Lease Agreements re: Termination, Notice of Termination and the Exceptio Doli Mali iro Sub-Lessee Eviction

HH119-12 : TELONE (PVT) LTD vs DENFARM PROPERTIES
Ruled By: MTSHIYA J

My finding, on a balance of probabilities, is that the defendant was in breach of the lease agreement through failure to pay rent and operating costs, and also through subletting.

HH21-09 : MASHONALAND TURF CLUB vs MICHELLE NYAMANGUNDA
Ruled By: MTSHIYA J

This is an action for the eviction of the defendant and all those claiming occupation through her from the plaintiff's premises situate at the Borrowdale Park Race Course, Harare.

It is common cause that on 23 April 2007 the plaintiff entered into a lease agreement with a company called Lunar Graphics Products (Pvt) Ltd (Lunar Graphics). The plaintiff was represented therein by Mr Howard Mukundu (Mr Mukundu) who gave evidence in casu. Clause 6 of the lease agreement allowed the lessee to sublet part of the premises to a licensed book maker such as the defendant.

On 31 January 2007, the plaintiff, represented by a Mr Shingirai Tanyanyiwa, entered into an Agreement of Lease which, in clause 1, provided as follows:-

“The lessor hereby lets, and the subtenant hereby hires, a portion of the Lessor's property commonly known as the Zimbabwe Betting and Sport at the Borrowdale Park Race Course.”

The defendant signed the agreement as “The Sub-Tenant.”

The 12 months agreement, which commenced on 1 January 2007, was, in terms of clause 3 thereof, renewable.

It is not clear whether, in entering this agreement directly with the defendant, the plaintiff was doing so on behalf of Lunar Graphics in terms of clause 6 of the agreement signed between the plaintiff and Lunar Graphics on 23 April 2007. The agreement between the plaintiff and the defendant is silent on that aspect. However, in paragraphs 4.1 and 4.2 of its declaration the plaintiff states as follows:

“4.1 Accordingly, on the strength of clause 6.1 of the lease agreement, Lunar Graphics Products (Private) Limited sublet the premises to the defendant.

4.2. Further to the above referred sublease agreement between Lunar Graphics Products (Private) Limited and Defendant, Plaintiff formally acknowledged the subtenant through a memorandum signed to that effect. A copy of the memorandum is hereto attached for case of reference marked as 'B'.”

On 27 August 2007, the plaintiff gave Lunar Graphics notice of termination of the agreement of 23 April 2007. Lunar Graphics duly vacated the plaintiff's premises on 31 December 2007.

On 29 August 2007, two days after signing the notice to Lunar Graphics, the plaintiff also gave notice to the defendant in the following terms:-

“Att: Michelle Nyamangunda

Borrowdale Park Race Course
Box 376
Harare

Dear Madam

Re: Termination of Sub-Lease

Please be advised that three months notice to terminate the principal lease agreement between Mashonaland Turf Club and Lunar Graphics has been given. The notice period shall run from the 1st September 2007 and shall terminate on the 30th November 2007. You are accordingly expected to vacate the property on or before 30th November 2007 following the termination of the principal lease. The three calendar months notice period is in line with clause 14 of the sub-lease agreement.

Should you have any queries concerning the contents of this letter, please kindly contact the undersigned within the next few days so that any issues arising may be discussed.

Yours faithfully

S. TANYANYIWA
Mashonaland Turf Club”

The defendant did not comply with the above notice, and, on 28 September 2007, she wrote to the plaintiff in the following terms:-

“Mashonaland Turf Club
Borrowdale Race Course
Borrowdale
HARARE

ATTENTION: MR S TANYANYIWA

Dear Sir

REF: RENEWAL OF SUBLEASE AGREEMENT

In terms of Clause 3.1. of our Lease Agreement, I hereby notify you of our intention to renew our Sub Lease Agreement for another year to run from 1st of January 2008 to December 2008.

Yours faithfully
M Nyamangunda
Bookmaker”

The above letter was followed by another one from the defendant's legal practitioners, dated 27 November 2007. The letter was for the attention of Mr Mukundu and it read as follows:-

“Dear Sir

Re: MICHELLE NYAMANGUNDA: TERMINATION OF SUB-LEASE

We refer to the above matter. We thank you for furnishing us with the various documents which we had requested to enable us to respond to your letter to our client dated 29th August 2007. This is our response:

1. Contrary to what is stated in your letter aforesaid, our client's occupation of the premises, namely, the premises commonly known as the Zimbabwe Betting and Sport at Borrowdale Park Race Course is not in terms of any sub lease with Lunar Graphics. It is actually in terms of an agreement of lease between yourselves and our client. We attach hereto a copy of the said agreement of lease for your information.

2. It is clear in the premises that our client's rights in the lease agreement do not flow from any sublease with Lunar Graphics but from the lease with yourselves. In the premises, whether or not the lease agreement between yourselves and Lunar Graphics has been terminated, or is being terminated, is not a factor in determining our client's right to occupation of the premises.

3. The lease agreement that you have with our client is for a specific period of twelve months terminating on the 31st December 2007. At the expiry of the lease agreement, our client has an option to renew for a further year commencing on the 1st January 2008 to 31st December 2009. Our client has already given your notice of her intention to exercise her firth to renew the lease agreement. A copy of her letter to yourselves dated 28th September 2007 is attached hereto for ease of reference.

4. As far as our client is concerned, clause 14, which provides for the termination of the lease agreement on three calendar month's notice, contradicts the provisions of clauses 2 and 3 of the same lease. Clause 14 is therefore clearly not enforceable in the premises.

In the premises, our client does not recognise your notice as valid. Our client will therefore not be vacating the premises, as demanded by yourselves, on the 30th November 2007. Any action which you may want to take to eject our client from the premises will be strongly resisted. To that end, we write to advise that we have the authority to receive service of summons on our client's behalf should you think of suing her for eviction.

Yours faithfully
Mawere & Sibanda
T. Mawere”

The defendant's position, reflected in the above letter, is what led to the issuance of a summons by the plaintiff on 21 January 2008 claiming:-

“(a) That defendant and all those claiming right of occupation through her be evicted from plaintiff's premises within seven (7) days from the date of this order being served upon her.

(b) That plaintiff shall be entitled to holding over damages from 1 January 2008 to the date of vacation (sic).

(c) Interest in the sum calculated in (b) above at the prescribed rate from 1 January 2008 to the date of payment.

(d) Costs of suit at the attorney and client scale.”

Before and during the trial, the defendant raised a preliminary issue. The issue, which is incorporated in the joint pre-trial conference minute, is:

“Whether or not the plaintiff is properly before the court.”

In support of the point in limine, counsel for the defendant submitted that the defendant had raised the preliminary issue before the commencement of the trial and during the trial. He said whereas the plaintiff had the capacity to sue, the issue in casu was whether or not the plaintiff was properly before the court and/or was the plaintiff indeed being represented by the persons empowered to institute or defend legal proceedings on its behalf.

He said the plaintiff had failed to comply with the provisions of clause 6 of its own Rules and Bye-Laws (the Rules).

There was no resolution from the plaintiff confirming that those instituting legal proceedings had its authority as required by Clause 6 of the plaintiff's Rules.

Furthermore, the plaintiff's representative, Mr Mukundu, had confirmed, under oath, that he was neither a trustee nor steward.

Counsel for the defendant pointed out that in Mashonaland Turf Club v Dunvale Investments (Private) Limited HC1013/08 the court had not at all dealt with the issue of whether or not the plaintiff was properly before the court. The issue was not before the court then. He urged the court not to rely on that case for its ruling.

The plaintiff, he argued, had failed to demonstrate, through evidence, that it was properly before the court. This was so despite the fact that the plaintiff had ample time to do so. He therefore urged the court to dismiss the plaintiff's claim on the ground that it was not properly before the court.

In response to the defendant's submissions on the preliminary issue, counsel for the plaintiff argued that the plaintiff, a voluntary association, had legal capacity to institute and defend proceedings in court. He said the plaintiff had recently done so in the recent case (i.e. Mashonaland Turf Club v Dunvale Investments (Private) Limited HC1013-2008 where MAKARAU JP had disregarded that argument. He therefore urged the court to be guided accordingly.

I shall start by confirming that a reading of MAKARAU JP's judgment in Mashonaland Turf Club v Dunvale Investments (Private) Limited HC1013-2008 does not reveal that the same issue before me was raised. I can only assume that the decision to proceed in that case was based on the fact that the plaintiff has capacity to institute legal proceedings.

In the absence of a challenge, such as the one before me, I have no reason to question whether or not clause 6 in that case was complied with.

Clause 6 of the plaintiff's Rules spells out how that capacity can actually come by. The said clause 6 provides as follows:-

“Legal Proceedings

The club may sue and be sued in any court of law in its name. It shall be represented in any legal proceedings by the Trustees for the time being, who shall have power to institute and defend any legal proceedings on behalf of the club when authorised to do so by the stewards.”

My reading of clause 6 of the plaintiff's Rules, as read together with clauses 22-24 therein, leaves me with no doubt that the plaintiff did not comply with its own Rules in order to be able to acquire capacity to institute these proceedings.

The power of Stewards is spelt out in clauses 22-24. Clauses 22-24 provides as follows (i.e. relevant portions of the sections);

“22. The Stewards shall, in addition to the powers and authorities by these Rules specially conferred upon them, have the entire management and control of all the affairs of the Club, but, subject to any Resolution passed at a General Meeting of members enjoying voting rights; PROVIDED that no Resolution of the members enjoying voting rights in General Meeting shall invalidate any prior act of the Stewards which would have been valid if such Resolution had not been passed.

23. Without prejudice to the general powers conferred by the last preceding clause, and the powers conferred by these presents, it is hereby expressly declared that the Stewards shall have the following powers, that is to say:

(a)…,.

(b)…,.

(c)…,.

(d)…,.

(e)…,.

(f) To institute, conduct, defend, compound or abandon any legal proceedings by and against the Club or its officers or otherwise concerning the affairs of the Club.

