I agree that failure to pay rentals because of the landlord's refusal to accept rent cannot be used to found a ground to evict the tenant from the premises...,. It is common cause that in terms of the expired lease, rentals should therefore, in spite of refusal..., have been tendered.

The applicant is the owner of premises known as Fidelity Life Towers. It bought the property from Fidelity Life Assurance of Zimbabwe Ltd, the previous owner. The respondent leased part of the 4^th Floor of these premises from the previous owner. Clause 37 of the lease agreement provides for the termination of the lease agreement by the new owner. It provides as follows;

“37(2) In the event of the Landlord disposing of the building, or the leased premises by sale, or if the building or the leased premises are owned by a company and the identity of the largest or majority shareholder changes, then, in such event, the Landlord or new Landlord as the case maybe, shall have the right to terminate the lease without compensation, on giving six months' written notice to the Tenant.”

The applicant bought the premises sometime in 2007. It therefore became the respondent's new landlord. It, in terms of clause 37.2, by letter dated 20 December 2007, gave the respondent notice to vacate the premises by 31 March 2008. The notice period was to run from 1 January 2008 to 31 March 2008. It specifically advised the respondent that it was giving it notice of three calendar months.

The respondent, by letter dated 27 March 2008, from its legal practitioners to the applicant, acknowledged the fact that the applicant had taken over the ownership and management of Fidelity Life Tower House. It pleaded with the applicant as follows;

“We have been instructed to plead with you for and on behalf of our client as we hereby do that you allow our client to remain in occupation of the building for a further period of six (6) months so that our client can secure alternative office space. Should our client be able to secure alternative space earlier our client would (sic) advise accordingly and vacate your premises.”

Note that the respondent's response came four days before the date on which the applicant had required it to vacate the premises. It required the premises for a further period and had to plead for the three months notice to be extended.

The applicant, by letter dated 25 April 2008, declined to extend the notice period by six months but extended it by a further period of two months, commencing 1 April 2008 to 31 May 2008.

The respondent did not respond to this letter till 20 May 2008, when, through its lawyers, it advised the applicant that it had failed to secure alternative accommodation and sought the extension of its tenancy to 30 September 2008. The applicant, by letter dated 5 June 2008, advised the respondent that it could not grant its request.

It is common cause that the applicant did not give the respondent six months notice as provided by clause 37.2 of the lease agreement. In the absence of any written agreement between the parties altering the provisions of clause 37.2 the notice given by the applicant is invalid and of no force or effect. This is because clause 40.2 provides as follows;

“40.2 This agreement constitutes the whole of the agreement between the parties and no variations or collateral agreements shall be of any force or effect unless and until recorded in writing in a document or series of letters signed by the parties.”

This means any variation or alteration of the terms of the agreement must be by agreement between the parties. The parties' agreement can be proved by each party signing the variation or collateral agreement or series of letters in which such an agreement can be found. In the absence of the above, the parties are bound by the terms of the original agreement.

Counsel for the applicant submitted that the parties agreed to depart from the terms of clause 37.2. He submitted that proof of such an agreement having been reached can be found in the correspondence exchanged by the parties. Counsel for the respondent disputed the existence of such an agreement.

An examination of the correspondence which has already been referred to clearly proves that the parties did not reach a final agreement on anything but continued to negotiate until they disagreed. In its letter of 27 March 2008 the respondent did not agree with the applicant's three months notice, as it sought its extension by a further six months. This proves that the parties were still negotiating as to the appropriate notice period. The applicant's response, of 25 April, did not agree with the respondent's request for a further six months but offered the respondent a further two months. They did not agree as a counter offer to the six months suggested by the respondent was countered by an offer to extend the period to 31 May 2008. By letter dated 20 May 2008 the respondent made a further counter offer by asking that its tenancy be extended to 30 September 2008.

There is therefore no series of correspondence through which the terms of clause 37.2 can be said to have been varied. It is common cause that there is no variation agreement.

Counsel for the applicant also submitted that the original right to six months notice was compromised by the respondent's agreeing to vacate, but pleading to be allowed to stay for longer than the three months given by the applicant because it needed time to secure alternative accommodation.

It is true that the respondent did not challenge the applicant's right to give it notice and to require it to vacate on the basis of a three months notice. It merely pleaded for the extension of the stated period to enable it to find alternative office space. The issue is not on whether or not the respondent conceded the applicant's right to give it three months' notice, but whether that acceptance was with the full knowledge of its right to insist on being given the six months notice provided for in clause 37.2.

The respondent, in its opposing affidavit, said it did not have the lease agreement when it responded to the notice through its legal practitioners. It states that it was, at that time, not aware of its entitlement to six months notice.

The issue is therefore whether or not the alleged compromise or waiver was an informed one.

A compromise is an agreement by the parties to abandon litigation or a disputed position of their rights in favour of the agreement to compromise. Each party alters its claim, rights or defence to reach a compromise. It must do so fully appreciating the rights it will be compromising on. It cannot be arrived at in error.

Counsel for the applicant referred me to the case of Georgious and Another v Standard Chartered Finance Zimbabwe Limited 1998 (2) ZLR 488 (S)…, where GUBBAY CJ said;

“Compromise or transactio is the settlement, by agreement, of the disputed obligations, or of a lawsuit the issue of which is uncertain. The parties agree to regulate their intention in a particular way, each receding from his previous position and conceding something - either diminishing his claim or increasing his liability. See Achalia v Har berev & Company 1905 TS 457 at 462 in fine; Tauber v Von Abo 1984 (4) SA 482 @ 485 G-J; Karson v Minister of Public Works 1996 (1) SA 887 E 893 F-G.

The purpose of compromise is to end doubt and to avoid the inconvenience and risk inherent in resorting to the methods of resolving disputes. Its effect is the same as res judicata on a judgment given by consent. It extinguishes ipso jure any cause of action that previously may have existed between the parties, unless the right to rely thereon was reserved. See Nagar v Nagar 1982 (2) SA 263 (ZH) 268 E-H.

As it brings legal proceedings already instituted to an end, a party sued on a compromise is not entitled to raise defences to the original cause of action.”

Counsel for the applicant however stopped the quotation just before he got to the crucial part for the determination of the dispute between the parties. Immediately after the above, GUBBAY CJ said;

“See Hamilton v Van Zyl 1983 (4) SA 379 (E) at 383H. But, a compromise induced by fraud, duress, justus error, misrepresentation, or some other ground for rescission, is voidable at the instance of the aggrieved party - even if made an order of court.”

It is therefore clear from Georgious and Another v Standard Chartered Finance Zimbabwe Limited 1998 (2) ZLR 488 (S) that a compromise cannot be based on “justus error.”

Counsel for the respondent submitted that the respondent was not, at the time it negotiated for the extension of the three months notice, aware that it was entitled to six months notice as it did not have its copy of the lease agreement. He therefore argued that it neither compromised nor waived its right to six months notice. He therefore relied on the defence of justus error and referred the court to the case of Hepner v Roodepoort - Maraisburg Town Council 1962 (4) SA 772 (A)…, where STEYN CJ said;

“There is authority for the view that in the case of waiver by conduct, the conduct must leave no reasonable doubt as to the intention of surrendering the right in issue. (Smith v Mombery (1895) 12 SC 295 at 304; Victoria Falls and Transvaal Power (Pvt) Ltd v Consolidated Langflaagte Mines Ltd 1915 AD 1 at 62); but, in Martin v De Kock 1948 (2) SA 719 (AD) at p 733, this Court indicated that, that view may possibly require reconsideration. It sets, I think a higher standard than that adopted in Laws v Rutherford 1924 AD 261 at 263 where INNES CJ said;

'The onus is strictly on the appellant. He must show that the respondent, with full knowledge of her right, decided to abandon it, whether expressly or by conduct plainly inconsistent with an intention to enforce it.'

This accords with the test applied in Kenny's case and was followed in Collen v Rietfontein Engineering Works 1948 (1) SA 413 (AD) at 436, and Linton v Corser 1952 (3) SA 685 (AD) at p 695, (CF Ellis and Others v Laubscher 1956 (4) SA 692 (AD) at p 702).

In my opinion. the test is more correctly stated in these cases.”

I respectfully agree with STEYN CJ's observations, the applicant in this case must, on the balance of probabilities, show that the respondent knowingly abandoned its right to insist on six months notice.

Counsel for the respondent also referred the Court to the case of Ex parte Sussens 1941 TPD 15…, where MURRAY J said;

“The necessity for the full knowledge of the law in the case of waiver follows from the principle that waiver is a form of contract in which one party is taken, deliberately, to have surrendered his rights; there must therefore be proof of an intention so to surrender, which can only exist where there is knowledge both of the facts and the legal consequences thereof.”

It is therefore clear that for the applicant's claim, that the respondent compromised or waived its right to six months notice to succeed, it must prove that it did so expressly or by conduct well knowing the facts and the legal effect of such compromise or waiver.

The facts of this case clearly demonstrate that the respondent persistently wanted more time in the premises, to the extent, of having to plead with the applicant for extensions. If it was aware of its right to six months notice would it have resorted to pleading instead of demanding that it be given the notice provided for by clause 37.2?

In my view, the respondent was, as it alleges, not aware of the facts on its rights to six months notice. It did not therefore knowingly compromise or waive its right to six months notice. There was, therefore, no compromise or waiver of its right to six months notice. It simply responded erroneously believing the applicant's misleading notice to be in accordance with the lease agreement. There was therefore a common error between the parties. If the applicant could itself be in error as to the correct notice period, why should the respondent not be believed when it says it fell into the same error because it did not have a copy of its lease agreement.

I find the respondent's explanation consistent with a mistaken belief that it had been given adequate notice hence the plea for the extension of the notice period.

In the result, the applicant's application is dismissed with costs.

The background to this matter is as follows. On the 6^th of February 2006, the parties herein entered into a lease agreement to run for a period of 36 months, from the 1^st of January 2006 to the 31^st of December 2008, in respect of certain premises situated in Harare. On the 30^th of January 2007, the parties concluded an addendum to the main agreement, providing for an option to renew and other incidental matters.

At the beginning of 2008, the applicant prepared a fresh draft agreement requiring, inter alia, usage of the premises in a manner that would be complementary to the applicant's cultural activities. This draft was rejected by the respondents on the ground that it was an entirely different lease arrangement with more onerous obligations.

On the 27^th of March 2008, the applicant's lawyers gave the respondents notice to vacate the premises on the 31^st of December 2008, indicating that the applicant intended to utilise the premises for its own use.

In June 2008, the applicant proposed an increase in monthly rental from $4 trillion to $60 trillion. The respondents, in turn, consulted various estate agents and tendered $25 trillion as being a fair and reasonable rental.

In July 2008, the applicant filed the present application seeking an order requiring the respondents to vacate the premises by the 31^st of December 2008. The respondents resisted the application on the ground that the applicant did not want the premises for its own use but for some other ulterior purpose, viz, in order to lease the premises to another party and/or accrue higher rentals.

For reasons which are not clear from the record, the applicant's lawyers only applied, in February 2009, for the matter to be set down for hearing. Moreover, they have not applied to amend the relief that was originally sought, viz. eviction of the respondents by the 31^st of December 2008.

