MTSHIYA J: This
is an opposed application wherein the applicant seeks the following
order:
“1. The
notice to terminate the lease agreement entered into between the
applicant and the respondent on 28 August 2003 in respect of number 5
Jacaranda Close, Hatfield, Harare be and is hereby declared null and
void.
2. The
applicant shall be entitled to renew the lease agreement every three
years effective from 1 October 2007 until 30 September 2013.
Alternatively
3. The
respondent shall pay the applicant damages in the sum of $204 billion
for the loss of income incurred by the applicant due to the premature
termination of the agreement of lease entered into by the parties on
28 August 2003.
4. The
respondent be and is hereby ordered to pay costs of this
application”.
The order in the alternative was correctly abandoned at the
commencement of proceedings since the relief sought was not properly
before the court.
It is common cause that on 28 August 2003 the parties entered into a
lease agreement in respect of a property known as number 5 Jacaranda
Close, Hatfield. In terms of the lease agreement the applicant was to
use the premises as lodges. The lease agreement commenced on 1
October 2003 for an initial period of twelve months subject to the
following renewal option contained in the ninth clause of the lease
agreement:
“The lessee
shall at the conclusion of the above mentioned period, be entitled to
a renewal of this lease for a period of twelve months renewable for
three years up to ten years maximum at a monthly rate of $…. and
otherwise on the same terms and conditions (except as regards
renewals): provided that written notice of renewal be given by the
lessee to the lessor at least one month before hand”.
On 20 August 2007 a Miss Winnie Samukange (“Samukange”), whose
signature appears on the original lease, sent the following letter to
the applicant:
“Dear Sir,
Following our phone discussions regarding the above property, I would
like to inform you that the owner Mr Shoorayi Mandaa will be
returning to Zimbabwe from the USA where he has been residing for the
past twelve years. He would want to live on the property and has
asked that the property be availed to him by 20 November 2007 thus
giving a three months notice from the date of this letter.
You will recall that the current lease (copy attached) was initially
for twelve months then renewable every three years pending his
return. We would like to emphasize the fact that the above property
is strictly residential although it was running as Benzuu Lodges when
we bought it in 2000. It is therefore not licensed to run as a Lodge
Business.
We would also want to advise Prime Real Estate by copy of this letter
about the position Mr Mandaa would want the next three months rental
to be paid at number 70 St Patrick's Road, Hatfield as from 31
August 2007 when Prime Real Estate closes the file for the property.
We wish you all the best in future business.
Yours Sincerely
Winnie Samukange
cc: Prime Real Estate”
The above letter led to this court application wherein, in his
founding affidavit, the applicant, in part, states:
“On 20
August 2007, the respondent's representative, Mrs Winnie Samukange,
wrote a letter to me notifying me of three months notice of the
respondent's intention to terminate the lease agreement. Annexure
'B' hereto is a copy of the said letter.
Annexure 'B' is in breach of annexure 'A1–A3' in that
according to the first and ninth clause thereof, after the expiry of
the initial twelve months, I am entitled to renew the lease agreement
every three years up to a maximum period of ten years.
In that regard, the lease agreement having commenced on 1 October
2003, I am entitled to renew the lease agreement every three years up
to the year 2013.
The intended termination of lease is therefore premature by six
years”.
Samukange apparently signed the lease agreement on behalf of the
respondent.
On 19 November 2007 Samukange filed an opposing affidavit whose
opening part reads as follows:
“I Winnie
Samukange duly authorized thereto by a Power of Attorney granted to
me by Shorayi also known as (Shaun) Mandaa Kudinga the respondent
attached hereto as annexure 'D' do hereby take oath and state
that the under-mentioned facts are true and correct to the best of my
knowledge and belief.”
There was no power of attorney attached to the affidavit.
In the opposing affidavit Samukange goes on to state the following:
“3.1 The
lease agreement was subject to renewal on condition that the owner
does not want to use the property.
3.2 In the
notice referred to by the applicant, para 2 in particular states that
the option to renew is only available if the owner does not require
the said property for his use.
3.3 I am
advised by my legal practitioners of record and verily believe the
same to be true that such option is not a clear right and the
tenant's right can not take precedence over the owner's rights of
the property.
3.4 In terms
of the Commercial Rent Regulations the owner of a building is
entitled to cancel the agreement on good and sufficient grounds. The
respondent submits that he has good and sufficient grounds for the
ejectment of the applicant for the following reasons:
(i) as stated
in the notice the respondent requires the property for his own use;
(ii) as the
owner of the property his rights takes precedence over that of the
tenant; and
(iii) it has
come to my attention that the applicant has not been maintaining the
property in good condition and his continued stay will result in the
depreciation of the property in value.