(g) To authorise the execution of all Deeds, Powers of Attorney, and other documents for and in the name of the Club which they may from time to time think necessary; PROVIDED, however, that every instrument executed on behalf of the Club shall be signed by the Chairman or the Deputy Chairman, or another Steward, duly authorised thereto by a meeting of the Stewards, and by the Secretary of the Club or such other Executive officer appointed in terms of Rule 26 hereof, who has been duly authorised thereto by a meeting of the Stewards or by some duly authorised person acting in the capacity of either Secretary or of such Executive officer.

(h)…,.

(i)…,.

24. The Stewards shall have the power, from time to time, to make, amend, or repeal any by-laws for giving better effect to any of the Rules of racing, and for regulating their own proceedings as they may deem expedient; PROVIDED that such bye-laws shall not be inconsistent with these Rules or with the Rules and Regulations of the Jockey Club under whose authority and in accordance with whose rules and race meetings and other functions referred to in Rule 52 are held (in these Rules referred to as 'The Jockey Club').”

There is no argument that, in terms of clauses 6 of its Rules, the plaintiff can sue and be sued in its own right provided it has the necessary authority granted under that clause.

It is unfortunate that submissions by the plaintiff's counsel, on the point in limine, were primarily based on whether or not the plaintiff could institute legal proceedings in its own name.

That was not the issue before me.

The issue before me was whether or not, in instituting the proceedings before me, the plaintiff followed its own Rules.

The answer is no.

All Mr Mukundu could tell the court was that he believed that his Chief Executive, who had authorised him to represent the plaintiff, had authority from the Trustees. Under cross-examination, he testified that although he had not seen the authority from the Stewards he believed it was in existence. He said he had confidence in the systems followed by the plaintiff.

It should be noted that notwithstanding the fact that this issue was raised before the trial commenced, Mr Mukundu maintained that the authority for him to proceed with the legal action 'was at the office'.

In the circumstances, I am satisfied that no such authority ever existed.

Mr Mukundu and his Chief Executive were not Trustees. They were acting on their own, and, therefore, outside the requirements of clause 6 of the plaintiff's own Rules. This finding invalidates the proceedings before me. The finding also disables me from proceeding to consider the merits of the case.

The plaintiff has a clear procedure that it set for itself regarding instituting legal process.

The plaintiff has, in casu, violated its own procedures. Setting out clear procedures regarding the process of instituting legal proceedings is a highly commendable action by the plaintiff, but, violating these same procedures is legally deplorable. The purpose of setting them is lost.

I find SANDURA JA's finding in Mugwebie v Seed Co Ltd & Anor 2000 (1) ZLR 93 (S) applicable to this case.

This was a finding made in a labour dispute where the employer, in suspending an employee, had failed to follow its own Code of Conduct. For the sake of clarity, I quote here below extensively from SANDURA JA's judgment;

“In the first place, the appellant was suspended by the company's Marketing Manager who was not the company's Designated Officer. This was in breach of para 4.2. of the Code, which provides that it is the Designated Officer who suspends an employee whom he suspects to have committed an offence. It should be noted that in terms of para 4.2 of the Code the power to suspend an employee only arises when the penalty for the alleged offence is dismissal.

In terms of Part IV of the Code the penalty for fraud is dismissal.

Secondly, Mr Mupotaringa was appointed the company's Designated Officer and instructed to proceed against the appellant on 5 March 1999, about four months after the appellant had been suspended by the company's Marketing Manager. He should have been appointed before the appellant was suspended.

In fact, in terms of para 4 of the Code, no disciplinary proceedings can be instituted against any employee unless it appears to a Designated Officer that the employee in question has committed an offence. Even then, it is the Designated Officer, and no-one else, who is empowered by the Code to notify the employee, in writing, of the nature of the alleged offence and the impending investigations. And it is he, and he alone, who is empowered to suspend the employee and determine whether such suspension is with or without pay, where the penalty for the alleged offence is dismissal.

The question which now arises is whether the appellant's suspension was valid.

There is no doubt in my mind whatsoever that it was null and void. It was a complete nullity. I can do no better than quote what LORD BENNING said in MacFoy v United Africa Co Ltd (1961) 3 All ER 1169 (PC) at 11721:

'If an act is void, then it is, in law, a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.'

In my view, these comments apply to the facts of the present case with equal force. The suspension of the appellant was a nullity and all the subsequent proceedings were of no force or effect. It is, therefore, unnecessary to consider the effect of the failure to give a decision within fourteen days.

As the appellant's suspension was a nullity, there was really no need for a court order to set it aside, though it was convenient to have the court declare it null and void so that the parties knew their respective positions.”

In my view, the above case emphasizes the importance of adhering to existing and established procedures in any operating system. Failure to do so negates the whole purpose of ever putting the procedures in place.

Applying the above principles of law to the case before me, it is clear that failure to comply with Clause 6 of its Rules, as read together with the relevant parts of clauses 22, 23 and 24, means that, in law, the plaintiff never instituted any legal proceedings at all against the defendant.

The procedural irregularity in casu was therefore fatal, and, accordingly, the plaintiff is not properly before the court.

Even if one were to invoke the principle of substantial compliance, the plaintiff's omission cannot be saved. The proceedings are a nullity. As already stated, I cannot, under the circumstances, proceed to deal with the merits of the case.

The plaintiff's claim is dismissed with costs.

HB41-09 : THANDAZO RETAIL AND MARKETING (PVT) LTD T/a STRIDES BOUTIQUE AND FUNKEE MUNKEE vs MAIN MOTORS (PVT) LTD AND REFCO (PVT) LTD
Ruled By: NDOU J

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 extend beyond the first respondent to apply as against the second respondent, alternatively, did the applicant, at any stage, become a ...

The facts of the matter can be summarized as follows.

The first respondent and second respondent had a fixed term lease for the period 1 October 1998 to 31 December 2001. The parties also conducted 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 first respondent was given the right to sub-let part, or the whole, of the property, subject to a condition that the first respondent shall remain fully liable to the owner for all obligations and liabilities in terms of the lease, notwithstanding any such sub-letting.

The first respondent sub-let the premises to the applicant.

After the expiry of the main lease between the first and second respondents, the said parties duly agreed to the mutual termination of the main lease agreement. The applicant, and other sub-tenants, were told by the first 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 second respondent, and refused to vacate despite notices by the first and second respondents.

It is common cause that the applicant has no contractual relationship with the second respondent, who is the owner of the premises.

In Omarshah v Karara 1996 (1) ZLR 584 (H)..., 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 counsel 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)...,.

HH189-14 : GODFREY MURANGANWA vs SHORTHAULS TRANSPORT (PVT) LTD
Ruled By: MAVANGIRA J and MWAYERA J

On 1 January 2010, the applicant and the respondent entered into a lease agreement in terms of which the respondent would sublet part of No.3 Market Street, Eastlea, Harare to the appellant who would pay monthly rentals of US$750= to the respondent. The appellant stopped paying rentals in March 2010 in breach of the lease agreement. The ...

The appellant stopped paying rentals in March 2010 in breach of the lease agreement. The respondent instituted proceedings in the Magistrates Court against the appellant. The trial magistrate found that the appellant herein was in breach and had no right to claim, as he did before her, that rental arrears were due to the City of Harare as the appellant did not then have a lease agreement with the City of Harare. She granted an order in the following terms:

“IT IS ORDERED THAT:

1. The Respondent and all those claiming title through him be and is (sic) hereby ordered to vacate No.3 Market Street, Eastlea, Harare within 7 days from delivery of judgment and in the event that the Respondent fails to vacate, the Messenger of Court be and is hereby authorised to evict Respondent and all those claiming title through him.

2. Payment in the sum of $2,000= due and owing by the Respondent to the Applicant as outstanding rentals. (sic)

3. Costs of suit.” (sic)

The appellant appealed against the court a quo's judgment on three grounds. The following are the grounds of appeal that he raised:

“1. The Learned Magistrate erred as a question of fact and law in failing to appreciate that there are several material disputes in this matter that it could not be resolved on papers alone.

2. The Learned Magistrate also erred as a matter of fact in disregarding that the rights and interest in the property in dispute are now vested in the appellant in terms of the letter of authority to use the property from City of Harare.

3. Further, the Learned Magistrate erred in disregarding that evidence from City of Harare was of paramount importance to advise of the status of the portion occupied by the appellant.” (sic)

The background to the matter is that as at August 2010, the respondent had been leasing No.3 Market Street, Eastlea, Harare, from the City of Harare for ten (10) years in terms of a verbal lease agreement. The respondent alleged that in terms of the verbal lease agreement that he had with the City of Harare, he was allowed to sublet and that it was on this basis that he had entered into the six (6) month lease agreement with the appellant in terms of which he sublet part of the property. In terms of their lease agreement, the respondent gave the appellant vacant and peaceful possession of a piece of land, being part of No.3 Market Street, Eastlea, Harare. Based on his reciprocal obligation, in terms of the same agreement, the appellant paid rent to the respondent in January and in February 2010. The lease period of six (6) months was to expire on 30 June 2010.The appellant does not dispute that after paying rent for January and February and part payment for March, 2010, albeit late, he did not make any further payments.

On an earlier date on which this appeal had been set down for hearing the matter was postponed and the parties advised to approach the City of Harare in order to seek clarification as to who had title over the disputed land.

Counsel for the respondent advised this court that the advices that he got from the City of Harare were to the effect that the City of Harare had, in September 2010, given to the appellant title in the piece of land that the respondent was previously subletting to the appellant. The appellant confirmed that this was the state of affairs. Counsel for the respondent submitted that in view of this state of affairs the respondent no longer opposes the appeal in as far as it relates to the issue of the appellant's ejectment from the piece of land as he is now entitled to occupy it. He submitted that the respondent persists, however, in opposing the appeal only in relation to the issue of arrear rentals for the period March 2010 to July 2010 which the court a quo had granted to the respondent in the sum of $2,000=. The reason for this persistence, he submitted, is that the appellant's title to the piece of land only came into effect in September 2010. Accordingly, for the period March 2010 to July 2010 the appellant's occupation was premised on the parties' lease agreement.

