This was a civil appeal. It was against the judgment of the
Magistrate's Court sitting at Masvingo on 28 September 2016.
The facts, the dispute, and the issues were all very
straightforward. But the pleadings, the trial, the judgment, the appeal, the
heads of argument, and even the submissions on the day of ...
This was a civil appeal. It was against the judgment of the
Magistrate's Court sitting at Masvingo on 28 September 2016.
The facts, the dispute, and the issues were all very
straightforward. But the pleadings, the trial, the judgment, the appeal, the
heads of argument, and even the submissions on the day of hearing, were, with
all due respect, replete with confusion on some fundamental aspects of the
claim, chief of which being the applicability or inapplicability of the Rent
Regulations, 2007, Statutory Instrument 32 of 2007 [“the Rent Regulations”].
This shall soon become apparent.
The respondent's claim [plaintiff in the court a quo] was
for the ejectment of the appellant [defendant in the court a quo], and all
those claiming occupation through him, from a certain house, one of many such
properties owned by the respondent in the township, or settlement, known as
Mashava, some 40km west of the City of Masvingo. The appellant had got into
that house, as had several other people from all walks of life, through a lease
between himself and the respondent. The houses had become redundant in early
2000 when the respondent, a mining concern, had gone bankrupt and had ceased
operations. It had become heavily indebted to central Government. So central Government
had placed it under reconstruction in terms of the Reconstruction of
State-Indebted Insolvent Companies Act [Chapter 24:27] [“the Reconstruction Act”]. In line with the provisions of that Act,
one Afaras Gwarazimba ['Gwarazimba'],
was appointed Administrator.
All this was common cause.
Also common cause was that in or about 2013, the
respondent's sole or major shareholder, the Zimbabwe Mining Development
Corporation, ['ZMDC'], a statutory
corporation or parastatal, poured $1,2 million into the respondent to
resuscitate its operations. In anticipation of re-opening of the mines, the
respondent gave notice to all such persons as were occupying its houses to
vacate for its workforce. The appellant was one such occupant. He ignored or
neglected or refused to move out. So did several others. The respondent sued
for eviction.
That was the matter in the court a quo.
The first confusion is traced right back to the
respondent's summons. Either the Rent Regulations did or did not apply; in the
sense that either the respondent was an entity exempt from their application by
reason of it being one of the entities listed in sub-section [2] of section 2 of
the Rent Regulations, 2007, S.I.32 of 2007, or, in the sense that the area
where the houses were built was not
one of those listed in sub-section [1] of the Rent Regulations, 2007, S.I.32 of
2007.
By section 2(2), the Rent Regulations do not apply to the letting of a dwelling
by:
[a] The State or a local authority;
[b] Any Authority, Board, Commission, Council or other like
body, having corporate personality and established for public purposes directly
by an Act of Parliament;
[c] An absentee landlord, whose absence is for six months
for purposes of holiday, business, health or the like;
[d] A landlord in respect of new dwellings constructed
after the inception of the Rent Regulations the rentals in respect of which
would be controlled for the next ten years by the Rent Board.
By section 2(1), the Rent Regulations apply only to the following areas:
[i] An area where a Municipality or Town Council has been
established;
[ii] Any designated part of a Rural District Council;
[iii] An area set aside as a township;
[iv] A local Government area as defined.
After describing it as the plaintiff, and a company under
reconstruction, the particulars of claim said the respondent was the owner of
various properties currently being occupied by the appellant and several
others. It was then stated, inter alia, that the respondent “…, was the local
authority for the Mashava area, where these houses are located…,.” It was
further stated that the respondent now required the houses for its employees as
it had resumed operations and that, despite demand, the appellant and the other
persons had refused or ignored to move out.
The reference to the respondent being “…, the local
authority for…, Mashava…,” was plain
confusion.
In terms of the Housing and Buildings Act [Chapter 22:07],
a local authority is either a municipal council, a town council, or a local
board, established in terms of the Urban Councils Act [Chapter 29:15], or a
rural district council established in terms of the Rural District Councils Act [Chapter
29:13].