3.5 I am thus
advised that the notice given to the applicant is valid and in any
event, the applicant was not entitled to an automatic renewal of the
lease. Further, the applicant is guilty of causing material damages
to the said property in that he has caused the following damages:
(a) Sewage
piping in and out of the house is blocked and the septic tank has not
been emptied and is over flowing this is a health hazard to the
occupants and neighbours. If this status is not urgently addressed
the respondent will incur exorbitant costs to address the same.
(b) Leaking
thatch on one of the outside buildings. Again, if the same is not
urgently attended with the rain season coming the building might be
damaged extensively.
(c) Walls are
dilapidated.
3.6
Furthermore, he had been operating illegally without the requisite
licenses from the City Council and Zimbabwe Tourism Authority. To
date he has since been fined twice for contravening the regulations.
The Zimbabwe Tourism Authority has given him an ultimatum for him to
regularize the same, failing which the applicant will be forced to
close the said business”.
After the applicant's answering affidavit filed on 27 November
2007, Samukange filed a “supplementary affidavit” on 18 January
2008. This affidavit was filed together with another “affidavit in
support of counter application”. The record does not reveal the
filing of a formal application in respect of a counter claim in the
form specified in the rules of this court. However, the purported
counter claim was for the following relief:
“It is
ordered that:
(1) Within ten
days of the service of the order on him, the applicant Mr Rodgers
Dhliwayo and those claiming through him vacate with their goods and
other belongings stand 5 Jacaranda Road, Hatfield.
(2) Failing
compliance the Deputy Sheriff Harare is hereby authorised to eject
him in terms of para 9.
(3) Pending
vacation on the premises the applicant shall pay to the respondent
$100,000,000-00 (one hundred million dollars) per month as holding
over damages from the date of the application to the date of
vacation.
(4) The
applicant shall pay the cost of the Counter application”.
On 5 February 2008 the applicant responded to the respondent's
supplementary affidavit. He stated, in part:-
“2. On 24
January 2004 my legal practitioners were served with the respondent's
supplementary affidavit sworn to by Winnie Samukange, I wish once
again to bring the court attention to the fact that Winnie Samukange
has got no locus
standi
to swear to such affidavit in this matter because she does not have
the power of attorney from the respondent to swear to any affidavit
in this matter.
3. Annexure 'D' referred to in her opposing affidavit was not
attached and I have not had sight of such power of attorney to date.
4. I am also informed by my legal practitioners that no party to
legal proceedings has the right to file a supplementary affidavit
without leave of court. No leave to file the supplementary affidavit
has been sought and granted; and as such the supplementary affidavit
is not properly before the court.
5. In this regard I am only responding to the supplementary affidavit
simply to put my position on record as regards the contents of the
supplementary affidavit”.
The applicant also responded to the issue of a counter claim in the
following terms:
“5.
Ad Paragraph 6
(i) If the
respondent wants to take over the premises for his own use before the
expiry of the period agreed then he is in breach of the agreement. As
for the issue of the licence, I have made efforts to obtain one but
my efforts yielded no results. I refer to paragraphs 6(e)-(g) of my
answering affidavit in the main claim in this matter, and wish to
incorporate the contents thereof as if they were specifically stated
herein.
(ii) I am not
sure of what is meant by 'permitted the premises to predominately
to offer commercial sexual intercourse services'. I have not
employed anybody to offer sexual services to anyone at the premises.
I therefore deny any wrongdoing. I challenge the author of this
affidavit, to produce evidence to the court proving what she mean by
offering commercial sexual intercourse services. In the absence of
proof of what she means, then this becomes a bold allegation which
should be thrown out by the court.
6. Ad Paragraphs 8–10
There are no valid reasons why I should vacate the premises and so
the given notice should be declared null and void. I am not trying to
delay vacating the premises but exercising my rights with the
agreement. I have paid all the rentals to date and I have got no
objection to payment of the rental at the rate of $100,000,000-00
(one hundred million dollars) per month until this matter is
finalized.
However the rest of the terms of the order sought should be dismissed
with costs”.
At the
commencement of the proceedings Advocate Mehta
for the applicant raised two main points in limine.
(1) He
submitted that the failure by Samukange to produce a power of
attorney under which she claimed authority to act on behalf of the
respondent, meant that she had no locus
standi.
