Lease Agreements re: Damages, Maintenance, Improvements, Negotiorum Gestio & Ownership of Fixtures and Fittings

Appealed
SC25-12 : MINING INDUSTRY PENSION FUND vs DAB MARKETING (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA and MAKARAU JA

This is an appeal against the judgment of the High Court sitting at Harare, handed down on 29 December 2010, in which the trial court absolved the defendant, now the respondent, from the instance, and also absolved the plaintiff, now the appellant, from the instance on the counter-claim, against which absolution the respondent has noted ...

In its grounds of appeal, the appellant raised five grounds. These are:

1. That the learned Judge erred in law and in fact by granting the respondent absolution from the instance despite the fact that the respondent had already admitted the appellant's claim, and such admission having been properly made by the respondent, the learned Judge therefore erred in law and in fact by coming to a conclusion contradicting such admission.

2. That the learned Judge misdirected himself by holding that the gutters to the leased premises form part of the roof.

3. That the learned Judge further erred at law and in fact in concluding that the appellant had a duty to keep the gutters to the leased premises in a state of good repair in light of the fact that the respondent had already admitted that it had the duty to keep the gutters free from blockages.

4. That the learned Judge erred at law by not dismissing the respondent's counter-claim after having found that the respondent had failed to lead evidence to show the nature of the loss it allegedly suffered.

5. That the learned Judge erred in failing to appreciate that the respondent was never authorised by the appellant, which authority the respondent was obliged to seek in terms of the lease agreement, to carry on the business of manufacturing pharmaceuticals, and, as such, could not claim an abatement of rent when it ceased manufacturing pharmaceuticals.

On its part, the respondent raised four grounds in the cross-appeal. These are:

1. That the learned Judge erred in finding that the respondent had failed to show the nature of the loss it suffered.

2. That the learned judge further erred in finding that the respondent had not proven the quantum of its loss.

3. That, alternatively, having found that loss had in fact been suffered by the respondent on account of the appellant's breach, the learned judge erred in not proceeding to assess the quantum thereof after the respondent had led all the evidence that it could.

4. That the learned judge erred in finding that the evidence of financial experts was necessary for the assessment of the respondent's loss, and further erred in presuming that such evidence was at the disposal of the respondent.

The facts

The facts giving rise to this appeal are largely common cause. I summarise them as follows:

The respondent company was initially founded by one David Abraham Blumberg from whose initials it derives its name. Then it was operating from Bulawayo. On a date not material to this appeal, the current Directors of the respondent purchased the entire shareholding in the company and relocated the company to Harare where it operated from premises owned by the appellant, and which forms the subject matter of this appeal. The company was initially a marketing business; marketing and importing foreign goods. At some later stage, the respondent started purchasing small manufacturing businesses which it absorbed under the common roof to broaden the portfolio of the products it marketed. Thereafter, it continued as a manufacturing business. As at the date of the trial in the court a quo, it had a number of manufacturing units or divisions which however did not have separate accounts or labour force as these, together with the assets of these operating units, belonged to the respondent.

As at the time of the suit in the court a quo, the respondent was in the business of manufacturing registered medicines, cosmetics, toiletries, food products and confectionary. All these were manufactured from the leased premises. The manufacture of registered medicines is done under the authority of the Medicines Control Authority of Zimbabwe. In the manufacture of medicines, the prevention of contamination during the manufacturing process is a priority. It is part of the licensing conditions upon which one is permitted to manufacture licensed medicines. According to a floor plan of the leased premises, the area where medicines and cosmetics were manufactured was separated from the areas where food was processed by a dividing wall. This was deliberately done to minimise the possibility of contamination during the manufacture of the medicines and the processing of the food stuffs and confectionary.

Certain issues arose relating to the maintenance of the leased premises.

The first communication from the respondent to the appellant was in 2000 when the roof of the building developed some leaks. The leaks started after the appellant had engaged some workers to replace the guttering. The leaks soon spread from the boardroom to the factory and into the administration block. Communication to the appellant over the issue did not, for various reasons, yield any result. The respondent, however, remained in occupation of the premises and worked its way round the problems as best it could. From 2007, the respondent would move its products and materials to areas that were not leaking. The respondent also moved all its materials on pellets so that they could be fork-lifted to dry places easily and also be shielded from flooding. On or about 8 February 2007, the respondent notified the appellant that the leaks were aggravated and that they were now predominantly in the warehouse and stores area. The first leaks emerged over the raw materials store area and the primary packaging area. As a result of these leaks, the respondent wrote to the appellant advising it that the leaks had rendered a considerable portion of the rented premises unusable and had resulted in significant damage to products and raw materials.

There was no response to this advice.

By October 2007, the leaks had extended into the manufacturing area, particularly the drugs mixture manufacturing and tableting areas. The respondent then demanded reconsideration of the rent payable for the premises as portions of the premises were now no longer usable due to the leaks and the potential damage to both products and raw materials. In 2008, the parties met to discuss the issue of the repairs to the leaking roof and a review of the rentals payable for the premises. Once the leaks spread to areas that were meant to be sterile, the respondent stopped manufacturing medicines in the premises in or about December 2008. Whilst it could have moved to other premises, this would have been a costly exercise and would have entailed fresh licensing by the Medicines Control Authority of Zimbabwe. It however continued with the processing of food and confectionary, using the same machinery. In July 2009, the respondent ceased manufacturing confectionary.

At the beginning of 2010, repairs to the leaking roof commenced.

In March 2010, the appellant issued summons against the respondent claiming an order confirming the cancellation of the lease agreement between the parties, payment of the sum of US$58,021=94 representing arrear rentals, an order ejecting the respondent from the leased premises, holding over damages at the rate of US$7,100= from 1 March 2010 to date of ejectment and costs of suit. It was alleged in the appellant's declaration that the respondent had breached the lease agreement between the parties by failing to pay rentals for the period December 2008 to February 2010, thereby accumulating the arrears claimed in the summons. It was further alleged that the agreed rentals for the leased premises was the sum of US$7,100= per month, also giving rise to the claim for holding over damages at that rate per month.

The suit was defended.

In its plea, the respondent however admitted that it was indebted to the appellant on the grounds alleged and in the amount claimed. The respondent proceeded to plead that it was excused from paying the amount of the appellant's claim because the appellant was allegedly indebted to it for damages which it claimed in the counter-claim filed with its plea. It prayed for judgment on the main claim to be stayed until there was judgement on the counter-claim.

In its counter-claim, the respondent alleged that in terms of the lease agreement, the appellant was required to maintain the external structure, including the roof of the premises. In breach of its obligations, the appellant failed to repair the roof of the premises forcing the respondent to shut down its operations in December 2008. The respondent further alleged that as a result of having to shut down its operations, it lost profit in the sum of US$196,250=, which it claimed from the appellant.

At the trial of the matter, the parties agreed that the onus to begin rested with the respondent in view of its plea, which was an admission of liability, and, in essence, a consent to judgement. The respondent led evidence from three witnesses. In rebuttal, the appellant called the evidence of a single witness whose testimony was not accepted by the court wherever it conflicted with that of the respondent's witnesses. On the basis of the evidence before it, the trial court proceeded to find that the appellant had breached the terms of the lease agreement by failing to keep the gutters in a good state of repair. Having established liability, the court, however, agreed with counsel for the appellant that the respondent had failed to show the nature of the loss that it suffered and which flowed from the established breach. On the basis of that finding, the court proceeded to absolve the appellant from the instance on the counterclaim.

Regarding the main claim, the court also absolved the respondent from the instance.

During closing addresses, it was contended by counsel on behalf of the respondent that the respondent was entitled to an abatement of rentals for the period during which the premises could not be used for the manufacture of pharmaceuticals. The trial court, after citing in full the portion of the lease agreement that provided for abatement of rent in the event of destruction, or partial destruction, of the leased premises, upheld the contention and held that the respondent was entitled to pay reduced rentals during the period it had limited use of the premises and was further not obliged to pay any rentals for the period after it ceased production all together. Based on this reasoning, the trial court further found that, consequently, the appellant was entitled to rentals in an amount “unknown” for the period that the respondent was entitled to a rebate in rentals. Thus, the reasoning of the trial court proceeded, absolution from the instance had to be ordered as the appellant had failed establish the amount of rentals that it was entitled to.

