MAKARAU JP: The brief
background facts to this matter are largely common cause. I set them
out as follows.
In 1994 the applicant entered into a lease agreement with the first
respondent in respect of certain premises situate at number 9 Market
Street, Eastlea, Harare, (“the premises”).
The lease agreement was constantly renewed over the years with the
last renewal being agreed upon on 20 June 2007 for a further three
years. Thus the lease agreement between the parties is due to expire
by effluxion of time on 31 March 2010.
It was a specific term of the agreement between the applicant and the
first respondent that the applicant would not sublet the premises
without the written consent of the lessor.
In 2008, the applicant and the second respondent reached an
understanding in terms of which the second respondent moved onto and
took occupation of part of the premises. I shall revert to the
details of this understanding in due course.
In January 2009, the first respondent wrote to the applicant
summarily terminating the lease agreement and seeking the ejectment
of the applicant from the premises. This was on the allegation that
the applicant was subletting the premises to the second respondent
without the prior written consent of the lessor and in breach of the
specific term of the lease agreement against subletting.
When the applicant tendered rentals for the month of February 2009,
these were rejected on the basis that the lease agreement had been
cancelled.
This in turn prompted the applicant to approach this court seeking;
(i) firstly an order holding the
first respondent to the lease agreement on the basis that it was not
subletting to the second respondent as alleged; and
(ii) secondly an order ejecting
the second respondent from the premises.
The application was opposed by both respondents.
In opposing the application, the first respondent contended that it
had proceeded in terms of the lease agreement to summarily cancel the
lease agreement as the applicant was in breach. It justified its
action by relying on clause 21 of the lease agreement which provides
that:
“If
the lessees shall fail to pay the rent on the due date or at the
latest within ten days thereafter or if the lessees shall commit any
other breach of the terms or conditions of this lease then the
Municipality shall have the right in its discretion summarily to
terminate this lease and retake possession of the stand without
payment of any compensation whatsoever and without prejudice to any
claim which it may have against the lessees for rent already due or
for any damages which it may suffer by reason of such breach or
termination.”
The second respondent's opposition to the application is in my view
somewhat curious.
The second respondent is the alleged sub-lessee and it objects to the
continuation of the lease agreement between the applicant and the
first respondent. While admitting as contended by the applicant that
it took occupation of the premises in anticipation of a joint venture
between itself and the applicant, the second respondent does not
proffer any defence as to why it should not be evicted from the
premises at the instance of the applicant.
Instead, and curiously so as I have observed above, it adopts and
pleads the case of the first respondent that the applicant was in
breach of the lease agreement, indeed epitomizing the proverbial
stranger who mourns louder than the bereaved.
It further avers that in February 2009 when the applicant's rentals
were turned down, this was because it had paid these in respect of
the property. It however falls short of alleging that it is now the
tenant in respect of the property.
In its opposing affidavit, the first respondent does not admit any
formal relationship with the second respondent. It simply maintains
that the applicant's rentals for February 2009 were not accepted as
its lease had been cancelled.
I believe it is pertinent at this stage that I dispose of the issue
between the applicant and the second respondent.
As observed above, the applicant is seeking the eviction of the
second defendant from the premises on the basis that the proposed
joint venture between the parties has failed.
This is not disputed by the second respondent which then proceeds to
aver that after the joint venture had failed to materialize, the
applicant demanded rentals from it, thereby creating the sublease.
The totality of the averments made by the second respondent, even if
proved, do not constitute a defence to an order for eviction at the
instance of the applicant. Thus, in the event that I find for the
applicant and hold the first respondent to the agreement, I must
perforce order the eviction of the second respondent from the
premises on the basis that the second respondent has failed to
proffer a defence to the applicant's claim.
The issue that remains for my determination is between the applicant
and the first respondent. It is whether the first respondent was
justified in summarily canceling the lease agreement without first
affording the applicant a chance to respond to the allegations that
it was subletting the premises to the second respondent.
It is trite that even where a lease agreement grants the lessor the
right to cancel the lease on account of breach and to re-take
possession of the leased premises as was the position between the
applicant and the first respondent, such cancellation is always
subject to the control of and confirmation by the court.
The lessor has to approach court for the confirmation of its
cancellation of the agreement and for the eviction of the tenant. The
right to summary termination of the lease agreement, no matter how
clearly worded, does not oust the jurisdiction of the court to grant
the eviction order.
