The loss of
rentals amounted to US$25,000.00 being the total sum of rentals which
the respondent should have collected for 5 months at the rate of
US$5,000 per month.
The
appellant defended the claim.
It
denied the respondent's claim in
toto. It
averred that the claim was malicious and one calculated to harass it
for having moved out of the premises. The gravamen of the defence was
that the alleged damage neatly fitted into the “fair wear and tear”
exception. The appellant also stated that it had offered to attend to
the repair of a certain portion of the property, being the 'pink'
or 'red' room, which portions were the most affected by
chemicals. The expert reports had indicated that these portions were
in need of attention. This was said to be in the spirit of avoiding
further quarrels with the respondent and not out of any legal
obligation on its part. In the end, it had not attended to that
portion because the respondent had frustrated the gesture.
The
parties argued the matter in the court a
quo. The
respondent indicated that certain fixtures and fittings had been
destroyed and that the floors of the premises had been damaged. The
major damage complained of was said to have been caused by the
spillage of chemicals. The respondent produced evidence through a
report styled the 'BCHOD report.' This was a report prepared by
BCHOD Consulting Engineers after investigating the damage of the
premises by the appellant. The
report was
focused on the structural integrity of the affected areas and it
confined its comments to the surface degradation.
The
report basically looked at six rooms. Of those six, chemical
penetration was found to be negligible in three. For the other three,
one had a chemical penetration of close to 5mm with the other room
having a 25-27mm and the last room having a 50-52mm chemical
penetration. Consequently, the BCHOD concluded and recommended that
some parts of the floors on the premises needed 'finished smooth'
to be done or alternatively, installing of a separate bonded topping.
Grinding of the floors was also recommended to avoid any further
chemical penetration. For the most affected room, cutting out of
affected walls and re-bricking was recommended. Lastly, the report
recommended that there be an investigation by a chemical expert which
would focus on the potential health risks caused by the chemicals
which allegedly had caused the damage to the building and the strong
odours.
Following
the recommendation, the respondent approached the Ministry of Health
for an investigation of the health risks caused by the chemicals and
strong odours. A report was then prepared by the Radiation Protection
Authority of Zimbabwe ('RPAZ').
The report was produced in court. It stated that the appellant had
stored heavy mineral acids and industrial chemicals and that these
might have caused the corrosion of the floors, the walls, the rusting
of the steel structures, the strong odours and the sticky floors. The
RPAZ report concluded that, at the time of its inspection in February
2014, the premises were not fit for use. It therefore recommended
that the premises be cleaned up with some solvents and neutralizers.
Another
witness called by the respondent who had compiled a report
independent of the BCHOD report indicated that the chemical damage to
the premises was severe and remedial work was called for in-order to
restore the floors to their ordinary condition and to guarantee their
safety. This witness had qualifications in structural and
construction engineering and had been engaged by the respondent to
carry out the necessary repairs.
On
the other hand, the appellant's evidence through its witnesses was
to the effect that after inspecting the premises to establish the
nature and extent of the damages as well as the nature and extent of
the remedial work required, the damage squarely fitted into the 'fair
wear and tear' exception. Their conclusion was that the remedial
work had been over-done by the respondent and some of the repairs
were excessive and unnecessary in the circumstances. The appellant
contended that the total cost of the repairs that were necessary was
US$3,000 only. As such, the appellant could not be called upon to pay
for those costs in excess of the sum of US$3,000.00. It also stated
that if it were not for the respondent's unnecessary repairs, the
premises could have been unoccupied only for a couple of days and not
five months.
DETERMINATION
OF THE COURT A QUO
After
considering the relevant reports by experts and testimonies by
witnesses, the High Court found in favour of the respondent and
granted the two claims.
In its judgment, the court a
quo
stated that both counsel had done everything possible to motivate
their client's cases. However, the appellant was said to have
fallen short on the relevant documentary evidence. The court a
quo accepted
the major findings of the reports presented by the respondent in
evidence.
It
further found that the damage to the respondent's premises had gone
beyond fair wear and tear
and
as such, it found that the cost of cleaning up the premises was a
necessary expense incurred by the respondent in restoring the
premises back to their original lettable status. The disposition of
the court a
quo
was also based on the appellant's subsequent acceptance of the
BCHOD report, which report it had firstly rejected.