HB44-09 : MUSA MAPHOSA vs NDABA HLABANGANA
Ruled By: KAMOCHA J

The plaintiff's amended claim against the defendant was:- “(a) Payment in the sum of 4,310 South African Rands, being compensatory damages for repairs plaintiff effected at her own expense on the leased premises. (b) Interest at the prescribed rate on the 4,310 South African Rands from the 1st January 2006 to date of full payment; and (c) Costs ...

The plaintiff's amended claim against the defendant was:-

“(a) Payment in the sum of 4,310 South African Rands, being compensatory damages for repairs plaintiff effected at her own expense on the leased premises.

(b) Interest at the prescribed rate on the 4,310 South African Rands from the 1^st January 2006 to date of full payment; and

In their joint pre-trial conference minute, the parties formulated the issues to be determined by the trial court as follows:-

“(1) Whether or not defendant caused the damage to the plaintiff's premises;

(2) Whether or not defendant is liable for damages claimed; and

(3) If so, quantum of damages.”

The plaintiff gave evidence, and called one witness to prove her case.

Her evidence was that she and the defendant entered into an agreement of lease whereby the defendant leased her business premises, known as Lukadzi Cocktail Bar, comprising a Bar, Restaurant, and Butchery, situate on lease site C.L.32036 Lukadzi Business Centre, Matopo District.

The Agreement, which was signed by the parties', was for a period of twelve months, from 1 January 2005 to 31 December 2005.

It was the plaintiff's evidence that when the defendant took occupation, and started trading in the premises, the premises were free from any defects.

The premises were regularly inspected by inspectors, who issued certificates, if they were satisfied that the premises were suitable for running any business therefrom. It was her evidence that the premises were in good condition when the defendant leased them...,. She asserted that if there had been any defects, the defendant would not have signed the lease agreement.

She complained, and alleged, that the defendant left the premises in a bad state. It would, therefore, not be true to suggest that the defendant had left the premises in a better condition than he had found them. In fact, an inspector had since closed the premises until the defects are rectified. She told the court that opaque beer had been splashed all over the walls. There were holes in the floor, which seem like someone had been using a drilling machine to make them.

The defendant gave viva voce evidence and called one defence witness.

The defendant said before he commenced to lease the Cocktail Bar, he and the plaintiff went to inspect it but nothing was recorded. He, however, noticed that one of the windows had no handles. It was being secured by a piece of wire. The ceiling had water marks. The floor had natural cracks due to poor workmanship.

The defendant alleged that he promised to paint the walls and ceiling, and attend to the cracks in the floor. He, however, was only able to paint the ceilings and walls, but did not attend to the floor. He did not keep receipts for the work he had done as he had not anticipated any future dispute...,.

The defendant denied ever causing any damage to the premises.

He said he, instead, left the premises in a better condition than he had found them, as he had painted the walls and ceilings.

What appears to be common ground is that the defendant was not made aware of the alleged damage immediately after he had vacated the premises. He only learnt of the allegations in the summons. It is, therefore, difficult to understand why the defendant was not confronted about the damages immediately the damaged items were discovered, if indeed, there were damaged items....,.

The problem was compounded by the fact that the parties' did not do a handover takeover...,. There was no evidence to suggest that the defendant was responsible for any vandalism.

Appealed
HB59-09 : DINESH MANILAL NARAN vs RONNAH MAFURIRANO and THE REGISTRAR OF DEEDS
Ruled By: KAMOCHA J

The plaintiff in this matter seeks:-

“1. An order to declare that the sale agreement executed between him and first defendant on the 30th of September 2001 on Stand 378, Gorebridge Road, Killarney, Bulawayo is still binding and effectual as between the parties;

2. An order to compel the first defendant to transfer all her rights, title and interests in Stand Number 378 Gorebridge Road, Killarney, Bulawayo to plaintiff.

3. An order authorizing the Deputy Sheriff of Bulawayo to sign all the transfer documents for and on behalf of the first defendant in order to effect transfer of Stand 378 Gorebridge Road, Killarney, Bulawayo to plaintiff.

Alternative to 1, 2 and 3 above -

Plaintiff seeks an order:

4(a) To be refunded by first defendant $1,500,000 plus interest a tempore morae at the prescribed rate, effective from the 31st of October 2001; and

(b) To be compensated by first defendant in the sum of $2,500,000.

5. That the first defendant pays all costs of this action on an attorney and client scale.”

When the parties appeared before a judge for a pre-trial conference it was agreed that the issues to be determined by the trial court be as follows:-

“(1) Did plaintiff advise first defendant that plaintiff was no longer prepared to be held to the contract of sale, and, as a result thereof, did plaintiff cancel the contract of sale?

(2) Was the contract of sale perfected?

(3) Is the plaintiff entitled to tender $3,800,000 plus interest, and, in that event, at what rate is the interest to be calculated?

(3) In the alternative, is plaintiff entitled to:-

(a) A refund of $1,500,000 plus interest calculated from the 31st October 2001; and

(b) Compensation for improvements effects (sic) by plaintiff.”

Each party had the onus to prove two of the above issues. The plaintiff had to prove issues 3 and 4 while the defendant had to prove issues 1 and 2.

The plaintiff gave evidence himself and called two witnesses to support him.

The plaintiff's story was that he was a businessman in Bulawayo. Mr Thokozani Khumalo was his business partner who needed a house. Thokozani Khumalo (“Khumalo”) had been initially leasing House Number 378 Gorebridge Road, Killarney, Bulawayo. The house belonged to Ronnah Mafurirano, the first defendant.

The husband of the first defendant, Mr Davis Sunganayi Mafurirano, was the plaintiff's business associate. They knew each other from the time Davis Sunganayi Mafurirano used to work for CBZ Bank.

After Thokozani Khumalo had expressed his wish to purchase the house he was renting, the plaintiff conveyed the message to Davis Sunganayi Mafurirano who asked the plaintiff to make an offer to him.

When the plaintiff made an offer of $2.5 million, Davis Sunganayi Mafurirano said he needed time to go and discuss with his wife, the owner, and would come back to them.

Davis Sunganayi Mafurirano came back with a figure of $5.3 million which the parties agreed on.

Although the house was being purchased for Thokozani Khumalo, the negotiations were being done by the plaintiff, Naran, while Davis Sunganayi Mafurirano represented his wife, the first defendant.

The parties then had a memorandum of agreement of sale reduced to writing which reads in part:

“Purchase Price and Payment

The purchase price payable to the seller by the purchaser for the said Stand shall be the sum of $5,300,000 (five million three hundred thousand dollars). A deposit of $2,500,000 (two million five hundred thousand dollars) shall be paid upon signing of this agreement and the balance of $2,800,000, (two million eight hundred thousand dollars) shall be paid in monthly instalments of $1,500,000 with effect from on/or before the 31st of October 2001 finishing with the balance of $1,300,000. 30% per month interest shall be paid on $2,300,000.”

The plaintiff engaged Sibusiso Ndlovu to represent him.

The seller signed the agreement on 12 September 2001 while the buyer signed it on 30 September 2001.

The plaintiff conceded that he had failed to pay the deposit as stipulated in the agreement. He should have paid $2,500,000 when he signed the agreement on 30 September 2001, but he, instead, paid the sum of $1,500,000 on 26 October 2001.

The plaintiff was clearly in breach of what the parties had agreed on not so long back.

He however seems to take solace in his belief that the $1,500,000 was not rejected by the buyer despite the fact that it was less than what the parties had agreed and was even paid late. He said the money was never sent back to him or his lawyers.

It was his evidence, that, as a business associate in relation to the buying of paper he had given Davis Sunganayi Mafurirano the sum of one million dollars to import paper. That, however, did not materialize but Davis Sunganayi Mafurirano never returned the $1 million.

The plaintiff seemed to suggest that that amount replaced the shortfall of one million he was supposed to pay as a deposit.

The plaintiff denied ever taking any steps to cancel the agreement. Instead, he said it was Davis Sunganayi Mafurirano who appeared to be bent on cancelling the agreement in his letters to be found on pages 12 and 15 of the plaintiff's bundle of documents.

The first one is undated and addressed to Sibusiso Ndlovu & Associates and marked for the attention of Mr S Ndlovu and reads thus:-

“Dear Sir

Re: Sale of House Number 378 Gorebridge Road, Killarney

Further to our telephone conversation on Wednesday 19 September 2001, I wish to confirm that we would like to give your clients up to 24 September 2001, 1400 hours, to pay their deposit. Failing, which, will give us the freedom to allow those who have shown interest to view the house as from 1000 hours on Tuesday 25 September 2001.