The respondent is none of these. It is just a private
company with limited liability, and registered in terms of the Companies Act [Chapter
24:03], even though the Zimbabwe Mining Development Corporation (ZMDC), a
parastatal, is a shareholder.
It seems the reference to the respondent being a local
authority was intended to place it beyond the reach of the Rent Regulations.
But the confusion did not end there. Either the Rent Regulations
applied or did not apply.
If they applied, then the respondent could not move for
ejectment from the court without having demonstrated compliance with section 30
of the Rent Regulations, 2007, S.I.32 of 2007. If they did not apply, then the
basis of its claim would be markedly different. The applicable law would be the
common law, not the Rent Regulations.
One major difference would be this.
Instead of justifying eviction on the need to house its
employees, a requirement under the Rent Regulations, the respondent would
necessarily need to plead the determination of the lease, either by effluxion
of time, breach, mutual agreement, notice, vis majeure, or on some other basis.
Whatever the case, the determination of the lease would be
the justification for the eviction if the common-law applied. This is so
because one of the incidents of ownership of a thing is the owner's entitlement
to the exclusive possession of the res. The law presumes possession of the
thing as being an inherent nature of ownership. Flowing from this, no other
person may withhold possession from the owner unless they are vested with some
right enforceable against the owner: see SILBERBERG
and SCHOEMAN's The Law of Property, 5th ed….,. Otherwise an
owner deprived of possession against his will can vindicate his property
wherever found, and from whomsoever holding it: see Chetty v Naidoo 1974 [3] SA
13 [A]…,.
A lease, for its duration, suspends the owner's entitlement
to the exclusive possession of the thing. It is a contract. It regulates the
rights and duties of the landlord and the tenant. Its essential terms are that
in return for rentals, the landlord undertakes that the tenant shall have the
use and enjoyment of the property. The tenant is obliged to restore the
property to the landlord on termination. If the tenant fails to do so, then the
landlord, among the other remedies available to him, may move for the tenant's
eviction: SILBERBERG and SCHOEMAN's
The Law of Property, 5th ed….,. See also The Trustees in Mashonaland
of the Church of the Province of Central Africa v Timms 1973 [1] RLR 307 [GD]…,.
In this country, in relation to dwellings, it is the Rent Regulations,
made under the Housing and Buildings Act [Chapter 22:07], that limit the
landlord's common law rights to evict a tenant whose lease has terminated: The
Trustees in Mashonaland of the Church of the Province of Central Africa v Timms
1973 [1] RLR 307 [GD]…,.
In casu, the respondent's summons said absolutely nothing
about the lease. So, was its mast nailed to the Rent Regulations or the common law?
To that confusion, the applicant pleaded, after requesting
further particulars - which were refused. But he added more confusion. He took
a declinatory plea, raising two points in limine.
(i) The first was that the respondent had no locus standi
to bring the proceedings, given that it was a company under reconstruction;
that, as such, it was under the direction and control of the Administrator who
necessarily had to authorise the commencement of the proceedings in accordance
with section 6(b), as read with section 18(1)(e) of the Reconstruction of State
Indebted Insolvent Companies Act [Chapter 24:27], and that no such authority
had been attached.
(ii) The applicant's second point in limine was that the
respondent had not complied with section 30(2)(e) of the Rent Regulations,
2007, S.I.32 of 2007 in that it had not attached a certificate from the
appropriate Rent Board stating that the requirement for the applicant to vacate
the house was fair and reasonable and that the date to move out, as specified
in the certificate, had passed.
Section 30(2)(e) of the Rent Regulations, 2007, S.I.32 of
2007 prohibits the court from issuing an eviction order on the basis that the
lease has expired, either by effluxion of time or in consequence of a notice
having been duly given, so long as the lessee continues to pay rent within
seven days of due date and performs the other conditions of the lease, unless:
“[e] The appropriate [Rent] Board has issued a certificate
to the effect that the requirement that the lessee vacate the dwelling is fair and reasonable on some other ground
stated therein, and the date specified in the certificate for the vacation of
the dwelling has passed.”….,.
The appellant's second point in limine was ill-conceived
because it undoubtedly assumed the respondent was proceeding in terms of the Rent
Regulations.