The court a
quo
found the amount claimed for the repairs to be reasonable based on
the receipts that were placed before it by the respondent.
On
the claim for US$25,000 being lost rental income, the court a
quo
held that the appellant could not escape liability as the loss flowed
naturally from the breach, although it was indirect. Moreso, the
appellant had not shown that the premises could have been repaired
much sooner than the five months it took for the respondent to
complete the repairs.
Aggrieved
by that decision, the appellant noted this present appeal based on
the following grounds:
GROUNDS
OF APPEAL.
1.
The court a quo
erred in finding the appellant liable for damages in circumstances
where the respondent had failed to establish that the appellant had
breached the lease agreement between the parties, that is to say,
that the appellant had failed to leave the premises in the 'same
good order, repair and condition, fair wear and tear expected'.
(sic)
2.
The court a quo
grossly
erred in awarding the respondent remote damages, without any
mitigation, for the loss of rentals, notwithstanding that the
evidence on record showed that there were tenants prepared to lease
the property.
3.
The court a quo
erred in finding that the appellant had caused the respondent's
loss notwithstanding that the respondent declined the appellant a
chance to rectify any perceived harm thus causing its own loss.
4.
The court a quo
erred in failing to take into account 'age and user in its
determination of whether or not the damages to the property fell
within the ambit of 'fair wear and tear'.
SUBMISSIONS
IN THIS COURT
Counsel
for the appellant,
Miss Mahere,
submitted that the court a
quo
erred in finding the appellant liable for damages when the respondent
had not placed any evidence to establish the state of the property at
the time it was leased out. She argued that the court a
quo
further erred in allowing the claim as the respondent had made an
offer to repair the premises, which offer was denied thus the
respondent's loss was self-authored. Counsel further submitted that
the damage to the property amounted to fair wear and tear considering
that the property leased was to be used for the purposes of storing
chemicals.
On
the damages arising out of loss of income, Miss
Mahere argued
that the court a
quo erred
in awarding damages arising from loss of income when there were
tenants who were willing to rent the premises for the sum US$4,500.00
a month after the lease agreement had terminated. She further
submitted that there was no evidence to show that the appellant
caused the delay in the respondent's re-leasing of the premises and
was therefore liable for the loss.
On
the other hand, counsel for the respondent, Mr
Zhuwarara,
maintained that the finding of the court
a quo
was correct based on the expert reports that were placed before it.
He further argued that the premises were lettable and fit for use
when the appellant took occupation. He also submitted that the
spillage of chemicals, leading to the corrosion of the floors and
walls in the premises, did not fall under the 'normal and
reasonable' use of the premises, neither was such damage envisaged
by the parties when the lease agreement was concluded. The
respondent's position is that it was the appellant's negligence
and its failure to take protective measures for the premises which
resulted in the damage to the premises.
Mr
Zhuwarara
also submitted that the appellant's offer to pay US$ 3 000 for
fixing the premises was a clear concession of the fact that the
premises had been returned in a state that was beyond fair wear and
tear.
ISSUES
FOR DETERMINATION
Although
the appellant has raised four grounds of appeal, it is my view that
the present appeal turns or falls on the following questions:
1.
Whether or not the court a quo
erred in finding that the appellant failed to leave the premises in
the 'same good order, fair wear and tear excepted,' taking into
account the use and age of the premises.
2.
Whether the court a
quo
erred in awarding the claim for damages for loss of rental income.
THE
LAW
I
now proceed to outline the law in respect of the first issue for
determination in this appeal.
In
the South African case of Nedcor
Bank Limited v Withinshaw Properties (PTY) Ltd (A591/01) [2002]
ZAWCHC 29
(30
May 2002)
the court said the following;
“A
lessee is obliged to restore the leased premises to the lessor in a
good condition, or at least in substantially the same condition as
they were in at the time he took occupation thereof, fair wear and
tear excepted. ……… Cooper Landlord and Tenant (2nd edition
1994) 217-218; LAWSA 14 par 189”.
The
parameters or obligations of the parties to a lease agreement during
tenancy were spelt out in the case of Cash
Wholesalers (Pvt) Ltd v Marcuse 1961 (2) SA 347 (SR) at 353D-H,
wherein the court said the following:-
“It
will be noted that the obligation is to keep the inside of the
premises in a fit and proper state of repair and to deliver up
possession of the premises in the same good order and condition in
which the lessee received them, reasonable wear and tear excepted.