Please be advised accordingly, and your client's co-operation will be assumed.

Yours faithfully
D S Mafurirano”

I pause to observe that the above letter did not spur the plaintiff into trying to pay the deposit timeously at all. Instead, an amount of $1,500,000 was paid more than a month later - on 26 October 2001.

The plaintiff still had problems in paying as agreed prompting Mr Mafurirano to address a letter direct to Thokozani Khumalo on 8 November 2001 in the following terms:

“Re: Sale of House Number 378 Gorebridge Road, Killarney

It is with regret that I write to inform you of our decision to cancel the sale of the above property. The sale of the property was linked to a project we wanted to undertake, but we have had to seek alternative financing sources at higher costs than initially anticipated.

This affair concerning the sale of the above property has been one great problem and waste of time to us, simple because we didn't know that we were dealing with not so-serious people or rather people with other interests but to buy a house.

The negotiations for the price and other conditions were concluded on the 12th September 2001, with Mr Ndlovu, Mr D Naran's appointed representative. The payment of $2.5 million deposit was supposed to be immediate, but we had to wait until 26/10/2001 when a down payment of only Z$1.5 million was made. Promises of similar payments every week were made.

The above payment was based on the price and conditions negotiated, and signed for on the 12th September 2001. Mr D Naran called me to discuss the issue of payment, only to tell me that Mr Ndlovu, his representative, had no authority to conclude the negotiations on price and conditions as he did, as such, he, Mr Naran, was not bound by that agreement, which effectively meant there was no agreement in the first place. In fact, there is no agreement as I write, because Mr Naran nullified the one which we thought was binding.

Further, Mr D Naran, indicated that the house was overpriced, and that the whole deal should be abandoned, and that we were to return $1.1 million, with $400,000,00 being payment for inconvenience suffered by us, and that we were to compensate Mr Khumalo for the improvement done.

Despite good intentions we had, we have finally decided not to dispose of this property because we no longer need to, and, most importantly, the problems we have gone through and which we may go through in future, if we carry on as we have done this far.

In this regard, please forward invoices/receipts for the improvements you have undertaken so far for re-imbursement. Further, as discussed with you before, please, no improvements without consulting us first. You can stay if you like, but please we do not want to chase anybody for rent money.

If, in the future, we decide to sell, you will obviously have the first refusal option.

Regards
D S Mafurirano”…,.

The tone of the above letter reveals that the seller was disappointed by the behavior of the buyer who did not appear to be serious to pay on signature of the agreement. When payment was made, more than a month later, the money was one million dollars less than the agreed deposit. According to the letter, Naran did not feel bound by the agreement as he allegedly accused his lawyer of concluding negotiations on the price and conditions without his client's mandate.

The plaintiff denied ever doing or saying what is contained in the letter. He instead alleged that the negotiations were done by him. He did not remember the meeting of 7 November 2001 where he was alleged to have made those remarks.

It was his evidence that although he may have asked for more time to pay, never did he, at any stage, indicate that he wanted to cancel the agreement. It was the defendant who was bent on wanting to cancel the agreement as illustrated by her letter of 17 October 2001 addressed to the plaintiff's legal practitioners marked for the attention of Mr S Ndlovu which reads:

“Re: Sell of House Number 378 Gorebridge Road, Killarney

Further to our various discussions and letters concerning the sale of the above property. It is now almost the anniversary of the signing of an agreement of sale of the above property whose deposit should have been paid immediately after signing. This has not happened for the past 29 days.

I feel you have had ample time to raise and pay the deposit amount, therefore, I wish to officially inform you of my withdrawal from the agreement. And also to inform you that with immediate effect, Mr Khumalo should give access to people wishing to view the house.

Yours faithfully
R. Mafurirano (Mrs)”

The plaintiff went on to say that he had never instructed his legal practitioner to cancel the contract and accordingly wanted it to be enforced.

He said he did not know anything about the letters of 7 February 2002 and 2 May 2002 addressed to him at 6 Hussor Road, Khumalo, Bulawayo as he did not live there. He had never lived, owned, or used that address.

Under cross examination, Naran told the court that he in fact only became aware of the two letters two weeks before the trial when they were sent to him by his legal practitioner. He was not even aware of the letters when he issued summons and emphasized that he could not have been influenced to issue summons by something that he was not even aware of.

Similarly, he claimed the letter of 8 November 2001, addressed to Thokozani Khumalo, was only brought to his attention two weeks before the trial commenced. It also could not have influenced him to institute these proceedings.

In a nutshell, his erstwhile legal practitioner, Sibusiso Ndlovu, never brought to his attention all these letters.

Naran was being untruthful when he said he was not aware of the said letters before he issued summons. That is contrary to what he said in paragraphs 6 and 7 of his declaration where he says the defendant purported to cancel the agreement by addressing two letters to him, copies of which were attached to the declaration marked “B” and “C”. He said he had never received those letters and had accordingly not been put in mora by the defendant.

As can be seem from his declaration, his concern was that he had not been put in mora since he had not received the said letters.

He was clearly aware of the letters before he issued summons.

Consequently, his suggestion that they were only brought to his attention two weeks before the trial commenced is rejected as it is false and so is his suggestion that he was not aware of the letter of 8 November 2001 and that it did not influence him to institute these proceedings.

Further, Naran could not give a satisfactory explanation, under cross-examination, why he was tendering the balance of $3.8 million for the house if he had treated the $1 million meant for the paper project as part of the purchase price for the house. If what he told the court was true he should have tendered $2.8 million. There would have been no reason for him to tender more than what was due and owing.

In any event, the paper project involved Naran and the defendant's husband and had nothing to do with the defendant herself. Hence the $1 million could not have been treated as part of the price for the house.

Naran was an unreliable witness who was not worth to be believed. His evidence was in conflict with that of Thokozani Khumalo who categorically stated, that, on receipt of the letter of 8 November 2001 he discussed the import of its contents telephonically with Naran who distanced himself from the contents and suggested that the letter should be handed over to their lawyer Sibusiso Ndlovu. Indeed, the letter was handed over to the lawyer as suggested by Naran.

Thokozani Khumalo told the court that Naran never told him that the $1 million was part payment for the purchase price. Instead, he said Naran told him that Davis Sunganayi Mafurirano had borrowed the money.

Thokozani Khumalo said he had effected some improvements at the property. He, however, admitted under cross examination that the improvements were made without the authority from the Mafuriranos....,.

The plaintiff is entitled to compensation for proved improvements, if any, effected to the said property.

HB106-09 : CHURCHVILLE TRADING vs BEVERLY BUILDING SOCIETY
Ruled By: KAMOCHA J

The plaintiff's claim against the defendant was for:- (a) The return from the defendant all the property mentioned in paragraph 6 of its declaration; (b) In the alternative, payment in the sum of $29,793,200= being the value of the property that the defendant's employees took unlawfully; (c) Interest a tempore morae from the date of service of summons to date of full ...

The plaintiff's claim against the defendant was for:-

(a) The return from the defendant all the property mentioned in paragraph 6 of its declaration;

(b) In the alternative, payment in the sum of $29,793,200= being the value of the property that the defendant's employees took unlawfully;

(d) Costs of suit.

The property that allegedly went missing was this:-

1. 1 x Pentium III Compaq D300 computer;

2. 1 x Samsung fax machine;

3. 4 x telephone receivers;

4. 2 x JH visitors' chairs;

5. 2 x swivel chairs;

6. 2 x executive secretary chairs;

7. 12 x lever arch files;

8. 12 x C3906 A toner cartridges;

9. 12 x 92A toner cartridges;

10. 18 x 96A toner cartridges;

11. 2 x 15A toner cartridges;

12. 8 x 26A ink cartridges;

13. 7 x 25A ink cartridges;

14. 14 x 29A ink cartridges;

15. 14 x 29A ink cartridges;

16. 18 x 49A ink cartridges;

17. 10 x A4 bond paper reams;

18. 1 x ceramic toilet pan;

19. 5 x 3 lever lock set;

20. 21 x Genicom ribbons;

21. 2 x boxes Eversharp pens;

22. 1 x Heavy duty paper punch; and

23. 4 x boxes staple pins.