The appellant's contention is that the respondent had no right to sublease the land to him and that as the respondent was subletting it to him illegally, he had no obligation to pay any monies to it.

In Robinson v Grimm 1996 (2) ZLR 83…, the following was stated per KORSAH JA:

“The general rule of the common law is that a lessee may not dispute the lessor's title. This rule that a lessee may not dispute the lessor's title has been applied where a lessee, upon termination of the lease, refused to vacate the property. See Loxton v LeHanie (1905) 22 SC 577 at 578 where BUCHANAN ACJ said:

'The defendant has set up the defence that the title of the ground is in dispute, and, therefore, the magistrate has no jurisdiction. But it is not competent to dispute his landlord's title.'

So also in Kala Singh v Germiston Municipality 1912 TPD 155 at 159 – 160, where, upon the point being taken that the Municipality, being a statutory body, was not entitled to let the Stand to the appellant, DE VILLIERS JP expressed himself thus:

'But in answer to this, we have the general rule of the English law, which it was decided, amongst others, in Clarke v Norse Mines Ltd (1910 TS 512) is also a rule of our law, that as between lessor and lessee it does not lie in the mouth of the lessee to question the title of his landlord. He could be met by the exceptio dolimali…,.'”

It appears to me that the abovestated rule of our law disposes of this appeal as it leaves the appellant with no valid leg to stand on in his resistance to pay the outstanding rentals for the period March 2010 to July 2010. Such rentals became due by virtue of a lease agreement in terms of which a landlord and tenant relationship was created between him and the respondent. The appellant was given occupation of a piece of land, part of No.3 Market Street, Eastlea, Harare by his landlord. His obligation was to pay rentals for the duration of the period of the lease agreement. As a tenant, the appellant cannot question the title of the landlord and purport to rely on the landlord's lack or want of title as a defence.

It is for the above reasons that the court a quo's decision cannot be faulted. The opposition to the appeal insofar as it relates to the appellant's eviction having been withdrawn, the appeal will therefore succeed only to that extent. However, for the reasons appearing earlier above, the appeal against the order that the appellant herein pays to the respondent $2,000= in outstanding rentals cannot succeed. Costs will follow the cause.

In the result, it is ordered as follows:

1. The appeal against the order by the court a quo, that the appellant herein and all those claiming through him vacate No.3 Market Street, Eastlea, Harare, be and is hereby allowed.

2. The appeal against the order by the court a quo, that the appellant herein pays $2,000= to the respondent herein in outstanding rentals be and is hereby dismissed with costs.

HB239-16 : KELVIN ZINDODYEYI and THERESE CHIKETSANI vs ASPINAL INVESTMENTS (PVT) LTD and PHILLIPAH MUSEVE t/a SIMMRAN and MESSENGER OF COURT N.O.
Ruled By: TAKUVA J

The applicants' version is fairly straight forward. It goes like this. In 2014, they entered into an oral lease agreement with Gilbert Nyamutsamba [Gilbert] representing the first respondent. The lease related to Shop Number 19 Haddon Sly Building, Bulawayo. They paid rentals to a company called Astrix Giltex (Pvt) Ltd as shown by the receipts ...

The applicants' version is fairly straight forward. It goes like this.

In 2014, they entered into an oral lease agreement with Gilbert Nyamutsamba [Gilbert] representing the first respondent. The lease related to Shop Number 19 Haddon & Sly Building, Bulawayo. They paid rentals to a company called Astrix Giltex (Pvt) Ltd as shown by the receipts they attached as annexure A.

Sometime in July 2015, the second respondent appeared on the scene claiming that she was the lawful tenant at the premises they were leasing. The second respondent then produced lease agreements which the two signed in the presence of Gilbert Nyamutsamba who confirmed this new arrangement. As a result, the applicants paid their rentals to the second respondent from August 2015 to December 2015 when the second respondent vacated the premises.

Gilbert Nyamutsamba then approached applicants with an offer to lease the property in their own right. The applicants accepted the offer and an oral lease agreement was entered into with effect from January 2016.

According to the applicants, Gilbert Nyamutsamba indicated that he would not issue receipts for their rental payments. They suspected Gilbert was avoiding paying tax. In March, Gilbert attempted to evict them unlawfully from the shop. In May 2016, the first respondent caused summons for arrear rentals of US10,000= and eviction to be issued against the second respondent who consented to judgment. The applicants were then served with a warrant of eviction and execution which had been issued by the Magistrates' Court. The warrant authorized the third respondent to evict the second respondent and all those claiming through her from Shop 19, Ground Floor, Haddon & Sly Building, corner Fife Street and 8^th Avenue Bulawayo. The applicants were served with the warrant on 22 July 2016.

Dissatisfied, the applicants filed this application on the following grounds;

(a) That the order granted by the Magistrate's Court does not apply to them as they did not occupy the shop through the second respondent.

(b) They do not owe Gilbert Nyamutsamba or the second respondent arrear rentals.

(d) That they have simultaneously filed an application under cover of case number HC1904/16 for a declaratory order that the third respondent be permanently interdicted from evicting them from Shop Number 19, Haddon & Sly Building, and also that the order obtained by the first respondent in the said Magistrates Court is not in respect of the two of them.

Both the first and second respondents opposed the application.

The first respondent, through its director, Gilbert Nyamutsamba filed an opposing affidavit wherein he raised two points in limine, namely;

(a) That the applicants have adopted a wrong procedure and are in the wrong court. Consequently, the relief they seek is incompetent.

(b) The application cannot succeed as there are effective satisfactory remedies available in the Magistrates' Court Act [Chapter 7:10].

On the merits, it was contended that the applicants have no prima facie right in that they are not even statutory tenants because they are not paying rent. See section 22(2) of the Commercial Rent Regulations S.I.676 of 1983. Further, it was argued that as sub-tenants, the moment the tenant is evicted, they are automatically evicted as their rights are subservient to the tenant's rights. The sub-tenants' rights cannot stand on their own. See Zuva Petroleum Ltd v Chireya HH166-16.

The second respondent also filed a notice of opposition and an opposing affidavit.

In that affidavit she stated that she is the lessee and the applicants are her sub-tenants. The first respondent approved of this sub-letting. She was however surprised when at times she discovered that the applicants were paying rentals directly to the first respondent. She confronted both parties and decided to prepare lease agreements for the two applicants. Both signed the respective leases in August 2016 after she had renewed her lease with the first respondent in July 2016. She attached the three lease agreements as annexures A, B and C.

She admitted that she consented to the judgment in favour of the first respondent in the Magistrate's Court because she owed him the amount claimed. This indebtedness to the first respondent is a result of the applicants' defaults in their rental payments. She explained that although she was the first respondent's tenant, she had not been in physical occupation of the shop since January 2014 when she let the shop to the applicants. Finally, she prayed for the dismissal of this application with costs at attorney and client scale.

In my view, the points in limine are inextricably interwoven with the merits. I therefore deal with them at once.

In L F Boshoff Investments (Pty) Ltd v Cape Town Municipality 1969 (2) SA 256 (C)…, CORBETT J…, said an applicant for an interim interdict must show:

(a) That the right which is the subject matter of the main action and which he seeks to protect by means of interim relief is clear, or, if not clear, is prima facie established though open to some doubt;

(b) That, if the right is only prima facie established, there is a well grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeded in establishing his right;

(d) That the applicant has no satisfactory remedy.”

See also Airfield Investments (Pvt) Ltd v Minister of Lands & Ors 2004 (1) ZLR 511 (S).

C. B. PREST, The Law and Practice of Interdicts, Juta 1993…, explains the significance of a prima facie right in an application for an interdict. He states;

“Interdicts are based upon rights, rights which in terms of the substantive law are sufficient to sustain a cause of action. Such right may arise out of contract, or a delict; it may be founded in the common law or on some or other statute; it may be a real right or a personal right. The applicant for an interlocutory interdict must show a right which is being infringed or which he apprehends will be infringed, and if he does not do so, the application must fail.

An applicant must establish 'some just right'. It must not be a mere moral right, it must be a strict legal right.”

This, therefore, is the threshold that must be crossed, and a failure so to do means that an applicant cannot succeed in his claim. The onus of proving such a prima facie right rests on the applicant. It must be proved on a balance of probabilities.

As regards the meaning of the words “prima facie case”, C. B. PREST, The Law and Practice of Interdicts, Juta 1993…, states;

“If the correct meaning, it is submitted is that an applicant is required to furnish proof which if un-contradicted and believed at the trial, would establish his right. The use of the phrase 'prima facie established though open to some doubt', however, indicates that more is required than merely to look at the allegations of the applicant, but something short of a weighing up of the probabilities of conflicting versions is required. What then is the approach of the court to be in the face of a dispute of fact on the papers before the court? The proper manner of approach is to take the facts set out by the applicant, together with any facts set out by the respondent which the applicant cannot dispute, and to consider whether, having regard to inherent probabilities, the applicant should, on those facts, obtain final relief at the trial. The facts set up in contradiction by the respondent should then be considered. If serious doubt is thrown on the case of the applicant, he could not succeed in obtaining temporary relief, for his right, prima facie established, may only be open to 'some doubt'.”…,.

In order to determine whether the applicant has made out a prima facie case, the court inquires into whether he has discharged the onus resting upon him by the affidavits placed before the court.

In the present case, the applicants are incapable of crossing the threshold of establishing a prima facie right for the following reasons;

(i) Both applicants have failed to prove, on a balance of probabilities, that they have an oral lease agreement with the first respondent.

Their versions in the affidavits is not only improbable but thoroughly incredible. It is highly improbable that Gilbert Nyamutsamba would suddenly desire to avoid payment of tax by not issuing receipts to the two (2) applicants from January 2016 when all along he had been issuing receipts to all his tenants – including, at one stage, to the applicants. Further, it certainly does not make sense that Gilbert would collect rentals the from applicants and then proceed to issue summons claiming the same rentals he had already been paid.

