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Lease re: Rent Regulations iro Statutory Tenant, Sitting Tenant, Tacit Relocation and Express and Tacit Renewal

HH28-08 : QUICK TRAVEL CARRIERS P/L vs BRANCO'S PANEL BEATERS P/L
Ruled By: CHATUKUTA J

A statutory tenancy of commercial premises is one which comes into being upon expiration of the lease either by effluxion of time or in consequence of notice duly given by the lessor and the lessee remains in personal occupation by virtue of the provisions of Section 22(2) of the Commercial Premises (Rent) Regulations, 1983, ...
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HH88-09 : ALLIANCE FRANCAISE vs ADRIEN ORFORD and LESLEY ORFORD (T/A ALO ALO RESTAURANT)
Ruled By: PATEL J

It follows that the duration of the contractual lease between the parties was a term of 36 months, expiring on the 31st of December 2008. Thereafter, in as much as the respondents did not exercise their option to renew the lease, the contractual lease lapsed and was converted into a statutory tenancy under Part IV ...
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HH130-12 : BOOTH MANUFACTURING PRIVATE LIMITED vs AG VENTURE PRIVATE LIMITED
Ruled By: MTSHIYA J

The defendant admitted being in breach of the lease agreements during the period of signed leases and also during the period when it became a statutory tenant, through failure to pay utility bills...the defendant conceded that that breach alone entitled the plaintiff to terminate the tenancy...I am convinced that the defendant accepted the new rental ...
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HH130-09 : INVICTUS (PRIVATE) LIMITED vs SCHALK LESSING
Ruled By: GOWORA J

The respondent further contends that he is a statutory tenant. A statutory tenant can be protected from eviction as long as he shows that he is paying rentals. Apart from alleging that he is a statutory tenant, the respondent has not even claimed that he has been paying rentals. In case number HC7306/06 the respondent claimed that ...
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HH133-09 : EZERA MUSHANDIKWA vs NATIONAL RAILWAYS OF ZIMBABWE AND THE DISTRICT CIVIL ENGINEER N.O. FOR NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: MTSHIYA J

In his submissions, counsel for the applicant stated that in terms of clause 1 of Special Notice 2313, the applicant qualified as a sitting tenant. The clause provides as follows: “1. The Railways agrees to dispose of houses which it holds under freehold title in major, and smaller, urban centres, to Railways sitting tenants in Grades ...
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HH133-09 : EZERA MUSHANDIKWA vs NATIONAL RAILWAYS OF ZIMBABWE AND THE DISTRICT CIVIL ENGINEER N.O. FOR NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: MTSHIYA J

The applicant did not, as at 1 October 1998, qualify to be a sitting tenant of the first respondent. It is common cause that the tenancy was held by RMS (Pvt) Ltd. The applicant only became the first respondent's tenant on 1 December 2001.
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HH144-09 : NEGOWAC SERVICES (PRIVATE) LIMITED vs 3D HOLDINGS (PRIVATE) LIMITED AND GIFTCARE ELECTRICAL (PVT) LTD t/a REG ELECTRICAL WHOLESALERS
Ruled By: MTSHIYA J

I am unable to find any law which allows a landlord faced with a rental dispute to avoid the Commercial Premises (Rent) Regulations (S.I.676 of 1983) and impose any rent on a sitting tenant. I am also equally unable to find a law which says when there is a rent dispute a sitting tenant's ...
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HH144-09 : NEGOWAC SERVICES (PRIVATE) LIMITED vs 3D HOLDINGS (PRIVATE) LIMITED AND GIFTCARE ELECTRICAL (PVT) LTD t/a REG ELECTRICAL WHOLESALERS
Ruled By: MTSHIYA J