Two
observations are necessary here. Firstly, under a covenant to keep
the premises in a proper state of repair a lessee
“will
only be liable to make such repairs as are ordinarily required…..
He will not be required, either by his contract or the common law, to
make structural alterations….”
per
WESSELS, J., in
Salmon v. Dedlow, 1912 T.P.D
971
at p. 979.
But the repairs for which he is responsible may involve renewals of
parts of the building: Sarkin
v. Koren, 1948 (4) S.A 438 (C). Second,
if during the currency of the lease the premises are found not to be
in a proper state of repair, prima
facie
the responsibility for that and the liability to make it good rest
with the lesee, unless he proves that the state of disrepair is the
result of fair wear and tear, for which he is not responsible:
African
Theatres Trust v. Estate McCubbin 1919 N.P.D
277.
The fair wear and tear exception means that the tenant is relieved
from the obligation to repair dilapidation or depreciation which is
due to normal user and ravages of time, exposure and natural
elements: Radloff v. Kaplan 1914 E.D.L
357;
Sarkin's case, supra at p. 444” (my underlining).
In
that case, the learned judge went on to define the term
fair wear and tear
as 'dilapidation or depreciation which is due to normal use, the
ravages of time, exposure and natural elements.'
The authors A. Blundell, V.C Wellings in
Woodfall
on Landlord and Tenant,
(26th
Ed Lionel; Sweet and Maxwell Limited, 1960) at page 714 define
reasonable fair wear and tear in the following words,
“Reasonable
wear and tear means the reasonable use of premises by the tenant and
the ordinary operation of natural forces. The exception of want of
repair due to wear and tear must be construed as limited to what is
directly due to wear and tear, reasonable conduct on the part of the
tenant being assumed…. he is bound to do such repairs as may be
required to prevent the consequences flowing originally from wear and
tear, from producing others which wear and tear would not directly
produce.”
APPLICATION
OF THE LAW TO FACTS
The
gravamen of the appellant's argument in the present appeal is that
the
court a quo
erred in finding that the appellant was liable to pay the
respondent's costs incurred in repairing the premises as a result
of the appellant's breach of the terms of the lease agreement. It
maintains the argument that the damage to the property fell within
the ambit of 'fair and tear' considering the use of the premises.
In order to make an informed assessment, it is necessary first to
determine whether or not the damage to the property falls within the
ambit of 'fair wear and tear.'
The
position set out in the above authorities is that where damages to a
property under lease amount to 'fair wear and tear' considering
the use and age of the premises, then the lessee is not obliged to
meet the costs of such repairs. However, where the damages do not
fall under the ambit of the term 'fair wear and tear', the lessee
is under an obligation to pay for the repairs to those premises. In
the present appeal, it is common cause that the state of the premises
when the lease commenced and when it was terminated was different.
The appellant, however, argues that the damage to the premises was
due to 'fair wear and tear' whilst the respondent maintains that
the damage was more than 'fair wear and tear'.
As
earlier on stated, the court a
quo,
basing on the documentary evidence and witnesses evidence, came to
the conclusion that the damage to the premises did not fall under the
exception of 'fair wear and tear.' In arriving at such a
determination, a court generally looks at the circumstances of the
case before it and the evidence adduced. In short, what is 'fair
wear and tear' differs from case to case. There is no single
definition. Each case is dealt with on its own facts.
Such
a finding is a finding of fact. This appeal is thus directed mainly
against the factual finding of the court a
quo.