The parties attended a pre-trial-conference where they formulated the issues to be determined by the trial court as follows:-

“1. Whether or not defendant and plaintiff entered into a lease agreement as alleged by plaintiff;

2. The terms of the alleged lease agreement;

3. Whether or not plaintiff took cession of certain lease between AB Mining and defendant;

4. The terms of any such cession;

5. Whether or not plaintiff's occupation of the defendant's premises was lawful;

6. Whether or not defendant, through its employees, unlawfully removed or stole plaintiff's property as set out at paragraph 6 of the plaintiff's declaration; and

7. The value of the property referred to above.”

The plaintiff called one witness in an endeavour to prove its claim. Its Managing Director, Mr Rodrick Mahachi (herein referred to as Mahachi) told the court that in 2001 he was looking for office accommodation when he saw an advert in the newspaper advertising Officer Number 8, Beverly Building. He proceeded to the premises and saw a Mr Muguti in Office Number 8, Third Floor. He was advised that office accommodation was available but that the premises belonged to Beverly Building Society. However, Mr Muguti told him that he had to pay him for the partitions, carpets that he himself had fitted into the premises and other renovations. Rodrick Mahachi was agreeable and paid for that.

After he had made the payment the two of then proceeded to Beverly Building Society to see a Mr Ndlovu who was managing the 15^th Avenue branch of Beverly Building Society. When they were there Mr Muguti told Mr Ndlovu that Mr Mahachi was going to occupy the place which had been advertised in the newspaper. Mr Mahachi alleged that when he requested for a lease agreement from Mr Ndlovu he was told that it (the lease agreement) would come later since it would be processed from Harare. He, however, was allegedly given an account number for Beverly Building Society into which to deposit the rentals.

Rodrick Mahachi said the plaintiff immediately took occupation of the premises and began to sell computers and computer cartridges. He alleged that he had continued paying rentals for some time.

At one stage he left to go to Mtshabezi Hospital where he had some work to do. He then failed to pay his rental for about 2 or 3 months prompting Beverly Building Society to lock up the premises. He received a report to that effect from a young man he had left manning the office. Following that report he returned to Bulawayo and found that their office had indeed been locked up. The plaintiff's property had been moved to another room. He attributed his failure to pay rentals for 3 months to the fact that he had used the money on the Mtshabezi project which he was anxious to complete.

He then approached Mr Ndlovu and asked him to return the property. When he went into where the property had been put he discovered some of the property missing. Papers, envelopes and receipts were strewn all over the floor. Some of them had been thrown into the dust bin. When he confronted Mr Ndlovu about the missing property he (Ndlovu) allegedly said that would be known by one Tennyson since he had been present when the property was moved from the plaintiff's office to another.

He, in the company of Mr Ndlovu, confronted Tennyson who allegedly stated he suspected some employees of the defendant who had come from Harare to service the defendant's computers in Bulawayo. The employees were said to have been using the office in which the plaintiff's property had been put. Tennyson allegedly suspected them to have stolen the missing property.

Following the suggestion made by Mr Ndlovu the two went to see a Mr Moyo, the General Manager of the defendant, who promised to investigate the matter after Rodrick Mahachi had given him a list of the alleged missing property. The list of the alleged missing property was filed of record at page 7 to 8 of the plaintiff's bundle of documents. Rodrick Mahachi gave Mr Moyo a time frame within which to complete investigations but nothing was forthcoming within that period prompting him to hand the matter to his lawyers.

He went with his lawyer to collect the remaining property which they signed for. The signatories to the list were his lawyers, Tennyson, Mr Ndlovu and the witness himself. According to the list filed of record on page 5 to 6 of plaintiff's bundle of documents the collection was done on 11 April 2003. Rodrick Mahachi claimed that the loss of property caused his Mtshabezi project to collapse resulting in him failing to pay his employees.

Since the lease agreement was still between the defendant and AB Mining he was told to deposit the rentals into the account that AB Mining had with Beverly Building Society which is what he did and kept copies of his deposit slips.

Mr Ndlovu allegedly assured him that since Tennyson had said the missing items had been stolen by the defendant's employees full investigations would be carried out. He went on to say that the matter had been referred to the defendant's lawyers. He concluded by saying from then onwards the plaintiff should deal with him (Ndlovu).

In order to determine the prices of the items that went missing he obtained three quotations from reputable companies dealing in such items. Matkan, which was the cheapest of the three, gave a total value of US$37,810=80; Computer Shop's total value was US$40,497=25 and Bexley gave a total of US$44,378=50. The quotations were filed of record on pages 7, 8 and 9 of the plaintiff's bundle of documents.

Under cross-examination, Rodrick Mahachi was unable to say how much he had paid as rentals. He agreed that the arrangement to lease the premises was between him and Muguti. His lease agreement with the defendant would only be processed at the end of the AB Mining lease.

The witness said he did not report the matter to the police because Mr Ndlovu and Mr Moyo had assured him that full investigations would be carried out and he would be given a feed-back; which he did not get. When it was put to him that his quotations were hearsay his reply was that he asked for three quotations and was given the ones filed of record.

The court observes that the quotations are indeed inadmissible hearsay as their compilers were not called to testify in court.

The plaintiff closed its case after Rodrick Mahachi's testimony.

The defendant called two witnesses who were its former employees. The first was Tennyson Ndiweni who was employed as the defendant's Branch Controller of the 15^th Avenue and Main Street branches in Bulawayo. All communication from Head Office went through him.

His evidence was that he was not directly involved in the lease agreement between the defendant and AB Mining as that was the responsibility of one Goodness Ndlovu, the valuer, who had since left the defendant and was in Botswana.

When A B Mining was unable to pay its rentals it had to look for someone to occupy its office during the currency of the lease between it and the defendant. It found the plaintiff. Apart from the arrangement the plaintiff had made with AB Mining, which was represented by one Muguti, the plaintiff did not get a lease from the defendant. All it did was to move into the offices that were being leased by AB mining and paid rentals into AB Mining account.

The witness said the plaintiff took occupation of the offices in July 2001, but, by September 2001 was already unable to keep pace with its payments for rentals. No rentals were paid from October 2001 onwards.

When the defendant made efforts to find out why rentals were not being paid, Mr Mahachi, who was described as the proprietor of the plaintiff, could not be located. The employees of the plaintiff also professed ignorance of his whereabouts. Their belief was that he had gone to Botswana since he was not communicating with them.

Faced with the non-payment of rentals by the plaintiff, whose proprietor was nowhere to be found, Mr Ndlovu instructed the witness to instruct the Chief Messenger to remove the plaintiff's property from the office officially rented by AB Mining. The Chief Messenger, with a team of other six messengers, did the removal commencing after lunch to the end of business that same day.

The witness himself never handled the plaintiff's property. He was emphatic that he had no chance of stealing the property. He explained that it was not possible for him to do so as he had no keys to the building and did not even have the combination to the strong room door. As far as the witness was concerned that strong-room was a very secure place. He went so far as stating that it was impossible for anyone to remove property from there; the reason being that whoever has the key to the building does not have the key to the strongroom.

When Mr Mahachi eventually surfaced and approached the witness in connection with the property, he referred him to Learnad Moyo, the Administrator.

The witness averred that he next saw Mr Mahachi on the day he was handed the plaintiff's property from the strong room. The property was listed as it came out of the strong room. The original list was filed of record at pages 10 to 12 of the defendant's bundle of documents and Rodrick Mahachi signed it. Mr Mahachi complained that a lot of the plaintiff's property was missing and he was going to seek legal recourse. The witness, however, did not believe that whatever was missing, if any, could have gone missing from the strong room.

The witness revealed that Mr Mahachi had attempted to inflate the number of items that he claimed had gone missing. He alleged that 8 chairs had gone missing but a search in the building conducted in his presence established that he in fact had sold 4 chairs to two companies that used to share office space with him. The witness held a view that the list of items that allegedly went missing was far shorter than what Mr Mahachi wanted the court to believe.

Under cross-examination, the witness was emphatic that there was no lease agreement between the plaintiff and the defendant and reiterated that the plaintiff paid rentals into AB Mining account during the currency of its lease.

His story was supported by Learnad Nkonzo Moyo, a former employee of the defendant who used to be the Administrative Manager for Matabeleland. When outlining the procedure of how the defendant leases out premises he said when premises fall vacant the practice was to advertise them. Interested parties would submit their applications. The successful applicant would be recommended for a lease agreement in writing. The proposed lease agreement would then be forwarded to Head Office in Harare where the final agreement was prepared within three or four days; hence, the successful applicant would get his lease agreement immediately after that.