(ii) The applicants dismally failed to prove that they are statutory tenants in that they did not pay rent to the landlord for the premises they have been occupying for more than six months.

The facts that both applicants have failed to contradict are that both had a lease agreement with the second respondent. Since their rights are subservient to the second respondent's rights, they were extinguished when the second respondent's rights were taken away by the magistrate. See Maposa v Matabuka HH801-15.

The application should be dismissed on this ground alone.

HH166-16 : ZUVA PETROLEUM LIMITED vs S CHIRENJE
Ruled By: MWAYERA J and MUNANGATI-MANONGWA J

In this case, an understanding of the law pertaining to tenancy was crucial. In deciding the issue of eviction, the court a quo had to consider the legal status of the respondent. Further, it was important to consider what rights the respondent had regarding the occupation of the premises having determined his status. In Omarshah v Karasa 1996 (1) ZLR 212 HC…, ...

In this case, an understanding of the law pertaining to tenancy was crucial.

In deciding the issue of eviction, the court a quo had to consider the legal status of the respondent. Further, it was important to consider what rights the respondent had regarding the occupation of the premises having determined his status.

In Omarshah v Karasa 1996 (1) ZLR 212 HC…, GILLESPIE J held that:

“The rights of a subtenant as against a landlord are coterminous with those of the lessee. No greater rights may be acquired by her than those enjoyed by the lessee under the head lease. See Bright v Truump Garage (Pty) Ltd 1949 (3) SA (C) at 359. The proposition 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 protection, it said, 'could never have been intended to apply when there never was any vinculum juris, either contractual or quasi–contractual between an owner and a person whom he is seeking to eject from his premises.”

Omarshah v Karasa 1996 (1) ZLR 212 HC clearly sets out that the rights of a sub-tenant as against the landlord end when those of the lessee terminates, and that the subtenant cannot enjoy greater rights than those bestowed on the leaseholder. Where the lessee gives up occupancy the sub-tenant cannot seek protection as a statutory tenant.

In simpler terms, the rights of a subtenant are subservient to those of the lessee and when a lessee leaves the premises the sub-tenant has no legal basis to remain in occupation.

In casu, the respondent was a subtenant of Kadkoy (Pvt) Ltd, the lessee. The demise of the lessee's tenancy or the surrender of occupancy by the lessee meant the extinction of any rights that the respondent had. Conversely, the respondent's status could not be termed a statutory tenant and he could not enjoy the protection accorded to a statutory tenant as espoused by Omarshah v Karasa 1996 (1) ZLR 212 HC.

Not being a recognized tenant, the respondent had no right to remain in occupation of the premises beyond the negotiated date and hence the order for eviction should have been granted. Thus, the court a quo patently misdirected itself on the law when it made a finding that the respondent was a statutory tenant and failed to order his ejectment….,.

It is also clear that the decision of the court a quo is hinged on the fact that the appellant, not being the owner of the premises, it could not evict the respondent.

This is surprising because it is common cause that after the departure of the lessee the respondent negotiated a temporary reprieve with the appellant's manager; paid rentals to the appellant - only to later stop payments and challenge the appellant's rights.

The learned magistrate clearly misdirected himself on the law and certainly did not appreciate the import of the case of Hillock and Another v Hilsage Investments (Pty) Ltd 1975 (1) SA 508 when he dismissed the appellant's case on the basis that it did not own the premises. Hillock and Another v Hilsage Investments (Pty) Ltd 1975 (1) SA 508, to the contrary, is authority that a party other than the owner can recover premises from a third party without having to prove ownership.

This flows from the legal premise that a lessee is not allowed to challenge the right or title of the lessor (Hillock and Another v Hilsage Investments (Pty) Ltd 1975 (1) SA 508 at 516D).

Given that legal position, the appellant was within its rights, as the lessor, to evict the respondent and the respondent was estopped from resisting ejectment on the basis that the appellant did not have title to the premises. That the property was owned by Zuva Petroleum 2 was neither significant nor important as the appellant was the recognized lessor.

The appellant's contention therefore has merit because the court a quo misconstrued the law.

Appealed
SC52-20 : NEWTON DONGO vs JOYTINDRA NAIK and HEMENT NAIK and BABNIK INVESTMENT PL and CLINVEST INVESTMENT PL and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS OFFICE
Ruled By: GWAUNZA DCJ, GOWORA JA and MAKONI JA

This is an appeal against the judgment of the High Court which dismissed the appellant's application for a declaratory order in terms of section 14 of the High Court Act [Chapter 7:06] on the basis that the appellant lacked the requisite locus standi and had no legal right to protect.FACTSThe ...

FACTS

The first respondent is the executor testamentary to the estate late Sushila Natverial Naik (“Sushila”). The estate, through the deceased, had a lease agreement which was concluded sometime in 2000, in terms which it leased Stand number 107 Salisbury Township (herein after referred to as “the property”) to Gold Pack Investment. The property was to be used as a flea market for the sale of furniture as well as office use.

The property was sold to the third respondent in September 2016.

The fourth respondent then took over the lease agreement from Gold Pack Investment as the new lessee.

In the court a quo the appellant averred that he was a sub-tenant to the property and that it was in that capacity that he was seeking a declaratur in terms of section 14 of the High Court Act.

The declaratory order sought was to the effect that the appointment of the first respondent as executor had no legal effect as he was not qualified to be appointed as such, much less to be issued with Letters of Administration in respect of the estate. The appellant further sought an order directing the fifth respondent to revoke the Letters of Administration appointing the first respondent as the executor and declaring the transfer of the property to the third respondent, to be null and void.

In support of his quest for the declaratory order the appellant, in the court a quo, submitted that for one to be appointed executor testamentary, one had to file an application with the office of the fifth respondent, while resident in Zimbabwe. Further, that as the first respondent had not complied with this requirement, it was not within the fifth respondent's power to appoint him executor in terms of section 24(2) of the Administration of Estates Act [Chapter 6:01] (“the Act”). The appellant, in addition, submitted that by virtue of that section, the first respondent could not validly be appointed executor testamentary as he had not been to Zimbabwe subsequent to the registration of the deceased's Will.

Consequently, the appellant submitted, the fifth respondent had no power to authorize the sale of the property in question to the third respondent.

As will become clear later on in this judgment, nothing turns on these submissions of the appellant, whether true or not.

The first to third respondents opposed the application and raised two points in limine;

(i) The first point related to the appellant's locus standi.

They queried the capacity in which the appellant, who was neither a relative of the deceased nor a beneficiary in the estate, was seeking a declaratory order invalidating the appointment of the executor testamentary. The respondents argued, further, that the appellant had no direct or substantial interest in the order that he sought as he was an illegal sub tenant to the property in question.

They also averred that the appellant had no right to be on the property since both the original lease agreement in favour of Gold Pack Investment and the one in favour of the fourth respondent prohibited any sub-letting of the property.

It was in view of this circumstance that all illegal subtenants, including the appellant, were duly issued with a notice of intention to sell the property to the third respondent in November 2015.

(ii) The respondents asserted, as regards the second point in limine, that the appellant, by filing an application rather than issuing summons against the respondents, had adopted the wrong procedure.

They submitted that there were material disputes of fact not capable of resolution on the papers before the court.

The respondents further asserted that the application was in effect one for a review disguised as an application for a declaratur since it sought to impugn the procedural steps that the fifth respondent took to appoint the first respondent.

The second respondent also submitted that despite the first respondent not being in Zimbabwe, he was nevertheless empowered to act on his behalf as executor testamentary since the Administration of Estates Act conferred power:-

(i) On the fifth respondent, to grant Letters of Administration but not deliver them until the executor testamentary has accepted domicilium citandi in Zimbabwe; and

(ii) On the first respondent, as the executor, to appoint, through a power of attorney, another person in Zimbabwe with full power to act for him.

As these requirements were fully met, the second respondent submitted, the sale of the property in question, to the third respondent, was valid and binding and the third respondent, as the registered owner of the property, had the right to evict anyone from it.

The court a quo held that the appellant had failed to show that he was an interested party, a condition precedent to the filing of an application for a declaratory order in terms of section 14 of the High Court Act [Chapter 7:06].

It found that the appellant had no direct or substantial interest in the administration of the estate of the late Sushila Natverial Naik, and, therefore, lacked the requisite locus standi to seek the declaratur in question.

The court found, further, that the appellant was an illegal subtenant who had brought the application for a declaratur in order to foil his threatened eviction from the property.

It noted, in addition, that the appellant was given to abusing court process and ignoring the directions of the court. Accordingly, the court a quo dismissed the application with costs on an attorney and client scale.

Dissatisfied with the judgment of the court a quo, the appellant filed this appeal on the following grounds:-

1. The court a quo erred in law and misdirected itself in holding that the appellant had no locus standi when the appellant had proven a direct and substantial interest in the administration of the estate of the late Sushila Natverial Naik.

2. The court a quo erred and misdirected itself in awarding costs on an attorney and client scale against the appellant when the circumstances of the case did not justify costs that are punitive in nature.

These grounds of appeal, I find, aptly capture the issues that arise for determination in casu. I will consider them seriatim.

1. Whether or not the appellant had locus standi to file a declaratory order in respect of the administration of the estate of the late Sushila Natverial Naik

Before this Court, it was the appellant's contention that the second respondent illegally represented the estate of the late Sushila Natverial Naik, and that, accordingly, he illegally sold and transferred the property to the third respondent. Ultimately, he submitted that the first respondent's appointment, as the executor testamentary of the estate, was a nullity.

He further contended that he was in peaceful occupation of the property as a subtenant through the fourth respondent, by virtue of clause 1.2 of the lease agreement.

He also took the view that his locus standi arose from the fact that any person aggrieved by the appointment of an executor can approach the courts for a remedy. He wished for the estate to be lawfully wound up, a circumstance that, in his view, would enable the decision of whether or not his threatened eviction was lawful.

