PATEL
J: The plaintiff herein sues in his
capacity as the executor dative of the estate of one Ralph Simon Lapin. He
seeks, inter alia, an order ejecting
the defendant from 120 Harare Drive, Marlborough, Harare (the property), arrear
rentals and holding over damages, together with interest and costs on a higher
scale. The defendant, who is now a statutory tenant, challenges the plaintiff's
locus standi and also resists the
claim on several substantive grounds. In any event, as appears from the Joint
Pre-Trial Conference Minute, he admits having breached the lease agreement by
the non-payment of rentals.
The issues for determination in casu, as set out in the Joint
Pre-Trial Conference Minute, are as follows:
- Whether the plaintiff has the capacity to
institute this action against the defendant.
- Whether the defendant has a right of first
refusal in the event that the property is sold.
- Is the plaintiff entitled to an order that the
defendant be evicted from the property?
Evidence
for the Plaintiff
Simon
Gochero is the Property Manager of Knight Frank, the estate agents mandated
to manage the property. His testimony was that the Lease Agreement between the
parties (annexed to the Summons) was entered into in September 1999 for a
period of one year, expiring on 31 August 2000, at a monthly rental
of ZW$18,000. In March 2009, acting on instructions from the plaintiff's
lawyers, he attempted to fix the rent at US$400, but eventually met with the
defendant and they agreed on a monthly rental 0f US$200, payable with effect
from 1 March 2009. In August 2009, he wrote to the defendant proposing a rental
of US$900 per month, but this was rejected by the defendant. Consequently, he
was instructed to place the property for sale on the market. He did so initially
in September 2009 and also informed the defendant of that fact by letter at the
end of October 2009. The defendant refused to allow access for prospective
buyers to view the property, contrary to clause 22 of the Lease Agreement, and
has not made any offer to purchase the property himself. Moreover, he had
stopped paying rent as from the beginning of September 2009. In his letter of
11 November 2009 [Exh 1], he stated that he had suspended rental
payments because of various defects in the property and that he had effected
some repairs and would continue with other repairs. The defendant had not
previously given any notice of these defects, as required by clause 24 of the
Lease Agreement. The witness responded to that effect by letter on the same day
[Exh 2], adding that the defendant had no right to withhold rentals. In his
view, the defendant has breached the Lease Agreement by not paying any rent
since September 2009 and by not allowing prospective buyers to view the
property.
Under
cross-examination, he stated that there was nothing in the Lease Agreement
granting the defendant a right of first refusal in the event of sale, and that
no such indication was ever conveyed to him by the deceased or his
beneficiaries or by the deceased estate's lawyers. He further explained that
the intended beneficiary of the property in question is one of the deceased's
daughters, who is critically ill and is presently residing in a nursing home.
The proceeds from the sale of the property are to be used for meeting the costs
of the nursing home.
Imtiaz
Ahmed Kurawley is a partner in the firm of Gollop & Blank which
represents the deceased estate in casu.
He testified as follows. In July 2009 the distribution account in respect of
the Lapin deceased estate was submitted to and approved by the Master of the
High Court. The account provided that the property in dispute was to devolve to
the Annette Usher Trust which, as was subsequently ascertained contrary to the
deceased's intimations, had not in fact been established. Annette Usher is the
deceased's daughter and has been under the care of the Athol Evans Home for
many years. As the estate had no funds, it was decided to dispose of the
property in order to sustain Annette Usher and provide for her upkeep at the
nursing home. In November 2009 the Master granted his consent for the plaintiff
to dispose of the property by private treaty [Exh 3]. Thereafter, Knight Frank
estate agents were again instructed to sell the property. The estate's lawyers
wrote several letters to the defendant's lawyers, from December 2009 to May
2010, cancelling the Lease Agreement for failure to pay rent and advising that
the property was to be sold, as well as inviting the defendant himself to
purchase the property for US$100,000 [Exhibits 4, 5, 6 & 7]. The defendant
did not provide any firm response to the offer to purchase and continued to
obstruct prospective buyers from viewing the property. The witness was not
aware of any written or verbal right of first refusal having been granted to
the defendant by the deceased. Nor is their any indication to that effect in
the Lease Agreement or other relevant document. The sale of the property has
yet to be finalised and it remains part of the deceased estate. It has not yet
been transferred to Annette Usher or to any trust for her benefit and the
plaintiff is still responsible for bringing the estate to finality. Once the
property is sold, a supplementary account will be lodged with the Master. In
practice, the duties of an executor only terminate when the estate has been
fully distributed and proof of such distribution or transfer to the
beneficiaries has been furnished to the Master.