In
the case of
Metallon
Gold Zimbabwe v Golden Million (Pvt) Ltd SC-12-15
at page 7 of the cyclostyled judgment, the court said as follows: -
“It
is settled that an appellate court will not interfere with factual
findings made by a trial court unless those findings were grossly
unreasonable in the sense that no reasonable tribunal applying its
mind to the same facts would have arrived at the same conclusion; or
that the court had taken leave of its senses; or, put otherwise, the
decision is so outrageous in its defiance of logic that no sensible
person who had applied his mind to the question to be decided could
have arrived at it”
The
position was also aptly underscored in Chenga
v Chakadaya SC07/13
wherein OMERJEE AJA at page 5 of the cyclostyled judgment stated
that:
“It
is trite that an appellate court will not interfere with a decision
of a trial court based on findings of fact, unless there is a clear
misdirection or the decision reached is irrational. In the case of
Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S) at 670C-E
KORSAH JA
stated the following:-
“The
general rule of the law, as regards irrationality, is that an
appellate court will not interfere with a decision of a trial court
based purely on a finding of fact unless it is satisfied that, having
regard to the evidence placed before the trial court, the
finding complained of is so outrageous in its defiance of logic or of
accepted moral standards that no sensible person who had applied his
mind to the question to be decided could have arrived at such a
conclusion: Bitcon
v Rosenberg 1936 AD 380 at 395-7; Secretary of State for Education &
Science v Metropolitan Borough of Tameside [1976] 3 All ER 665 (CA)
at 671E-H; CCSU v Min for the Civil Service supra at 951A-B; PF-ZAPU
v Min of Justice (2) 1985 (1) ZLR 305 (S) at 326E-G.” (my
emphasis).
It
is therefore necessary to consider the facts of this present case
vis-a-viz
the findings made by the trial court and assess whether or not those
findings were so outrageous or grossly unreasonable that no
reasonable tribunal applying its mind to the same facts would have
arrived at the same conclusion.
A
reading of the judgment of the court a
quo
shows that after considering the evidence led by the parties and the
documents filed, the court a quo
found that the damage to the respondent's premises had gone beyond
fair wear and tear.
As
such, it found that the cost of repairing the premises was a
necessary expense incurred by the respondent in restoring the
premises back to their original lettable status. It was on the basis
of these findings that the court a quo
granted the respondent's claim in its entirety.
Miss
Mahere,
whilst
advancing the appellant's argument on the first and second grounds
of appeal, argued that there was no evidence placed before the court
on the status of the premises at the time the property was leased
out. As such the court should not have accepted evidence on the
status of the premises after termination of the lease. However, a
perusal of the lease agreement shows that this argument clearly
ignored the import of Clause 6(b) of the lease agreement between the
parties which provided that;
'It
is agreed between the parties that the premises are in good order and
condition at the commencement of this Lease …'
The
above clause, in the undisputed lease agreement, shows the state of
the property at the time the property was leased out. Further, the
appellant has a hurdle to overcome in its allegation that there was
no evidence of the state of the premises at the commencement of the
lease. Mr
Zhuwarara submitted
that clause 6(c) called upon the appellant to notify the respondent
of any defects and deficiencies in writing within seven days of the
commencement of the lease. No such notification was ever made. In the
absence of such a notification or any evidence contrary to clause
6(b) of the lease agreement, in my view the reasonable conclusion is
that the premises were in good order and condition unlike what they
were at the termination of the lease.
If
the respondent was of the view that the premises were in a
dilapidated state when the lease commenced, then it should have
adduced evidence to that effect. It is trite that he who alleges must
prove. In the absence of any evidence contrary to the clauses in the
lease agreement, this argument is devoid of any reasoning and merit.
Appellant
in its evidence in chief, although insisting that the damages
amounted to fair wear and tear, accepted that there was an area that
needed to be repaired, particularly the 'pink' and 'red'
rooms. Asked during cross-examination whether there was something in
need of attention at the premises, Mr Chand, the appellant's
Managing Director said 'yes'. Surely, having accepted that some
portions were in need of attention, the appellant cannot then argue
that the damage to the property fell within the ambit of 'fair wear
and tear'. That argument is flawed. I would take that as a
concession that the appellant was aware that the damage to the
premises was beyond fair wear and tear. If the damage was genuinely
fair wear and tear, there was no reason why the appellant would have
made an offer to repair part of the premises. The findings of the
court a
quo
cannot
be faulted in this regard.
The
appellant further argued that it was prevented from effecting the
necessary repairs. It should be noted that from the evidence on
record, the appellant indicated that it was willing to repair damages
in a localised area it considered damaged (the pink and red room)
since it was of the view that the other damages fell within the 'fair
wear and tear' exception. The offer to repair was not genuine. It
was coupled with a condition that it would repair the selected
portion only and any other damage in the premises would be deemed
fair wear and tear.