The appellant went on to plead over to the merits. He
denied breaching the lease agreement. He challenged the respondent's claim that
it required the houses for its employees when it was even failing to pay their
arrear salaries. He denied that the respondent was a local authority, as
envisaged by the Housing and Buildings Act [Chapter 22:07]. Finally, he alleged
that the real reason why the respondent wanted him and others out of the houses
was so that it could re-let them to third parties at higher rentals.
The confusion in the appellant's plea on the merits was
that the breach of lease, which he was denying, was not part of the
respondent's claim. It had not been pleaded. Furthermore, for him to challenge
the respondent's claim that it required the houses for its own employees; to
say that the respondent was not a local authority, albeit correct, and to
assert that the only reason why it required its houses back was so that it
could re-let them at higher rentals, only betrayed the predominant confusion
permeating this whole matter, namely, whether or not the Rent Regulations
applied. In other words, if the Rent Regulations did not apply, then the
respondent did not need to explain why it required its houses back, or what it
might do with them afterwards. As indicated already, under the common law, an
owner only needs to show the expiry or lapse of the lease as the contract that
suspended the owner's entitlement to its exclusive right of possession.
The parties listed their issues for trial separately. It
seems there was no consolidation afterwards. The respondent's issues were:
1. Whether it required its houses for its employees; and
2. Whether it had been recapitalised to commence operations
The respondent's issues were characteristic of the
prevailing confusion. Issue 1 evidently echoed the Rent Regulations. Issue 2
did not stem from the pleadings and it also echoed the Rent Regulations.
The appellant's issues were:
3. Whether the respondent had complied with the provisions
of section 6(b) and section 18(1)(e) of the Reconstruction of State-Indebted
Insolvent Companies Act [Chapter 24:27];
4. Whether the respondent had complied with section 30 of
the Rent Regulations, 2007, S.I.32 of 2007;
5. Whether the respondent required the houses for its own
use.
The same confusion abounded.
But be that as it may, the special plea was apparently set
down for argument well before the trial on the merits. Whether or not the Rent Regulations
apply in any given case is a factual issue, not a legal point. The appellant's
special plea was dismissed a whole month before the trial. The magistrate who
dismissed it was not the same one that conducted the trial on the merits.
The reasons for the dismissal of the special plea were not
on record. But such dismissal should have buried the points in limine and put
paid to any further confusion because the appellant did not appeal. Strangely,
that did not happen. The confusion persisted, right up to the day of the appeal
hearing.
At the trial, the respondent's main witness, Wilson Museva
[“Museva”], was its Properties Manager.
His testimony was basically that the respondent wanted its
houses back for its artisanal employees who either had no accommodation, or
that which they had was not commensurate with their grades. He was clear that
the basis of the respondent's claim was not the non-payment of the rentals. But
he was led to say that the appellant had not paid rent for a considerable
period and was $11,037= in arrears. Wilson Museva also said that the
appellant's lease with the respondent had long since expired some several years
before. In cross-examination, Wilson Museva refused to be drawn into answering
questions unconnected to the basic reason why the respondent wanted its houses
back.
The one major confusion at the trial was the respondent's
attempt to lead evidence on the appellant's non-payment of rentals. It had
actually called a second witness from the Finance Department apparently to
prove this. The appellant objected. The court upheld the objection. It ruled
that the aspect of arrear rentals was not part of the respondent's claim.
Cross-examination and the defence case straddled on a lot
of extraneous issues. These mainly related to how the respondent should be
non-suited for failure to call Afaras Gwarazimba to testify or to produce his
authority to sue; how the respondent had failed to show a good and sufficient
reason for wanting its houses back; how, demonstrably, it wanted the houses
back to re-let them out to Great Zimbabwe University at higher rentals; how the
respondent had plenteous accommodation for any of its employees who might need
it; how the respondent was in no capacity to re-open and commence operations
any time soon, and so on.