Under cross-examination, the witness
explained that the plaintiff is a senior partner in Gollop & Blank and was
appointed as executor dative to the Lapin estate in July 2009, following the
death of the former executor who was also a partner in the same firm. In
practice, it is the firm that deals with the administration of deceased
estates. The witness is personally responsible for the Lapin estate and reports
to the plaintiff as and when necessary.
Evidence
for the Defendant
Matthews
Mukwawaya is the defendant. His evidence was that he did not stop paying
rentals but only suspended their payment because he was owed money for the repairs
that he had effected to the property. In that regard, he produced quotations
and receipts dating from October 2008 to October 2009 [Exhibits 8A, 8B &
8C] reflecting his expenditure of US$5490.50. He needed to carry out these
repairs because they were essential and on each occasion he informed Simon
Gochero either by telephone or personal visit. He claimed his right of first
refusal by reason of his long tenure of the leased premises, i.e. since 1999. The deceased had
offered him such right in 2004. At the same time, the deceased had said that he
did not want the property to be sold until after Annette Usher died. (In this
regard, the defendant was vague and unclear as to what specific right was
offered to him by the deceased in 2004). When the property was placed on the
market, he was prepared to purchase it. In January 2010 his lawyers wrote to
the deceased estate's lawyers [Exh 9] rejecting the proposed sale price of
US$100,000. However, he did not make any specific counter-offer because there
was no record of the property in the Deeds Office. He is still interested in
purchasing the property for US$70,000 payable over a period of 12 months under
a rent-to-buy arrangement.
Under cross-examination, the
defendant conceded that the Lease Agreement did not entitle him to stop or
suspend the payment of rentals in order to recover the cost of repairing
defects in the leased premises. Moreover, he was unable to explain what was
meant by a right of first refusal in general or in relation to his own claim of
such right.
Plaintiff's
Locus Standi
It is common cause that the
distribution account in respect of the Lapin deceased estate was submitted to
and approved by the Master in July 2009. However, the evidence for the
plaintiff was that the property in dispute could not be transferred because the
intended trust in favour of Annette Usher had not been established. It
consequently became necessary to sell the property and, following such sale, a
supplementary account would be lodged with the Master. None of this evidence
was challenged at the trial.
It
must be noted, however, that Exh 3, which was produced as the Master's consent
to sell, relates not to the property in question but to a different property
forming part of the Lapin estate (i.e.
not 120 but 122 Harare Drive). This aspect was not raised at the trial and it
is therefore not clear whether the Master has in fact approved the sale of the
property in casu.
Nevertheless,
I take the view that this anomaly does not affect the plaintiff's continuing
capacity as executor dative of the deceased estate. This is so because of the
provisions of s 52 of the Administration of Estates Act [Cap 6:01]. In terms of subsection (4) of that section, the executor may be directed from time to time to render periodical
accounts of his administration and distribution until the estate is finally
liquidated. Additionally, after an account has been laid open to inspection for
the prescribed period, the executor is required by subsection (10) to pay out
the creditors and heirs and to lodge with the Master the vouchers in support of
the account. Finally, subsection (11) explicitly stipulates that the executor
shall only be entitled to obtain his discharge qua executor “upon the final and complete liquidation of the estate
to the satisfaction of the Master”.