Counsel for the third respondent, to the contrary, contended that the appellant was an illegal subtenant and had no locus standi, nor did he have any existing, future, or contingent right in the estate of the late Sushila Natverial Naik to protect. He was neither a beneficiary, an heir, or a creditor, and, accordingly, had no legal entitlement in the administration of the deceased estate in question. That being the case, counsel argued, the application fell short of the requirements of section 14 of the High Court Act.

The appellant's application for a declaratur, in the court a quo, was made in terms of section 14 of the High Court Act [Chapter 7:06] which states as follows:-

“The High Court may, in its discretion, at the instance of any interested person, enquire into and determine any existing, future, or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

Implicit from a reading of the provision is that a declaratur is sought by a person with an interest in the subject matter of the dispute, inquiring or seeking a determination of an existing, future, or contingent right.

In Johnsen v Agricultural Finance Corp 1995 (1) ZLR 65 (S) GUBBAY CJ had occasion to consider when a declaratur should be granted. The learned Chief Justice remarked as follows…,:-

“The condition precedent to the grant of a declaratory order, under section 14 of the High Court of Zimbabwe Act 1981, is that the applicant must be an 'interested person', in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court.

The interest must concern an existing, future, or contingent right.

The court will not decide abstract, academic, or hypothetical questions unrelated thereto. But, the presence of an actual dispute or controversy between the parties interested is not a pre-requisite to the exercise of jurisdiction.”

See also Family Benefit Friendly Society v Commissioner for Inland Revenue and Anor 1995 (4) SA 120 (T).

On the basis of this authority, before a court can exercise its discretion to grant a declaratur, it must satisfy itself that the person seeking such relief has a real interest in the matter and that there is an existing, contingent, or future right to protect.

CILLIERS AC, LOOTS C and NEL HC in their book HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts of South Africa (5th edn, Juta and Co. Ltd, Cape Town 2009) state as follows in this regard…,:

“It is a trite principle of the common law that an applicant seeking a declaratur must have a direct interest in the right to which the order will relate. The right must attach to the applicant and not be a declaration of someone else's right.

It is essential for a prospective litigant to have the necessary locus standi in law when commencing proceedings…,. This requires that a litigant should be both endowed with the necessary capacity to sue, and have a legally recognised interest in the relevant action to seek relief.”

It is common cause that the dispute between the parties arises from the administration of a deceased estate and the property thereunder.

The condition precedent is therefore that the appellant must be an interested person in the sense of having direct and substantial interest in the subject matter of the litigation; in casu, the property or the administration of the estate as a whole, which interest could be prejudicially affected by a court's judgment.

The nature of the right that an applicant for a declaratur seeks to protect must clearly be articulated. This was stressed in Electrical Contractors' Association (South Africa) and Another v Building Industries Federation (South Africa) (2) 1980 (2) SA 516 (T)…, in the following words:-

“A person seeking a declaration of rights must set forth his contention as to what the alleged right is. See O'Neill v Kruger's Executrix and Others 1906 TS 342 at 344-5; Smit v Roussow and Ors 1913 CPD 436 at 441).”…,.

The appellant contended that the law allows any person aggrieved by the appointment of an executor to approach courts seeking the nullification of the appointment. He submitted that, as a sub-tenant at the property in question, he was within his rights to seek nullification of the first respondent's appointment as the executor testamentary.

This he said despite conceding that there was no sub-lease agreement between him and the fourth respondent.

It will be recalled that the lease agreement entered into between the deceased and Gold Pack Investment was taken over by the fourth respondent. The appellant took the view that, by virtue of clause 1:2 of the lease agreement, which stated that the property under lease was to be used as flea markets, subletting was inferred.

Clause 8 of the agreement, however, states as follows:-

“The Lessee shall -

8.2 Shall not allow use of the property by any person other than the Lessee…,.

8.9 The lessee shall not sub-let the whole or any part of the property without the written consent of the lessor and if the lessor consents to the sub-letting of the whole or any part of the property the Lessee shall remain liable to the Lessor for all its obligations in terms of this Lease notwithstanding such subletting.”

Clause 8, whose sub-clauses are worded in peremptory terms, clearly forbade sub letting of the property without the written consent of the landlord, that is, the deceased or her estate initially, and, later, the third respondent.

It follows that any other clause in the lease agreement that could have been read and understood to suggest that sub-letting was permitted had to be read in conjunction with clause 8 thereof.

The court finds no merit in the appellant's submissions.

There clearly is no basis for the submission that the provision in the agreement allowing the property to be used as a flea market was to be taken as a circumstance conferring sub-tenant rights onto the appellant or any other person. Such rights, according to the lease agreement, were only to be conferred by the lessee with the written consent of the owner of the property.

The appellant conceded that no sub-lease agreement was entered into between him and the fourth respondent. He did not produce the lessor's written consent to show that the fourth respondent was authorized to sublet the property to him.

In the absence of this written consent, I find that the appellant does not have any legal right, current, contingent, or future, to protect in so far as anything to do with the administration of the estate of the late Sushila Natverial Naik, is concerned.

He did not have any interest, much less substantial, in the matter, and was, therefore, not entitled to the declaratur that he attempted to secure....,.

Even if the appellant had shown a valid sub-lease agreement with the lessee concerned, it is highly unlikely that he would have had the locus standi to challenge the appointment of the executor testamentary in the estate of the owner of the property in question. That appointment had no direct bearing on his supposed rights as a subtenant.

Against this background, the court a quo was, in my view, correct in finding that the appellant's intention in futilely seeking the declaratur in question was to resist eviction or postpone the day of reckoning in that respect.

View Appeal
HH73-18 : NEWTON DONGO vs JOYTINDRA NAIK and HEMANT NAIK and BABNIK INVESTMENTS PL and CLINTVEST INVESTMENTS PL and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS
Ruled By: MWAYERA J

After considering the papers filed of record, inclusive of heads of argument and hearing oral evidence from the applicant and the respondents' counsels, I gave oral reasons for my disposition; I indicated that written reasons would be availed in due course on why I effectively dismissed the application with costs on attorney client scale.

The reasons for my disposition are captioned herein.

The applicant sought a declaratory order in terms of section 14 of the High Court Act. The applicant effectively sought the nullification of the appointment of Joytindra Natverial Naik as an executor testamentary of the Estate of Shushila Natverial Naik.

The first, second, and third respondents opposed the application and raised the following points in limine;

1. Locus standi.

2. Wrong procedure.

The applicant was a tenant at the property falling under the deceased estate as represented by the first respondent. The second and third respondents are interested parties.

The applicant, in this case, seeks to impugn the administration of the estate of the late Sushila Natverial Naik and appointment of its executor.

The question is; in what capacity does the applicant, who is neither a relative or beneficiary of the estate, seek a declaratory order invalidating the appointment of an executor testamentary of the estate in question?

Section 14 of the High Court Act, under which the application has been brought, is instructive. It states;

“The High Court may, in its discretion, at the instance of any interested person, enquire into and determine any existing, future, or contigent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

It is apparent there is a condition precedent to bringing an application for a declaratory order. The applicant must be an interested person having a substantial and direct interest in the matter and such interest must relate to an existing, future, or contingent legal right. See Recoy Investments (Pvt) Ltd v Tarcon 2011 (2) ZLR 65 (H); Mpukuta v Motor Insurance Pool & Ors 2012 (1) ZLR 192 (H).

The legislature's intention was surely not to create an absurdity where anyone in the abstract would seek a declaratur.

The applicant, a subtenant to the premises, appears to be bringing the application in anticipation of eviction which he intends to oppose.

The intention to resist eviction in the premises does not constitute a legal right to seek a declaratur in the manner sought by the applicant. There is no evidence to show the alienated right on the part of the application warrants the declaratory order sought. It is apparent from the applicant's submission that the applicant has no existing, future, or contingent right. The applicant is an illegal subtenant who happens to be in occupation by virtue of unsanctioned sub-tenancy in breach of a lease agreement. The applicant has no rights arising which ought to be protected by a declaratur.

It is settled that a legal right, and not the factual basis upon which a right may be founded, ought to be shown.

See Movement for Democratic Change v President of the Republic of Zimbabwe and Others HC129/05; Electrical Contractors Association (South Africa) and Another v Building Industries Federation (2) SA 1980 S 16 wherein Nicholas J emphasised that a person seeking a declaration of rights must set forth his contention as to what the alleged right is.

In RK Footwear Manufacturers (Pvt) Ltd v Boka Book Sales (Pvt) Ltd 1986 (2) ZLR 209 Sandura JP…, had occasion to identify two considerations that a court had to take into consideration in determining whether or not to issue a declaratory order;

(i) He stated that the court had to consider whether the applicant was an interested person in an existing, future, or contingent right or obligation; and

(ii) Secondly, whether the case was a proper one for the court to exercise its discretion.

In RK Footwear Manufacturers (Pvt) Ltd v Boka Book Sales (Pvt) Ltd 1986 (2) ZLR 209, the court was required to issue a declaratory order involving the rights of a lessor to evict a tenant at a future date. The judge came to the conclusion that the matter before him was not a proper one for him to exercise his discretion as, at the time of the hearing of the matter, there was no good and sufficient cause for requiring the order.

In casu, the applicant is seeking a declaratory order in a matter where he has no legal right to the estate. Further, the applicant is seeking the court to assist him to continue occupying the premises in question illegally given the sub tenancy was specifically prohibited by the lease agreement between Gold-Pack Investments and Sushila Natverial Naik.

The applicant is clearly not an interested party in the administration of the Estate Late Sushila Natverial Naik. There is no basis for the applicant bringing the action before the court as he clearly has no locus standi.

It is evident that the applicant appears bent on abusing court process to frustrate the administration of an estate to which he is not an interested party. My position is fortified by the fact that there is an extant Magistrate Court order for eviction of Clintvest Investments (Pvt) Ltd and all those claiming occupation through it. These would include the applicant - an illegal subtenant.

