MAFUSIRE
J:
The
plaintiff was the ex-landlord. The defendant was the ex-tenant. For
close to ten years the defendant, an agro-industrial chemical
wholesaler and distributor, had leased from the plaintiff certain
industrial premises. The lease agreement said the defendant would use
the premises for the storage and distribution of chemicals and allied
products. It also provided that at termination, the defendant would
return the premises, together with, inter
alia,
all the keys and other property of the plaintiff in the same good
order “… fair
wear and tear … excepted.”
The
lease also provided that the defendant would, during the period of
the lease, 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. Finally, it was also
the defendant's obligation to replace all the fluorescent light
fittings, starters and ballasts, etc.
The
trial before me was the plaintiff's claim for damages. The
plaintiff averred that during its occupation, the defendant had
caused considerable damage to the premises in that certain fixtures
and fittings had been destroyed. The floors of the premises had been
damaged. The defendant was said to have moved out without having made
good that damage. The major damage complained of was said to have
been caused by the spillage of chemicals. The damage was said to have
been concentrated on the floors of the various rooms making up the
warehouse. The section said to have suffered the most was described
as the “red”
or “pink”
room. This was followed by the “purple”
room.
The
other damage sued for comprised:
(i)
electrical damage to the power trunking, lights, switches and
sockets.
(ii)
damage to the plumbing system in the toilets.
(iii)
broken window panes.
(iv)
damage to the locks and keys which had to be replaced.
(v)
a pungent smell as a result of the spillage of industrial chemicals.
The
plaintiff said until the repairs had been done and completed, the
premises had remained unletteable. The pungent smell had had to be
cleaned up.
Apart
from interest at the prescribed rate, and costs of suit on a legal
practitioner and client scale, the plaintiff's claim was for
US$27,150-78. The amount was broken down as follows:
(i)
US$5,198-05, being the consultation fees for the engineers engaged to
assess the damage;
(ii)
US$19,145-73, being the actual cost of repairs;
(iii)
US$1,043= for electrical repairs;
(iv)
US$1,248-00 for plumbing;
(v)
US$296-00 for glass repairs; and
(vi)
US$ 220-00 for locks and keys.
The
plaintiff said since it could not re-let the premises immediately
after the defendant had vacated, it had lost rental income for five
months. At US$5,000 per month, the total claim under this head was
US$25,000-00. So the total claim was US$52,150-78.
The
defendant denied the claim in
toto. It
said the claim was malicious and one calculated to harass it for
having moved out of the premises. It was said moving out was
something that had displeased the plaintiff which had wanted the
lease to continue. The mainstay of the defence was that the alleged
damage neatly fitted into the “...
fair wear and tear …”
exception.
The
defendant also alleged that it had offered, to quote directly from
its plea: “to
attend to a certain 'pink' /
'red'…
… in
the spirit of avoiding further quarrel with Plaintiff and not out of
any legal obligation [o]n its part.”
The
defendant said in the end, it had not attended to the “pink”
[or “red”]
because the plaintiff had frustrated the gesture.
To
tell its story, the plaintiff lined up three witnesses. The first was
Mr Andrew Lockhart-Scott. He was the plaintiff's managing director.
The nub of his evidence was that the plaintiff's premises were for
commercial hire. The defendant had left them in a deplorable state.
There had been structural damage on the floors due to chemical
seepage. There had been rust on the windows, the doors and the
frames. The damage to the electrical trunking had been caused by
forklifts moving up and down. He also confirmed the rest of the
damage as specified in the declaration.
Mr
Scott said the premises were unletteable before repairs. He had
commissioned two sets of engineers to assess the damage and to
recommend the nature and extent of the remedial work required. The
first was a firm of consulting engineers called Brian Colquhoun Hugh
Donnell & Partners. They had carried out a visual inspection of
the damage. They had also carried out an intrusive investigation.
This had entailed, among other things, the drilling and carving out
of samples from the affected spots for analysis. At the end of their
investigations they had compiled a detailed report. The report was
produced. Throughout the trial it was referred to as “the
BCHOD report”.
In
summary, the BCHOD report concluded that the chemical penetration in
portions of the floor of the “red”
room ranged in depth from 25mm to 50mm. This translated to 19% to 32%
of the total floor depth. The warehouse was made of concrete floors.
The finish in most rooms was screed or power float. The concrete
surface of the “red
room”
in particular was granular. It could easily disintegrate.
According
to the BCHOD report, the next section with some notable chemical
penetration was the “Sulphonic
Acid”
room.
Here the depth of chemical penetration was 5mm. The penetration in
the rest of the sections was said to be negligible.