It
is abundantly clear from the above-cited provisions that, notwithstanding the
submission and approval of the distribution account in July 2009, the plaintiff
retains his status as executor dative of the Lapin estate. Moreover, he will
continue in that capacity until the deceased estate has been finally and
completely liquidated to the satisfaction of the Master. It follows that the
plaintiff is fully endowed with the requisite locus standi in judicio to institute the present action.
Right
of First Refusal
A right of first refusal, in the
context of a lease, is an agreement between the lessor and the lessee creating
an enforceable first right of purchase should the lessor wish to sell the
leased property. This right, otherwise known as a right of pre-emption, does
not compel the grantor to sell, but only compels him to give the grantee
preference, in the event that he sells during the stipulated period of the
grant. In effect, the grantor cannot sell the property to a third party without
giving the grantee the option of first refusal. See Cooper: Landlord and Tenant (2nd ed.)
at p. 141; Belcher: Norman's Purchase and
Sale in South Africa (4th ed.) at pp. 96-97; Lubbe & Murray:
Farlam & Hathaway's Contract Case
Materials and Commentary at p. 76.
Turning to the instant case, there
is no written record of the claimed right of pre-emption, either in the Lease
Agreement or elsewhere. The defendant claims that the deceased Lapin verbally
granted him such right in respect of the property in question. However, his
evidence in this regard was generally nebulous as to the precise terms of the
alleged agreement with the deceased. In my assessment, it was entirely
unconvincing.
Moreover,
even if the defendant were to be believed, the documentary evidence shows that
the defendant has been invited to purchase the property at market value on
several occasions. However, he has pointedly rejected the offer [Exh 9] and, by
his own admission, he does not presently have the requisite funds to purchase
the property at the offered price of US$100,000.
As
is made clear by the learned authors that I have cited, the alleged right of
first refusal does not give the defendant the additional right to compel the
sale of the property to him at a price or on terms fixed by himself. Nor does
it prevent the plaintiff, after having made an offer to the defendant, from
selling the property to any interested third party at a competitive price.
Equally significantly, it does not entitle the defendant to breach the terms and
conditions of his tenancy and to avoid the legal consequences of such breach
during the subsistence of that tenancy. For all of these reasons, it follows
that the claimed right of pre-emption, even if it were shown to have been
granted, does not avail the defendant in the circumstances of this case.
Relevant
Provisions of Lease Agreement
In terms of clause 6(a) of the Lease
Agreement, the tenant is required to pay the agreed rent “monthly in advance, without demand and without any deduction
whatsoever, on the first day of each and every month”. By virtue of clause
29(a), the landlord is entitled to cancel the lease forthwith in the event that
“any rent is in arrear, whether the same
has been legally demanded or not”.
With reference to repairs and maintenance,
the Lease Agreement is fairly specific as to the respective responsibilities of
the parties. Clause 11(a) provides that the tenant shall notify the landlord in
writing within 72 hours of the commencement of the lease of any defects, which
defects must then be rectified by the landlord in accordance with clause 24(b)
and (c). Clause 11(b) and (c) and clauses 40 to 44 spell out the repairs and
maintenance responsibilities of the tenant during the currency of the lease
agreement. Paragraph (a) of clause 24 stipulates the general obligation of the
landlord to keep and maintain the basic structures of the leased premises in
good order and condition, while paragraphs (d), (e) and (f) expand on that
obligation in relation to specific structures. The landlord is required, after
receiving written notice from the tenant, to commence and complete the repair
of any structural defect as soon as is reasonably possible in the
circumstances.
Clause 30 of the Lease Agreement
provides generally for the arbitration of any dispute between the parties as
regards the interpretation or application of the agreement or any matter
relating to or arising from the agreement. Clause 24(b) deals specifically with
the arbitration of any dispute concerning the repair of defects notified by the
tenant at the commencement of the lease in terms of clause 11(a).
As
regards legal costs, clause 29(f) of the Lease Agreement expressly entitles the
landlord to recover such costs on a legal practitioner and client scale in the
event of any breach of the agreement by the tenant.