The above procedure did not take place in respect of the plaintiff. Mr Moyo first learnt about the plaintiff's presence in the defendant's premises when it had already taken occupation. He also learnt that the plaintiff was occupying the office with the blessing of AB Mining whose lease with the defendant was still extant. He was emphatic that the plaintiff itself never went into a lease agreement with the defendant.

The witness said he did not think that the plaintiff's claim was of any significance. He thought the claim involved little items. He did not get any report about the defendant's employees stealing the property. Disciplinary action would have been taken if that had happened.

Under cross-examination, it was suggested to the witness that the defendant should have warned the plaintiff that the office would be locked due to its non-payment of rentals. His reply was to the effect that Mr Mahachi was regrettably nowhere to be found and there were reports that he could have been somewhere in Botswana. He gave the same answer when it was put to him that the defendant should have taken legal action on discovering that the plaintiff was an illegal tenant.

What comes out clearly from the evidence adduced by the defendant is that the plaintiff had no lease agreement with the defendant. This much was accepted by Mr Mahachi. Consequently, the defendant had no legal relationship with the defendant and its occupation of the premises was merely tolerated on the basis that it would fulfill a role previously fulfilled by AB Mining and Equipment Supplies (Private) Limited.

The plaintiff dismally failed to fulfill that role by failing to pay the rentals.

Further, no formal cession of the rights and obligations of AB Mining and Equipment Supplies (Private) Limited was effected.

The evidence also established that despite the fact that Mr Mahachi tried to inflate the list of the items that he claimed to have gone missing Tennyson's report, on page 14 of the defendant's bundle of documents, shows only four items could not be found on collection from the strong room i.e;

(1) Compaq CPU only;

(2) Samsung fax machine;

(3) Telephone receiver x 2; and

(4) Ceramic toilet pan (broken).

The plaintiff failed to prove the values of the above items. It attempted to do so through inadmissible hearsay evidence of quotations whose compilers did not testify in court.

Although the court has found that the plaintiff failed to prove the value of the four items supra it, however, finds that the defendant's employees were responsible for their going missing. The employees, who were a team of the defendant's messengers, were specifically instructed to remove the items from the office used by the plaintiff to the strong room. They were certainly acting within the scope of their employment. Tennyson's report reflects that they had been removed from upstairs the previous year but had been found missing on collection from the strong room. See report on page 14 of the defendant's bundle of documents. Regrettably, the value of the missing items has not been established. The items were no longer in the possession of the defendant. It would therefore be unable to return them to the plaintiff.

In the alternative, the plaintiff claimed payment of the sum of $29,793,200= being the value of the property that allegedly went missing. That value, however, is inclusive of items of property for which the plaintiff failed to adduce evidence specifying such items. In any event, the change of the Zimbabwe currency, as published in Statutory Instruments 199/2006 to 6/2009, S.I.199 of 2006 to S.I.6 of 2009, renders the amount claimed non-existent. No attempt was made by the plaintiff to amend its claim in any way.

In the light of the foregoing findings I would dismiss the plaintiff's claim with costs.

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

As PATEL J observes, a tenant is not entitled to withhold rentals except in a few and very limited instances: see Parkside Holdings (Private) Limited v Londoner Sports Bar HH66-05.

HH197-10 : ABDULLAH ISMAIL KASSIM (in his capacity as Executor Dative of the Estate of Ralph Simon Lapin) vs MATTHEWS MUKWAWAYA
Ruled By: PATEL J

Evidence for the DefendantMatthews Mukwawaya is the defendant. His evidence was that he did not stop paying rentals but only suspended their payment because he was owed money for the repairs that he had effected to the property. In that regard, he produced quotations and receipts dating from October 2008 to October 2009…, reflecting his ...

Evidence for the Defendant

Matthews Mukwawaya is the defendant. His evidence was that he did not stop paying rentals but only suspended their payment because he was owed money for the repairs that he had effected to the property. In that regard, he produced quotations and receipts dating from October 2008 to October 2009…, reflecting his expenditure of US$5,490=50. He needed to carry out these repairs because they were essential and on each occasion he informed Simon Gochero either by telephone or personal visit.

With reference to repairs and maintenance, the Lease Agreement is fairly specific as to the respective responsibilities of the parties. Clause 11(a) provides that the tenant shall notify the landlord, in writing, within 72 hours of the commencement of the lease, of any defects, which defects must then be rectified by the landlord in accordance with clause 24(b) and (c). Clause 11(b) and (c) and clauses 40 to 44 spell out the repairs and maintenance responsibilities of the tenant during the currency of the lease agreement. Paragraph (a) of clause 24 stipulates the general obligation of the landlord to keep and maintain the basic structures of the leased premises in good order and condition, while paragraphs (d), (e) and (f) expand on that obligation in relation to specific structures. The landlord is required, after receiving written notice from the tenant, to commence and complete the repair of any structural defect as soon as is reasonably possible in the circumstances.

Order for Eviction

The defendant's evidence was that he needed to effect certain repairs to the property because they were essential and that he informed Simon Gochero on each occasion, either in person or by telephone. Simon Gochero flatly denied ever having been informed of any defects until he received the defendant's letter in November 2009…, by which stage the defendant had already stopped paying monthly rentals. It is common cause that the defendant did not give any written notice of the defects and necessary repairs as he was required to do under the Lease Agreement.

Under cross-examination, the defendant conceded that the Lease Agreement did not entitle him to stop or suspend the payment of rentals in order to recover the cost of repairing defects in the leased premises.

View Appeal
HH281-10 : MINING INDUSTRY PENSION FUND vs DAB MARKETING (PRIVATE) LIMITED
Ruled By: KUDYA J

The plaintiff's claim The plaintiff claimed for confirmation of the cancellation of the lease agreement, arrear rentals, holding over damages and interest on these amounts at the prescribed rate. The defendant averred that it was excused from paying the rentals by reason of the indebtedness incurred by the plaintiff in breach of the contract of lease. The evidence led by ...

The plaintiff's claim

The plaintiff claimed for confirmation of the cancellation of the lease agreement, arrear rentals, holding over damages and interest on these amounts at the prescribed rate.

The defendant averred that it was excused from paying the rentals by reason of the indebtedness incurred by the plaintiff in breach of the contract of lease.

The evidence led by Dr Neil Robin Deacon and Alfred Chitambo established that the defendant stopped the manufacture of pharmaceuticals in July and not in December 2008 as pleaded. It continued to use part of the premises to manufacture confectionaries until October 2009 as pleaded or July 2009 as shown in the Pharmaceutical Batch Book.

Counsel for the defendant contended that the defendant was entitled to an abatement of rent during the period in which the premises were not fit for the beneficial occupation or use for the purpose of its business. He relied on clause 24(b) of the lease agreement. Clause 24(a) and (b) state that -

“24. Destruction or partial destruction of premises

a) In the event of the premises, or any part thereof, being destroyed or so damaged by fire, explosion, wind, flood, riot or insurrection, Act of God, or any other cause whatsoever other than the act, default or negligence of the tenant or its employees, contractors, agents, licensees or invitees to such an extent as to deprive the tenant entirely of the beneficial occupation or use of the premises for the purpose of its business, the landlord shall not, on that account, terminate this lease but the landlord shall be entitled, within one month of the damage or destruction, to notify the tenant that it intends to rebuild the premises, and, thereafter, the landlord shall forthwith commence and carry out as expeditiously as is reasonably possible the reconstruction and repair of the premises so as to make them available for occupation by the tenant. During such period as the tenant is deprived of beneficial occupation, no rental shall be due to the landlord. Should the landlord not notify the tenant of its intention to rebuild as set out herein then the lease shall be deemed to have been terminated without any liability whatsoever arising against the landlord by the tenant or any employee, contractor, agent, licensee or invitee of the tenant.

b) Partial damage

In the event, however, of the premises being only partially damaged by any occurrences aforesaid, this lease shall continue in full force and effect save that the tenant shall be entitled to abatement in rent during the period in which the premises may not be wholly fit for occupation. In the event of the parties being unable to agree, the amount of the abatement shall be determined by an arbitrator or arbitrators nominated by the president of the Real Estate Institute of Zimbabwe, the decision of the arbitrator or arbitrators to be final and binding on the parties hereto. The provisions of this clause shall not prejudice any claim that the landlord may have against the tenant where the destruction of, or damage to, the premises is occasioned by the act, default or neglect of the tenant or any employee, contractor, agent, invitee or licensee of the tenant.”