Duration of Lease

The original lease agreement of 2006 was filed of record as Annexure A to the applicant's founding affidavit. In terms of the Second Clause, the lease “shall continue to run for the term or period of 36 months on and up to 31^st December 2008”. The Third Clause stipulated the monthly rent for the first 12 months. Thereafter, the rent was to be reviewed “in line with current market trends” (as per the original typed wording) or “monthly in line with inflation” (as per the manually amended version).

At the hearing of this matter, counsel for the applicant attempted to disown the latter version with the specious explanation that the manual amendment was in anticipation of what was to be incorporated in the revised draft agreement. However, given that the amended version was in fact filed by the applicant itself, and cited without any qualification in the founding affidavit as the governing lease agreement, it must be the version that must be adopted for the purposes of this application.

Under the common law, an essential ingredient of a contractual lease is that the amount of the rent payable by the lessee must be fixed or that some definite mode of fixing the rent must be agreed upon. In other words, the rental must be in an ascertained or ascertainable amount. See Totoyi v Ncuka 1909 EDC 115. See also Film and Video Trust v Mahovo Enterprises (Pvt) Ltd 1993 (2) ZLR 191 (H) …, citing Brown v Hicks (1902) 19 SC 314…,.:

“Until the rent, or some definite mode of fixing the rent, is agreed upon, there is no contract of letting and hiring of the house. The letting of services stands upon the same footing.”

In this context, an objective indicator determined by a public body would afford a definite mode of fixing an ascertainable rent.

In the instant case, I am of the view that the stipulated review of the rental “monthly in line with inflation”, in accordance with the inflation index compiled and published by the Central Statistical Office, provides an objective indicator and definite mode for fixing the monthly rent.

It follows that the duration of the contractual lease between the parties was a term of 36 months, expiring on the 31^st of December 2008. Thereafter, inasmuch as the respondents did not exercise their option to renew the lease, the contractual lease lapsed and was converted into a statutory tenancy under Part IV of the Commercial Premises (Rent) Regulations 1983.

Termination of Lease

The next question is whether the contractual lease was terminable by notice given before the date of its expiry – as was done by the applicant in March 2008. The lease agreement itself, as read with the addendum of 2007, does not entitle the applicant to terminate the lease by notice or otherwise, except on the ground of material breach, at any time before the expiration of the fixed term of 36 months.

In this regard, counsel for the applicant contends that, at common law, the lessor is entitled to give notice of termination to coincide with the date of expiration so long as he respects the fixed term of the lease.

No authority was cited for this spurious proposition and I am unable to find any merit in it for the simple reason that a fixed term lease terminates ipso facto upon the expiry of the fixed term, without the need for any notice of termination from either party. The giving of notice to terminate so as to coincide with the date of expiry of the lease is legally pointless and practically futile.

In the instant case, counsel for the applicant's assertion is rendered even more untenable by dint of the option to renew granted to the respondents. In terms of the Fourth and Sixth Clauses of the lease agreement, as substituted by the addendum, the respondents had the option to renew the lease for a further period of 36 months by giving written notice of their intention to do so no later than 3 months prior to the 31^st of December 2008. This option, subject only to the satisfactory performance by the respondents of their obligations in terms of the lease, further precluded the applicant from terminating the lease before the expiry of its fixed term.

It follows from the foregoing that, except for material breach of the lease agreement by the respondents, the contractual lease between the parties was not terminable by the applicant by notice given at any stage prior to the expiration of the fixed period of 36 months. It also follows that the purported notice of termination given by the applicant, in March 2008, is a nullity with no legal force or effect insofar as concerns the duration of the lease in casu.

By signing the lease agreement as it stands, the first defendant agreed to all its terms and conditions.It was obliged to pay rent.it was obliged, on presentation of a statement for operating costs, to pay such costs.

The application before this court is for an order of ejectment of the respondent from the property known as 46 Van Praagh Avenue, Milton Park, Harare. The application is based on an alleged breach by the respondent of a lease agreement in terms of which it is a lessee of Stand 4343 Salisbury Township of Salisbury Township Lands, also known as 4b Van Praagh Avenue, Milton Park. The said property is owned by the applicant….,.

On the merits, clause 2 of the lease agreement provides, inter alia, rent is payable monthly in advance.

It is contended by the applicant that the respondent is in breach of this clause of the agreement in that he has, as from 2008, been making lump sum payments for rentals without the consent of the applicant thereby unilaterally altering the lease agreement. Furthermore, that the payments were also constantly made late. The applicant contends that she is entitled to cancel the lease agreement in terms of clause 9 of the agreement which provides:

“Should the Lessee fail to pay the monthly rental on due date, or commit a breach of any of the other terms and conditions of the lease…, then, and in such an event, the Lessor shall have the premises without prejudice to any claim it may have for arrear rent, or for damage for breach of contract, or both.”

The respondent opposes the application on the following bases.

(i) Firstly, that the applicant has not cancelled the lease agreement and so there is no basis for her to seek the respondent's ejectment from the leased premises.

(ii) Secondly, that the applicant has frustrated the respondent's tender of rental payments through providing incorrect or insufficient banking details as well as changing the place and mode of payment without informing the respondent of such changes.

(iii) Thirdly, that there are serious material disputes of fact which are not capable of resolution on the papers and that such disputes were known to the applicant at the time of instituting the application.

(iv) Finally, that the applicant has waived her right to cancel the lease agreement through her acceptance of rentals tendered by the respondent and cannot now seek to cancel the lease on the basis of past breaches which she has forgiven.

Regarding the first ground of opposition, on the papers before this court, on 21 December 2009, the applicant wrote to the respondent in the following terms:

“Further to my emails dated 17 October 2009, 1 October 2009 and 18 September…, I have received neither response nor payment of the contractual rentals since July 2009…,. Due to your breach of contract, I am now writing to inform you that I will be taking possession of my property, and will occupy it on the 29^th of January 2010. Meanwhile, my contractors will begin various works to ameliorate the property and the grounds.

I thank you in advance for your cooperation and early vacation of the premises.”

Clearly, therefore, as submitted by the applicant's legal practitioner, and on the basis of the above quoted letter, the applicant elected to cancel the agreement in December 2009.

The position was also succinctly put in the case of Thelma Court Flats v McSwigin 1954 (3) SA 457, cited in the applicant's heads of argument, where it was held that:

“A party's election to cancel may be inferred from his conduct eg a lessor who issues summons for ejectment thereby elects to cancel, his conduct being inconsistent with the continuance of the lease.”

It appears to me, therefore, that in addition to the letter of 21 December 2009, the applicant's election to cancel is also evinced by the institution of these proceedings.

The second ground is that the applicant has frustrated the respondent's tender of rental payments.

The applicant denies that the respondent faced problems in remitting the rentals because when the respondent made payment, in August 2010, the bank details had not changed. Furthermore, the respondent never communicated to the applicant that they were facing difficulties in making the payment.

On the papers before this court there is no proof that the difficulties allegedly then faced by the respondent, in making the payments for rentals, were communicated to the applicant. Neither is the claim by the applicant that payment for rentals for the period September 2009 to August 2010 was only made in August 2010 after the applicant had instituted legal proceedings, challenged. Rather the respondent claims that there was a communication breakdown during the period when his legal practitioner was away on holiday.

The claim by the respondent that it promptly made payment only when the correct banking details were made available on 3 August 2010 does not, in my view, assist the respondent's defence. This is so particularly in the absence of proof of communication to the applicant regarding the alleged difficulties which are alleged to have been caused by the change of mode and place of payment made by the applicant and accompanied by incomplete or incorrect banking details. It defies logic for the applicant to have deliberately frustrated the timeous payment of rentals to her prejudice and thereby depriving herself of rentals for such a lengthy period.

The third ground, that there are serious material disputes of fact, does not appear to be borne out or supported by the papers.

It is not in dispute that the respondent has made a lump sum payment of arrear rentals. I have already dismissed the explanation proferred by the respondent for such conduct. It is, in my view, patent that such manner of payment was clearly in breach of clause 9 of the lease agreement. It is not all disputes of fact that matter in the determination of applications. It is the material disputes of fact that matter. I am not persuaded that there are such material disputes of fact as to have required the applicants to proceed by way of action.

The fourth ground is that by continuing to accept rentals from the respondent the applicant has waived her right to cancel the lease agreement.

In this regard, the applicant's legal practitioner has, in his heads of argument, aptly cited two case authorities. The first one is Parkview Properties v Chimbwanda 1998 (1) ZLR 408 where the following was stated by BARTLETT J…,:

“…, the lessor must, if there is a late or partial payment, make his election within a reasonable time and at the latest when the next payment is tendered…,.”

The second is Supline Investments (Pvt) Ltd v Forestry Co of Zimbabwe 2007 (2) ZLR 280 (H)…, where MAKARAU JP…, held:

“It is my view that by continuing to accept rentals from the respondent after the letter cancelling the lease, the applicant did not waive its right to rely on the breach by the respondent…,.”

In consequence of my findings above, the application will succeed and costs will follow the cause. The order sought by the applicant is therefore granted as follows:

IT IS ORDERED THAT:

1. The respondent and all those claiming through him be and are hereby ordered to vacate from the property known as 46 Van Praagh Avenue, Milton Park, Harare, within 7 days of service of this order.

2. The respondent shall pay the applicant's costs of suit.

The applicant is the owner of premises known as 11 Stourbridge Road, Donnington, Bulawayo.

It is common cause that in August 2004, the applicant appointed the respondent as its agent for the distribution, or sale, of its products in Matabeleland. In order to facilitate the arrangement, the applicant, through a signed Agreement dated 31 August 2004, leased its premises to the respondent. The initial period of the lease was to run from 1^st September 2004 to 30 November 2004. The Lease Agreement was subject to extension upon agreement between the parties.

The lease was silent on the notice period for termination.

The agency agreement (i.e. distribution agreement), which prompted the lease agreement, was of no fixed duration.

On 10 April, 2008, the applicant gave the respondent three months notice to terminate both the lease agreement and the distributorship agreements. The respondent, in terms of the notice, was to vacate the premises at the end of the three months notice. This was understood, by both parties, to be 31 July 2008.

The reason for the termination of both agreements was that the applicant was dissatisfied with the respondent's performance on the distributorship agreement. The relevant part of the notice read as follows:

“We note, with concern, the decline in your performance over the given period. As you are aware, as a distributor, we expect a contribution of at least 15% of our monthly turnover.

We are also concerned by market information that one of your customers has received imported cable via DSK Wholesalers, in conflict with our exclusive arrangement with High Peak.

On the basis of the above scenario, we are considering other plans of distribution in the Bulawayo and Southern area of Zimbabwe as we realize there is adequate potential which is evidently under siege from imports from Botswana and South Africa. We are, therefore, giving you three months notice to rescind your distributorship, and vacate 11 Stourbridge in Donnington, so that we can resuscitate our CAFCA operations.”

In response to the above notice, the respondent..., requested for an extension in the following terms:

“I am in receipt of your email re: vacation of the premises at 11 Stourbridge Road at the end of July. I have taken it up with Worthwhile, and we would like to request that you permit us to remain in the premises until after a written presentation, on Worthwhile's part, is submitted to the CAFCA Board sitting in August, as per Rob's suggestion.”