The Commercial Premises (Rent) Regulations (S.I.676 of 1983), apart from offering the tenant protection from unfair and prohibitive rentals, do not, in any way, give a tenant the licence to exploit the landlord by enjoying occupation of the landlord's premises without paying rent for it. That is why it is incumbent upon a sitting tenant to ...
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HB41-09 : THANDAZO RETAIL AND MARKETING (PVT) LTD T/a STRIDES BOUTIQUE AND FUNKEE MUNKEE vs MAIN MOTORS (PVT) LTD AND REFCO (PVT) LTD
Ruled By: NDOU J

This case has to be determined on the definitions of “lessee” and “lessor” in the Commercial Premises (Rent) Regulations 1983. Section 3(1) of the Commercial Premises (Rent) Regulations 1983 has the following definitions - “Lessee”, in relation to commercial premises, includes any sub-lessee thereof; “Lessor”, in relation to commercial premises, includes the owner thereof, the person to whom the rent ...
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HH53-10 : BERNARD SIMBANOUTA GATAWA vs W. NKATAZO
Ruled By: BHUNU J

Even if I were to hold that the defendant is a statutory tenant that would still not protect him from eviction because the law does not protect a tenant who fails to pay rentals in terms of the lease. The defendant admitted in open court that he has not paid rentals in terms of the lease ...
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HH102-10 : OLD MUTUAL LIFE ASSURANCE COMPANY ZIMBABWE (PVT) LTD vs PETER RAFTOPOLOUS t/a SELECTIONS
Ruled By: MTSHIYA J

In dealing with this matter, it is important to start by capturing the relevant section of our statute law that regulates the relationship between the parties, such as the ones in casu, involved in a dispute requiring the intervention of this court. Section 22(2) of the Commercial Premises (Rent) Regulations provides as follows - “No order for ...
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SC04-13 : ALTEM ENTERPRISES (PVT) LTD T/A RUWA FURNISHERS vs JOHN SISK & SON (PVT) LTD
Ruled By: ZIYAMBI JA, GARWE JA and MAKARAU JA

This is an appeal against the judgment of the High Court ordering the eviction of the appellant, and all those claiming rights through it, from premises known as Lot 2, Manresa, Acturus Road, Harare and payment of holding over damages in the sum of US$800= per month from 1 March 2009 to 31 August ...
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HH247-10 : GRASSRANGE SERVICES (PRIVATE) LIMITED t/a THE PINK BUTTERFLY vs NATIONAL RAILWAYS OF ZIMBABWE CONTRIBUTORY PENSION FUND
Ruled By: GOWORA J

The applicant has contended that it was a statutory tenant and that based on the provisions of the Commercial Premises (Rent) Regulations, 1983 the respondent did not have good cause to eject the applicant from the premises. The protection afforded to a tenant by the Rent Regulations protect a tenant from eviction of amongst other things, ...
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HH261-10 : ZENUS BANDA vs EUNICE TAYLOR, (substituted by) PAMELA LYNETTE YOUNG (EXECUTRIX of her Estate) and GABRIEL REAL ESTATES and REGISTRAR OF DEEDS and MRS V MATEKO
Ruled By: UCHENA J

When Miss Varaidzo Mateko closed her case, as the plaintiff in re-convention, counsel for the plaintiff, who was the defendant in re-convention, applied for absolution from the instance. He submitted that the (plaintiff), defendant in reconvention, was a statutory tenant who could not be ejected without a certificate of ejectment issued by the Rent Board. He further ...
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HH264-10 : FRANCIS NDOWA vs GODFREY ANYIGA ADEBE
Ruled By: GOWORA J

On 20 September 2005, the applicant and the two respondents concluded an agreement in terms of which the respondents leased from the applicant an immovable property, namely 6 Thames Rd, Vainona in Harare. The lease agreement was to extend for a period of twelve months terminating on 31 August 2006. It is common cause that ...
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HH268-10 : TOTAL ZIMBABWE (PRIVATE) LIMITED vs APPRECIATIVE INVESTMENTS (PRIVATE) LIMITED
Ruled By: KUDYA J