In the case of Newton Elliot Dongo v Bobnik Investments (Pvt) Ltd and Messenger of Court HH384-17 this court had occasion to deal with the issue of eviction of the applicant as a subtenant from the same premises, 107 Salisbury Township also known as Number 12 Harare Street, Harare which constitutes the deceased estate represented by the first respondent. In that case, Charewa J ably dismissed the applicant's urgent application for stay of execution on the basis of lack of urgency and locus standi. She stated that the applicant was a subtenant to and, in fact, illegal tenant thus there was no nexus with the first respondent. She, in conclusion, stated that since there was no nexus between the estate late Sushila Natverial Naik and the applicant, there can be no direct and legal interests in the administration of the estate by the applicant.

At the back drop to such a finding and clear explanation of lack of locus standi it is clear the applicant is simply taking a gamble with the courts in a matter where he has no legal interest entitling him to the declaratory order sought.

The court has to express its displeasure on conduct which borders on an abuse of court process, moreso in situation where the litigant ignores clear directions from the court.

The applicant, having no locus standi, improperly sought a declarator in a matter which he has no interest, existing or future, or contingent right or obligation. The court will express its displeasure on abuse of court process by awarding costs on a higher scale. It appears the applicant, in a lawless manner, seems to feel justified to occupy the deceased estate property simply because the late is Indian and the executor appointed is Indian. Such conduct is unacceptable in a progressive democratic society. The requirements for a declaratur have not been met given the lack of legal right on the part of the applicant.

The application is accordingly dismissed with costs on an attorney client scale.

HH384-17 : NEWTON DONGO vs BABNIK INVESTMENTS (PVT) LTD and MESSENGER OF COURT
Ruled By: CHAREWA J

The applicant filed an urgent chamber application for a provisional order of stay of eviction as interim relief and a final order that he should remain in peaceful occupation of immovable property known being Stand number 107 of Salisbury Township, also known as Number 102 Harare Street, Harare.

I heard the application on 10 February 2017 and dismissed it with costs, giving reasons ex tempore, in the presence of the applicant, for lack of urgency and locus standi by the applicant.

On 22 May 2017, three and a half months later, the applicant wrote to the Registrar requesting the reasons for my decision, which I render hereunder.

The Facts

Stand 107 of Salisbury Township belonged to the late Sushila Natverlal Naik whose estate was duly registered on 9 May 2016 and administered under the Master's supervision to its final conclusion; (Letters of Administration issued to the deceased's son, Joytindra Natverlal Naik, dated 22 June 2016, refer). As part of the finalisation of the administration of the estate, the property was disposed of to the first defendant on 21 July 2016.

Upon finalisation of the administration of the estate, and the disposal of the estate property, three months' notice was properly given to the legal tenant, Goldpack Investments (Pvt) Ltd and all those claiming occupation through it, to vacate the property in favour of the new owner.

Upon failure of the occupants to vacate, the matter went before the Magistrates Court which granted an order of eviction on 3 February 2017.

Prior to her death, the deceased had leased the property for five years, commencing 1 November 1999 to 31 October 2004, to Goldpack Investments (Pvt) Ltd. The terms of the lease agreement did not allow for subletting or cession without the deceased's consent.

Contrary to the lease agreement, and subsequent to the deceased's death, Goldpack Investments (Pvt) Ltd “ceded” its rights to a company called Clintvest Investments (Pvt) Ltd. While the directors of the two companies were the same, the companies were, and are, separate legal entities.

Clintvest Investments (Pvt) Ltd subsequently allegedly sublet to several flea market stall-holders as is apparent from Magistrates Court Case No. 41044/2016. The applicant's name is not included as one of the stall holders in that matter though he swore an affidavit on their behalf - the basis of which is unclear. Nothing on the record, or in previous litigation, supports that the applicant was also a stallholder and subtenant of Clintvest Investments (Pvt) Ltd.

The applicant instituted the present application on his own behalf as appears from his founding and “supplementary founding affidavit” (sic). However, he purports to speak for other subtenants without laying the basis for doing so.

When the parties appeared before me, on 9 February 2017, I noted challenges with the draft order which the applicant sought; the interim order of which was to the effect that pending the determination of the urgent application before me, execution of any judgment of a Magistrate Court seeking his eviction be stayed in circumstances where the applicant had already been evicted.

Further, I could not grant any order pending the determination of the very application before me.

In addition, the final order sought continued peaceful occupation pending the determination of his application for a declaratory order that the sale of the property was invalid – when the applicant was no longer in occupation.

I also noted that the applicant had not properly laid the basis for seeking that the matter be heard on an urgent basis or established his locus standi to bring the application.

With the consent of the first respondent, I therefore directed the applicant to attend to his draft order to seek reinstatement of occupation and stay of any further execution thereafter.

In addition, I granted the applicant the indulgence, if necessary, to file a supplementary affidavit regarding;

(1) This change in the draft order.

(2) To traverse the issue of urgency, the requirements of which were explained to him; and

(3) To establish his locus standi after which the first respondent could file its opposing affidavit.

On the next hearing date, on 10 February 2017, the applicant submitted a supplementary founding affidavit which was effectively a new application for an interdict, bringing up new issues rather than reinstatement of occupation and stay of further execution contrary to the directions of the court.

Being mindful of the fact that the applicant was a self-actor, I however allowed the parties to make submissions on urgency and locus....,.

At the conclusion of the parties' submissions I dismissed the application on the basis that, firstly, it was not urgent, and, secondly, and in any event, the applicant lacked the locus standi to bring this or any other application in the matter - and these were my reasons:...,.

Even, had urgency been proved, the applicant faced the further hurdle of establishing his locus standi to bring this application.

At the same time that the sub-tenants were denied an extension of the notice period, they were informed that their landlord, Clintvest Investments (Pvt) Ltd, was, in fact, an illegal tenant, and they, as its sub tenants, had no nexus with the first respondent. The applicant does not dispute that he was a subtenant of Clintvest Investments (Pvt) Ltd. In fact, he asserts that he should have been given notice by that company, which is indeed what happened in terms of paragraph 5 of the supplementary founding affidavit aforesaid.

What he may not have known was that Clintvest Investments (Pvt) Ltd had no right to receive cession from Goldpack Investments (Pvt) Ltd, contrary to paragraphs 8.2 and 8.8 of Goldpack Investments (Pvt) Ltd's lease agreement with the late Sushila Naik. And, if Clintvest Investments (Pvt) Ltd did not have any legal rights flowing from a valid cession, then neither could it give any rights to him greater than its own rights.

Ergo, the applicant's claim stands on nothing, a truism which the courts have underscored time and again.

HH103-09 : U-TOW TRAILERS (PRIVATE) LTD vs CITY OF HARARE and SUPERLUX (PRIVATE) LIMITED
Ruled By: MAKARAU JP

The brief background facts to this matter are largely common cause. I set them out as follows:

In 1994, the applicant entered into a lease agreement with the first respondent in respect of certain premises situate at Number 9 Market Street, Eastlea, Harare (“the premises”).

The lease agreement was constantly renewed over the years with the last renewal being agreed upon on 20 June 2007 for a further three years. Thus, the lease agreement between the parties is due to expire by effluxion of time on 31 March 2010.

It was a specific term of the agreement between the applicant and the first respondent that the applicant would not sublet the premises without the written consent of the lessor.

In 2008, the applicant and the second respondent reached an understanding in terms of which the second respondent moved onto and took occupation of part of the premises….,.

In January 2009, the first respondent wrote to the applicant, summarily terminating the lease agreement and seeking the ejectment of the applicant from the premises. This was on the allegation that the applicant was subletting the premises to the second respondent without the prior written consent of the lessor and in breach of the specific term of the lease agreement against sub-letting.

When the applicant tendered rentals for the month of February 2009, these were rejected on the basis that the lease agreement had been cancelled.

This, in turn, prompted the applicant to approach this court seeking;

(i) Firstly, an order holding the first respondent to the lease agreement on the basis that it was not sub letting to the second respondent as alleged; and

(ii) Secondly, an order ejecting the second respondent from the premises.

The application was opposed by both respondents.

In opposing the application, the first respondent contended that it had proceeded in terms of the lease agreement to summarily cancel the lease agreement as the applicant was in breach. It justified its action by relying on clause 21 of the lease agreement which provides that:

“If the lessees shall fail to pay the rent on the due date or at the latest within ten days thereafter or if the lessees shall commit any other breach of the terms or conditions of this lease then the Municipality shall have the right, in its discretion, summarily to terminate this lease and retake possession of the Stand without payment of any compensation whatsoever and without prejudice to any claim which it may have against the lessees for rent already due or for any damages which it may suffer by reason of such breach or termination.”

The second respondent's opposition to the application is, in my view, somewhat curious.

The second respondent is the alleged sub-lessee and it objects to the continuation of the lease agreement between the applicant and the first respondent. While admitting, as contended by the applicant, that it took occupation of the premises in anticipation of a joint venture between itself and the applicant, the second respondent does not proffer any defence as to why it should not be evicted from the premises at the instance of the applicant.

Instead, and curiously so as I have observed above, it adopts and pleads the case of the first respondent that the applicant was in breach of the lease agreement, indeed, epitomizing the proverbial stranger who mourns louder than the bereaved.

It further avers, that, in February 2009, when the applicant's rentals were turned down, this was because it had paid these in respect of the property. It however falls short of alleging that it is now the tenant in respect of the property.

In its opposing affidavit, the first respondent does not admit any formal relationship with the second respondent. It simply maintains that the applicant's rentals for February 2009 were not accepted as its lease had been cancelled.

I believe it is pertinent, at this stage, that I dispose of the issue between the applicant and the second respondent.

As observed above, the applicant is seeking the eviction of the second defendant from the premises on the basis that the proposed joint venture between the parties has failed.

This is not disputed by the second respondent which then proceeds to aver, that, after the joint venture had failed to materialize, the applicant demanded rentals from it, thereby creating the sublease.

The totality of the averments made by the second respondent, even if proved, do not constitute a defence to an order for eviction at the instance of the applicant. Thus, in the event that I find for the applicant and hold the first respondent to the agreement, I must perforce order the eviction of the second respondent from the premises on the basis that the second respondent has failed to proffer a defence to the applicant's claim.