On 23 September, 2008, the applicant, through its Chairman, responded to the request for extension as follows:

“We acknowledge receipt of your submission, made directly to the Board, in appeal to the Executive's decision to terminate both the CAFCA distributorship, and the lease of 11 Stourbridge Road property.

The Board studied, and discussed, in detail, the document presented.

It is, with regret, that we must advise that the Board stands by, and supports, the decision taken by Management.

On the distributorship, the Board notes there is no disagreement on the facts, and, therefore, the rationale given by Management to the Board previously, to terminate, still holds valid.

On the property, there is dispute as to any authority given to either to sell the property, or allow the tenant to make renovations at our risk or cost. We can find no approval given. In fact, the last paragraph of the attached lease agreement, dated 31 August 2004, states “the property, and effects within, shall be returned to the landlord in the same condition as at the start of the lease period.”

As notice had previously been given, we would like to request that you vacate the property by the end of October 2008 so that we may take vacant possession on Monday 3 November 2008.”     

On 23 September 2008, the respondent, again, requested that the period to vacate the premises be extended to December 2008.

The request was granted, with the period to vacate the premises being extended to 5 January 2009.

The respondent did not, however, vacate the premises on 5 January 2009.

The respondent's legal practitioners, in the main, argued that the applicant was not entitled to order the respondent to vacate the premises “until or unless the issue of the sale to it of the property is rendered. The lease was to continue until the premises had been sold to the respondent.”

On 24 March 2009, the applicant filed this application seeking the following:

“1. That the respondent's lease from the plaintiff of 11 Stourbridge Road, Donnington, Bulawayo, is confirmed as terminated at 31 December 2008.

2. That the respondent vacate the said premises within seven (7) days of service of this order at 11 Stourbridge Road, and, failing compliance therewith, that the Deputy Sheriff evict, from the said property, the respondent and all those claiming a right of occupation thereof through the respondent.

3. ...,.

4. ...,.”

The applicant submitted that it had given reasonable notice for the termination of the lease.

It also argued that in requesting for extensions, the respondent acknowledged the existence of the notice and, indeed, the fact that the lease was terminable on notice. Accordingly, due to the extensions, the termination date became the 5^th of January 2009.

The applicant further submitted that the lease agreement was based on the Distributorship Agreement, and was the basis for both the Sale Agreement and the Lease Agreement. The Distributorship Agreement had terminated on 31 July 2008. The parties had failed to agree on a purchase agreement for the property. There was, therefore, no longer any basis for the lease agreement to continue. In reference to the issue of the Sale, the applicant submitted that “a lease agreement which is dependant, for its duration, on an event which may never occur, cannot be treated as an indefinite lease, but as a lease terminable on reasonable notice.” In the circumstances, argued the applicant, three months notice was reasonable.

The respondent submitted that the Distributorship and Lease Agreements were to be treated separately, and that being the case, the applicant could not rely on the Distributorship Agreement to terminate the Lease Agreement.

The respondent argued that the applicant's notice of 10 April 2008 did not clearly state that it was the applicant's intention to terminate the lease.

Furthermore, it was argued, that the applicant had not disclosed whether or not the extensions of the period within which to vacate the premises were consented to by the respondent. It was argued that such extensions called for a fresh notice.

The papers before me, and the submissions made by both parties, confirm to me that:

(a) There were three Agreements between the parties, namely the Distributorship Agreement, the Lease Agreement, and the Sale Agreement. The Sale Agreement was never reduced to a formal agreement..., there was never any final agreement because the parties had failed to agree on the purchase price for the premises.

(b) Although separate, the Agreements, in my view, constituted a package, in the sense that the applicant was saying: “In order for you (respondent) to carry out the business of distributing my products in Matabeleland, as agreed, I shall lease to you 11 Stourbridge Road, Donnington, Bulawayo, and in the event of agreeing on a purchase price, I shall sell the premises to you.”

The sale of the premises did not occur.

(c) The challenge to the termination of the Distributorship Agreement did not succeed, and accordingly, that Agreement terminated 31 July 2008. This is confirmed by the applicant's letter of 23 September 2008...,.

(d) The respondent acknowledged the three months notice of termination of both the Distributorship and Lease Agreements on 10 April 2008. The respondent then specifically requested for extensions of the period to vacate the premises.

The respondent, did not, then, argue that the notice excluded the Lease Agreement.

Extensions were granted, with the last one ending on 5 January 2009. The respondent, however, refused to vacate the premises.

Given the above scenario, I am inclined to..., dwell on the issue of whether or not a reasonable notice was given to the respondent to vacate the premises.

In doing so, one would have to determine whether or not there was indeed a notice given, and if so, was the three months notice, of 10 April 2008, reasonable, and applicable to the lease agreement....,. In any case, the respondent's main argument is that there was never any notice to terminate the lease agreement.

My finding is that the notice of 10 April 2008 applied to the lease agreement dated 31 August 2004. In the last paragraph of the notice, the applicant clearly requested the respondent to vacate the premises after the three months notice. The applicant wrote: “We are, therefore, giving you three months notice to rescind your distributorship, and vacate 11 Stourbridge, in Donnington, so that we can resuscitate our CAFCA operations.”

It is, therefore, clear to me that the respondent acknowledged the notice, and hence its specific requests for extensions of the period to vacate the premises. The requests were not for the extension of the distributorship agreement. The requests were for the extension of the lease agreement.

The respondent clearly understood that vacating the premises meant the termination of the lease.

I, therefore, agree with the applicant's submission that there could be no lease without the right of occupation. The respondent's argument that extensions killed the original notice is, in my view, misplaced. The extensions were anchored on an accepted existing notice.

In the circumstances, my finding is that the respondent was given reasonable notice to terminate the lease, and should, therefore, render vacant possession to the applicant. (See KERR, Law and Lease, 2^nd Edition...,.).

It is also common cause that with effect from 1 February 2004, the plaintiff and the second defendant entered into a lease agreement, with the plaintiff leasing to the second defendant Office 21 at 3D Centre, Strathaven Shopping Centre, 17 Browning Drive, Strathaven, Harare.

The lease remained in force until 9 April 2009 when the plaintiff's legal practitioners sent the following letter to the second defendant –

“We act for Negowac Services (Pvt) Ltd.

Our instructions are that you lease from our client the premises described above. We are also instructed that, in breach of the terms and conditions of the agreement of lease with our client, you have failed to pay rent and operating costs for March and April 2009, accumulating arrears thereby in the sum of US$510=.

As a consequence of your breach of the agreement of lease with our client, we have been instructed to cancel the said agreement and recover the leased premises together with the outstanding amount. In the circumstances, take notice that the lease agreement is hereby cancelled. Further, we demand that you vacate the leased premises, and hand over the keys at our offices, and settle the outstanding amount, no later than end of business on Tuesday 14 April 2009.

In the event that you do not vacate the premises, and make payment, as stated above, we shall issue court process to recover the premises without further notice. The resultant legal costs will be for your account.

Yours faithfully

GILL. GODLONTON & GERRANS”

The issue, as can be seen from the above letter, was non-payment of rental for the months of March and April 2009 (i.e. indicated as a total sum of US$510=)

On 14 April 2009, the respondent's legal practitioners responded to the plaintiff's letter in the following terms -

“We refer to the above matter and to your letter dated 9^th April 2009.

Our client instructs that it has not failed to pay rent. Our client advises that the real dispute is about the amount of rent to be paid per square metre. Your client wanted five United States of America dollars (USD5=) per square metre, which our client rejected as unreasonably high. It counter-offered rent payable as one United States of America dollar (USD1=) per square metre. No agreement was reached on the rent payable. Our client was surprised to see your letter when the rent payable was not agreed on.

In the circumstances, we feel that there is no basis to cancel the agreement of lease. It is the issue of rent payable which should be resolved. Our client has instructed us to tender rent calculated on the basis of one United States of America dollar (USD1=) per square metre which is twenty-seven United States of America dollars (USD27=) per month.

Yours faithfully

Mutezo & Company”

Again, as was the case in the other lease agreement with the first defendant, the second defendant, in similar fashion, also raised the issue of there being a dispute over the rent payable.

On 20 April 2009, the plaintiff's legal practitioners responded to the second defendant's letter in the following terms –

“We refer to your letter dated 14 April 2009.

It is an express term of the agreement of lease that your client was obliged to pay rent monthly, and in advance. Failure by the parties to agree on an amount with regards to rent did not absolve your client from its obligations in terms of the agreement of lease. Your client ought to have paid either the last agreed rent, or a reasonable amount, towards rent. The failure by your client to pay rent for March and April 2009 is a clear breach of the aforementioned term of the agreement of lease.

In the circumstances, please note that the lease agreement remains cancelled on the basis stated above. We therefore demand that your client relinquish vacant possession of the premises forthwith and hands over the keys at our offices no later than end of business on Wednesday 23 April 2009.

Yours faithfully

GILL, GODLONTON & GERRANS”

With the second respondent having refused to vacate the premises by 23 April 2009, on 6 May 2009, the plaintiff issued summons through this court praying for –

“(a) Confirmation of cancellation of the agreement of lease entered into between the parties for Office 21 at 3D Centre, Strathaven Shopping Centre, 17 Browning Drive, Strathaven, Harare.

(b) An order for the ejectment forthwith of the defendant together with its subtenants, assignees, invitees and all other persons claiming through it, from Office 21 at 3D Centre, Strathaven Shopping Centre, 17 Browning Drive, Strathaven, Harare.

The foregoing sets out the background to the two cases that were consolidated, and, as can be seen, the issues for determination..., are indeed similar, if not the same. The only slight difference is that default in rental payments covers different periods in each case (i.e. January to March in respect of HC2021/09 and March-April in respect of HC2022/09).

Facts that are common cause in casu are well-captured and summarised by counsel for the plaintiff in his written submissions. I cannot do better than reproduce them hereunder in full:

“1. The defendants currently occupy the plaintiff's premises situated at Strathaven Shopping Centre, Strathaven, Harare.

2. First defendant has been in occupation of the plaintiff's premises from March 2004 to date.

3. Second defendant has been in occupation of plaintiff's premises from April 2004 to date.

4. The relationship between the plaintiff and both defendants is governed by separate written lease agreements which were for an initial period of one (1) year but were automatically renewed in terms of the provisions of clause 2 therein.

5. In February 2009, the parties commenced negotiations for payment of rentals in United States Dollars following the adoption of the multi-currency system.

6. These negotiations were not concluded.

7. Plaintiff proposed rent at US$5= per sq/m and the defendants made a counter proposal of US$2= per sq/m.

8. Whilst these negotiations were still pending, the first defendant did not pay rent, at all, from January 2009 up to May 2009.

9. Likewise, second defendant failed to pay rent, at all, for March and April 2009.

10. Following defendants' failure to pay rent, plaintiff cancelled the lease agreements and caused summons to be issued against both defendants on 8^th May 2009.”

In his submissions, counsel for the plaintiff correctly submitted that the obligation, on the part of the tenant, to pay rent, is the core of the nature of a lease agreement, and, indeed, failure to do so entitles the landlord to cancel the agreement.

He then proceeded to submit that the fact that negotiations for new rentals were in process did not absolve the defendants from paying the last agreed rentals, or the amount proposed as a fair rent during the negotiations. He also said, at the very least, the defendants should have continued paying the amount they were proposing.