It was common cause that the defendant entered into a lease agreement with Mobil Oil Zimbabwe (Pvt) Ltd on 1 February 2002 for the lease of the workshop, office space, empty space and other appurtenances that were indicated by Lovemore Tichaona Kuwana in exhibit 1, the site lay out plan of the leased premises. ...
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HB02-11 : MELUSI NDLOVU vs P D S INVESTMENTS (PVT) LTD
Ruled By: MATHONSI J

Counsel for the applicant also strongly argued that the eviction order issued by the court a quo was also a nullity by reason that it was premised on an invalid certificate of eviction issued by the Rent Board. He relied on Ngani v Mbanje Anor 1987 (2) ZLR 111 (S); Fletcher v Three ...
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HH217-10 : HEIKO PETER HORSTMAN vs GARFIELD INVESTMENTS (PRIVATE LIMITED) and GODFREY MAKONI
Ruled By: GOWORA J

The contention by the respondents is that the first respondent is a statutory tenant. It is contended that the lease agreement expired on 31 August 2005 after which the parties did not reach agreement on the rentals to enable the extension of the lease agreement in terms of Clause 2 of the same. The lease ...
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HH217-10 : HEIKO PETER HORSTMAN vs GARFIELD INVESTMENTS (PRIVATE LIMITED) and GODFREY MAKONI
Ruled By: GOWORA J

If, however, I have erred, and, indeed, the first respondent was a statutory tenant, is it, in casu, entitled to the protection afforded by the Commercial Premises (Rent) Regulations 1983? Section 22 (2) of the Commercial Premises (Rent) Regulations 1983 provides- “(1)…,. (2) No order for the recovery of possession of commercial premises or for the ejectment of ...
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HH217-10 : HEIKO PETER HORSTMAN vs GARFIELD INVESTMENTS (PRIVATE LIMITED) and GODFREY MAKONI
Ruled By: GOWORA J

If, however, I have erred, and, indeed, the first respondent was a statutory tenant, is it, in casu, entitled to the protection afforded by the Commercial Premises (Rent) Regulations 1983? Section 22 (2) of the Commercial Premises (Rent) Regulations 1983 provides- “(1)…,. (2) No order for the recovery of possession of commercial premises or for the ejectment of ...
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HB38-10 : MARBLE T. T. MOYO vs BICKELIA MAJOLA
Ruled By: KAMOCHA J

Marble T. T. Moyo cannot be protected by the provisions of the Rent Regulations as she vowed that she would never pay rentals to Bickelia Majola, and, true to her word, she never did. She cannot therefore be a statutory tenant. The fact that she had been in occupation for more than 25 years ...
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HB136-10 : POTENTIAL INVESTMENTS and RALEMA INVESTMENTS and NERGER PROPERTIES vs JOSEPH TAYALI and TAYALI AND SONS and NERGER PROPERTIES and POTENTIAL INVESTMENTS and RALEMA INVESTMENTS
Ruled By: NDOU J

On the question of statutory tenancy, the respondents did not make any submissions in this regard in their heads of argument. Be that as it may, nowhere in the opposing affidavit do any of the respondents claim to have a lease or paid rentals. This fatal lack of this material averment puts at rest any ...
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HH32-13 : WASHMATE MOTORS CENTRE (PRIVATE) LIMITED vs CITY OF HARARE
Ruled By: MATHONSI J

The applicant has been leasing Stand 729 of the remainder of Greencroft in the district of Salisbury, otherwise known as 729 Lomagundi Road, Greencroft Harare, from the respondent by virtue of a written lease agreement signed in October 2009. The said lease agreement terminated by expiration of time on 30 September 2012 but the applicant ...
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HH38-11 : WELLCROFT INVESTMENTS (PRIVATE) LIMITED t/a HOUSE OF SANDALS vs MODERN CARPETS (PRIVATE) LIMITED
Ruled By: HLATSHWAYO J and KUDYA J