In
substance, the remedial action recommended in the BCHOD report
included the cutting up, through grinding, of the concrete slab in
the “red”
room, down to the good concrete. The remaining exposed surface could
be treated in either of two ways, namely, doing a finished smooth as
a final working platform, or installing a separate bonded topping of
not less than 25mm in place of the exposed slab surface.
In
the “Sulphonic
Acid”
room, the BCHOD report recommended the removal of a 5mm surface
through grinding, and the improvement of the flatness across the
slab.
For
the “purple”
room, the same treatment as that of the Sulphonic
Acid
room was recommended, except that no remedial work for the structural
integrity of the concrete slab was required.
The
rest of the sections were given virtually a “clean bill”, just
requiring minute remedial action to sort out some dampness in the
main warehouse, and to achieve a smoother concrete finish.
The
BCHOD report stressed that it had focused on the structural integrity
of the affected areas and that its comments had been confined to the
surface degradation. It recommended a separate investigation from a
chemical expert that would focus on the health risks caused by the
chemicals which allegedly had caused the damage to the building.
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.
The
invoices making up the plaintiff's claim as set out in the summons
were produced through Mr Scott.
The
plaintiff's next witness was Mr Antony Robert Root. Robert Root
Property Consultants [“Robert
Root”]
had been the managing agents of the premises throughout the lease
period. Mr Root was the managing director. He had upwards of forty
five years' experience in property management.
The
gist of Mr Root's evidence was to confirm the defendant's
tenancy; the periodic inspections carried out by his firm; the
alleged damage to the premises; the remedial action taken to restore
them back to their letteable status, and the uncooperative attitude
of the defendant when engaged to make good, or meet the cost of, the
damage.
Mr
Root also spoke about the endeavours to get a replacement tenant. One
such had submitted a serious offer but the proposed rent had been
marginally lower than the market rate. At that time the repairs were
still to be completed. Among other things, the cleaning process to
get rid of the odours had yet to be done. Eventually this offer had
fallen through. A replacement tenant had only been secured from 1 May
2015. Even then, the rent was marginally less than what the defendant
had been paying. However, this difference was not part of the
plaintiff's claim.
The
plaintiff's third and last witness was Mr Cyprian Kunaka. He had
thirty years post qualification experience in civil and structural
engineering. It was his firm, Dickie & Kunaka Consulting
Engineers, which the plaintiff ultimately engaged to carry out the
repair work. It had subcontracted the other jobs.
Mr
Kunaka said he had first carried out an investigation of his own on
the nature and extent of the damage. Much of that investigation had
been through visual inspections. He had compiled a report giving the
plaintiff several options. The cheapest option would cost
US$17,312-32. The highest would cost US$19,902-90. Mr Kunaka said he
had recommended the highest option as a guaranteed for safety and
sustainability.
Mr
Kunaka's diagnosis and report had been independent of the BCHOD
report. The major highlights of his findings and recommendations were
that the chemical damage to the floors, particularly in the
“red/pink”
and the “purple”
rooms had been severe; that the remedial work that would be necessary
would not only restore the floors to their original state, but would
also guarantee safety. The repairs would entail the scraping off of
the concrete finishes in the affected rooms, replacing them with new
screeds in some of them, and power float finishes in others, to the
recommended depths of between 30mm to 40mm.
The
remedial works to the floors, electrics, glassware, doors, locks, and
the like, were carried out through Dickie & Kunaka. The contract
had been 'supply and fix'. Supporting invoices and receipts for
the payments made were produced. They largely matched the plaintiff's
claim.
The
defendant called two witnesses. The first was Mr Anub Chand. He was
the defendant's managing director. He had a Master's degree in
civil engineering. He had been seventeen years with the defendant.
Defendant's
second and last witness was Mr Paul Francis Robinson. He was an
industrial chemist with 35 years' experience. He said he had been
consulted by the defendant over its dispute with the plaintiff. He
had carried out an inspection of the premises and had compiled a
report on the nature and extent of the alleged chemical damage and
the nature and extent of the remedial works required to be done.
However, his inspection had been carried out at a time when the
premises had already been cleaned up of chemical residue.
The
substance of the defendant's case, as told by Mr Chand and Mr
Robinson, was that the so-called remedial work had been overdone;
that it had amounted to extensive renovations beyond any damage as
may have been attributed to its occupation; that the defendant could
not be expected to bear the cost of such repairs when it had been
excluded from the assessment of the damage and of the remedial work;
and that, in any event, the defendant had once offered, soon after it
had vacated the premises, to repair such of the damage as could be
attributed to its occupation, but that the plaintiff had unreasonably
spurned the offer. The defendant maintained that but for the
elaborate repairs which were excessive and unnecessary, the period
when the premises could have remained vacant for the purposes of
repairs could have been no more than a couple of days. It said if it
had been allowed to do the repairs itself, as it had offered to do,
the cost would have been no more than US$3,000.