The existence of the grounds for and the validity of the cancellation
of the lease agreement are always subject to validation and
confirmation by the court which alone can order the eviction of the
defaulting tenant.
The lessor cannot exercise self
help and retake possession of the property without a court order even
where the agreement specifically provides so. (See Livingstone
v Solomon 1924 SR 117;
Joubert v Bester
1977 (2) SA 641 (T); Towers
v Chipata 1996 (2) ZLR
261 (HC) and Bater and
Another v Muchengeti
1995 (1) ZLR 80 (SC) at 85).
In casu,
the first respondent did not independently approach the court for the
eviction of the applicant after it became aware of the alleged breach
in the form of subletting.
After being served by this application, it did not seek to counter
apply for the confirmation of its cancellation of the lease agreement
and the eviction of the applicant.
The validity of its actions in canceling the lease agreement and its
threat to re-take possession of the premises have been brought before
the court by the applicant not for its confirmation but for it to be
set aside on the basis that the first respondent did not give the
applicant an opportunity to respond to the allegations before it
acted summarily.
Thus, it appears to me that even if I were to find that the purported
cancellation of the lease agreement by the first respondent was
justified in the circumstances, that finding would not automatically
translate into an order evicting the applicant from the premises as
there is no prayer before me for the eviction of the applicant from
the property.
In my view, such a finding, if I were to make it, would simply lay
the foundation for the issuance of an eviction order against the
applicant at the instance of the first respondent whenever it is
moved to seek such an order.
It is on the basis of the above that in my view, it is not necessary
that I make a finding as to whether or not the applicant was
subletting to the second respondent and was therefore in breach of
the lease agreement.
In my view, to do so would be to tie down the court that may be
approached by the first respondent for an order evicting the
applicant from the property.
In my view, the legal issue that must be resolved in this matter is
whether in light of the promulgation of the Administrative Justice
Act [Chapter 10.28], (“the Act”), the powers of the first
respondent as a local authority to act summarily as it did has been
modified.
Hence at the hearing of the matter, I directed the parties to make
reference to the provisions of the Act, which came into operation on
3 September 2004.
My anxiety not to overlook the provisions of the Act was prompted by
the admitted fact that the first respondent acted strictly in terms
of the lease agreement between the parties and did not afford the
applicant a chance to be heard before it summarily cancelled the
lease agreement on the allegation that the applicant was subletting
the premises to the second respondent.
I have now received extensive heads of argument from both counsel in
this matter and I appreciate the assistance rendered me in this
regard.
Mr Chirowe
for the first respondent, ingeniously in my view, put the issues that
arise from a consideration of the provisions of the Act as follows:
“1. Whether or not the
applicant by entering into a lease agreement which entitles first
respondent to summarily terminate the lease agreement can be held to
have waived its right to be heard as provided (for) in the
Administrative Justice Act.
2. Whether or not first
respondent cannot validly enter into a contract with the applicant
which varies or excludes some provisions of the Administrative
Justice Act.”
I view the settling of the issues by Mr Chirowe as ingenious as the
Act came into operation on 3 September 2004 when the parties were
already in the landlord and tenant relationship. The applicant could
thus not have waived rights under the Act when it contracted with the
first respondent as such rights were not in existence and had not
accrued to it.
By the same token, the parties could not have expressly excluded the
provisions of the Act in their agreement as the lease agreement
preceded the coming into operation of the Act.
All in all, I gain the impression that Mr Chirowe in settling the
issues in the manner that he did, was at pains to show that the
provisions of the Act are not binding on the parties before me.
Whether the first respondent is bound by the provisions of the Act is
the issue that I address in this judgment.
Advocate Mazonde for
the applicant on the other hand, perceived the issue arising from the
provisions of the Act as simply whether these have introduced the
application of rules of natural justice into the filed of contract
law where one of the parties is a local authority as is the first
respondent before me.
I tend to agree with his definition of the issue that falls for my
determination in this suit.
The rule at common law is that
tenets of natural justice have no application in the law of contract
unless the aggrieved party can prove that the contract impliedly
imported and incorporated such into the contract. (See Machaya
v BP Shell Marketing
(Pvt) Ltd 1997 (2) ZLR 473 (H)).
With the promulgation of the act, it appears to me that this common
law was varied in some instances as it applies to administrative
authorities to which the Act applies.