Further,
the appellant accepted the BCHOD report which made a finding that the
damage was beyond fair wear and tear. The report stated that
resurfacing of the premises was necessary. That again shows that the
appellant was somehow aware of the fact that the damage was beyond
fair wear and tear. To then allege that the court a
quo erred
in awarding the claim for payment of costs of repairs is
contradictory. The court a
quo relied
on this acceptance of the BCHOD report in arriving at its conclusion.
Thus it cannot be faulted in anyway.
With
regards the issue of 'age and user' in determining whether the
damage was fair wear and tear, the BCHOD report was quite cognisant
of the use and age of the premises. The report did acknowledge that
chemical penetration of the chemicals that were stored by the
appellant was the cause of most of the damage before recommending a
solution for the damaged parts. The court a
quo,
after analysing the evidence at page 4 of the judgment, made the
following remarks:-
'Mr
Scott said there had been need for a thorough investigation on all
aspects of the damage to the building and on the potential health
risks due to the chemical exposure or from the odour. To this extent,
he had approached the ministry of health for assistance. He had been
referred to the Radiation Protection Authority of Zimbabwe [“RPAZ”].
RPAZ
had compiled a report. It was also produced. Its major findings were
that there had been no radioactive chemicals. It said the defendant
had stored heavy mineral acids, alkalines and industrial chemicals.
These might have caused the corrosion of the floors and of the walls;
the rusting of the steel structures; the strong odours and the sticky
floors.
RPAZ
had concluded that at the time of its inspection, in February 2014,
the premises had not been fit for use. It had recommended cleaning up
with different solvents and neutralizers.'
Clearly
the court was alive to the use of the premises. Its conclusion in the
matter was arrived at after accepting, among other things the reports
by experts, which again were cognisant of the use of the premises.
In
any event, l do not think that fair wear and tear in the
circumstances envisaged the spillage of chemicals to an extent of
damaging and corroding the walls and floors of the premises. The
respondent, in substantiating its argument on this point, relied on
Simon Garner & Alexandra Frith's A
Practical Approach to Landlord and Tenant (6th
Edition)
wherein the concept of fair wear and tear was explained in the
following words at page 109:
“It
excludes the tenant from liability to repair damage which occurs due
to the natural process of ageing. Such damage could be caused by the
action of elements, or by the tenant's normal and reasonable use of
the premises for the purposes for which they were let. The scope of
such a clause is limited and will not extend to the following
situations:
(a)
If the tenant uses the premises in a way not envisaged when they were
let which puts greater strain on the building or accelerates wear and
tear e.g by storing heavy items on a warehouse floor (Manchester
Bonded Warehouse Co. v Carr [1880] 5 CPD 507).”
In
Woodfall
on Landlord and Tenant supra it
is noted that:
“Independently
of covenants to repair, whenever
a tenant wilfully or negligently destroys the property, he must
restore it or compensate his landlord for its loss, unless
destruction is contemplated...”
(my underlining).
I
associate myself with the above sentiments.
The
appellant must have taken measures to ensure that the spillage of
chemicals resulted in the least minimal corrosion, not the extent of
spillage or damage which resulted in 5mm to 52mm (5centimetres)
penetration into the surface in some places.
In
the circumstances, I find it hard, as did the court a
quo,
to accept that such damage amounts to fair wear and tear.
Accordingly, the finding of the court a
quo was
proper in the circumstances taking into account the evidence that was
placed before it.
Applying
the test set out in Mettallon
Gold Zimbabwe supra,
the appellant has not been able to show that the findings of the
court a
quo were
grossly unreasonable and outrageous. This court finds that the
decision was arrived at after a considered view of the use and age of
the premises, as well as the concept of fair wear and tear. This
disposes of the first and fourth grounds of appeal.
Whether
the court a quo erred in awarding the claim for damages for loss of
rental income.
Having
established that the appellant has not been able to show why this
court should interfere with the factual findings of the court a
quo
that the damage was beyond fair wear and tear, l move on to make a
determination on the claim for loss of rentals, which is a claim for
damages.
In Rowland
Electro Engineering (Pvt) Ltd v Zimbank 2007 (1) ZLR 1 (H),
GOWORA J (as she then was) at page 13F stated as follows:-
“The
rationale for awarding damages to an aggrieved party based on a
breach of contract is to place that party in the position he would
have occupied had a breach not occurred by the payment of money and
without causing undue hardship to the defaulting party.”