This submission, as the facts show, is, indeed, a confirmation of the fact that there was indeed a rent dispute.

Due to the fact that as from 31 December 2008 the plaintiff was no longer accepting payments in Zimbabwe dollars, the defendants' should have continued paying their suggested US$2= per month rather than enjoy a benefit from the plaintiff for nothing.

Added to the need to pay rent, the Commercial Premises (Rent) Regulations (S.I.676 of 1983) allow the defendants' to independently approach the Commercial Rent Board for a fair rent. The need to approach the Commercial Rent Board applied to both parties.

Instead of using the law to protect their tenancy, the defendants' chose to believe that they would remain in the premises without paying anything for as long as the rent dispute persisted.

That cannot be.

The obligation to pay remained present, and failure to do so in the manner I have indicated..., means that the defendants' were in breach of the lease agreement for non-payment of rent.

On 31 August 2006, the applicant herein concluded a lease agreement with an entity known as Calvary Family Fellowship Trust in respect of certain immovable property commonly known as Guild Hall Uniprops, Harare.

The applicant is the registered owner of the building.

The Agreement was to commence on 1 September 2006, and terminate on 31 August 2007. Some time in 2007, prior to the expiry of the lease, the applicant gave notice to the City Calvary Fellowship Trust of its intention to carry out renovations on the building in order that it, the applicant, would occupy the premises after their renovation. It seems common cause that the building is somewhat dilapidated and in need of renovations. 

Paragraph 5 of the Deed of Settlement, which the applicant seeks to have enforced through an order of this court, is framed as follows –

“5. Plaintiff, when making renovations of the church hall, shall provide defendant an office within the partitions.”

Although, in filing the application, the draft sought the eviction of the respondent from the premises, in line with his submissions that all that was sought was that the parties comply with the terms of the Deed of Settlement, counsel for the applicant sought that the draft order be amended to permit the applicant to commence renovations, and that anyone resisting be taken into custody and arrested.

Counsel for the respondent did not oppose the application to amend the draft order.

The second respondent filed a counter claim in which it sought eviction of the applicant from the premises.

Coming to the merits of the counter claim, the owner cannot be deprived of its property merely because the lessee did not give the sub-lessee adequate notice to vacate the premises. This was clearly stated in Omarshah v Karara 1996 (1) ZLR 584 (H) in the following terms:-

“If the sub-lessee cannot enforce a statutory tenancy in the circumstances of the precedents cited, then a fortiori he cannot remain in occupation of the premises in defiance of the landlord on the grounds that the sub-lessee did not give sufficient notice to quit, or has breached the sub-lease.”

This really should be the end of the matter, and the applicant must vacate the second respondent's premises.

Accordingly, it is ordered that -

1. The (main) application be and is hereby dismissed with costs on an attorney and client scale.

2. The counter claim be and is hereby granted with costs against the respondent (applicant in the main application) in favour of the applicant (second respondent in the main application) in the following terms:-

2.1 ....,.

This is an appeal against the decision of the Provincial Magistrate sitting at Harare Magistrates Court on the 30^th of July 2009. The learned magistrate granted an order terminating the lease agreement between the parties and requiring the appellant to vacate the leased premises, failing which the appellant would be evicted by the Messenger of Court.

The appellant initially noted four grounds of appeal. However, at the hearing of the appeal, counsel for the appellant abandoned two of these grounds, the first relating to the absence of any notice cancelling the lease agreement and the second to the supposed granting of leave to execute pending appeal. Consequently, the two remaining grounds for determination in this appeal are as follows -

That the court a quo erred in finding -

(i) That the lease agreement entitled the respondent to cancel the lease after the breach complained of had been rectified; and

(ii) That clause 18(c) of the Agreement entitled the respondent to accept rectification and still proceed to cancel the Agreement.

Background and Decision of Court Below

The relevant facts for the purposes of this appeal are as follows -

On the 3^rd of June 2009 the respondent's lawyers wrote to the applicant indicating that the appellant was in breach of clause 5 of the lease agreement relating to the payment and computation of monthly rentals. In particular, it was stated that the appellant had failed to pay rentals since January 2009 and that “unless we receive rentals within fourteen days our client will have no option but to terminate this lease and to eject you from the premises.”  Thereafter, on the 10^th of July 2009 the respondent wrote to the appellant confirming that “you delivered the outstanding rentals of $3,915=..., to Venturas & Samkange on the 8^th of June 2009”, and intimating that this was received without prejudice.

In her ruling on the 29^th of July 2009, the learned magistrate confined herself to the late payment of rentals and did not address the other alleged breaches referred to in the letter from the respondent's lawyers. She found that the appellant had failed to pay rentals timeoulsy. Relying on clause 18(c) of the lease agreement, she then proceeded to hold as follows -

“That breach, even though it may have been rectified, is sufficient to cause the lessor to elect to cancel the lease. The lease is hereby cancelled.”

Merits of Appeal

Before turning to the lease agreement in casu, I should note that the case authorities cited by counsel for the appellant do not provide any meaningful guidance in this matter. The cases relied upon include Masukusa v Tafa 1978 RLR 167 (AD); Agricultural Finance Corporation v Pocock 1986 (2) ZLR 229 (SC); Stracon Development (Pvt) Ltd v Gruer 1990 (1) ZLR 354 (HC); and Parkview Properties (Pvt) Ltd v Chimbwanda 1998 (1) ZLR 408 (H).

The cases are essentially concerned with the acceptance of subsequent timeous payments following previous late payments, or underpayments, of rent. They are, therefore, not directly relevant to the issues at hand.

Clause 18 of the lease agreement between the parties stipulates the remedies of the lessor in the event of any breach of the agreement by the lesse. Pursuant to any such breach, the lessor is entitled either –

“(a) To forthwith terminate the lease and eject the lessee; or

(b) Continue the lease and claim rental or remedy of any other breach; or

(c) In either event, take or enforce any other action or right for damages or otherwise arising from the lessee's breach.”

In the instant case, the appellant breached the lease agreement by not paying the rentals due for several months. However, it then remedied that breach by making payment to the respondent's lawyers, on the 8^th of June 2009, within the time limit of fourteen days given by them and in accordance with their specific instructions.

In essence, the respondent elected to proceed in terms of clause 18(b) of the Agreement by accepting the late payment of rentals and continuing with the lease.

Having regard to clause 18, taken as a whole, it is abundantly clear that clause 18(c) is confined to any other action or right, including damages,  and does not include the right to terminate the lease and evict the lessee in terms of clause 18(a).

 Again, the lessor can elect either to terminate the lease under clause 18(a) or continue with the lease under clause 18(b). On a proper construction of clause 18, the lessor cannot straddle both options, of formally demanding and accepting the late payment of rent on the one hand, and then claiming the right to terminate the lease on the other. In short, the lessor cannot purport to exercise both options in respect of the same breach.

It follows from the foregoing that the learned magistrate below erred in holding that although the respondent had rectified its breach of clause 5 of the Agreement, as was specifically required by the respondent's lawyers, that breach was sufficient to justify the cancellation of the lease agreement.

The plaintiff is the owner of certain business premises known as Sportlight Butchery and Bottle Store situate at Juru Business Centre, Chikwakwa District, Goromonzi.

The applicant and the first respondent are landlord and tenant respectively. Their relationship commenced when they concluded a written agreement in respect of certain commercial premises situate at Throgmorton House, Samora Machel Avenue, in Harare. The agreement was for a period of one year, commencing on 1 July 2006 and terminating on 30 June 2007.

The second and third defendants, as directors of the first respondent, bound themselves as co–principal debtors under the lease agreement.

In July 2009, the applicant filed this application seeking an order evicting the respondents from the rented premises. In its founding affidavit, it averred that the respondents had breached the written lease agreement by failing to pay rentals and operating costs for the premises since January 2009. The amount of arrear rentals and outstanding operating costs was also prayed for in the order.

It is pertinent, in my view, that, at this stage, before I detail the opposition that was filed by the respondents, I comment on the manner in which the applicant proceeded to frame its cause of action against the respondents.

The applicant has alleged that the respondents are in breach of the written lease agreement of 2006.

It is common cause that the written lease agreement between the parties terminated by the effluxion of time in June 2007. As at the time of the filing of the application, it was no longer binding upon the parties and could thus not found a cause of action for the applicant.

Its terms and conditions may have continued to afford the respondents protection against eviction under the operation of the provisions of the Commercial Rent Regulations S.I. 276/83(“the Regulations”), under what is commonly referred to as statutory tenancy.

This is however not part of the averments made by the applicant in its founding affidavit.

In my view, statutory tenancy is not an issue that the court should take judicial notice of mero motu. It must be specifically pleaded as it brings into play different considerations regarding the respective rights of the parties. It is a separate cause of action, apart from the terminated lease agreement.

I shall avert to the provisions of the Commercial Rent Regulations S.I.276 of 1983 (“the Regulations”) in detail below.

At this stage, the point I am making is that the applicant could not validly seek to rely on an agreement that had terminated without first laying a legal basis for its revival so to say. As I shall show later, this may have fatally compromised the applicant's quest to recover its property from the tenant.

In opposing the application, the respondents argued, that, the written agreement between the parties provided for payment of rent in local currency, and, when that currency lost favour with traders and generally, the applicant sought to impose a rental in United States currency with the parties failing to reach agreement on the amount payable.

Again, I pause to make the point, that, the respondents were clearly relying on the protection against eviction afforded them by the Commercial Rent Regulations but did not specifically raise that defence in their papers.

In moving for the granting of the order sought in the draft, the applicant urged me to find that the parties had a written lease agreement, that, in terms of that lease agreement, the first respondent was obliged to pay rentals and operating costs monthly and in advance and that in breach of that agreement, the first respondent failed to pay any rent or operating costs from January 2009 to the date of the filing of the application.

As indicated above, the applicant's argument is flawed in one or two respects and does not flow from the facts that are common cause:

(i) Firstly, the written lease agreement terminated in July 2007. As from that date, the first respondent became a statutory tenant and the expired lease agreement can no longer found a cause of action between the parties.

The first respondent, in my view, can now only be competently evicted in terms of the provisions of the Rent Regulations.

It is common cause that the applicant is not proceeding in terms of the Rent Regulations, but is proceeding ex contractu, alleging breach of the written agreement.

(ii) Secondly, and assuming that the written lease agreement between the parties is still subsisting, then, in that event, the first respondent's obligation is to pay rentals monthly in advance in local currency. The obligation to pay rentals monthly in advance must have been imposed by some other agreement which has not been pleaded.

The applicant has urged me to find that the agreement to levy rentals in foreign currency, and in the sum of US$700 per month, was reached between the parties at a meeting that was held on 12 May 2009.

I cannot agree.

It is common cause, that, on 8 May 2009, the applicant addressed a letter of demand to the first respondent, claiming payment of the sum of US$4,497=75 as arrear rentals and the sum of US$1,772=81 as unpaid operating costs.

The parties met on 12 May 2009 to discuss the demand.

On the same day of the meeting, the first respondent responded to the letter of demand in writing, acknowledging the letter of demand and advising that at the meeting held with the applicant's representatives, it had been agreed that the first respondent would pay one thousand dollars towards the arrear rentals and the balance over two or three weeks.