Counsel for the appellant…, argued that the respondent did not genuinely desire the use of the premises but wanted to evict the appellant, firstly, because it had declined to pay a higher rental, and, secondly, in order to lease the premises to a tenant who was willing to pay a higher rental. The two grounds advanced ...
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HH111-11 : TOBACCO SALES FLOOR LIMITED vs SWIFT DEBT COLLECTORS (PVT) LTD t/a RUBY AUCTIONS
Ruled By: GOWORA J

The applicant has sought the eviction of the respondent from its premises on the premise that it has good and sufficient grounds to require the eviction of a tenant. This is relief that is available in a situation where there is no formal lease between the parties and the tenant has, by some process, ...
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HB04-11 : PECHI INVESTMENTS (PVT) LTD vs MAURICE CHARLES MUTATSI NYAMUDA t/a EBUNANDINI RESTAURANT
Ruled By: CHEDA J

The respondent has further argued that the applicant should have complied with the conditions required of a statutory tenant. While it is true that statutory tenancy requires a different approach vis-a-vis an ordinary tenant, a person who seeks to be covered by such an umbrella should also fulfill a certain obligation, namely, that he should be ...
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HB20-13 : FORT ENTERPRISES (PVT) LTD vs NOMALANGA SIBANDA
Ruled By: NDOU J

The plaintiff seeks the termination of a lease agreement between the parties and eviction of the defendant from the premises subject matter of the proceedings. The plaintiff further claims holdover damages and costs of suit on a higher scale.The salient facts of the matter are the following: The plaintiff has leased the property commonly referred ...
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HB48-11 : FORT GROUP ENTERPRISES (PVT) LTD vs BRIGHT INVESTMENTS (PVT) LTD
Ruled By: CHEDA J

Mrs Phillipa Toriro also argued that she was a statutory tenant under S.I.676 of 1983, Commercial Premises (Rent) Regulations, 1983. In order for one to benefit under these Regulations they should be paying rent. A lesee has no right to continue in occupation of the landlord's property without paying rent. Even in a situation where rent ...
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HB64-11 : ARJUN INVESTMENETS (PVT) LTD vs THOMAS MUTAMBIRWA and FLORENCE VENTER and SARAH NDLOVU and TENDAI CHIEZA and OTHERS
Ruled By: CHEDA J

(6) THE RIGHT OF APPLICANT TO EVICT RESPONDENTS The respondents have always been aware of the applicant's intention to repossess its property. This is not only confirmed by the notices to vacate but also by counsel for the applicant's legal practitioners at a meeting held on the 17th January 2011 wherein he informed those respondents ...
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HH327-14 : TM SUPERMARKET (PVT) LTD vs AVONDALE HOLDINGS (PVT) LTD and THE SHERIFF OF ZIMBABWE
Ruled By: CHATUKUTA J

Turning to the merits of the claim, the applicant conceded that the lease agreement expired on 28 February 2014. It, however, submitted that it thereafter became a statutory tenant. The provisions of the expired lease agreement, and in particular on dispute resolution, would continue to apply. The lease provided for resolution of disputes by arbitration. ...
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HMA20-17 : FRANK NYAKU BADZA vs SMM HOLDINGS [PVT] LTD [Under Reconstruction] t/a SMM Properties
Ruled By: MAWADZE J and MAFUSIRE J

In The Trustees in Mashonaland of the Church of the Province of Central Africa v Timms 1973 [1] RLR 307 [GD], a case cited in Boka Enterprises [Pvt] Ltd v Joowalay Anor 1988 [1] ZLR 107 [SC]…, and Tobacco Sales Floor Ltd v Swift Debt Collectors [Pvt] Ltd 2011 [1] ZLR ...
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HB95-16 : NATIONAL RAILWAYS OF ZIMBABWE CONTRIBUTORY PENSION FUND vs EKUTULENE INVESTMENTS t/a WALKERS PUB AND RESTAURANT and WAYNE ALLAN JONES
Ruled By: MATHONSI J