I first have to determine whether the Act applies to the first
respondent.
In section 2, the Act defines administrative authority to include any
person, committee or council of a local authority.
In casu,
it is common cause that the decision to summarily terminate the lease
agreement between the applicant and the first respondent was taken on
behalf of the first respondent by a duly authorised employee or
committee of the first respondent, who or which by virtue of the
provisions of the act, becomes the administrative authority for the
purposes of the Act.
This is not in dispute.
In the same section, an administrative action is defined to include
any action or decision taken by an administrative authority.
The definition given in the
section appears to me to be immensely wide. I would venture to
suggest that the definition of “administrative action” in the Act
is wider than that given in section 1 of the South African promotion
of Justice Act as reported in decisions such as Sikutshwa
v MEC for Social Development, Eastern Cape, and Others
2009 (3) SA 47 (TkH) and Nedbank
Ltd v Master of the High Court, Witwatersrand Local Division, and
Others 2009 (3) SA 403
(W) where it is stated that “administrative action” in terms of
s1 of the Act means any decision taken, or any failure to take a
decision by an organ of State when such organ of State is exercising
a public power or performing a public function in terms of
legislation, which adversely affects the rights of any person and
which has a direct, external legal effect.
In my view, the definition of 'administrative action' as given in
section 1 of the South African equivalent of the Act, as compared to
the definition given in the Act, marks the point of departure in the
laws of our two countries.
Thus, in South Africa, if action
is taken on the basis of a contract between the parties, such has
been held not to constitute 'administrative action” that is
subject to the provisions of the Act. (See Chirwa
v Transnet Ltd and Others
2008 (4) SA 367 (CC) (2008 (3) BCLR 251 and De
Villiers v Minister of Education, Western Cape, and Another
2009 (2) SA 619 (C)).
In excluding contractual
relations from the application of PAJA, the south African courts have
been guided by the definition of “administrative action” that I
have referred to above and is captured in the following remarks by
NQCOBO J (as he then was), in para 142 of the judgment in Chirwa's
case:
“The
subject-matter of the power involved here is the termination of a
contract of employment for poor work performance. The source of the
power is the employment contract between the applicant and Transnet.
The nature of the power involved here is therefore contractual. The
fact that Transnet is a creature of statute does not detract from the
fact that in terminating the applicant's contract of employment, it
was exercising its contractual power. It does not involve the
implementation of legislation which constitutes administrative
action. The conduct of Transnet in terminating the employment
contract does not in my view constitute administration. It is more
concerned with labour and employment relations. The mere fact that
Transnet is an organ of State which exercises public power does not
transform its conduct in terminating the applicant's employment
contract into administrative action.”
With much commendable foresight, (or hindsight), the legislature in
enacting the Act specifically included acts by all public
authorities, even where the power to carry out the Act is derived
from a contract, thereby obviating the need for our courts to debate
the issue that fell for determination in the South African courts in
matters involving the termination of employment contracts.
Section 2 of the Act defines “administrative action” as follows:
“(1)
In this Act —
'administrative
action' means any action taken or decision made by an
administrative authority and the words 'act', 'acting' and
'actions' shall be construed and applied accordingly;”
In
the same section, empowering provision, is defined as follows:
“(1)
In this Act —
'empowering
provision' means a written law or rule of common law, or an
agreement, instrument or other document in terms of which any
administrative action is taken;”
My reading of the two definitions put together makes me arrive at the
conclusion that for the purposes of the Act, any decision made by an
administrative authority under the empowering provisions of any
enactment, in pursuance of any rule of common law' in terms of an
agreement between itself and another party or in terms of any legal
instrument, shall be made fairly and in accordance with the
provisions of the Act.
In my view, one can say the statutory provisions protecting the
public's rights to fair administrative decisions as given under the
Act are considerably wider than those conferred under the South
African equivalent and to construe them restrictively would be to
take away from the public by judicial interpretation that which the
legislature has given.
That the promulgation of the Act brings in a new era in
administrative law in this jurisdiction cannot be disputed.
It can no longer be business as usual for all administrative
authorities as there has been a seismic shift in this branch of the
law. The shift that has occurred is in my view profound as it brings
under the judicial microscope all decisions of administrative
authorities save where the provisions of section 3(3) of the Act
applies.