Following
the expiry of the Lease Agreement on 31 August 2000 and the
conversion of the lease into a statutory tenancy, the foregoing terms and
conditions of the contractual lease continued to apply as integral stipulations
of the statutory tenancy, to be faithfully observed and adhered to by both
parties. See sections 30(2) and 31 of the Rent Regulations 1990 (S.I. 626 of
1982) – now sections 30(2) and 31 of the Rent Regulations 2007 (S.I. 32 of
2007).
Order
for Eviction
The defendant's evidence was that he
needed to effect certain repairs to the property because they were essential
and that he informed Gochero on each occasion, either in person or by
telephone. Gochero flatly denied ever having been informed of any defects until
he received the defendant's letter in November 2009 [Exh 1], by which stage the
defendant had already stopped paying monthly rentals. It is common cause that
the defendant did not give any written notice of defects and necessary repairs
as he was required to do under the Lease Agreement. As for the alleged verbal
notifications, the defendant's evidence was unreliable in general and not
particularly convincing even in this regard. In any event, it seems very
unlikely that he would have expended as much as US$5490.50 from October 2008 to
October 2009 without seeking any recompense until November 2009 and without
some written assurance from Knight Frank that he would be reimbursed. It seems
to me that the defendant's version of events is highly improbable and cannot be
credited in light of all of the evidence before the Court.
Even assuming the veracity of the
defendant's evidence, the fact that he may have spent money on repairs did not
entitle him to withhold the payment of rentals. If he had indeed given notice
of defects to Knight Frank and the latter had done nothing to remedy them, the
matter should have been referred to arbitration at the earliest opportunity.
Again, the defendant's claim for whatever he might have expended on repairs to
the leased premises could also have been referred to arbitration at the same
time or at a later stage. More crucially, the defendant was obliged to pay the
agreed monthly rent without any
deduction whatsoever. By failing to do so as from September 2009 he was in fundamental
breach of his obligations as a statutory tenant. See section 30(1) and (2) as
read with section 31 of the Rent Regulations 2007 (S.I. 32 of 2007). By reason
of that breach, the plaintiff was fully justified in cancelling the lease, as
was done by his lawyers in January 2010 [Exh 4].
Disposition
All of the issues for determination in casu were raised by the defendant in
order to resist the plaintiff's claim for ejectment. Each of these issues
constitutes a special defence in respect of which the onus of proof, on a
balance of probability, lies squarely on the defendant. See M.B. Investments (Pvt) Ltd v Oliver &
Others 1974 (1) ZLR 169 (AD) at 175-176.
It
is apparent from the foregoing that the defendant has failed on a balance of
probabilities to discharge the onus of
establishing any one of the defences that he has raised. It follows that the
plaintiff is entitled to an order confirming the cancellation of the lease and
an order for ejectment and ancillary relief as well as costs on a higher scale.
Given that the defendant has been in occupation of the leased premises for over
10 years, he should be given some time to vacate the property.
In
the result, judgment in favour of the plaintiff as against the defendant is
granted as follows.
It is ordered that:
(1) The cancellation of the lease
between the parties be and is hereby confirmed.
(2) The defendant and all other persons
claiming occupation through him of 120 Harare Drive, Marlborough, Harare, shall
vacate the said premises on or before 31 October 2010, failing which
the Deputy Sheriff is hereby authorised and directed to evict the defendant and
all other persons claiming occupation through him from the said premises.
(3) The defendant shall pay to the
plaintiff:
(a)
the sum of US$1440 in respect of
arrear rentals;
(b)
holding over damages in the sum of
US$200 per month or such pro rata
portion thereof from 1 March 2010 to the date on which vacant possession of the
foresaid premises is given to the plaintiff;
(c)
interest on the above sums a tempore morae at the prescribed rate;
(d)
costs of suit on a legal
practitioner and client scale.
Gollop
& Blank, plaintiff's legal practitioners
Sinyoro & Partners, defendant's legal practitioners