It is worth noting that the meeting of 12 May 2009 was in response to the applicant's letter of demand. By then, the amount of the arrear rentals had already been calculated. In other words, the breach had already occurred.

It appears to me, that, by January 2009 the parties had not yet agreed on the rental payable for the premises.

As detailed above, the applicant seeks to rely on the alleged agreement concluded on 12 May 2009 - some five months after the alleged breach.

If the parties had agreed to the rentals in January 2009, why would they need to meet over the same issue in May?

Similarly, if the parties had not reached agreement on the rentals in January 2009, on what basis can they be held to have breached the contract before the parties had reached agreement on it?

These are questions that will go begging for an answer, as, in my view, the applicant has placed its cart before the horse. It has proved the breach before proving the agreement breached!

Assuming that I have erred in concluding that the applicant has placed its cart before the horse and that by application of some other legal principle, not argued before me, the applicant could prove that the agreement reached on 12 May 2009 could apply retrospectively, then, the denial of the agreement by the respondent would raise a material dispute incapable of resolution on the basis of the papers filed of record.

I have considered whether I can convert the proceedings before me into an action by referring the matter to trial.

In view of the reservations that I have regarding the cause of action that the applicant has pleaded in this matter, I am of the view that such exercise of discretion will not have the effect of saving to expedite the resolution of this matter or of saving costs.

Before I dispose of this matter, it is important, in my view, that I remark on the submissions made on behalf of the respondents.

They have argued, that, the first respondent is a statutory tenant and is protected against eviction. In this regard, they have relied on the provisions of section 22(2) of the Commercial Rent Regulations S.I.276 of 1983 (“the Regulations”) which provide as follows:

“(2) No order for the recovery of possession of commercial premises or for the ejectment of a lessee therefrom 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.”

While the section specifically limits the right of landlords to recover their properties where leases have terminated by expiration for the reason given in the Commercial Rent Regulations S.I.276 of 1983 (the Regulations), it simultaneously creates the right in favour of the tenant to remain in occupation of the leased premises provided the tenant pays the rent that is due in terms of the lease within seven days of the due date and performs all the other conditions of the lease.

The provisions of the section seek to protect the genuine tenant, who is not in breach of any of the terms of the lease agreement, from being at the mercy of a landlord who may wish to let out the premises to another tenant.

The issue that exercises my mind in this application is whether the statutory tenancy remains viable where the rentals payable were fixed in local currency, in view of the lack of value now attaching to that currency.

It is trite that for a statutory tenancy to be created and thus earn protection, the tenant has to continue to pay the rent due within seven days of due date and perform the other conditions of the lease.

The practical difficulty that arises is that where the tenant's obligation is to pay in local currency, how does such a tenant remain protected when the rentals are neither payable nor constitute a valuable exchange for the right to use the landlord's tenant?

While it is not necessary for me to make a specific finding on this issue, I would venture to suggest, that, in circumstances similar to the facts before me, where the obligation in terms of the written agreement of sale was in local currency, the protection afforded by the statutory instrument, S.I.276 of 1983, becomes doubtful or of limited value as payments for rentals in local currency are ludicrous, and may, in some instances, be impossible to effect.

Finally, I wish to refer to the case of Negowac Services (Private) Limited v 3D Holdings (Private) Limited and Others HH144-09 in which MTSHIYA J was faced with facts similar to the ones before me.

In that case, in upholding the landlord's right to evict the tenant, the learned judge was of the view, that, the obligation of the tenant to continue paying rent on due date imposed by the Commercial Rent Regulations S.I.276 of 1983 (the Regulations), in turn, imposes an obligation on statutory tenants to pay “reasonable rentals” in respect of the property leased where the parties fail to reach agreement on the amount of rentals payable.

Counsel for the applicant urged me to follow the decision in that case.

Again, it is not necessary, in my view, that I distinguish this case from the application before me. It is my finding above that the applicant has not pleaded statutory tenancy as its cause of action. It has instead alleged breach of a specific written agreement and I have disposed of the matter on that basis.

Had the applicant approached the court on an action in rem, seeking to recover its property from the tenant on the basis that the parties had failed to reach agreement on a material term of the lease, I would have found the reasoning by MTSHIYA J very attractive in the general sense that the sine qua non for enjoying the use of the property of another is the payment of rent and one cannot hope to have that enjoyment for nothing.

In the absence of proof of payment of anything, a tenant would have no defence, in my view, to resist the enforcement of the right of an owner to recover their property. As PATEL J observes, a tenant is not entitled to withhold rentals except in a few and very limited instances: see Parkside Holdings (Private) Limited v Londoner Sports Bar HH66-05.

As I indicated above, the applicant has approached court alleging breach of a specific term of the lease agreement. It is my finding that the averred lease agreement is no longer binding on the parties, and, even if it were, it cast an obligation upon the first respondent in a currency that is now redundant.

On the basis of the foregoing, it is my view, that, the applicant has pleaded a cause of action that is not competent and cannot therefore succeed.

In the result, I make the following order:

1. The application is dismissed.

2. The applicant shall pay the respondents' costs.

For the relief sought to be properly appreciated, it will be necessary to give brief background information to this application.

On 30 January 2007 the applicant and the first respondent entered into a lease agreement in respect of the first respondents' premises namely Stand 24A Chadcombe, Harare...,. The lease agreement expires on 14 April 2012 and is, subject to agreement, renewable for three further periods of five years each.

On 3 June 2009 the first respondent alleged that the applicant had failed to pay rent since January 2009 and was, therefore, in breach of clause 5 of the lease agreement. On 30 July 2009 the first respondent then obtained an order from the Provincial Magistrates Court, Harare for the eviction of the applicant. The applicant appealed to this court against its eviction. On 9 March, 2010 this court set aside the eviction order of the lower court.

The first respondent alleges that after successfully evicting the applicant from the premises it entered into a new lease agreement with the second respondent who then took occupation of the premises in December 2009. The applicant, however, disputes the details surrounding the new arrangements, particularly the date of occupation.

On 10 March 2010 the respondent filed an appeal in the Supreme Court against the order of this court, which order set aside the lower court's decision. However, when this court set aside the decision of the lower court, the applicant had already been evicted from the premises. On 24 August 2009 this court had already dismissed the applicant's application for stay of execution. Thus, the appeal now pending in the Supreme Court was filed after the eviction of the applicant from the premises and hence the request in this application for the court to order that the premises “be given to the applicant unless and until the Supreme Court orders otherwise.”

This application..., is for this court to order the first respondent “to give the premises” to the applicant unless and until the Supreme Court orders otherwise.

The plaintiff seeks, inter alia, an order ejecting the defendant from 120 Harare Drive, Marlborough, Harare…, 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 -

1. Whether the plaintiff has the capacity to institute this action against the defendant.

2. Whether the defendant has a right of first refusal in the event that the property is sold.

3. 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…, 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 of 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….,[Exhibit 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 [Exhibit 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.

Relevant Provisions of Lease Agreement

On 8 January 2010, the applicant filed this application seeking the following relief:

“It is ordered that:

1. The cancellation of the Lease Agreement between the parties be and is hereby confirmed.

2. The first respondent and all those claiming occupation of the property, being No. 74 Douglas Road, Workington, Harare through it be and are hereby ordered to vacate the property forthwith failing which the Deputy Sheriff be and is hereby authorized to evict them at their expense.

3. That the respondents pay arrear rentals in the combined sum of US$4,418= jointly and severally the one paying the other to be absolved.

4. The respondents pay to the applicant, as holding over damages, the sum of US$741=75 per month with effect from 1 January 2010 to the date the respondent vacates the property or is evicted whichever is sooner.

5. The respondents pay the costs of suit on an attorney and client's scale including any collection commission that may be levied in terms of the Law Society of Zimbabwe Regulations.”

The applicant is the owner of a property known as Eastern Factory situated on Stand No. 3875 Salisbury Township, also known as No. 74 Douglas Road, Workington, Harare. On 1 June 2009, the applicant and the first respondent entered into a one year lease agreement in respect of the property. The lease agreement was due to terminate on 31 May 2010. The first respondent agreed to a monthly rental of US$645=. However, prior to the lease agreement of 1 June 2009, the first respondent was already a statutory tenant paying a rental of US$1,125=. The reduction in rent was due to the fact that a former subtenant had entered into a direct and separate lease agreement with the first respondent.

On 20 October 2009, following failure by the first respondent to pay the agreed rent for the property, the applicant cancelled the lease agreement. In cancelling the lease agreement, the estate agent managing the property on behalf of the applicant, wrote to the first respondent in the following terms:

“We note from our records that you owe the sum of $4,418= unpaid rent.

We regret to advise that as you are in breach of your Lease, the agreement is terminated forthwith. Legal proceedings are now being instituted against you for your eviction from the above premises and for the recovery of the outstanding balance plus costs.

You can, however, rectify the situation by making the following payments in full by 12 noon on Friday, 23^rd October 2009:-

Balance due                                          4,418=

Penalty                                                    442=

                                                           $4,860=”

Part of the arrears reflected in the above letter (i.e. US$3,431=20) had accumulated prior to 1 June 2009.

The rental arrears accumulated prior to the lease agreement are still outstanding and the first respondent is still in occupation of the property. Through this application, the applicant now seeks payment of arrears, holding over damages, confirmation of the lease agreement and eviction of the first respondent.

Prior to the commencement of the hearing of this matter, the first respondent had maintained that it was up to date with the payment of its rentals. However, when the hearing commenced counsel for the respondents conceded that, contrary to the terms of the lease agreement, some payments were made late. He said although some payments were made late cancellation without notice was not proper. He said cancellation would have been proper if, upon notice, the first respondent had failed to rectify the question of arrears. That was not the case in casu.

In his main submissions, counsel for the applicant stated that due to late payments the right to cancel the lease agreement was properly exercised. To support his submission he referred to clause 19(a)(1) of the lease agreement which provides as follows:

“In the event of the rent being in arrear whether the same shall have been legally demanded or not, or”

(it appears this clause was incomplete - and accordingly nothing turns on it).

Counsel for the applicant agreed that a late payment was made on 27 October 2010. He said the applicant would have had a different view if payment had been effected on 23 October 2010. He therefore insisted that cancellation of the lease agreement was properly made and therefore the applicant was entitled to the relief it sought as amended.

Counsel for the respondents submitted that in making a late payment on 27 October 2010 the first respondent had met its obligation under the lease agreement and the applicant was therefore not entitled to cancel the agreement. The applicant, he argued, had failed to give notice asking the first respondent to rectify the position within seven (7) days. He therefore applied for the dismissal of the application with costs.

I shall now deal with the question of whether or not the first respondent was in breach of the lease agreement entitling the applicant to the relief it seeks.

Clause 3 of the lease agreement provides as follows:

“The rent in respect of the leased premises shall be sum of US$645= from 1^st June, 2009, such rentals subject to review after six months, in line with ruling market rates. Such rental being payable monthly in advance without demand and without any deductions whatsoever on the first day of each and every month at the offices of the Lessor's agent in Harare or at such other address as the agent or lessor may from time to time in writing direct. Any cheques that are returned by the bank endorsed refer to drawer will attract a penalty fee charged by the appropriate bank at the time of deposit.”