The confusion at the trial, and the persistent reference to
the requirements of the Rent Regulations, is most surprising because counsel for
the respondent, in his response to the appellant's application for absolution
from the instance, seemed to have eventually grasped the nub of the matter. He
had written as follows:
“Mashava area, where these properties are situated, is
neither a municipality, nor town council, nor a designated area in terms of the
Rural District Councils Act, or a township in terms of the Communal Lands Act
nor is it a local government area. As a result, and because it is not governed
by the said Act, the provisions of Section 22(2), which provides that before a
lessor can eject a tenant, he must show 'good and sufficient cause' does not
apply. Ipso facto, the issue of the
plaintiff requiring the houses for its employees, is not even a legal
requirement. That plaintiff wants its house back, upon its say so, is
enough ground.”…,.
The one essential thing counsel for the respondent
overlooked in his espousal of the law, though, was the determination of the
lease agreement.
But despite such succinct exposition of the real issues,
incredibly, the case remained off track. Unbelievably, the confusion persisted
in both the closing submissions by counsel, and, with all due respect, in the
court's judgment as well.
In its judgment, the court a quo first identified the
issues as being:
(i) Whether the plaintiff required the houses to house its
employees;
(ii) Whether the plaintiff had been recapitalised to
commence operations;
(iii) Whether the plaintiff required the house for its own
use and [if so, whether] the defendant should be evicted.
Plainly, the court's re-statement of the issues reflected
the on-going confusion. However, we shall not belabour the point. Suffice it to
say that those were not the real issues.
The one and only issue was whether the respondent was
entitled to evict the respondent. On this, the respondent had to show that the
lease had terminated.
On the question of the Rent Regulations, it was the
appellant that had claimed that they applied. So, the onus had been on him to
prove that they applied. He had failed. His special plea had been dismissed a
month before the trial.
The judgment of the court a quo did touch on a pertinent
point. It said, in part:
“It is important
to note that there is no valid lease between the parties; if there had been one
then the defendant's right of occupation would have been derived from a Lease
Agreement between him and the plaintiff. In addition, it is the
plaintiff's evidence that defendant is in rental arrears of $11,037=, according
to Mr Museva, the Properties Manager of the plaintiff. Although this was
disputed, the defendants did not produce any receipt to prove that despite the
fact that the Lease has expired he has continued to pay the rent due within 7
days of the due date contrary to the plaintiff's claims. As such, I am of the view that the defendants, not being a holder
[sic] of a valid Lease Agreement or up to date payer of rentals, he
disentitled himself to the protection normally entitled to tenants.”…,.
Aside the obvious mix up with the issue of outstanding
rentals and the tacit reference to a statutory tenancy, the crux of the matter
was whether or not the defendant still retained the right to remain in
occupation. His right to remain in occupation could only derive from a valid
lease. If he no longer had one then he no longer had the right.
That was what the court had to decide.
Regrettably, the actual judgment of the court a quo went
back to the Rent Regulations. It ruled that the respondent's notice to the
appellant to vacate the house had been in accordance with section 30(2)(c) of
the Rent Regulations, 2007, S.I.32 of 2007; that there was no evidence that the
respondent wished to lease the house to a third party, and that the respondent
had proved that it genuinely required the premises for its own use.
This was a misdirection.
In his appeal to this court, the appellant raised six
grounds. Grounds 1 to 3 were couched as follows:
1. That the magistrate erred in finding that the plaintiff
could institute the proceedings without attaching the leave from the Administrator
stating the conditions imposed by him;
2. That the magistrate erred in finding that Wilson Museva could
represent the plaintiff without the leave from the Administrator;
3. That the magistrate erred in finding that the Rent Regulations,
particularly section 30(2)(e) thereof, did not apply.
On the day of hearing, the appellant abandoned all the
above. This followed an objection by the respondent. The objection was on the
basis that these grounds had been the subject of the special plea which had
been disposed of, well before the trial, and about which the appellant had not
appealed. The appellant was out of time to raise them as grounds of appeal. He
had not applied for condonation.
The appellant's withdrawal of these grounds, though very
late in the day, was proper. It had been manifestly inappropriate for him to
have included them in the first place. The only explanation for this could be
the confusion dogging the case.