On the basis of the foregoing, I find that the decision by the first
respondent to summarily terminate the lease agreement between itself
and the applicant was an administrative carried out by an
administrative authority, empowered to do so by the lease agreement
between the parties.
The Act applies fully to such a decision.
The Act provides in the main that
an administrative authority which has the responsibility or power to
take any administrative action which may adversely affect the rights
interest or legitimate expectation of any person shall inter alia,
act reasonably and in fair manner.
The Act proceeds to define what a
fair manner for the purposes of the Act shall entail and this
includes the adequate notice of the nature and purpose of the
proposed action and a reasonable opportunity to make adequate
representations, in my view, an embodiment of the audi
arteram partem rule.
In my further view, the Act is
simply a codification of the position that was gaining general
acceptance at common law to the effect that rules of natural justice
have to be observed before any administrative decision is taken where
such may adversely affect the rights or property of an individual.
(See Grundling v Beyers
and Others 1967 (2) SA
131 (W).
Thus, even prior to the enactment
and promulgation of the Act, courts in this jurisdiction were
generally alive to the need to import fairness into administrative
decisions even those that were founded primarily on contract,
especially the employment contract. (See Machaya
v BP Shell Marketing (Pvt) Ltd
(supra)).
On the basis of the above, it is therefore my finding that the first
respondent was bound to act fairly in terminating the lease agreement
between itself and the applicant.
It failed to do so.
By failing to act fairly in the circumstances, it breached the
obligations placed upon it by the law. Its consequent decision,
arrived at in circumstances where it had failed to act fairly cannot
therefore stand.
I make this decision in the full knowledge of the fact that the first
respondent genuinely believed it had a case against the applicant and
that the lease agreement between itself and the applicant allowed it
to act as it did.
Notwithstanding all that, because the law imposes a duty on the first
respondent to act fairly in the matter, its decision has to be set
aside as it was arrived at unfairly. The decision is set aside even
without an examination of whether or not the applicant was subletting
the premises in promotion of the need to advance fairness in public
administration as embodied in the Act.
Before I dispose of this matter,
I need to deal with a point in limine
taken by the first respondent in this matter and arising out of
adjectival law.
The first respondent contends that the applicant did not approach
this court for relief under the Act and thus I cannot apply the
provisions of the Act to its advantage.
Section 4 of the Act provides
that any person who is aggrieved by the failure of an administrative
authority to comply with section three
may apply to the High
Court for relief.
It is common cause that the applicant filed this application
challenging the decision of the first respondent to summarily cancel
the lease agreement. It filed a court application in terms of the
rules.
While the application does not make any reference to the provisions
of the Act, in my view it makes allegations that fall squarely within
the provisions of the Act.
I was satisfied before I referred the question to the parties for
further argument that the allegations and contentions made by the
applicant in its court application fell within the purview of the Act
even if the Act was not specifically invoked.
In my view, generally, it is not necessary for an applicant to
specifically plead the law that it seeks to rely on as long as the
necessary averments are made therein to sustain a cause of action
under the applicable law unless the law under which he or she is
proceeding requires that certain averments be specifically pleaded.
The court is not a slave to the form of the law. It is always a slave
to justice whom it must always serve.
For the avoidance of doubt, if I have erred in allowing the applicant
to bring a deformed application before the court and the correct
position is that it was necessary for the applicant to specifically
invoke the provisions of the Act, I will condone that oversight in
terms of section 4(c) of High Court Rules 1971.
As correctly pointed out by the first respondent, this is not an
application for review. It is an application for the setting aside of
an administrative decision on the basis that it was not arrived at
fairly and thus at law, contravenes the Administrative Justice Act.
In view of the fact that the applicant succeeds on a matter that it
did not specifically raise in its initial heads of argument, I will
not punish the first respondent with an award of costs. The same does
not apply to the second respondent.
In the result, I make the following order:
1. The decision by the first
respondent to summarily cancel the applicant's lease agreement is
hereby set aside.
2. The second respondent and all
those occupying through it are to vacate the premises at number 9
Market Street within 7 days of this order failing which the deputy
sheriff is hereby authorised to evict the second respondent and all
those occupying through it from the premises.
3. The second respondent shall
bear the applicant's costs of suit.
Muzangaza, Mandaza & Tomana, applicant's legal
practitioners
Gambe & Partners, 1st
respondent's legal practitioners
Magwaliba & Kwirira, 2nd
respondent's legal practitioners