It is clear from clause 24 that it was within the contemplation of the parties that the defendant was excluded from paying rentals, in whole or in part, in the event that the premises became unsuitable for the purposes of its business.

Until July 2009, when the lease was cancelled, the defendant had partial beneficial use of the leased premises for its business operations. From July or December 2008 to July or October 2009 it was entitled to pay a reduced rental and not the whole amount of US$7,100= per month. It was not entitled to pay any rental from the date that it completely ceased using the premises for the production of its confectionary or cosmetic operations. The plaintiff was notified of the need to effect repairs to the internal gutters but it did not do so. In terms of clause 24, the plaintiff could not sue the defendant for non-payment of rentals when it had not repaired the gutters.

The difficulty that confronts the plaintiff is that it is entitled to an unknown amount of rentals for the period from February 2009 to July/October 2009 when the defendant stopped all production.

The plaintiff has failed to establish the amount of rentals that it is entitled to. Until the amount is established, either by consent or by arbitration, the plaintiff cannot succeed in its claim.

The claim for the confirmation of the cancellation, based as it is on the non-payment of an unknown amount of rentals, cannot be sustained.

Accordingly, the defendant is absolved from the instance. It is accordingly ordered that:

1. In the claim-in-convention, the defendant is granted absolution from the instance.

2. In the counter-claim, the plaintiff is granted absolution from the instance.

3. Each party shall pay its own costs.

Appealed
SC71-18 : CURECHEM OVERSEAS (PVT) LTD vs VADAC PROPERTIES (PVT) LTD
Ruled By: GARWE JA, GUVAVA JA and 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 ...

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 1^st 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= 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= being the total sum of rentals which the respondent should have collected for five (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 report 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 Radiation Protection Authority of Zimbabwe ('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=. It also stated that if it were not for the respondent's unnecessary repairs, the premises could have been un-occupied only for a couple of days and not five (5) 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 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, counsel for the appellant 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= 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 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.

Counsel for the respondent 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.

Appealed
SC71-18 : CURECHEM OVERSEAS (PVT) LTD vs VADAC PROPERTIES (PVT) LTD
Ruled By: GARWE JA, GUVAVA JA and MAKONI JA

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 ...

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 (2^nd 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)…, 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) SA 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”….,.

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 (26^th ed Lionel; Sweet and Maxwell Limited, 1960)…, 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 wear 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 SC12-15…, 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.”

See also Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…, and Chioza v Siziba SC04-15 (SC16/11).

The position was also aptly underscored in Chenga v Chakadaya SC07-13 wherein OMERJEE AJA…, 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.”…,.

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.

Counsel for the appellant, 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. Counsel for the respondent 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.

The 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' room. 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….,.

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,…., 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 (6^th Edition) wherein the concept of fair wear and tear was explained in the following words…,:

“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 A. BLUNDELL, V.C WELLINGS in Woodfall on Landlord and Tenant, (26^th Ed Lionel; Sweet and Maxwell Limited, 1960) 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..,.”…,.

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 (5 centimetres) 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 Metallon Gold Zimbabwe v Golden Million (Pvt) Ltd SC12-15, 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.

View Appeal
HH98-16 : VADAC PROPERTIES [PRIVATE] LIMITED vs CURE CHEM OVERSEAS [PRIVATE] LIMITED
Ruled By: 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 un-lettable. 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= for plumbing;

(v) US$296= for glass repairs; and

(vi) US$220= 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=. 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….,.

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 unlettable 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”].

The Radiation Protection Authority of Zimbabwe [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.

The Radiation Protection Authority of Zimbabwe [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 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.

The 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 over-done; 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 dis-colouration that could easily be gotten rid of by a coat of paint.

That was the case before me….,.

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 1961 [2] SA 347 [SR]…, 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.

Brian Colquhoun Hugh Donnell & Partners (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;

(i) Firstly, that it had not been consulted when BCHOD had been engaged;

(ii) 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

(iii) 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.

Brian Colquhoun Hugh Donnell & Partners (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 un-inhabitable. The health hazards were unknown. Therefore, the plaintiff had engaged the Radiation Protection Authority of Zimbabwe [RPAZ] on the recommendations of the Ministry of Health.

That was the third expert commissioned by the plaintiff.

The Radiation Protection Authority of Zimbabwe (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 Radiation Protection Authority of Zimbabwe (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 the Radiation Protection Authority of Zimbabwe (RPAZ) had been reasonable and justified.

The defendant's complaint on the Radiation Protection Authority of Zimbabwe (RPAZ) report was that the Radiation Protection Authority of Zimbabwe (RPAZ) had no “jurisdiction” over potential chemical damage, and that the investigator from the Radiation Protection Authority of Zimbabwe (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 Brian Colquhoun Hugh Donnell & Partners (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. Brian Colquhoun Hugh Donnell & Partners (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 Brian Colquhoun Hugh Donnell & Partners (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 pre-supposed that Brian Colquhoun Hugh Donnell & Partners (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. Brian Colquhoun Hugh Donnell & Partners (BCHOD) put the depth of chemical penetration at between 25mm to 52mm. When Mr 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. Brian Colquhoun Hugh Donnell & Partners (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 Brian Colquhoun Hugh Donnell & Partners (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 1961 [2] SA 347 [SR].

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, HATHORN J and YOUNG J, 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 un-attended 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 1914 EDL 357, a case quoted with approval in Cash Wholesalers [Pvt] Ltd v Marcus 1961 [2] SA 347 [SR], 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….,.

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 matter is disposed of as follows:

1. 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.

2. The defendant shall pay the plaintiff's costs of suit.

HB257-16 : VILLAGE PROPERTIES (PVT) LTD vs REGGIE SARUCHERA (as Liquidator of 2nd respondent) and JW JAGGERS WHOLESALERS (PVT) LTD (in liquidation)
Ruled By: MAKONESE J

The first respondent is the appointed liquidator of the second respondent...,. In pursuance of his duties as liquidator, the first respondent sought to sell certain fixtures, fittings and amenities to meet its financial obligations to its creditors. The fixtures and fittings are currently at two properties that the applicant was leasing to the second respondent before ...

View Appeal
HH385-13 : WEBSTER RUSHESHA (guardian of Panashe and Tivonge Rushesha) and RASAR INV PL vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INV PL and MATTHEW BOKA and ANOR
Ruled By: ZHOU J

The issues which were referred to trial are set out in the joint pre-trial conference minute as follows: 1….,. 2….,. 3….,. 4. Whether or not the plaintiffs have any claim for damages against the second to fifth defendants arising out of the structural alterations to the immovable property. If they have a claim, what the quantum of damages recoverable is….,. As regards ...

SC145-21 : SARAH CARTER vs KATHLEEN MACINTOSH (Represented by Edward Warhurst, Executor of Estate Late Kathleen McIntosh) and ANOTHER
Ruled By: MAVANGIRA JA, BHUNU JA and CHATUKUTA AJA

During happier times, the first respondent leased her bird and game sanctuary to the appellant.Upon termination of the lease, the appellant lost the contest for ownership and possession of animals at the sanctuary in the High Court (the court a quo).She now appeals to this Court for relief.FACTUAL BACKGROUNDAt the ...

During happier times, the first respondent leased her bird and game sanctuary to the appellant.

Upon termination of the lease, the appellant lost the contest for ownership and possession of animals at the sanctuary in the High Court (the court a quo).

She now appeals to this Court for relief.

FACTUAL BACKGROUND

At the 22 kilometre peg along the Harare-Shamva Road lies Bally Vaughan Bird and Game Sanctuary. The first respondent and her late husband established the sanctuary sometime in 1990 mainly for the care of birds and animals in need of care.

At the time of litigation in the court a quo she was the sole surviving owner of the sanctuary.

The primary source of animals for the sanctuary was through donations from members of the public. Funding was mainly derived from donations and sale of animals at the sanctuary.

Owing to a conglomeration of advanced age and injuries sustained in a road traffic accident, the first respondent was wheelchair-bound and unable to represent herself in a court of law. She was, however, lawfully represented by one Gordon Rees Putterill, the deponent to the opposing affidavit, duly authorised thereto by power of attorney.