The appellant's remaining grounds of appeal, 4 to 6, were
these:
4. That the magistrate erred in finding that there was no
valid lease between the parties despite the respondent having acknowledged the
existence of one;
5. That the magistrate erred in dealing with the issue of
rentals since it had never been in issue for determination and had never been
the respondent's cause of action;
6. That the magistrate erred in finding that the respondent
needed the house for its employees when it had admitted letting out houses to
Great Zimbabwe, court officials, and third parties - even after the
commencement of the proceedings.
Only ground 4 was relevant.
What puzzled us, though, was that, having successfully torn
into the appellant's incompetent grounds of appeal 1 to 3, thereby forcing him
to withdraw them; and after disposing of grounds 4 and 5 as being irrelevant,
since the aspect of rentals had not been an issue [which was not quite correct,
because ground 4 was relevant], the respondent's counsel, amazingly, failed to
grasp that ground no. 6, the one he said was the only legitimate ground
remaining for determination, was still the same issue of the Rent Regulations
in another form.
Whether or not the respondent wanted its houses back for
its own employees, or whether or not it wanted to re-let them to third parties
at higher rentals, are aspects relevant to the “good and sufficient grounds”
principle of the Commercial Premises [Rent] Regulations, S.I.676 of 1983, or
the 'fair and reasonable' requirement of the Rent Regulations, 2007, S.I.32 of
2007.
If the court a quo, before another magistrate, and before
the trial, had ruled out the inapplicability of the Rent Regulations; if the
appellant did not appeal that decision, and, to cap it all, if the appellant
withdrew grounds 1 to 3 which dealt with, inter alia, that aspect of the Rent Regulations,
ground 6 had no business remaining on record.
The respondent's major argument, both in the heads of
argument and in oral submissions, was misconceived.
At one point during the hearing, we expressly drew
attention to the dichotomy between the Rent Regulations and the common law
requirements for eviction, and enquired whether, in the light of the
appellant's withdrawal of grounds 1 to 3, there still remained any basis for
the parties to continue arguing on the “good and sufficient grounds” or the 'fair
and reasonable' requirements, the principles imported by the Commercial and Domestic
Rent Regulations respectively.
Counsel for the appellant insisted that there was.
He referred to cases such as Moffat Outfitters [Pvt] Ltd v
Hoosein & Ors 1986 [2] ZLR 14 [SC]; Checkers Motors [Pvt] Ltd v Karoi
Farmtech [Pvt] Ltd 1986 [2] ZLR 247 [SC]; Boka Enterprises [Pvt] Ltd v Joowalay
& Anor 1988 [1] ZLR 107 [SC]; Film & Video Trust v Mahovo Enterprises
[Pvt] Ltd 1993 [2] ZLR 191 [H]; Kingstons Ltd v L D Ineson [Pvt] Ltd 2006 [1]
ZLR 451 [S]; and Tobacco Sales Floor Ltd v Swift Debt Collectors [Pvt] Ltd 2011
[1] ZLR 486 [H].
With all due respect, that was unnecessary clutter. All
these cases dealt with evictions under the Commercial Rent Regulations, not the
common law.
In casu, the applicability of the Rent Regulations not
being in issue, those cases were irrelevant.
In The Trustees in Mashonaland of the Church of the
Province of Central Africa v Timms 1973 [1] RLR 307 [GD], a case cited in Boka
Enterprises [Pvt] Ltd v Joowalay & Anor 1988 [1] ZLR 107 [SC]…, and Tobacco
Sales Floor Ltd v Swift Debt Collectors [Pvt] Ltd 2011 [1] ZLR 486 [H]…, BEADLE
CJ…, had this to say:
“When the respondent entered into this lease she knew
perfectly well the lease expired in May 1973. She is, therefore, trying to
resile from her common law and moral
obligations by relying on the Rent Regulations. Were there no Rent Regulations, under the common law, she would have
no right to remain in occupation. It is quite true that the Rent
Regulations do allow a statutory tenant to evade his common law and his moral
obligations by remaining in occupation, but it does seem to me that the
protection given to tenants to evade common law and moral obligations should not be extended further than is
necessary to comply with the spirit of the Regulations.”…,.
The only point that should have concerned the
parties from the beginning to the end should have been whether or not the
respondent still had a valid lease agreement with the appellant; whether this
had been pleaded; and whether the evidence in the court a quo had sufficiently
canvassed it.