Counsel for the defendants has, of course, submitted that the lease agreement between the parties expired on 1 September 2004 and what occurred thereafter was a tacit relocation of the lease because there was an implied renewal of the lease but in terms of a series of addendums; the last one of which was signed ...
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HB157-16 : NRZ CONTRIBUTORY PENSION FUND vs JOSRO ENTERPRISES (PVT) LTD t/a ASCOT PUB & GRILL
Ruled By: TAKUVA J

The respondent admitted that it refused to sign the lease but denied that this is tantamount to repudiation. It contends that once a written lease agreement expires, the tenant becomes a statutory tenant and the lease is automatically extended by operation of the law on the same terms and conditions as those which obtained under ...
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HH166-16 : ZUVA PETROLEUM LIMITED vs S CHIRENJE
Ruled By: MWAYERA J and MUNANGATI-MANONGWA J

In Omarshah v Karasa 1996 (1) ZLR 212 HC…, GILLESPIE J held that: “The rights of a subtenant as against a landlord are coterminous with those of the lessee. No greater rights may be acquired by her than those enjoyed by the lessee under the head lease. See Bright v Truump Garage (Pty) Ltd 1949 (3) SA (C) at ...
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SC37-17 : TM SUPERMARKETS (PVT) LTD vs AVONDALE HOLDINGS (PVT) LTD and SHERIFF OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ

Assuming that the applicant had indeed turned to being a statutory tenant, it would have no right at all to be reinstated into the premises since it had lost possession of the premises….,. The application, by the applicant's own words, is one for stay of execution pending the determination of an appeal. The execution has already taken ...
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HH173-17 : F. MUTATA and OTHERS vs THE MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND URBAN DEVELOPMENT
Ruled By: CHITAKUNYE J and NDEWERE J

This is an appeal against the judgment of the magistrate sitting at Harare in which he granted an order for the eviction of the appellants from certain premises owned by the Government.The appellants are retrenched or retired civil servants who occupied houses situate in the Messengers' Camp in Highfields, Harare.The ...
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HH90-10 : LOCAL AUTHORITIES PENSION FUND vs F & R TRAVEL TOURS AND CAR SALES (PVT) LTD and FREEJOY CHIGWIDA and RAPHAEL MAKWARA
Ruled By: MAKARAU JP

The applicant and the first respondent are landlord and tenant respectively. Their relationship commenced when they concluded a written agreement in respect of certain commercial premises situate at Throgmorton House, Samora Machel Avenue, in Harare. The agreement was for a period of one year, commencing on 1 July 2006 and ...
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SC12-21 : TOBACCO PROCESSORS ZIMBABWE (PRIVATE) LIMITED vs TONGOONA MUTASA and OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and CHATUKUTA AJA

In Gumbo v Air Zimbabwe (Pvt) Ltd 2000 (2) ZLR 126…, the court made the following pertinent remarks regarding the principle of tacit relocation;“Finally, the best that can be said for the applicant is that in certain cases, akin to the present, there is a presumption that when the parties ...
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Appealed
SC63-21 : GATEWAY PRIMARY SCHOOL and KM RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION vs MARINDA FENESEY and THE SHERIFF OF ZIMBABWE
Ruled By: HLATSHWAYO JA, GUVAVA JA and BHUNU JA

The appellants are appealing against the entire judgment of the High Court delivered on 24 May 2017 under judgment number HH329-17. That judgment granted the respondent a provisional spoliation order in the following terms:“TERMS OF THE FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order ...
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HH329-17 : MARINDA FENESEY vs GATEWAY PRIMARY SCHOOL and K M RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION and THE SHERIFF OF ZIMBABWE
Ruled By: MUSAKWA J

This is an application for a spoliation order. The draft order reads as follows -“TERMS OF FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the following terms;1. The 1st, 2nd and 3rd Respondents be and are hereby interdicted from ...