BHUNU
J: The plaintiff is the owner of certain
business premises known as Sportlight Butchery and Bottle Store situate at Juru
Business Centre, Chikwaka District, Goromonzi. The plaintiff was represented at
the trial by his brother one Onias Gatawa duly authorized thereto by power of
attorney granted to him by the plaintiff.
Sometime
in 1997 the parties concluded a verbal lease agreement whereby the plaintiff
let both business premises to the defendant. It is common cause that the
defendant was to pay rentals and was obliged to vacate the premises upon
notice. It was a material term of the contract that rentals were to be set off
against any improvements upon presentation of receipts denoting the cost of
improvements. The quantum of rentals and improvements are however in dispute.
Both
the accumulated rentals and improvements were denominated in Zimbabwean
currency which ceased to be legal tender at the end of January 2009. The
plaintiff has however insisted that he needs the amount of money computed in
Zimbabwean dollars albeit for academic purposes as the money is no longer of
any value to anyone. There is no point in granting the plaintiff any amount in
Zimbabwean dollars when that currency is no longer in circulation and there is
no official conversion rate.
It
is also not in dispute that the defendant effected considerable improvements on
the rented premises. The improvements effected prior to the demise of the
Zimbabwean dollar were also denominated in Zimbabwean dollars. By the same
token such accumulated cost of improvements is no longer claimable.
The
defendant however continued to occupy the disputed premises for February 2009
when the country adopted multi foreign currency as its official currency after
the demise of the local currency. The plaintiff is surely entitled to holding
over damages arising from the defendant's continued use of the premises from
February 2009 to the date the defendant vacates the leased premises.
The
defendant's case is that he has not vacated the premises because there was an
agreement for him to be compensated for improvements before leaving the
premises. As I have already indicated the defendant's right to compensation
denominated in Zimbabwean dollars fell away with the demise of the Zimbabwean
dollar. That being the case he has no longer any basis for remaining on the
premises beyond February 2009.
The
essence of the defendant's defense is that he is occupying the premises not as
a tenant but simply as a creditor awaiting payment of the amount owed. That
defense fell away with the demise of the Zimbabwean dollar as I have already
pointed out. What this means is that upon the demise of the Zimbabwean dollar
the defendant's right to remain on the premises was automatically extinguished.
The question of statutory tenancy does not therefore arise.
Even if I were to hold that the defendant is a statutory tenant that
would still not protect him from eviction because the law does not protect a
tenant who fails to pay rentals in terms of the lease. The defendant admitted
in open court that he has not paid rentals in terms of the lease from 2006 to date.
He was asked under cross examination:
“Q. No rentals were agreed upon after
August 2006
A Not
correct because we were still paying rentals at Z$150 000 – 00 we even offered
you more
Q. All
I am saying is that you made no payment after August 2006.
A. There
was no further payment.
Q. If you look at what plaintiff is claiming. He is claiming
holding over damages. He is saying after that date you never agreed on rentals.
A. He
is not telling the truth.
Q. What
figure was agreed upon?
A. Z$150
000-00
Q. He is saying you are now holding his property by mere
stubbornness.
A. That
is not correct”
The defendant having openly confessed that he is in breach of contract in
respect of payment of rentals he is not protected from eviction under s 22 (2)
of the Commercial rent regulations SI
676 of 1983 which provides that:
“(2) No order for the recovery
of possession of commercial premises or for the ejectment of a lessee there from
which is based on the fact of the lease having expired, either by the effluxion
of time or in consequence of notice duly given by the lessor, shall be made by
a court, so long as the lessee —
(a) Continues to pay the rent due, within seven days
of due date; and
(b) Performs the
other conditions of the lease; unless the court is satisfied that the lessor
has good and sufficient grounds for requiring such order other than that —
(i) The lessee has declined to agree to an
increase in rent; or
(ii) The lessor wishes to lease the premises
to some other person”.
That
being the case, his continued occupation of the premises is unlawful thereby
entitling the plaintiff to holding over damages with effect from the date the
Zimbabwean dollar ceased to be legal tender, that is to say February 2009.
I
now turn to consider the question of quantum of holding over damages. The
defendant claimed US$700-00 per month for the butchery and bottle store. The
defendant offered US$50-00 per month but was not clear whether it was for both
buildings or per each single business. I would like to think that the offer
referred to each business otherwise the amount would be ridiculously low. The
plaintiff failed to justify the amount he is claiming as it appears to have
been sucked from the air. For that reason I will settle for the amount
suggested by the defendant as fair rentals for the properties in dispute. This
works out at US$100-00 per month for both businesses with effect from February
2009 to the date the defendant vacates the plaintiff's premises.
It is
accordingly ordered:
- That the plaintiff be and is hereby granted an order
evicting the defendant W Nkatazo from Sportlight Butchery and Bottle Store
situate at Juru Business Centre, Chikwaka District, Goromonzi;
- That the defendant W Nkatazo be and is hereby ordered
to pay holding over damages in the sum of US$100-00 (One Hundred United
States Dollars) per month with effect from 1 February 2009 with interest
thereon at the prescribed rate up to the date he vacates the two
properties; and
- Costs of suit.
Chihambakwe Mutizwa & Partners, plaintiff's legal practitioners
F G Gijima &
Associates, defendant's legal practitioners