In addition to the above, clause 29 of the additional conditions attached to the lease agreement also provides as follows:

“The lessee shall ensure that all accounts have been paid before the end of each month, failure of which any future payments will be allocated to arrears first before crediting the current respective account.”

If the above clauses are carefully read together the result would be that the payment that was made by the first respondent on 27 October 2010 was allocated to arrears. However, the applicant conceded that the lease agreement of 1 June 2009 had nothing to do with the arrears accumulated during the period when the respondent was a statutory tenant. The applicant then correctly proceeded to remove the arrears from the relief it seeks.

The Annual General Ledger, attached to the applicant's founding affidavit as Annexure TM3, shows that as from 1 July 2009 to 1 December 2010, the first respondent made six payments in accordance with the lease agreement of 1 June 2009. This application was filed on 8 January 2010 and there is no indication of the exact amount that was outstanding as at 20 October 2009 when the letter of cancellation was written. It is therefore not surprising that in its opposing affidavit the first respondents states as follows:-

“The first respondent disputes accumulating arrears in the sum of US$4,418=. The receipts issued by applicant's agent viz Robert Root between 1 June 2009 to January 2010 are attached hereto as annexure “A1” to “A3” indicating a total payment of US$5,592= hence the claim is totally without merit.”

Indeed, there is evidence that the first respondent effected payment on 5 January 2010 before the application was filed. This would mean that at the time this application was filed the first respondent was already up to date with rental payments. Clearly, therefore, the application was filed on the basis of arrears indicated in the cancellation letter. Those arrears had nothing to do with the present lease agreement. The issue of notice did not therefore arise because the first respondent was not in default.

The foregoing indicates that there is no cause of action on which this application is based. Accordingly, the respondents have a valid defence and the application cannot succeed. I therefore order as follows:

The application be and is hereby dismissed with costs.

The applicant is the registered owner of a warehouse situate at Tobacco Sales Floor Complex, Gleneagles Road, Harare. The applicant carries on business at the said premises as a tobacco auction floor. On 11 July 2007, the applicant concluded a written agreement with the respondent in terms of which the latter leased from the applicant a portion of the warehouse; to wit an area of 1241.91 square metres. The lease was to endure for a period of three years, commencing on 1 June 2007 and terminating on 31 May 2010.

On 14 December 2009, the applicant addressed a letter to the respondent and informed it that it would not be renewing the lease as the premises were required by the applicant for its own use. A further letter was written to the respondent on 29 April 2010 again reiterating its position that it intended to use the area occupied by the respondent and that consequently the lease would not be renewed at the expiry of the lease period. The applicant contends that it intends to use the premises for its expansion program and that this constitutes good and sufficient grounds for this court to grant an order for the ejectment of the respondent from the premises it is occupying.

The respondent denies that the applicant is entitled to an order for its eviction on several grounds. Firstly, it argues that the lease agreement was verbally extended when the applicant accepted payment for rent for the month of June 2010. The respondent also contends that during the currency of the written lease agreement a pattern of behaviour had emerged on the part of the applicant, where each time the applicant considered that there were arrear rentals, the applicant would send a written notice to the respondent requiring it to vacate the premises on the basis of the alleged arrears. Hence, upon receiving the two notices of December 2009 and April 2010 it made the decision that it would not vacate the leased premises. Secondly, the respondent avers that the applicant's former Managing Director had advised it to ignore the notice to vacate and, consequently, based on that advice, a decision was made to ignore the notice. The respondent also considers that the reason why the applicant seeks its eviction is because the parties had initially negotiated to set up a partnership in the respondent's business. This fell through and it is the belief of the respondent that this is the motive for the applicant to actively seek the eviction of the respondent from the premises. The respondent therefore doubts that the applicant is acting in good faith…,.

I turn now to the merits of the application.

The plaintiff and the defendant entered into a verbal lease agreement and pursuant to that lease agreement the plaintiff has sought the eviction of the defendant on the ground that the defendant is in breach of that lease agreement having failed to pay rentals as agreed by the parties.

It was the plaintiff's position that it terminated the lease agreement on 17 December 2009 but the defendant refused to give vacant possession of the leased property hence the instant proceedings….,.

At the pre-trial conference conducted on 27 July 2009, the following issues were referred to trial:

“1.1. Whether or not defendant has paid rent due to plaintiff's for the period from the 1^st of May 2008 to date.

1.2. Is defendant entitled to remain in occupation of the plaintiff's property by reason of a lien thereupon?

1.3.1 What improvements, if any, did the defendant effect to the plaintiff's property?

1.3.2. If so, were these authorised by the plaintiff?

1.3.3. Were the improvements, in any event, approved by the Harare Municipality?

1.3.4. The value of such improvements.

1.3.5. Is defendant entitled to compensation in respect of these improvements?”…,.

The onus and duty to begin was thrust upon the defendant on all the agreed issues….,.

IS THE PLAINTIFF OWED ARREARS RENTALS?

The defendant's representative's uncontroverted evidence was that the defendant's rentals were paid up to February 2009 and that it paid nothing after that date. It goes without saying that the defendant did not pay any rentals from March 2009 to date.

The question that has exercised my mind is: “How much rentals was defendant supposed to pay from March 2009?

The defendant's position was that it was never advised how much rentals were supposed to be paid. This position is understandable given the plaintiff's mistaken position that the defendant was in default when, in fact, the defendant had paid rentals up to February 2009. The thrust appeared to have been on evicting the defendant and there was nothing in the form of evidence showing that the defendant was asked to pay US$850= in form of rentals from the agreed cut-off date of March 2009.

It is even more confusing if one considers that the Valuation Report (exhibit 14) was only compiled in June 2009…..,.

In his closing submissions on the issue of holding over damages, counsel for the plaintiff argued that the court must accept that the figure of US$850= is reasonable as monthly rentals. The question that comes to my mind is “from which period should that figure be computed?” Could one say these rentals were from March 2009 or from June 2009 when the valuation was allegedly computed?

Commenting on holding over damages, the defendant's representative's position was that whatever rentals his company has to pay must take into account the fact that the plaintiff itself is using part of the leased property to store its office furniture and stationery. This position was confirmed by one of the key witnesses for the plaintiff, Sharon Samushonga, who said she was keeping some keys to one of the rooms which form part of the leased property. The bottom line is there is no agreement between the parties on the monthly rentals. Issues of rentals must be easily ascertainable and the exact amount of rentals due to the plaintiff must never be a subject of conjecture and speculation.

As highlighted earlier on, there is not the slightest indication as to when the defendant was required to have paid any agreed rentals as between the parties.

There is yet another dimension to this case.

If one accepts that the original amount for rentals was Z$20 trillion per month which was subsequently amended to US$850= per month would it not have been prudent for the plaintiff to lead evidence to try and explain the amendment? As it stands, there was no evidence tabled in this court to show how the amendment came about. If it is true that the conversion of Z$20 trillion to US$ is US$850=, then there is a yawning gap in the plaintiff's case to explain how this conversion came about. Figures cannot just be slotted from the air. There must be a basis upon which the amendment was made. Whilst the court acknowledges that there are holding over damages, the court is not able to ascertain the exact figure. This is because of the poor manner in which the evidence has been presented in this case….,.

Consequently, I order as follows:-

1. The cancellation of the lease agreement between the defendant and the plaintiff is hereby confirmed.

2. The defendant is to vacate the leased premises before close of business on 14 July 2011 failing which the Deputy Sheriff shall be instructed to carry out the eviction.

3. The defendant shall pay the costs relating to his eviction on the ordinary scale.

4. Absolution from the instance is granted in favour of the defendant as regards the claim for holding over damages.

This is a civil trial. On the 23^rd of March 2010, plaintiff issued out summons against defendant wherein it claimed the following:

''a) An order confirming the cancellation of the agreement of lease between Plaintiff and Defendant jointly or individually on account of failure to pay rent and operating costs at all or within 7 days of due date.

b) An order that the Defendant and all those claiming through it vacate Stand Number 44 Lobengula Street, Bulawayo.

c) If the Defendant does not vacate within 48 hours of service of this order, the Deputy Sheriff, Bulawayo be and is hereby allowed to evict the Defendant and all those claiming through it.

d) An order that the Defendant pays a sum of ZAR75,000= being the rental due as at 28 February 2010.

e) An order for payment of hold over damages at ZAR11,000= per month or ZAR366=60 per day from 1 March 2010 to date of eviction.

This is an urgent chamber application whose relief is as follows:

“Terms of Final Order

That you show cause to this Honourable Court why a final Order should not be made in the following terms:

IT AND IS HEREBY ORDERED THAT:

1) The Deputy Sheriff is herby directed and authorised to remove such of the respondents and any persons claiming through any of the respondents, together with their goods and properties as may remain on the premises by or after the 1^st April 2011, from the property known as VICTORIA HOUSE, OR VICTORIA FLATS, 103 HEBERT CHITEPO STREET, BULAWAYO.

2) The Deputy Sheriff be and is hereby authorised and directed to; thereafter; lock and secure the property against re-entry or re-occupation by taking such measures as she deems necessary.

3) The Respondents shall, jointly and severally, the one paying, the others to be absolved, pay the costs of this Application.

INTERIM RELIEF GRANTED

Pending the determination of this matter, the Applicant be and is hereby granted the following relief:

a. IT IS DECLARED that the Applicant has the right to remove the Respondents and all persons claiming through them from the property known as VICTORIA HOUSE, OR VICTORIA FLATS, 103 HEBERT CHITEPO STREET, BULAWAYO at the expiry of the notice to vacate.

b. IT IS ORDERED THAT the respondents and all persons claiming through them, together with their goods and properties, shall vacate Victoria House by 31 March 2011.”

The applicant was represented by Dipti Jateen Madhoo. It is a duly registered company which owns an immovable property known as Stand Number 1053 Bulawayo Township otherwise known as Victoria House or Victoria Flats, 103 Hebert Chitepo Street, Bulawayo. The applicant purchased the property from Guelder Rose Investments (Pvt) Ltd. Upon transfer to itself there were tenants in occupation of the property of which either all, or some, of them are still tenants to date. However, from the list provided by CB Richard Ellis, who are the Estate Agents, and has always been managing the property, it is clear that there are some tenants who are not recognised tenants. It therefore appears that this property does not have clearly recognised tenants, in other words, tenants or occupants do as they please.

It is the applicant's argument that although there is no written lease agreement it was an implied term that tenants should pay rentals, operational costs comprising of rates , garbage removal and other levies which they have not been paying and as such they owe a total of $25,165.=69 in operational costs. In addition thereto, they are in arrear rentals and as such they are in breach of their terms and conditions of their lease agreements.

It was the applicant's further argument that the property is in a dilapidated state which resulted in its condemnation by the Bulawayo City Council. To that end, the Bulawayo City Council wrote a letter in the following manner:

“City Of Bulawayo

Ref: BC/44

29 September 2008

Victoria House

No. 101 Hebert Chitepo Street.

Stand No. 1052 BT

BULAWAYO

Dear Sir/Madam

RE: UNSIGHTLY/DILAPIDATED AND DANGEROUS BUILDINGS

A recent inspection on the above-mentioned Stand revealed a contravention of the Model Building By-Laws of 1977, Chapter 2, Section 48a and 49.