The issue that remains for my determination is between the applicant and the first respondent: it is whether the first respondent was justified in summarily cancelling the lease agreement without first affording the applicant a chance to respond to the allegations that it was sub-letting the premises to the second respondent.

It is trite that even where a lease agreement grants the lessor the right to cancel the lease on account of breach and to re-take possession of the leased premises, as was the position between the applicant and the first respondent, such cancellation is always subject to the control of and confirmation by the court.

The lessor has to approach court for the confirmation of its cancellation of the agreement and for the eviction of the tenant. The right to summary termination of the lease agreement, no matter how clearly worded, does not oust the jurisdiction of the court to grant the eviction order.

The existence of the grounds for and the validity of the cancellation of the lease agreement are always subject to validation and confirmation by the court which alone can order the eviction of the defaulting tenant.

The lessor cannot exercise self-help and retake possession of the property without a court order - even where the agreement specifically provides so: see Livingstone v Solomon 1924 SR 117; Joubert v Bester 1977 (2) SA 641 (T); Towers v Chipata 1996 (2) ZLR 261 (HC): and Bater and Another v Muchengeti 1995 (1) ZLR 80 (SC)…,.

In casu, the first respondent did not independently approach the court for the eviction of the applicant after it became aware of the alleged breach in the form of subletting.

After being served by this application, it did not seek to counter apply for the confirmation of its cancellation of the lease agreement and the eviction of the applicant.

The validity of its actions, in cancelling the lease agreement and its threat to re-take possession of the premises, have been brought before the court by the applicant, not for its confirmation but for it to be set aside on the basis that the first respondent did not give the applicant an opportunity to respond to the allegations before it acted summarily.

Thus, it appears to me that even if I were to find that the purported cancellation of the lease agreement by the first respondent was justified in the circumstances, that finding would not automatically translate into an order evicting the applicant from the premises as there is no prayer before me for the eviction of the applicant from the property.

In my view, such a finding, if I were to make it, would simply lay the foundation for the issuance of an eviction order against the applicant at the instance of the first respondent whenever it is moved to seek such an order.

It is on the basis of the above, that, in my view, it is not necessary that I make a finding as to whether or not the applicant was subletting to the second respondent and was therefore in breach of the lease agreement.

In my view, to do so would be to tie down the court that may be approached by the first respondent for an order evicting the applicant from the property.

In my view, the legal issue that must be resolved in this matter is whether, in light of the promulgation of the Administrative Justice Act [Chapter 10.28] (“the Act”), the powers of the first respondent, as a local authority, to act summarily as it did, has been modified.

Hence, at the hearing of the matter, I directed the parties to make reference to the provisions of the Administrative Justice Act which came into operation on 3 September 2004.

My anxiety not to overlook the provisions of the Administrative Justice Act was prompted by the admitted fact that the first respondent acted strictly in terms of the lease agreement between the parties and did not afford the applicant a chance to be heard before it summarily cancelled the lease agreement on the allegation that the applicant was sub-letting the premises to the second respondent.

I have now received extensive heads of argument from both counsel in this matter and I appreciate the assistance rendered me in this regard.

Counsel for the first respondent, ingeniously in my view, put the issues that arise from a consideration of the provisions of the Administrative Justice Act as follows:

“1. Whether or not the applicant, by entering into a lease agreement which entitles first respondent to summarily terminate the lease agreement, can be held to have waived its right to be heard as provided (for) in the Administrative Justice Act.

2. Whether or not first respondent cannot validly enter into a contract with the applicant which varies or excludes some provisions of the Administrative Justice Act.”

I view the settling of the issues by counsel for the first respondent as ingenious as the Administrative Justice Act came into operation on 3 September 2004 when the parties were already in the landlord and tenant relationship. The applicant could thus not have waived rights under the Administrative Justice Act when it contracted with the first respondent as such rights were not in existence and had not accrued to it.

By the same token, the parties could not have expressly excluded the provisions of the Administrative Justice Act in their agreement as the lease agreement preceded the coming into operation of the Administrative Justice Act.

All in all, I gain the impression that counsel for the first respondent, in settling the issues in the manner that he did, was at pains to show that the provisions of the Administrative Justice Act are not binding on the parties before me.

Whether the first respondent is bound by the provisions of the Administrative Justice Act is the issue that I address in this judgment.

Counsel for the applicant, on the other hand, perceived the issue arising from the provisions of the Administrative Justice Act as simply whether these have introduced the application of rules of natural justice into the filed of Contract Law where one of the parties is a local authority as is the first respondent before me.

I tend to agree with his definition of the issue that falls for my determination in this suit.

The rule at common law is that tenets of natural justice have no application in the law of contract unless the aggrieved party can prove that the contract impliedly imported and incorporated such into the contract: see Machaya v BP Shell Marketing (Pvt) Ltd 1997 (2) ZLR 473 (H).

With the promulgation of the Administrative Justice Act, it appears to me that this common law was varied in some instances as it applies to administrative authorities to which the Act applies.

I first have to determine whether the Administrative Justice Act applies to the first respondent.

In section 2, the Administrative Justice Act defines administrative authority to include any person, committee, or council of a local authority.

In casu, it is common cause that the decision to summarily terminate the lease agreement between the applicant and the first respondent was taken on behalf of the first respondent by a duly authorised employee or committee of the first respondent, who or which, by virtue of the provisions of the Administrative Justice Act, becomes the administrative authority for the purposes of the Act.

This is not in dispute.

In the same section, an administrative action is defined to include any action or decision taken by an administrative authority.

The definition given in the section appears to me to be immensely wide. I would venture to suggest that the definition of “administrative action” in the Administrative Justice Act is wider than that given in section 1 of the South African Promotion of Justice Act as reported in decisions such as Sikutshwa v MEC for Social Development, Eastern Cape, and Others 2009 (3) SA 47 (TkH) and Nedbank Ltd v Master of the High Court, Witwatersrand Local Division and Others 2009 (3) SA 403 (W) where it is stated that “administrative action” in terms of section 1 of the Act means any decision taken, or any failure to take a decision by an organ of State when such organ of State is exercising a public power or performing a public function in terms of legislation which adversely affects the rights of any person and which has a direct, external legal effect.

In my view, the definition of 'administrative action' as given in section 1 of the South African equivalent of the Administrative Justice Act, as compared to the definition given in the Administrative Justice Act, marks the point of departure in the laws of our two countries.

Thus, in South Africa, if action is taken on the basis of a contract between the parties, such has been held not to constitute 'administrative action' that is subject to the provisions of the Promotion of Justice Act: see Chirwa v Transnet Ltd and Others 2008 (4) SA 367 (CC) 2008 (3) BCLR 251 and De Villiers v Minister of Education, Western Cape and Another 2009 (2) SA 619 (C).

In excluding contractual relations from the application of the Promotion of Justice Act (PAJA), the South African courts have been guided by the definition of “administrative action” that I have referred to above and is captured in the following remarks by NQCOBO J…, in Chirwa v Transnet Ltd and Others 2008 (4) SA 367 (CC) 2008 (3) BCLR 251:

“The subject-matter of the power involved here is the termination of a contract of employment for poor work performance. The source of the power is the employment contract between the applicant and Transnet. The nature of the power involved here is therefore contractual. The fact that Transnet is a creature of statute does not detract from the fact, that, in terminating the applicant's contract of employment, it was exercising its contractual power. It does not involve the implementation of legislation which constitutes administrative action. The conduct of Transnet, in terminating the employment contract, does not, in my view, constitute administration. It is more concerned with labour and employment relations. The mere fact that Transnet is an organ of State which exercises public power does not transform its conduct, in terminating the applicant's employment contract, into administrative action.”

With much commendable foresight (or hindsight), the legislature, in enacting the Administrative Justice Act [Chapter 10.28] specifically included acts by all public authorities, even where the power to carry out the act is derived from a contract, thereby obviating the need for our courts to debate the issue that fell for determination in the South African courts in matters involving the termination of employment contracts.

Section 2 of the Administrative Justice Act defines “administrative action” as follows:

“(1) In this Act —

'administrative action' means any action taken or decision made by an administrative authority and the words 'act', 'acting' and 'actions' shall be construed and applied accordingly;”

In the same section, 'empowering provision' is defined as follows:

“(1) In this Act —

'empowering provision' means a written law or rule of common law, or an agreement, instrument or other document in terms of which any administrative action is taken;”

My reading of the two definitions put together makes me arrive at the conclusion, that, for the purposes of the Administrative Justice Act, any decision made by an administrative authority under the empowering provisions of any enactment, in pursuance of any rule of common law, in terms of an agreement between itself and another party, or in terms of any legal instrument, shall be made fairly and in accordance with the provisions of the Administrative Justice Act.

In my view, one can say the statutory provisions protecting the public's rights to fair administrative decisions, as given under the Administrative Justice Act, are considerably wider than those conferred under the South African equivalent, and, to construe them restrictively would be to take away from the public, by judicial interpretation, that which the legislature has given.

That the promulgation of the Administrative Justice Act [Chapter 10.28] brings in a new era in Administrative Law in this jurisdiction cannot be disputed.

It can no longer be business as usual for all administrative authorities as there has been a seismic shift in this branch of the law. The shift that has occurred is, in my view, profound as it brings under the judicial microscope all decisions of administrative authorities save where the provisions of section 3(3) of the Administrative Justice Act applies.

On the basis of the foregoing, I find that the decision by the first respondent to summarily terminate the lease agreement between itself and the applicant was an administrative action carried out by an administrative authority, empowered to do so by the lease agreement between the parties.

The Administrative Justice Act applies fully to such a decision.

The Administrative Justice Act provides, in the main, that, an administrative authority which has the responsibility or power to take any administrative action which may adversely affect the rights, interest, or legitimate expectation of any person shall, inter alia, act reasonably and in fair manner.

The Administrative Justice Act proceeds to define what a fair manner, for the purposes of the Act, shall entail and this includes the adequate notice of the nature and purpose of the proposed action and a reasonable opportunity to make adequate representations - in my view, an embodiment of the audi alteram partem rule.

