KAMOCHA J: The
plaintiff's amended claim against the defendant was:-
“(a) payment of 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
of suit.”
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 plaintff'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 in an effort 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 a
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 plaintiff's evidence that when 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.
There was no leak in the ceiling.
She asserted that if there had been any defects 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.
Further,
she alleged defendant had become a bad tenant who failed to pay his rentals
timeously prompting her to terminate the lease agreement. There were instances when he in fact
completely failed to pay rentals but continued trading from the premises.
According
to her defendant vacated the premises at night without a handover takeover.
I
pause here to observe that plaintiff was unable to produce a health certificate
for the relevant period. When she was
pressed under cross-examination to produce the report for the relevant period
she instead produced one relating to the year 1999. She failed to produce one for the year 2005.
The
plaintiff performed very badly under cross-examination. She could not answer questions directly and
was very evasive and untruthful. For
instance when it was put to her that the keys to the premises were left with
her son who had in fact started to trade in the premises before the defendant
in fact finished packing his belongings, her reply was that her son was still a
minor who had no money to run a business.
But when it was put to her that the son was married with one child she
then said he had just impregnated a girl.
Further
when it was put to her that she and defendant did not do an inventory of the
property on the premises her answer was that defendant had nothing when he came
but was using her property. That was not
an answer to what she was asked.
The
plaintiff was not worth to be believed.
Her witness did not take her case any further as he could not tell the
court whether or not the damage he allegedly saw occurred during the
subsistence of the defendant's lease. He
was unable to say whether or not the alleged damage was caused after the lease
agreement had been terminated or even before the defendant leased the premises.
His
evidence was that he was an electrician who had been hired by the plaintiff to
go and repair some electrical fittings which had been damaged. He noticed that some electrical wires had
been cut. Some switches, plugs and
circuit breaker had been damaged. Apart
from the damage to electrical fittings he also noticed that there was damage to
the roof, floor, doors and the ceiling which appeared to be soaked with water. He concluded that the damage that he saw
could not have been due to fair wear and tear.
He formed the opinion that it was caused by human beings although he was
unable to say when it was caused.
The
witness went on to say he had actually removed some stones from the roof of the
property. But when asked if the stones
had been thrown onto the roof or they had been put there to support the roof he
said he did not know how the stones got there.
As already stated earlier on, the evidence of this witness did not
buttress the plaintiff's case in anyway.
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. 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 ceiling 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.
He
said he leased the premises for nearly one year having started in February to
31 December 2005. The lease period was a
difficult one as he had endless problems from the police because the plaintiff
did not give him the liquor licence which she claimed to have. She kept on promising him that the liquor
licence would be brought but it never came.
As if that was not enough, he also had endless problems with the health
inspector.
A
third problem related to the payment of rentals. The parties had initially agreed to have the
rentals payable after every four months but the plaintiff sought to alter that
arrangement and wanted rentals to be paid on a monthly basis. The parties failed to agree on that
issue. The result was that the plaintiff
then gave the defendant notice to vacate the premises by 31 December 2005.
The
defendant was willing to move to another business centre known as Silozwi
Business Centre in the same district.
On
1 January 2006, new year's day he loaded his goods into two trucks with the
assistance of the plaintiff's son. In
fact the plaintiff's son had already started trading in the same premises
before defendant finally departed at around 2pm. He left the keys to the premises with
plaintiff's son.
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
ceiling.
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.
A
police constable whose rank now is that of sergeant told the court that during
the month of January 2006 he received a report from the plaintiff to the effect
that defendant had vandalized the said premises. He proceeded to the premises. In her statement to him she mentioned the
cracks to the floor, damaged ceiling.
She showed him some missing plugs.
She went further to allege that the windows of her servant's quarters
had been damaged.
The
officer investigated the issue of the broken windows at the servant's
quarters. He interviewed one of the
workers known as Sidudla who revealed that the windows had in fact been damaged
by her boyfriend known as Calvin Ncube.
Calvin Ncube was arrested for malicious injury to property. Calvin Ncube damaged the windows after the
defendant had left. Yet the plaintiff sought
to lump the damage onto the defendant when she reported it to the police. The report against defendant was false and
mischievious.
As
regards the damage to the ceiling and floors the officer's investigations
revealed that that was due to natural wear and tear. The ceiling was peeling off and some parts of
it were falling off due to leakage of water through it.
The
witness could not establish anything about the missing plugs as he did not know
the condition of the premises when plaintiff rented them. The problem was compounded by the fact that
the parties did not do a handover takeover.
In such circumstance one could not tell when the plugs went missing if
at all they had been fitted.
Under
cross examination the witness revealed that Calvin Ncube had also broken one
window at the cocktail bar. The witness
went on to conclude that his investigations established that defendant did not
cause any damage to the premises. He
based his conclusion on the fact that the plaintiff took long to report the alleged
damage to the police making it impossible for the police to detect any recent
damage. There was no evidence to suggest
that the defendant was responsible for any vandalism.
The
police officer gave his evidence in a clear and simple manner. He had no reason to mislead the court. He was worth to be believed. The plaintiff on the other hand was malicious
as evinced by the fact that she wanted defendant to be arrested for malicious
injury to property when she knew that the damage to the windows to the
servant's quarters and cocktail bar had been damaged by Calvin Ncube.
The
plaintiff failed to discharge her onus of proving that there was damage caused
during the tenure of the defendant. If
defendant had caused any damage to the premises the plaintiff would have
confronted the defendant about it immediately.
She would also have reported the matter to the police without any
culpable delay.
In
the result I would dismiss her claim with costs.
Sansole and Senda,
plaintiff's legal practitioners
Messrs Mashayamombe
& Company,defednant's legal practitioners