The above-mentioned premises are now a danger to the health of persons occupying or using the building, source of unpleasant odours, disfigurement to the neighbourhood and offensive or embarrassing to the people living or working on the premises or in the neighbourhood.

You are therefore advised to make a major facelift to the property, or demolish the structure within 21 days of the date of this letter.

Failure to comply will result in Council entering upon the premises and taking the necessary action and charge you the costs thereof. This is in terms of Chapter 21 Section 56 of the Model Building By-Laws.

Yours faithfully

(Signed)

DIRECTOR OF HOUSING

AND COMMUNITY SERVICE

c.c Acting Town Clerk

Chamber Secretary

A/Director of Health Services

A/Principal Building officer”…,.

The applicant notified the respondents of its desire to repossess the property in order to effect repairs, but, the respondents ignored, neglected or refused which resulted in a meeting between the parties aimed at resolving this impasse….,.

The respondents, on the other hand, have argued that the matter is;

1) Not properly before the courts because the deponent to the founding affidavit is not authorised to do so as the names are different;

2) That they were not given proper notice to vacate;

3) There is no urgency in the matter as the Bulawayo City Council's letter dates back to 2008;

4) They have been paying rent, not through CB Richard Ellis, but to Khoza consultants;

5) That they had the right of first refusal; and

6) Applicant sought their eviction by application instead of an action.

I propose to examine these issues in seriatim….,.

(2) REASONABLE NOTICE TO VACATE

On the 30 November 2010, the applicant, through its legal practitioners of record, notified all the respondents to vacate the property at the end of February 2011 as developmental work was due to commence on the 1^st of March 2010. On the 17^th December 2010, the respondents advised the applicant by letter that they were not going to vacate the premises on the basis that they had a right of first refusal on the property. Despite the fact that they did not agree with the applicant's attempt to repossess the property, that, on its own, is not a reason enough to nullify the said notice. In fact, the respondents responded to the notice in time thereby attending to a meeting where one Roy Sibanda attended and turned out to be abusive of the applicants' legal practitioners. Suffice to say that his abusive behaviour did not help the respondents, but, if anything, further alienated then from the applicant's attempt to conduct a civilized meeting.

It is further the respondents' argument that the notices to vacate were defective as they did not disclose the particulars of the landlord.

This argument lacks merit as the respondnets have always known that there is a landlord hence their reference to a lease agreement, which agreement cannot exist in the absence of another party - in this instance a landlord.

This argument therefore falls on its face and is not worth pursuing….,.

(4) RENTALS

It is the applicant's assertions that the respondents have not been paying rentals to CB Richard Ellis, who are the appointed estate agents. But, the respondents have argued that they have been paying rent to Khoza Consulatants.

The applicant has submitted proof from CB Richard Ellis which shows that the respondents have not been paying rent and other operational costs.

On 30 September 2010, the applicant, through its legal practitioners, addressed a letter to “Mambiro Fibre” which reads, in part, as follows:

“RE: 3 MONTHS NOTICE TO VACATE WAREHOUSE NO. 9 WELLBECK ROAD THRONGROVE, BULAWAYO.

We refer to the above matter and advise that we represent our client Trots Investments (Pty) (sic) Ltd.

Our client informs us that you are the tenants at its premises at the above address and currently in occupation of the said premises. We advise that our client is in need of its premises for its personal use to house its Earth Moving Equipment. In terms of the rent regulation (sic) you are accorded (60) sixty days notice from 1^st of October 2010 to vacate the said premises for our client's personal use and thus you must vacate before midday on 31 December 2010.

We hope you will find the above in order.

Yours faithfully

(Signed)

CHEDA AND PARTNERS”

That letter obviously has its problems in that although the heading gives 3 months notice to vacate, the body of the letter gives 60 days notice. As if that was not enough, there is also a contradiction in that if the 60 days were to run from 1 October 2010 it would expire on 29 November 2010 and not 31 December 2010.

Assuming there was a typing error and that 60 days was meant to read “90 days”, as counsel for the applicant would like us to believe, the notice period would run from the date the letter was served on the recipient. It is not clear when the said letter was served because Mr Samuel Mambiro, who occupies the premises in question, says the letter was received in the third week of October 2010. If that is the case, and the applicant did not dispute it, the 3 months notice would certainly not expire on 31 December 2010 but much later than that.

The applicant is the lessor of premises known as Rear Room, Chesterton House, 42 Sam Nujoma Street, Harare. On 31 August 2009, through its agents CB Richard Ellis, it entered into a written lease agreement in respect of the premises with the first respondent. The first respondent was represented by its Director, the second respondent, as surety and co-principal debtor. The period of the lease was to run for two years from 1 February, 2009 to 31 January 2011. The basic rent was pegged at US$150= per month from 1 February 2009 to 30 June 2009 and was subject to review on subsequent review dates.

The applicant contends that the respondents have breached the lease agreement by failing to pay rent as agreed upon hence this application for, inter alia-

1. An order to confirm the cancellation of the lease agreement;

2. An order for the ejectment forthwith of the first respondent together with its sub-tenants, assignees, invitees and any other persons claiming rights of occupation through the first respondent from the leased premises; and

3. An order compelling the respondents jointly and severally, one paying the other to be absolved, to pay the applicant US$1,813=04 being arrear rentals accrued by the first respondent from February 2009 to date.

The respondents' opposition to the application is premised on four main planks. They are these-

1. The amount of arrear rentals quoted of US$1,813=04 is incorrect because annexure 'B' (Tenant Transactions – January 2009 – December, 2009) “shows that we made payments on 22 May 2009, 15 July 2009, 28 August 2009 and 30 September 2009.”

2. “The balance of the alleged arrears should be set off against an amount of US$4,291= which we spent on renovations and refurbishments of the premises and which costs should have been paid by the applicant.”

3. The cancellation of the lease agreement is invalid for want of compliance with clause 20.1.2. of the lease agreement which provides that failure to rectify breach within 14 days of written notice  having been given by the landlord to the tenant, the landlord may then cancel the lease. In casu, after the alleged failure to pay rent on time, the first to come was annexure 'C' – the letter of cancellation of the lease. No written notice was ever given to rectify breach within 14 days. In the event the cancellation was invalid so the lease agreement remains binding till properly cancelled;

4. The matter cannot be resolved on the papers in view of the material disputes of facts regarding whether or not the repairs done by the respondents were authorised by the applicant's agents. A trial is required to hear evidence on whether or not Mujati, who authorised the repairs, had no such authority.

I will proceed to deal with these defences in their chronological order.

1. WHETHER THE ARREAR RENTALS OF US$1,813=04 ARE CORRECT IN VIEW OF THE PAYMENTS ALLEGEDLY MADE

The accuracy or otherwise of the arrear rentals quoted is neither here nor there. What is relevant and material is whether the first respondent incurred arrears in rentals. If he did, this would constitute breach of the lease in terms of clause 20.1.1 as read with 20.1.3. of the lease agreement…,. Clause 20 reads as follows -

“20. BREACH OF LEASE

20.1 In the event of:

20.1.1 Non–payment of rent or any portion thereof on due date; or

20.1.2 ...,.; or

20.1.3 ...,.; the landlord shall have the right to cancel this lease and obtain possession of the leased premises and the contents thereof provided that such action by the landlord shall not prejudice any claim that the landlord may have against the Tenant for rent already due or for damages or breach of contract or otherwise.”

A perusal of Annexure 'B', which is the tenant transactions pertaining to the first respondent for the period January 2009 to December 2009, clearly shows that the first respondent only made four payments during that period as follows -

22 May 2009                 $172=50

15 July 2009                  $  30=

28 August 2009             $150=

30 September 2009       $100=

All these payments were deducted from the balances brought forward leaving a balance carried forward of $1,813=04.

In view of the foregoing, it goes without quarrel that the first respondent did breach clause 20.1.1 as read with clause 20.1.3 of the lease agreement. In fact, the papers show that the respondents never disputed this breach. Annexure 'C' is a letter written by the applicant's legal practitioners on 7 December 2009 addressed to the second respondent. In the letter, both the breach and the amount of the arrears, inter alia, were brought to the second respondent's attention. In his response, dated the same date, the second respondent, in paragraph 2 of his letter, clearly admitted being in arrears. He wrote -

“2. Payment Plan for Outstanding Rental and Operating Costs (02/06/2009):

The plaintiff issued summons out of this court on 8 September 2009. It sought an order confirming the cancellation of the lease agreement it had with the defendant, the eviction of the defendant and all those claiming occupation through it, arrear rentals, holding over damages, interest and costs of suit. The summons was served on the defendant on 9 September 2009. The defendant entered appearance on 11 September and filed its plea on 30 October 2009.

The relationship between the parties was tumultuous as demonstrated by the action brought by the plaintiff against the defendant in this court in case number HC3214/07. The plaintiff withdrew that action on 9 January 2009. On 15 January 2009 the defendant's former legal practitioners, Chikumbirike and Associates, wrote to the plaintiff's erstwhile legal practitioners acknowledging receipt of the notice of withdrawal and sought the plaintiff's input and comment on four proposals it wished included in a written lease agreement. The defendant proposed a five-year lease with an option to renew, the inclusion in the lease of the parking space allocated to the defendant, the inclusion in the lease of the informal pro rata sharing of utility charges and the exploration of the policy of the plaintiff of leasing the whole premises to a single lessee as opposed to two lessees as prevailed at the premises. The currency which underpinned the lease relationship between the parties was the local currency. The introduction of the multi-currency system of payments in Zimbabwe in February 2009 adversely affected the currency of account between the parties. The plaintiff desired payment of rentals in a functionary currency while the defendant attempted to use the new currency regime as a springboard for renegotiating the terms of lease.

The meetings arranged between the parties failed to take place.

The defendant did not pay any rentals from February 2009 until 28 July 2009 when the plaintiff cancelled the lease agreement. The cancellation stampeded the defendant into making frantic efforts to save the lease by offering to pay the outstanding rentals. It was common cause that the defendant has remained firmly in situ and has not paid any rentals to date.

At the pre-trial conference that was held on 5 July 2010 the following two issues were referred to trial-

1. Whether or not the defendant breached the lease agreement by not paying rent from February 2009 to date.

2. If the breach is established, whether the plaintiff is entitled to an order for ejectment and the payment of arrear rentals and holding over damages.

The plaintiff issued summons against the defendant out of this court on 17 March 2010 seeking an order confirming the cancellation of the agreement of lease between the parties.

It also sought payment of arrear rentals from December 2008 to February 2010 of US$58,021=94 together with interest thereon at the prescribed rate calculated from 1 March 2010 to the date of payment in full; payment of holding over damages of US$7,100= per month calculated from 1 March 2010 to the date of the defendant's ejectment together with interest from the due date to the date of payment; the eviction of the defendant and any party claiming occupation through it; and costs of suit….,.

Counsel for the plaintiff also conceded that arrear rentals were claimed for the period of four months that the defendant remained in occupation after the lease had been cancelled. The effect of these concessions was that the plaintiff sought judgment in the sum of (US$43,821=94 + US$28,400=)   US$72, 221=94 together with interest at the prescribed rate from 1 March 2010.