The
appellant argues that the respondent's loss did not flow directly
from the breach. This argument is difficult to follow. Once it is
accepted that the appellant breached the lease agreement, then the
respondent was entitled to damages that arise from the breach. The
South African case of Monyetla
Property Holdings v Imm Graduate School of Marketing (Pty) Ltd and
Others (10083/2012) [2013] ZAGPJHC 210
aptly
underscores that point. It provides the following, at paragraph 26 of
the judgment:
“In
a claim for damages arising out of the breach of contract, the
plaintiff may claim damages for all the damage flowing from the cause
of action. He or she must claim, in a single action, compensation for
all the damage he or she has already suffered
and the prospective loss which he reasonably expects to suffer in the
future. In Coetzee
v SA Railways & Harbours 1933 CPD 565,
Gardner JP (with whom Watermeyer J concurred) examined the English
cases and said:
'The
cases, as far as I have ascertained, go only to this extent, that is
a person who sues for accrued damages, must also claim prospective
damages, or forfeit them.” (my underlining)
Wessels
the Law of Contract
also states as follows;
“…If
however, it can be proved to the Court that the profits were
reasonably to be expected, and would certainly have been realized,
but for the breach of contract, they form as much a part of the
damages as any other loss…”
In
Minister
of Safety and Security v Van Duivenboden 2002 (6) SA 431,
NUGENT
JA, at page 449 E – F, stated that:
“A
plaintiff is not required to establish the causal link with certainty
but only to establish that the wrongful conduct was probably a cause
of the loss, which calls for a sensible retrospective analysis of
what would probably have occurred, based upon the evidence and what
can be expected to occur in the ordinary course of human affairs
rather than an exercise in metaphysics.”
The
appellant also argues that the court
a quo
erred in awarding a claim for remote damages, without any mitigation,
for the loss of rentals.
In
Rowland
Electro Engineering (Pvt) Ltd v Zimbank
supra
GOWORA J (as she then was) stated that:
'It
is trite that a plaintiff seeking to claim damages based on breach of
contract has a duty to mitigate his loss.'
The
appellant's contention is that the granting of the claim for loss
of rentals was misplaced since it had made an offer to repair part of
the premises and that there were tenants who were willing to rent the
premises for US$4,500 after the termination of the lease. What is
clear from the record is that after the conditional offer to repair
part of the premises, the respondent wrote to the appellant
indicating that they intended to ensure that remedial action was
taken before the property could be re-let as engineers had confirmed
that the damage caused by the chemicals was not merely cosmetic or on
the surface. The respondent also acknowledged the offer to rent the
premises but it also indicated that it was not willing to let the
premises until they were occupiable.
The
judgment of the court a
quo shows
that the RPAZ Report made a conclusion that the premises had strong
odours and sticky floors. It also states that as at February 2014,
the premises were not fit for use, before recommending a cleaning up
of the place. In light of this, the fact that there was a tenant
willing to rent out the place could not preclude the respondent from
claiming for loss of rentals as a result of breach of contract. This
is because the premises had been declared not fit for use especially
in light of the effects of the chemicals to human health. This is one
of the reasons why the respondent wanted to ensure that the premises
were in a good condition before it could lease them.
Given
the circumstances of the case, the court a
quo was
correct in allowing the respondent's claims. The respondent's
ability to mitigate the loss was inhibited by the fact that the
premises were said to be unfit for use due to the structural and
health effects of the chemicals.
In
conclusion, l would find that the appellant has not been able to show
how the findings of the court a
quo
were grossly unreasonable in the sense that no reasonable tribunal
applying its mind to the same facts would have arrived at such a
conclusion given the evidence that was before it.
In
the result, l make the following order:
The
appeal be and is hereby dismissed with costs.
GARWE
JA: ……………………………..
GUVAVA
JA: ……………………………….
Tavenhave
& Machungauta,
appellant's legal practitioners
Mawere
Sibanda,
respondent's legal practitioners
1.
At paragraph 37 of the judgment
2.
See also Hama
v National Railways of Zimbabwe 1996 (1) ZLR 664 (S) at page 670 and
Chioza v Siziba SC 16/11
3.
A. A. Roberts 'Wessels' Law of Contract paras 3223 and 3224
