NDOU J: The facts of
the matter are generally common cause with the dispute revolving more on a
question of law, viz, do the
applicant's statutory rights in terms of the Commercial Premises (Rent) Regulations
1983 (the Regulations) extend beyond 1st respondent to apply as
against the 2nd respondent, alternatively, did the applicant at any
stage become a statutory tenant of the 2nd respondent? The facts of the matter can be summarized as
follows. The 1st respondent
and 2nd respondent had a fixed term lease for the period 1 October
1998 to 31 December 2001. The parties
also concluded an addendum to the lease.
In terms of the addendum (to the main lease) the lease was extended to
31 December 2003 and further the 1st respondent was given the right
to sublet part or the whole of the property subject to a condition that the 1st
respondent shall remain fully liable to the owner for all obligations and
liabilities in terms of the lease, notwithstanding any such subletting. The 1st respondent sublet the
premises to the applicant. After the
expiry of the main lease between the 1st and 2nd
respondents the said parties duly agreed to the mutual termination of the main
lease agreement. The applicant and other
subtenants were told by the 1st respondent that the main lease had
or was coming to an end. The other
sub-tenants vacated the premises but the applicant did not. The refusal to vacate gave rise to these proceedings. The applicant claimed that it was a statutory
tenant against the 2nd respondent and refused to vacate despite
notices by 1st and 2nd respondents. The 2nd respondent filed a counter
claim in which it sought eviction of the applicant from the premises. It is common cause that the applicant has no contractual
relationship with the 2nd respondent who is the owner of the
premises.
In
Omarshah v Karara 1996 (1) ZLR 584(H) at 588B-C, GILLESPIE J stated:
“The rights of a sub-tenant as
against a landlord are co-terminous with those of the lessee. No greater rights may be acquired by her than
those enjoyed by the lessee under the head lease … This position is applied in our law to the
extent that a sub-lessee does not enjoy the protection of a statutory tenant
where the lessee has surrendered any right of occupation under the head lease.”
This
judgment was criticized as being “wrong by law” by Mr Mzibuko, for the applicant.
He referred me to the South African cases of Bright v Triumph Garage (Pty)
Ltd 1949(3) SA 352 (C ) and Hamza
v Bailen 1949(1) SA 933 (C ).
This
case has to be determined on the definitions of “lessee” and “lessor” in the
Regulations. Section 3(1) of the
Regulations has the following definitions:
“Lessee”,
in relation to commercial premises includes any sub-lessee thereof;
“Lessor”, in
relation to commercial premises, includes the owner thereof, the person to whom
the rent therefore is normally paid, a lessee who has sub-let the premises or
part thereof and any other agent of lessor.
To appreciate what
GILLESPIE J, supra, meant one has to understand the
said definitions in the context of the provision which creates statutory
tenancy i.e section 22(2) of the Regulations.
Section 22 provides as follows:
“22(1) …
(2)
No order for the recovery of possession of commercial
premises or for the ejectment of a lessee therefrom which is based on the fact
of the lease having expired, either by the effluxion of time or in consequence
of notice duly given by the lessor, shall be made by a court, so long as the
lessee –
(a)
continues to pay the rent due, within seven days
of due date; and
(b)
performs the conditions of the lease;
unless the court is satisfied that
the lessor has good and sufficient grounds for requiring such order other than
that:
(i)
the lessee has declined to agree to an increase in
rent; or
(ii)
the lessor wishes to lease the premises to some other
person.” (Emphasis added)
The phrases (or
words) highlighted clearly indicated that the lessor defined must have some
contractual relationship with the sub-lessee as defined in section (3)1. In other words, section 3(1) must be read
with section 22 to contextualize the position of the lessor vis-a-vis the sub-lessee. The sub-lessee does not enjoy statutory
protection where the head lessee has given up his occupation. For these reasons I associate myself with the
conclusion reached by GILLESPIE
J, supra.
Coming
to the counter claim, I dismissed the point in
limine raised by the applicant ex tempore and indicated that this judgment
will provide reasons for that conclusion.
The applicant is raising a technical objection. It is trite that technical objections to the
less than perfect procedural steps should not be permitted, in the absence of
prejudice, to interfere with expeditious and if possible, inexpensive decision
of cases on their real merit – Trans.African Insurance Co Ltd v Maluleka 1956(2) SA 273 (A) at 278G; Union Government & Fisher v West 1918 AD 556 at 573; Safcor Forwarding (Pty) Ltd v N T C 1982 (3) SA 654 (AD) at 673B-C and
Utaumire & Anor v Kadzunge & Ors HB-82-06. Mr Mazibuko,
for the applicant, conceded that there is prejudice suffered by the
applicant. That is clearly the
case. The counter claim gave sufficient
details on what it is all about. In fact
it arises from the same facts and issues as the main application. The applicant (as respondent in the counter
claim) filed detailed opposing papers.
Both parties filed heads of argument on the issue. The matter is ready for argument so there is
no prejudice to the applicant. It is for
that reason I dismissed the point in limine
raised by the applicant. Coming to the
merits of the counter claim, the owner cannot be deprived of its property
merely because the lessee did not give the sub-lessee adequate notice to vacate
the premises. This was clearly stated in
Omarshah v Karasa, supra, at 588F in the following terms:
“If the sub-lessee cannot enforce a
statutory tenancy in the circumstances of the precedents cited, then a fartiori he cannot remain in occupation
of the premises in defiance of the landlord on the grounds that the sub-lessee
did not give sufficient notice to quit or has breached the sub-lease.”
This
really should be the end of the matter and the applicant must vacate the 2nd
respondent's premises. In light of the
above-mentioned precedent the applicant should have foreseen this result and as
such, I agree with the respondents that the costs should be awarded on an
enhanced scale on the main application.
Accordingly,
it is ordered that:-
1.
The (main) application be and is hereby dismissed with
costs on an attorney and client scale.
2.
The counter claim, be and is hereby granted with costs
against the respondent (applicant in the main application) in favour of the
applicant (2nd respondent in the main application) in the following
terms:
2.1
That it is declared that applicant (i.e. 2nd
respondent in the main application) is entitled to vacant possession of stand
142 of the northern portion of stand 143B previously leased to the 1st
respondent (in the main application)
2.2
That respondent (i.e. applicant in the main
application) is ordered to vacate the premises which it currently occupies
situated on the above-mentioned property within fourteen (14) days of the date
on which this order is served on it.
Calderwood, Bryce
Hendrie & Partners, applicant's legal practitioners
Lazarus & Sarif,
1st respondent's legal practitioners
Cheda & Partners, 2nd respondent's legal practitioners