In my further view, the Administrative Justice Act is simply a codification of the position that was gaining general acceptance at common law to the effect that rules of natural justice have to be observed before any administrative decision is taken where such may adversely affect the rights or property of an individual: see Grundling v Beyers and Others 1967 (2) SA 131 (W).

Thus, even prior to the enactment and promulgation of the Administrative Justice Act, courts in this jurisdiction were generally alive to the need to import fairness into administrative decisions even those that were founded primarily on contract, especially the employment contract: see Machaya v BP Shell Marketing (Pvt) Ltd 1997 (2) ZLR 473 (H).

On the basis of the above, it is therefore my finding that the first respondent was bound to act fairly in terminating the lease agreement between itself and the applicant.

It failed to do so.

By failing to act fairly in the circumstances, it breached the obligations placed upon it by the law. Its consequent decision, arrived at in circumstances where it had failed to act fairly, cannot therefore stand.

I make this decision in the full knowledge of the fact that the first respondent genuinely believed it had a case against the applicant and that the lease agreement between itself and the applicant allowed it to act as it did.

Notwithstanding all that, because the law imposes a duty on the first respondent to act fairly in the matter, its decision has to be set aside as it was arrived at unfairly. The decision is set aside even without an examination of whether or not the applicant was subletting the premises in promotion of the need to advance fairness in public administration as embodied in the Administrative Justice Act.

Before I dispose of this matter, I need to deal with a point in limine taken by the first respondent in this matter and arising out of adjectival law.

The first respondent contends that the applicant did not approach this court for relief under the Administrative Justice Act and thus I cannot apply the provisions of the Administrative Justice Act to its advantage.

Section 4 of the Administrative Justice Act provides that any person who is aggrieved by the failure of an administrative authority to comply with section three may apply to the High Court for relief.

It is common cause that the applicant filed this application challenging the decision of the first respondent to summarily cancel the lease agreement. It filed a court application in terms of the Rules.

While the application does not make any reference to the provisions of the Administrative Justice Act, in my view it makes allegations that fall squarely within the provisions of the Act.

I was satisfied, before I referred the question to the parties for further argument, that the allegations and contentions made by the applicant in its court application fell within the purview of the Administrative Justice Act even if the Act was not specifically invoked.

In my view, generally, it is not necessary for an applicant to specifically plead the law that it seeks to rely on as long as the necessary averments are made therein to sustain a cause of action under the applicable law unless the law under which he or she is proceeding requires that certain averments be specifically pleaded.

The court is not a slave to the form of the law. It is always a slave to justice whom it must always serve.

For the avoidance of doubt, if I have erred in allowing the applicant to bring a deformed application before the court and the correct position is that it was necessary for the applicant to specifically invoke the provisions of the Administrative Justice Act, I will condone that oversight in terms of section 4(c) of High Court Rules, 1971.

As correctly pointed out by the first respondent, this is not an application for review. It is an application for the setting aside of an administrative decision on the basis that it was not arrived at fairly and thus, at law, contravenes the Administrative Justice Act.

In view of the fact that the applicant succeeds on a matter that it did not specifically raise in its initial heads of argument, I will not punish the first respondent with an award of costs. The same does not apply to the second respondent.

In the result, I make the following order:

1. The decision by the first respondent to summarily cancel the applicant's lease agreement is hereby set aside.

2. The second respondent and all those occupying through it are to vacate the premises at Number 9 Market Street within 7 days of this order failing which the Deputy Sheriff is hereby authorised to evict the second respondent and all those occupying through it from the premises.

3. The second respondent shall bear the applicant's costs of suit.

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Law Portal
Zimbabwe

Lease Agreements re: Termination, Notice of Termination and the Exceptio Doli Mali iro Sub-Lessee Eviction

HH119-12 : TELONE (PVT) LTD vs DENFARM PROPERTIES
Ruled By: MTSHIYA J

HH21-09 : MASHONALAND TURF CLUB vs MICHELLE NYAMANGUNDA
Ruled By: MTSHIYA J

HB41-09 : THANDAZO RETAIL AND MARKETING (PVT) LTD T/a STRIDES BOUTIQUE AND FUNKEE MUNKEE vs MAIN MOTORS (PVT) LTD AND REFCO (PVT) LTD
Ruled By: NDOU J

HH189-14 : GODFREY MURANGANWA vs SHORTHAULS TRANSPORT (PVT) LTD
Ruled By: MAVANGIRA J and MWAYERA J

HB239-16 : KELVIN ZINDODYEYI and THERESE CHIKETSANI vs ASPINAL INVESTMENTS (PVT) LTD and PHILLIPAH MUSEVE t/a SIMMRAN and MESSENGER OF COURT N.O.
Ruled By: TAKUVA J

HH166-16 : ZUVA PETROLEUM LIMITED vs S CHIRENJE
Ruled By: MWAYERA J and MUNANGATI-MANONGWA J

Appealed
SC52-20 : NEWTON DONGO vs JOYTINDRA NAIK and HEMENT NAIK and BABNIK INVESTMENT PL and CLINVEST INVESTMENT PL and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS OFFICE
Ruled By: GWAUNZA DCJ, GOWORA JA and MAKONI JA

View Appeal
HH73-18 : NEWTON DONGO vs JOYTINDRA NAIK and HEMANT NAIK and BABNIK INVESTMENTS PL and CLINTVEST INVESTMENTS PL and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS
Ruled By: MWAYERA J

HH384-17 : NEWTON DONGO vs BABNIK INVESTMENTS (PVT) LTD and MESSENGER OF COURT
Ruled By: CHAREWA J

HH103-09 : U-TOW TRAILERS (PRIVATE) LTD vs CITY OF HARARE and SUPERLUX (PRIVATE) LIMITED
Ruled By: MAKARAU JP

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Law Portal Zimbabwe

Lease Agreements re: Termination, Notice of Termination and the Exceptio Doli Mali iro Sub-Lessee Eviction

HH119-12 : TELONE (PVT) LTD vs DENFARM PROPERTIES Ruled By: MTSHIYA J

HH21-09 : MASHONALAND TURF CLUB vs MICHELLE NYAMANGUNDA Ruled By: MTSHIYA J

HB41-09 : THANDAZO RETAIL AND MARKETING (PVT) LTD T/a STRIDES BOUTIQUE AND FUNKEE MUNKEE vs MAIN MOTORS (PVT) LTD AND REFCO (PVT) LTD Ruled By: NDOU J

HH189-14 : GODFREY MURANGANWA vs SHORTHAULS TRANSPORT (PVT) LTD Ruled By: MAVANGIRA J and MWAYERA J

HB239-16 : KELVIN ZINDODYEYI and THERESE CHIKETSANI vs ASPINAL INVESTMENTS (PVT) LTD and PHILLIPAH MUSEVE t/a SIMMRAN and MESSENGER OF COURT N.O. Ruled By: TAKUVA J

HH166-16 : ZUVA PETROLEUM LIMITED vs S CHIRENJE Ruled By: MWAYERA J and MUNANGATI-MANONGWA J

Appealed SC52-20 : NEWTON DONGO vs JOYTINDRA NAIK and HEMENT NAIK and BABNIK INVESTMENT PL and CLINVEST INVESTMENT PL and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS OFFICE Ruled By: GWAUNZA DCJ, GOWORA JA and MAKONI JA

View Appeal HH73-18 : NEWTON DONGO vs JOYTINDRA NAIK and HEMANT NAIK and BABNIK INVESTMENTS PL and CLINTVEST INVESTMENTS PL and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS Ruled By: MWAYERA J

HH384-17 : NEWTON DONGO vs BABNIK INVESTMENTS (PVT) LTD and MESSENGER OF COURT Ruled By: CHAREWA J

HH103-09 : U-TOW TRAILERS (PRIVATE) LTD vs CITY OF HARARE and SUPERLUX (PRIVATE) LIMITED Ruled By: MAKARAU JP

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Law Portal
Zimbabwe

HH119-12 : TELONE (PVT) LTD vs DENFARM PROPERTIES
Ruled By: MTSHIYA J

HH21-09 : MASHONALAND TURF CLUB vs MICHELLE NYAMANGUNDA
Ruled By: MTSHIYA J

HB41-09 : THANDAZO RETAIL AND MARKETING (PVT) LTD T/a STRIDES BOUTIQUE AND FUNKEE MUNKEE vs MAIN MOTORS (PVT) LTD AND REFCO (PVT) LTD
Ruled By: NDOU J

HH189-14 : GODFREY MURANGANWA vs SHORTHAULS TRANSPORT (PVT) LTD
Ruled By: MAVANGIRA J and MWAYERA J

HB239-16 : KELVIN ZINDODYEYI and THERESE CHIKETSANI vs ASPINAL INVESTMENTS (PVT) LTD and PHILLIPAH MUSEVE t/a SIMMRAN and MESSENGER OF COURT N.O.
Ruled By: TAKUVA J

HH166-16 : ZUVA PETROLEUM LIMITED vs S CHIRENJE
Ruled By: MWAYERA J and MUNANGATI-MANONGWA J

Appealed
SC52-20 : NEWTON DONGO vs JOYTINDRA NAIK and HEMENT NAIK and BABNIK INVESTMENT PL and CLINVEST INVESTMENT PL and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS OFFICE
Ruled By: GWAUNZA DCJ, GOWORA JA and MAKONI JA

View Appeal
HH73-18 : NEWTON DONGO vs JOYTINDRA NAIK and HEMANT NAIK and BABNIK INVESTMENTS PL and CLINTVEST INVESTMENTS PL and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS
Ruled By: MWAYERA J

HH384-17 : NEWTON DONGO vs BABNIK INVESTMENTS (PVT) LTD and MESSENGER OF COURT
Ruled By: CHAREWA J

HH103-09 : U-TOW TRAILERS (PRIVATE) LTD vs CITY OF HARARE and SUPERLUX (PRIVATE) LIMITED
Ruled By: MAKARAU JP