She is now deceased and was duly substituted, according to law, by the executor to her estate, one Edward Mark Warhurst.

It is common cause, that, on 1 June 2010, the appellant and the first respondent concluded a written lease agreement. The contract was to endure for a period of three (3) years expiring on 31 May 2013.

The material terms of the contract provide as follows:

“AGREEMENT OF LEASE entered into by and between Mrs K N McIntosh (Hereinafter “called The Lessor” on the one part and Miss S. A. L. Carter (Herein after called the tenant)

Whereas, the lessor is the registered owner of the operation known as Bally Vaughan Bird and Game Sanctuary situated in the Arcturus [CA District of Goromonzi].

And whereas the Lessor has agreed to let to the Tenant the aforesaid immovable property, as more fully set out in Annexure 'A' which also includes details of immovable property being kitchen and catering equipment, restaurant furnishings and fittings of the two restaurants known as the 'Duck or Grouse restaurant' all birds and animals that were resident within the area known as the Bally Vaughan Bird and Game Sanctuary on one October, 2005 water pump, cold room motor and Mazda B2500 pick-up truck.'…,.

NOW THEREFORE IT IS AGREED AS FOLLOWS:

'Subject to the provisions of this lease, the lessor hereby lets to the Tenant who in turn hires from the lessor the leased premises and equipment specified in Annexure 'A'.

2….,.

3….,.

4. Income derived from the sale of animals resident on the farm on 1 October 2005 shall be divided equally between the Lessor and the Tenant, and income from the sale of birds resident on 1 October 2005 shall be divided as follows:
45 per cent to Lessor, 45 per cent to Tenant and 10 per cent to staff as a bonus.

5….,.

6….,.

7….,.

8….,.

9….,.

10….,.

11. In the event of the death of the Lessor or the Tenant, during the currency of this lease, this lease agreement shall be binding on the legal representative of the Lessor or the Tenant until the date provided for the expiry thereof.

12….,.

13. In the event of the Tenant failing to pay the rent or committing any breach of this agreement and failing to remedy such breach within fourteen days after receipt from the Lessor of written notice requiring the Tenant to so remedy such breach, the Lessor shall be entitled to cancel this lease without any prejudice to any action for the recovery of rent or any loss or damage arising from such lease.”

Following disagreements, the first respondent lawfully evicted the appellant from her sanctuary by court order in November 2013 on grounds of breach of contract.

Upon her eviction, the appellant sought to relocate the disputed animals to Twala Trust Sanctuary in the same district. The disputed animals are listed as:

Domestic Animals

(ii) 3 cows;

(iii) 3 pigs;

(iv) 11 sheep;

(v) 16 donkeys;

(vi) 4 goats;

Wild Animals

(i) 3 male lions;

(ii) 4 female lionesses;

(iii) 1 female spotted hyena;

(iv) 2 serval (male and female);

(v) 1 male meekat;

(vi) 1 male genet;

(vii) 1 male zebra;

(viii) 2 female common duikers;

(ix) 1 male bush baby;

(x) 3 female baboons;

(xi) 13 marmoset monkeys;

(xii) 13 vervet monkeys;

The appellant's claim was premised on a vindicatory or possessory order.

The first respondent objected to the translocation of the animals from Bally Vaughan Sanctuary claiming ownership of the same animals.

To protect her title and interest in the animals, she applied for and obtained a temporary interdict from the Magistrates Court blocking the appellant from removing the animals from the sanctuary pending determination of ownership of the disputed animals by the courts.

The temporary interdict is in the form of a rule nisi dated 3 July 2015 crafted in the following terms:

“IT IS ORDERED THAT:

1. A rule nisi issue…, in the following terms:

(i) That, pending a court determination on the ownership of the birds, animals, equipment, and motor vehicles on Bally Vaughan Bird and Game Sanctuary, 22km peg, Shamva road, first and second respondents be and are hereby temporarily interdicted from removing any birds, animals, equipment, and motor vehicles from the said premises.

(ii) In the event of the Respondents failing to comply with this order, or any part thereof, that the Zimbabwe Republic Police, Juru or any attested member of the Zimbabwe Republic police be and are hereby authorised to enforce the Order, and, for so doing, this shall be their warrant.

(iii) First and second respondents shall pay costs of suit on a legal practitioner and client scale.”

The appellant did not violate the terms of the above temporary interdict but properly took the dispute to the court a quo claiming the right to relocate the animals by virtue of being the rightful owner and possessor of the animals.

On the other hand, the first respondent resisted the appellant's claim on the basis that she was the lawful owner and in de facto lawful possession of the disputed animals.

In the court a quo, the appellant claimed ownership and possession of the disputed animals on the basis, that, in terms of the lease agreement she only leased the animals that were on the sanctuary as of October 2005. All the other animals that came onto the sanctuary thereafter were donated to her as her personal property. Her claim was based on vindication and/or a possessory order.

The first respondent countered, that, the appellant was not leasing Bally Vaughan as a sanctuary for animals donated to her but for animals donated to the sanctuary. She, therefore, as owner of the sanctuary, assumed ownership of the animals regardless of who had facilitated the donations.

As we have already seen, the court a quo resolved the dispute in favour of the first respondent. It now behoves this Court to determine the correctness or otherwise of the judgment a quo.

ISSUES FOR DETERMINATION ON APPEAL

Despite having raised seven (7) grounds of appeal, which are, in the main, prolix and argumentative, before us, counsel for the appellant abandoned all the other issues raised in the grounds of appeal leaving only one issue for determination on appeal.

He submitted, that, the sole issue for determination is: whether the court a quo was correct in restricting itself to ownership.

I now turn to determine that issue.

WHETHER THE COURT A QUO WAS CORRECT IN RESTRICTING ITSELF TO THE QUESTION OF OWNERSHIP

Right from the onset, I must point out, that, the way the sole issue for determination is crafted is misconceived and misleading in so far as it gives the impression that the learned judge a quo did not determine the question of possession.

In his concluding remarks, the learned judge a quo had this to say at page 11 of his cyclostyled judgment:

“The hurdles which stand in the way of the application are many and varied. The applicant could not succeed under the given circumstances. She could not establish a prima facie case in respect of the animals, let alone proof of ownership or possession of the same - albeit on a balance of probabilities.”…,.

It is plain that the learned judge was not guilty of any omission to determine the issue of possession as alleged by the appellant.

This really should be the end of the matter because the sole issue to be determined is founded on the wrong and false misapprehension of the reasons for judgment.

Notwithstanding the defect, I proceed to briefly ventilate the validity of the appeal on the merits.

The appellant's submission before us pre-supposes that the appellant is no longer contesting the issue of ownership on appeal.

That amounts to a concession that the first respondent is in fact the owner of the disputed animals.

That concession was well made because there is overwhelming evidence before us that the animals were donated to the institution called Bally Vaughan Bird and Game Sanctuary owned by the first respondent.

The written lease agreement makes no provision whatsoever for the appellant to keep her own animals on the sanctuary. It only permitted her to lease and not to own animals on the sanctuary. Donors could not have donated animals to the appellant for safe keeping in her personal capacity when she had nowhere to keep them in her personal capacity.

The natural inclination and presumption at law is that the owner of land is presumed to own all property on his/her land until the contrary is proved.

In Chetty v Naidoo 1974 (3) SA 13 (A), the Appellate Court held that:

“It is inherent in the nature of ownership that possession of the res should normally be with the owner, and it follows, that, no other person may withdraw it from the owner unless he is vested with some right enforceable against the owner (eg. a right of retention or a contractual right).”

The above proposition of law was quoted with approval in Savanhu v Hwange Colliery Company SC08-15 and in Indium Investments (Pvt) Ltd v Kingshaven (Pvt) Ltd & Ors SC40-15.

The cited cases make it abundantly clear, that, it is only the owner who can vindicate.

The appellant, having failed to prove that she was the owner of the disputed animals, could not vindicate the animals from the first respondent.

The court a quo was therefore correct in dismissing the appellant's claim for vindication because she failed to prove ownership of the animals.

We have already seen, that, case law establishes that the owner is entitled to possess the property which he/she owns. No one can take away that property from the owner without his/her consent save where the claimant has proved that he/she has some lawful residual right to possess the property such as contractual or retention rights.

The appellant, having failed to prove ownership of the disputed animals, the ball was squarely in her court to prove that she had the right to possess the animals despite not being the owner.