In
a nutshell, the defendant's case was that the damage complained of
was no more than normal fair wear and tear.
Other
highlights of the defendant's evidence were that in all the
periodic inspections of the premises by Robert Root, nothing adverse
had been reported. All its employees would undergo periodic health
inspections as a standard requirement in the chemical industry, and
that in all such inspections they had been given a clean bill. By
their nature, the chemicals that they traded in released some smells.
However, there was nothing harmful about them.
The
defendant was prepared to accept the BCHOD report and its
recommendations. Mr Chand regarded Mr Kunaka's diagnostic method as
having been superficial and unreliable. He said this had led to him
recommending remedial action which was way over the top. To the
defendant, Mr Kunaka's works had been to rebuild the floors anew
for the benefit of new tenants, something that should, or could, not
be charged to it.
Through
Mr Robinson in particular, the defendant tried to show that the
alleged chemical damage had been superficial. Much of it was said to
be mere discolouration that could easily be gotten rid of by a coat
of paint.
That
was the case before me.
Except,
perhaps, for Mr Scott whose professional qualifications none of the
parties ventured to highlight beyond asserting his ownership of the
premises through the plaintiff, virtually all the witnesses from
both sides were not only qualified personnel in their fields of
endeavour, but also they each had vast years of post-qualification
experience behind them. Counsel had the unenviable task of
discrediting them in cross-examination. In my view, and with due
respect, both counsel did a splendid job. They did manage to bring
out, and to build up their respective clients' cases. I commend
them.
However,
I consider that all the witnesses from both sides spoke well. They
stood their ground in cross-examination. They highlighted as best as
they could their respective cases. In my view, the credibility of
witnesses is a relatively minor aspect in determining this case. The
matter turns on the story in, or behind, the relevant documents. Much
of what those documents reveal was common cause. That is where the
defendant fell short.
That
there was some damage to the plaintiff's premises after the
defendant had vacated was common cause. On the one hand, the
plaintiff said that the damage was extensive and could not be excused
for mere fair wear and tear. On the other hand, the defendant said
the damage was minimal or superficial, and that it was normal wear
and tear, given the years of occupation, and the nature of the
product stored, something which the lease had expressly acknowledged.
What
is fair wear and tear in cases of this nature?
YOUNG
J, in Cash
Wholesalers [Pvt] Ltd v Marcuse,
said fair
wear and tear
is dilapidation or depreciation which is due to normal use, the
ravages of time, exposure and natural elements. For such damage, the
tenant is relieved of the obligation to repair.
In
my view, it is a question of fact whether or not particular damage is
fair wear and tear. If it is, then it is depreciation or degradation
caused by exposure to the elements or due to normal use. The tenant
is not liable. If it is not normal fair wear and tear, then the
damage may be due to neglect. It may even be wilful. In that case the
tenant is liable.
In
this case, where the defendant was saying the damage was normal fair
wear and tear, and the plaintiff saying it was more than that,
someone else had to come forward and say which was which. Several
experts did. BCHOD was the first. It had been commissioned by the
plaintiff. It concluded that the damage went beyond fair wear and
tear. At first, the defendant's stance was to reject the BCHOD
report wholesale. However, it subsequently made a U-turn and was
prepared to accept it. Therefore, on this alone, it is safe to
conclude that it became common cause that the damage to the premises
had gone beyond fair wear and tear. Prima
facie
then, the defendant would be liable.
Why
the defendant, accepting the BCHOD report, would not then agree to
pay the plaintiff's loss was threefold. As I understood it, the
defendant was saying, firstly, that it had not been consulted when
BCHOD had been engaged; secondly, that, at any rate, it was not BCHOD
that had eventually carried out the remedial works, but someone else
who had completely gone overboard; and thirdly, that the defendant
could have easily carried out those remedial works itself, even on
the basis of that BCHOD report, but at a fraction of the cost now
being claimed.
Inevitably,
the spotlight fell on Mr Kunaka, the next expert commissioned by the
plaintiff. The defendant condemned his diagnostic methods and his
recommendations. He was the one who had eventually carried out, or
caused to be carried out, all the remedial work.
But
I find the defendant's stance flawed.
BCHOD
did not cost the remedial works required to be done. It merely spelt
out what was wrong; what needed to be done; and how it could be done.