He argued that without the power of attorney Samukange could not:
(a) issue the
notice of 20 August 2007 appearing on page 2 herein;
(b) Depose to
affidavits in this matter;
(c) File a
counter-claim; and
(d) Instruct
legal practitioners.
(2)
Notwithstanding lack of authority on the part of Samukange, Advocate
Mehta
also argued that the counter-application purportedly filed was not in
compliance with r229A of the High Court rules.
In response to
the lack of authority on the party of Samukange, Mr Katsande
for the respondent conceded that no power of attorney had indeed been
produced. He, however, believed that there must have been a power of
attorney when the notice was issued.
Relying on
Chiadzwa
v Paulkner
1991 (2) ZLR 33 (SC), Mr Katsande
argued that, the fact that Samukange's founding affidavit clearly
set out the cause of action, there was no need for a power of
attorney. He then urged the court to take a robust view on the issue
of Samukange's authority, thus urging the court to accept that the
absence of a power of attorney should not invalidate the proceedings.
I shall now
deal with the first point raised in limine.
If I find that
Samukange should have been empowered by a power of attorney from the
respondent, that will then mean that she had no locus
standi
and
the proceedings will stand invalidated. That would in turn dispose of
this matter.
Samukange's first statement in her opposing affidavit is to the
effect that she derives her authority from a power of attorney but
unfortunately she fails to produce such a power of attorney. All we
are told is that there must have been a power of attorney which might
have gone missing. The argument goes further to say she is the one
who signed the lease agreement which was binding on both parties. The
applicant, it is argued, should not start questioning her authority
at this stage.
This submission is made despite the fact that Samukange herself knew
that in order to legally represent the respondent she needed
authority in the form of a power of attorney. This is what she states
in the first statement of her opposing affidavit.
Notwithstanding the existence of a binding lease agreement, I am not
persuaded by the respondent's argument. There might indeed have
been authority to sign the original agreement, but again we do not
have proof of that authority except that no issue was raised then.
It must be borne in mind that a power of attorney may be general or
special. The authority from a power of attorney may, apart from being
general or special, be for a specific purpose and for a specific
period.
In casu
the absence of proof of the existence of any power of attorney makes
it impossible to establish a link between Samukange and the
respondent. It is also not possible to establish the kind of
authority she had. There is no single document in the papers
establishing a link between Samukange and the respondent.
It is my
belief that the case relied on by the respondent namely, Chiadzwa
v Paulkner
1991 (2) ZLR 33 (SC), could only have assisted if there was evidence
that Samukange had authority to act for the respondent. In the main
that case related to matters of evidence.
In the said case GUBBAY CJ, as he then was, states:
“Thus the
affidavit must fulfil three requirements –
(a) it should
be made by the plaintiff himself or by any other person who can swear
positively to the facts;
(b) it must
verify the cause of action and the amount, if any, claimed; and
(c) it must
contain a statement by the deponent that in his belief there is no
bona
fide
defence to the action.…
Where the
affidavit is not that of the plaintiff himself, the deponent, while
not requiring any special authority from the plaintiff to make the
affidavit, must belong to a
particular
class of persons,
namely, those who can swear positively to the facts.” (my own
underlining)
There is nothing before me which describes or identifies Samukange.
I cannot establish who she was. The document that could have told me
to what class of persons Samukange belongs has not been produced.
I do not believe that the capacity “to positively swear to the
facts” can also entitle a deponent to initiate legal processes
without the specific and proven authority of the plaintiff or
respondent.
Consequently my finding is that Samukange could not issue the notice
of 20 August 2007 and could also not swear to the affidavits filed in
respect of this case.
Samukange had
no locus
standi
in this case.
Having ruled
that Samukange had no locus
standi,
it follows that the notice of 20 August 2007 must be declared null
and void. The finding also means that the purported counter-claim by
the respondent is not properly before the court since it was filed by
a person with no locus
standi.
All in all and
given the nature of the valid points raised in
limine
by the applicant, there is no way a robust approach can be applied to
condone the irregularities on the part of the respondent. The
application should therefore succeed.
It is therefore ordered as follows:
1. That the
notice issued by the respondent on 20 August 2007 terminating the
lease agreement entered into between the applicant and the respondent
on 28 August 2003 be and is hereby declared null and void.
2. The
counter-claim filed by the respondent on 18 January 2008 be and is
hereby dismissed; and
3. The
respondent shall pay the costs of this application.
Mkuhlani Chiperesa,
applicant's legal practitioners
FM Katsande & Partners,
respondent's legal practitioners