Her claim for the right to possess the animals was grounded on her claim of ownership of the animals.

Her failure to prove ownership of the animals automatically, by operation of law, divested her of the right to possess the animals because the law vested the right of possession on the owner.

Her lease agreement with the first respondent could not assist her because, according to her claim, the contract did not apply to the disputed animals. It only applied to the animals resident at the sanctuary on 1 October 2005.

These animals were not the subject of the dispute. The dispute only related to the animals that came to the sanctuary after 1 October 2005.

In any case, the lease agreement terminated when she was evicted from the sanctuary. She could therefore not continue to hold onto the first respondent's property on the basis of an expired contract.

In the final analysis, we find, that, the appellant, having failed to prove ownership of the disputed animals, had no legal basis to claim possession of the animals from the owner. That being the case, the learned judge a quo's judgment is unassailable.

DISPOSAL

In the result, it is ordered, that, the appeal be and is hereby dismissed with costs.

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Law Portal
Zimbabwe

Lease Agreements re: Damages, Maintenance, Improvements, Negotiorum Gestio & Ownership of Fixtures and Fittings

Appealed
SC25-12 : MINING INDUSTRY PENSION FUND vs DAB MARKETING (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA and MAKARAU JA

HB44-09 : MUSA MAPHOSA vs NDABA HLABANGANA
Ruled By: KAMOCHA J

Appealed
HB59-09 : DINESH MANILAL NARAN vs RONNAH MAFURIRANO and THE REGISTRAR OF DEEDS
Ruled By: KAMOCHA J

HB106-09 : CHURCHVILLE TRADING vs BEVERLY BUILDING SOCIETY
Ruled By: KAMOCHA J

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

HH197-10 : ABDULLAH ISMAIL KASSIM (in his capacity as Executor Dative of the Estate of Ralph Simon Lapin) vs MATTHEWS MUKWAWAYA
Ruled By: PATEL J

View Appeal
HH281-10 : MINING INDUSTRY PENSION FUND vs DAB MARKETING (PRIVATE) LIMITED
Ruled By: KUDYA J

Appealed
SC71-18 : CURECHEM OVERSEAS (PVT) LTD vs VADAC PROPERTIES (PVT) LTD
Ruled By: GARWE JA, GUVAVA JA and MAKONI JA

Appealed
SC71-18 : CURECHEM OVERSEAS (PVT) LTD vs VADAC PROPERTIES (PVT) LTD
Ruled By: GARWE JA, GUVAVA JA and MAKONI JA

View Appeal
HH98-16 : VADAC PROPERTIES [PRIVATE] LIMITED vs CURE CHEM OVERSEAS [PRIVATE] LIMITED
Ruled By: MAFUSIRE J

HB257-16 : VILLAGE PROPERTIES (PVT) LTD vs REGGIE SARUCHERA (as Liquidator of 2nd respondent) and JW JAGGERS WHOLESALERS (PVT) LTD (in liquidation)
Ruled By: MAKONESE J

View Appeal
HH385-13 : WEBSTER RUSHESHA (guardian of Panashe and Tivonge Rushesha) and RASAR INV PL vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INV PL and MATTHEW BOKA and ANOR
Ruled By: ZHOU J

SC145-21 : SARAH CARTER vs KATHLEEN MACINTOSH (Represented by Edward Warhurst, Executor of Estate Late Kathleen McIntosh) and ANOTHER
Ruled By: MAVANGIRA JA, BHUNU JA and CHATUKUTA AJA

Categories

Law Portal Zimbabwe

Lease Agreements re: Damages, Maintenance, Improvements, Negotiorum Gestio & Ownership of Fixtures and Fittings

Appealed SC25-12 : MINING INDUSTRY PENSION FUND vs DAB MARKETING (PRIVATE) LIMITED Ruled By: ZIYAMBI JA, GARWE JA and MAKARAU JA

HB44-09 : MUSA MAPHOSA vs NDABA HLABANGANA Ruled By: KAMOCHA J

Appealed HB59-09 : DINESH MANILAL NARAN vs RONNAH MAFURIRANO and THE REGISTRAR OF DEEDS Ruled By: KAMOCHA J

HB106-09 : CHURCHVILLE TRADING vs BEVERLY BUILDING SOCIETY Ruled By: KAMOCHA J

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

HH197-10 : ABDULLAH ISMAIL KASSIM (in his capacity as Executor Dative of the Estate of Ralph Simon Lapin) vs MATTHEWS MUKWAWAYA Ruled By: PATEL J

View Appeal HH281-10 : MINING INDUSTRY PENSION FUND vs DAB MARKETING (PRIVATE) LIMITED Ruled By: KUDYA J

Appealed SC71-18 : CURECHEM OVERSEAS (PVT) LTD vs VADAC PROPERTIES (PVT) LTD Ruled By: GARWE JA, GUVAVA JA and MAKONI JA

Appealed SC71-18 : CURECHEM OVERSEAS (PVT) LTD vs VADAC PROPERTIES (PVT) LTD Ruled By: GARWE JA, GUVAVA JA and MAKONI JA

View Appeal HH98-16 : VADAC PROPERTIES [PRIVATE] LIMITED vs CURE CHEM OVERSEAS [PRIVATE] LIMITED Ruled By: MAFUSIRE J

HB257-16 : VILLAGE PROPERTIES (PVT) LTD vs REGGIE SARUCHERA (as Liquidator of 2nd respondent) and JW JAGGERS WHOLESALERS (PVT) LTD (in liquidation) Ruled By: MAKONESE J

View Appeal HH385-13 : WEBSTER RUSHESHA (guardian of Panashe and Tivonge Rushesha) and RASAR INV PL vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INV PL and MATTHEW BOKA and ANOR Ruled By: ZHOU J

SC145-21 : SARAH CARTER vs KATHLEEN MACINTOSH (Represented by Edward Warhurst, Executor of Estate Late Kathleen McIntosh) and ANOTHER Ruled By: MAVANGIRA JA, BHUNU JA and CHATUKUTA AJA

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Law Portal
Zimbabwe

Appealed
SC25-12 : MINING INDUSTRY PENSION FUND vs DAB MARKETING (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA and MAKARAU JA

HB44-09 : MUSA MAPHOSA vs NDABA HLABANGANA
Ruled By: KAMOCHA J

Appealed
HB59-09 : DINESH MANILAL NARAN vs RONNAH MAFURIRANO and THE REGISTRAR OF DEEDS
Ruled By: KAMOCHA J

HB106-09 : CHURCHVILLE TRADING vs BEVERLY BUILDING SOCIETY
Ruled By: KAMOCHA J

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

HH197-10 : ABDULLAH ISMAIL KASSIM (in his capacity as Executor Dative of the Estate of Ralph Simon Lapin) vs MATTHEWS MUKWAWAYA
Ruled By: PATEL J

View Appeal
HH281-10 : MINING INDUSTRY PENSION FUND vs DAB MARKETING (PRIVATE) LIMITED
Ruled By: KUDYA J

Appealed
SC71-18 : CURECHEM OVERSEAS (PVT) LTD vs VADAC PROPERTIES (PVT) LTD
Ruled By: GARWE JA, GUVAVA JA and MAKONI JA

Appealed
SC71-18 : CURECHEM OVERSEAS (PVT) LTD vs VADAC PROPERTIES (PVT) LTD
Ruled By: GARWE JA, GUVAVA JA and MAKONI JA

View Appeal
HH98-16 : VADAC PROPERTIES [PRIVATE] LIMITED vs CURE CHEM OVERSEAS [PRIVATE] LIMITED
Ruled By: MAFUSIRE J

HB257-16 : VILLAGE PROPERTIES (PVT) LTD vs REGGIE SARUCHERA (as Liquidator of 2nd respondent) and JW JAGGERS WHOLESALERS (PVT) LTD (in liquidation)
Ruled By: MAKONESE J

View Appeal
HH385-13 : WEBSTER RUSHESHA (guardian of Panashe and Tivonge Rushesha) and RASAR INV PL vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INV PL and MATTHEW BOKA and ANOR
Ruled By: ZHOU J

SC145-21 : SARAH CARTER vs KATHLEEN MACINTOSH (Represented by Edward Warhurst, Executor of Estate Late Kathleen McIntosh) and ANOTHER
Ruled By: MAVANGIRA JA, BHUNU JA and CHATUKUTA AJA