It did not say how much it would cost. Furthermore, and at any rate,
BCHOD had also stressed the need for further investigations,
especially on the potential health risks due to possible chemical
exposure. Therefore, the defendant, if it accepted the BCHOD report,
must necessarily also have accepted that the plaintiff had been
justified in engaging other experts for further investigations.
It
is common cause that the premises were still engulfed by odours
months after the defendant had left. The defendant said it was just
an unpleasant smell that was normal, allegedly given the type and
quantity of the chemicals it had been using, and the length of the
storage. The plaintiff said it was more than that. The odours were
putrid. They made the premises uninhabitable. The health hazards were
unknown. Therefore, the plaintiff had engaged RPAZ on the
recommendations of the Ministry of Health. That was the third expert
commissioned by the plaintiff.
RPAZ
confirmed the strong odours but allayed any fears about health risks.
There seems to have been no direct cost attributed to the procurement
of the RPAZ report. But even if there had been, I would easily pass
it as having been necessary. Until the investigation had been done,
the plaintiff could never have known what dangers lurked in those
pungent smells. Thus, I consider that the plaintiff's move to
engage RPAZ had been reasonable and justified.
The
defendant's complaint on the RPAZ report was that RPAZ had no
“jurisdiction” over potential chemical damage, and that the
investigator from RPAZ who had recommended the cleaning up of the
premises with different solvents and neutralisers, had been
unqualified to make such recommendations. But in my view, this was
neither here nor there. The defendant's own chemical expert, Mr
Robinson, who notwithstanding arriving at the scene after the
premises had already been cleaned up, seemed to have been satisfied
with the level of cleaning up that had been carried out. Apparently,
it was because of the premises' state of cleanliness that Mr
Robinson had been able to rule out the possibility of any further
corrosion of the premises by chemicals. He seemed to endorse the
level of cleaning up that had been carried out. His own further
remedial action was just a coat of paint.
Therefore,
I consider that the cost of cleaning up the premises was a necessary
expense incurred by the plaintiff in restoring the premises back to
their original letteable status.
Then
came Mr Kunaka. It was through him that the bulk of the restoration
costs had been incurred. The defendant argued that Mr Kunaka had gone
over the top. It argued that what he did had not been what BCHOD had
recommended.
The
first difficulty that I have with the defendant's argument on the
Kunaka issue is that I was not told by how much Mr Kunaka had
allegedly gone over the top. BCHOD gave no figures. So, I can only
surmise that where the plaintiff is claiming US$27,150-78 as being
the actual cost of repairs, based on Mr Kunaka's report, and where
the defendant is claiming that it would have done those repairs at no
more than US$3,000, the figure by which Mr Kunaka must have gone over
the top would be US$24,150-78.
The
defendant's stance is eminently unreasonable.
I
am not about to give it credence by spending much time on it.
US$3,000 was even less than what it had cost the plaintiff to get the
consultants' expert opinions. It had cost US$5,198-05. One does not
need to be an expert, like BCHOD, or Mr Kunaka, or even Mr Chand
himself, to be able to dismiss the defendant's estimate of
US$3,000. It was manifestly unreasonable. The cost of repairs was
supported by detailed invoices and receipts. Nothing was shown to
have been incurred unnecessarily. That is the one aspect about the
defendant's stance on the Kunaka issue.
The
other aspect of the defendant's stance on the Kunaka issue was that
it presupposed that BCHOD recognised lesser damage than Mr Kunaka
did. That was not the case. There was considerable convergence
between the two experts on the nature and extent of the damage,
especially in the “red”
and “purple”
rooms, where the damage was severe. BCHOD put the depth of chemical
penetration at between 25mm to 52mm. When Kunaka dug up the floors
and re-did them up, he went down a depth of 30mm to 40mm. He did make
up a screed in some rooms and applied a power float finish in others.
The
defendant's major criticism of Mr Kunaka was that he made up
completely new floors. It was argued that not all the rooms had had
concrete screeds, or power float finishes before. But I consider the
criticism as being unreasonable. There had to be a uniform finish. No
self-respecting engineer would do patch work. BCHOD had only done
sample drilling. As Mr Kunaka had gotten down to doing the work, he
would discover further damage that might have escaped both his
earlier visual inspection and the sample drilling by BCHOD. Whole
chunks of the floor would drop off as he dealt with the practical
situation on the ground.
The
lease prevented the defendant from making any structural alterations,
additions or improvements to the leased premises without the prior
written consent of the plaintiff. I do not suppose that the carrying
out of repairs to the damaged floors, even if damaged by use or the
elements over time, would amount to structural alterations or
additions or improvements. On the contrary, the defendant was
expressly obliged to keep and maintain the premises in a clean and
sanitary condition and in good order, and to redecorate the internal
walls when necessary.
In
casu,
both parties have cited the case of Cash
Wholesalers [Pvt] Ltd v Marcus.
In my view, the analysis made by the court in that case is less
favourable to the defendant. Part of the damage analysed by the court
related to the first floor of the building that had been leased by
the plaintiff - the landlord, to the defendant - the tenant. That
floor had been made of wood. Over time the wood had become worn out.
When the defendant had wanted to use that floor for the first time,
some years after the lease agreement had been running, it turned out
that it had been latently defective. Among other things, it could not
carry the load it ought to have carried. The two judge court
considered that the basic trouble with the first floor was wear and
tear owing to age and use. It would be the landlord that would be
liable for the cost of fixing that kind of trouble. But the court
also said that much of the trouble with that floor had been the
broken floor boards that had remained unattended to for years. The
court said that the tenant would be liable for fixing that kind of
trouble. Clause 7 of the lease had obliged the tenant, just as in the
present case, to inter
alia,
keep the premises in good order. It had prohibited the tenant from
making any structural alterations, additions or improvements without
the landlord's consent. Of this, YOUNG J said:
“No
question of structural alterations as visualised in clause 7 of the
agreement arises in this case. Replacing a floor is not a structural
alteration, and it is not necessarily outside the tenant's
obligations under a repair clause, even if it involves new and modern
material; it depends on the wording of the agreement.”
In
Radloff
v Kaplan,
a case quoted with approval in Marcus,
MACGREGOR J said of the fair wear and tear exception in lease
agreements:
“But
if the person who is under the duty to repair lets time run on unduly
without doing anything towards the upkeep and keeping in order of the
place, he cannot rely on the exception of fair wear and tear.”
In
casu,
the corrosion to the floors of the premises had been caused by the
defendant's chemicals. Therefore, the defendant is liable to make
good the cost of repairs. I have seen nothing excessive in the repair
work done, or caused to be done, by Mr Kunaka.
In
my view, the plaintiff's claim for loss of rentals from December
2013 to March 2014 at US$5,000 per month is a claim for consequential
loss. In my view, that was not such direct damage as would be said to
have flowed naturally from the defendant's breach. It was indirect
damage. In Gort
v Tinto Industries Ltd
SAMATTA J said:
“Direct
damage is that which flows naturally from the breach without other
intervening cause and independently of special circumstances, while
indirect damage does not so flow.”
Consequential
or indirect damages should, objectively, be in the contemplation of
the parties at the time of the contract. In the present case, if the
defendant moved out of the leased premises which it knew existed for
hire, but left them in an uninhabitable state, it cannot escape
liability for the loss of the rent by the plaintiff during the period
that it had taken to fix the premises back to their letteable state.
That loss flowed naturally from the breach, albeit indirectly. The
defendant has not shown that the premises could have been repaired
much sooner than they had been, or that the plaintiff could have
procured a tenant who would have been willing and able to pay the
true market rentals much earlier than the time it had taken for the
repairs to be completed. On the other hand, the plaintiff has managed
to show what
had needed to be done to its premises to restore them back to their
letteable condition; how
it had been done; how
long
it had taken, and what
the cost
had
been.
In
the premises, the plaintiff's claim is allowed in its entirety.
The
plaintiff has prayed for costs at the higher scale of attorney and
client. No justification or reason for this has been proffered.
Therefore, the costs shall be at the ordinary scale.
The
plaintiff has also prayed for interest on the amount of damages at
the prescribed rate, currently five per cent per annum [5% p.a.] to
be reckoned from 29 May 2014. I have gathered from the plaintiff's
declaration that this date was the date of the demand for payment.
However, I consider that interest should not be reckoned from that
date, but from the date of this judgment. The plaintiff's claim,
despite the supporting documents, had remained unliquidated.
In
the premises, the matter is disposed of as follows:
The
defendant shall pay the plaintiff the sum of US$52 150-78 [fifty two
thousand, one hundred and fifty dollars and seventy eight], together
with interest thereon at five per cent per annum [5% p.a.] from the
date of this judgment, namely 3 February 2016, to the date of
payment. The defendant shall pay the plaintiff's costs of suit.
3
February 2016
Mawere
& Sibanda,
plaintiff's legal practitioners
Tavenhava
& Machingauta, defendant's
legal practitioners
1.
1961 [2] SA 347 [SR], at p 354
2.
1961
[2] SA 347 [SR]
3.
HATHORN and YOUNG JJ
4.
At p354E
5.
1914 EDL 357
6.
1985 [1] ZLR 66 [HC]
7.
At p 72A - B