The defendant, who had the duty to begin, called the evidence of three witnesses. These were its Managing Director, Dr Neil Robin Deacon, a Chartered Structural Engineer of over 40 years' experience; Duncan Hugh Cocksedge; and its Maintenance Manager, Alfred Chitambo. It produced a bundle of documents….,. In addition the 25 originals of the photographs taken by Goodlaw Tafara Taruona on 28 January 2010…, were produced by consent…,as was the original Pharmaceutical Batch Book….,., The plaintiff called the evidence of the General Manager of its estate agent, Southgate and Bancroft, Meeting Gomba, and produced a bundle of documents….,., The main document…, was the lease agreement.

The issues that were referred to trial were:

1.1 Whether or not the plaintiff breached the terms and conditions of the lease agreement.

1.2 If it breached them whether or not the defendant suffered damages as a result of such breach.

1.3 The quantum of such damages.

The applicant herein is the registered owner of an immovable property located at 40 Josiah Tongogara Avenue, Harare. On 28 September 2004, in terms of a written agreement, the applicant let the premises to the first respondent for a period of one year with effect from 1 September 2004 to 31 August 2005. Certain differences have arisen between the parties and the applicant has approached this court, on motion, for an order for the eviction of the first respondent and all those claiming through it from the premises.

The authorities are agreed that a landlord who does not wish for a tacit relocation of the premises may protect himself by giving notice to the tenant at any time before the end of the fixed period. The situation postulated in the case of Tiopaizi v Bulawayo Municipality 1923 AD 317 is illustrative of the principles governing a periodic lease, one that runs from week to week, month to month or year to year. Notice of termination is required for a period lease, which is usually related to the period of the lease, but where a yearly periodic lease is concerned, notice of a year is not required and three months is usually sufficient.

The facts giving rise to these proceedings can be summarised thus. The applicants are all tenants of the first respondent….,.

On 28 July 2009, the first respondent filed an application in the Magistrates' Court seeking the eviction of all the tenants from Worthmore Building, 15th Avenue/ Fort Street, Bulawayo. The reasons why the evictions were being sought were:-

(a) That the company required the flats to house its own employees;

(b) That the tenants were not paying rentals; and

Similarly, her claim that she effected improvements to the property is no defence to an eviction order.  If indeed any improvements were effected to the property she may institute proceedings against whoever she believes is liable if so advised.

In the light of the foregoing, it is quite clear that the application for rescission is devoid of any merit and must fail. In the result, I would issue the following order.

It is ordered that:-

1. The application for rescission of the default judgment be and is hereby dismissed with costs on an attorney-client scale; and

All in all when clause 17.1 is read together with clause 3.2(b) it is clear that its true meaning is that the last date of payment of rent is the 7th day of each month.

Dr Tendayi Mahachi produced a copy of a letter dated 1 October 2012 written to the applicant by the respondent's City Treasurer which reads thus:

“The Manager

Washmate Motor Centre

Stand No 729 STL

Lomagundi Road

Harare

Dear Sir/Madam

Re: NOTICE OF TERMINATION OF LEASE AGREEMENT – STAND 729 GREENCROFT LOMAGUNDI ROAD 

Please be advised that at its meeting on the 2^nd August 2012, Council, under item 59 of the Environmental Management Committee minutes dated 10^th July 2012, expressed concern at the proliferation of car sales along road verges which had created unsightly developments in addition to inconveniencing abutting property owners. As a result, Council resolved to evict, do away with all legal and illegal car sales.

Accordingly, you are hereby formally served with a three (3) months' notice that the Agreement of Lease subsisting with the City shall be terminated on the 31^st December 2012. You are therefore being accorded this opportunity to wind up tour (sic) businesses and ensure that you vacate the Stand by the closer (sic) of business on Monday 31^st December 2012 (sic), failing which you shall be evicted without further notice and at your own cost.

Also ensure that all your outstanding rentals are paid up as at the date of termination.

Yours faithfully

CITY TREASURER”

The letter in question bears what appears to be two different signatures dated 1 October 2012. It does not show the name of the signatories which presumably signified receipt of the letter. Neither does it show where it was served except that it bears the address of the premises leased to the applicant.

The applicant in this matter seeks an order from this court in the following terms:

“It is hereby ordered that:-

(1) First respondent and all persons claiming through it shall vacate premises presently known as Portuguese Club, corner Lady Stanley Avenue and Jacaranda Road, Bulawayo within 7 days of the making of this order failing which the Deputy Sheriff for Bulawayo be and is hereby authorized and directed to evict them;

(2) The first respondent shall pay the costs of this application but only if it opposes it.”

The property at the centre of this dispute is known as Stand 11752 Kenilworth, Bulawayo. The first respondent, hereinafter referred to as Portuguese Club, entered into a lease agreement with the City of Bulawayo in respect of the said property for a period of 25 years. The Portuguese Club has been the lease holder for a period of more than 13 years. According to the Portuguese Club that lease still subsists and is still in force.

While the lease between the Portuguese Club and the City of Bulawayo was still valid and in force the latter entered into yet another lease agreement with the applicant contending that the second lease was entered into with the blessing of the Portuguese Club which, as expected, hotly disputed that and contended that there were only some negotiations which did not come to fruition as the Portuguese Club and Football Club Windermere failed to agree on the consideration or monetary compensation in favour of the Portuguese Club.

The issues for the determination of this court were these:

(a) Was the lease agreement between the Portuguese Club and the City of Bulawayo ever terminated? and

(b) Was the cession agreement between Football Club Windermere and the Portuguese Club perfected?

The parties were in agreement that the above issues can be answered by going through the various letters filed of record in this matter. I propose to reproduce some of them in extenso hereunder…..,.

I now turn to examine the issue of whether the lease agreement between the Portuguese Club and the City of Bulawayo was ever terminated. The applicant and the City of Bulawayo contend that the lease was terminated. They averred that the Portuguese Club, through Ben Baron and Partners, its erstwhile legal practitioners, actually requested the City of Bulawayo to terminate the lease between them and the lease was terminated accordingly.

The Portuguese Club, on the other hand contended that it still had a valid lease with the City of Bulawayo and vehemently denied that it was terminated. It went on to deny that there was a letter from Ben Baron and Partners to Council requesting it to cede its right, title and interests to the applicant, and averred that all there was were negotiations between it and the applicant. 

The applicant and City of Bulawayo were requested to produce the letter allegedly written by Ben Baron and Partners on no less than four occasions - but nothing came out of those requests. 

Council failed to produce the document which authorized it to terminate its lease agreement with the Portuguese Club.

It is difficult to believe that the erstwhile legal practitioners of the Portuguese Club would verbally instruct Council to cede and transfer the right, title and interest of the Portuguese Club to Football Club Windermere. 

Requests of that nature are not done verbally.

It is doubtful that a written request was ever made to Council. On 12 July, 2007 Council addressed a letter to the Portuguese Club wherein the Director of Housing and Community Services had this to say:-

“I am pleased to advise that Council (06/06/2007) resolved that your club be granted permission to cede and transfer its rights, title and interest to Football Club Windermere. Your attention is drawn to the fact that the said permission is specific to Football Club Windermere and as such cannot be extended to other parties without prior consent by the Municipality.

Yours faithfully

Director of Housing and Community Services”

The above letter does not in any way refer to the letter of request from the Portuguese Club. If there had been such a letter of request the Director of Housing and Community Services would for instance have said “I refer to your letter of request for permission to cede and transfer your right, title and interest dated such and such date or simply your letter of such and such date refers.”

Pursuant to its resolution of 6 June 2007, Council purported to enter into another 25 year lease agreement with Football Club Windermere in respect of the same property, Stand 11752 Kenilworth on 10 September 2007. On 18 September 2007 Council wrote to the Portuguese Club advising it that its lease would officially terminate on 30 September 2007 and that of Football Club Windermere would commence on 1 October 2007. City of Bulawayo claimed that it terminated its lease with the Portuguese Club on its instructions without substantiating the claim by producing a document wherein such instructions are embodied.

The Portuguese Club persisted from the onset that it was unaware of such instructions to Council. It asserted that the termination of the lease by Council was not by mutual consent. Council unilaterally terminated the lease as there is no evidence on the papers filed of record to suggest otherwise.

In the result, this court finds that the lease agreement between Council and the Portuguese Club was never validly terminated and that the purported unilateral termination of the lease was of no legal force or effect. Similarly, the purported lease agreement between Council and Football Club Windermere suffers the same fate. It has no legal force or effect.

In the result, I would dismiss this application with costs.

The defendant is the plaintiff's nephew. The plaintiff claims, via summons issued on 12 March 2009, that on 21 January 2006 the parties concluded a written lease agreement effective 8 May 2006 wherein the plaintiff, as lessor, leased to the defendant, as lessee, a portion of Kalanga Farm known as Usher Paddock. The defendant has breached the lease agreement by failing to pay rent of two heifers per year as agreed and failing to maintain the fence leading to his cattle straying into unauthorised grazing land. In the event, the plaintiff prays for:

(i) An order confirming the cancellation of the agreement of the lease;

(ii) An order ejecting the defendant from Usher Paddock, Kalanga Farm, Figtree within seven days of such order;

(iii) Payment of four heifers as unpaid rent and one heifer per three months of unlawful occupation;

(iv) Costs of suit.

The defendant's contest is hinged on the averment that the purported lease agreement is a sham for the defendant purchased the land in dispute from the plaintiff for Z$1,000,000,000= (one billion dollars) which amount was paid in full. He prays for dismissal of the plaintiff's claims with costs on attorney–client scale.

Three issues were referred to trial at the pre-trial conference, viz:

1. Whether there is a lease agreement or an agreement of sale between the parties in respect of Usher Paddock, Kalanga Farm, Figtree.

2. Whether, if there is a lease agreement, the plaintiff is entitled to an order ejecting the defendant therefrom and payment of arrear rentals as claimed.

3. Whether, if there is an agreement of sale, the defendant is entitled to be left in occupation of the land aforementioned.

The plaintiff's case rests on his sole evidence which is to the following effect:

Kalanga Farm used to have a total hectarage of 2694,8673 hectares and was being run as a company called Pampas Farms (Pvt) Ltd. He produced, as proof to that effect, a Deed of Transfer…,. The shareholders/ Directors were himself and Barrie Mitchell (a white man). During the fast track land resettlement programme, the farm was gazetted for compulsory acquisition by the Government in 1997. On 4 December 1997, the plaintiff objected to the proposed compulsory acquisition of the farm to the acquiring authority…,. After considering his representations therein the acquiring authority withdrew the preliminary notice to compulsorily acquire the farm…,.

Eventually, of the 2694,8673 hectares of the farm, 1224,5673 hectares which belonged to shareholder Barrie Mitchell was acquired by the Government for resettlement while the remainder of 14703 hactares belonging to the plaintiff was left as his. The plaintiff was subsequently offered that portion of land…,.

On a certain day, the defendant came to the farm carrying one bovine in a 7-tonne truck requesting to leave the beast there. He left it and returned after two days carrying more cattle. After a discussion, he allowed the defendant to leave the cattle there. The next day, the defendant brought five bundles of barbed wire. They had not discussed the barbed wire but the defendant had noticed that the plaintiff did not have such wire to mark the boundary over which he was quarrelling with his neighbours. Subsequent to that, the defendant and himself embarked upon a joint venture of buying, fattening and reselling cattle. The cheque stubs the defendant has cannot be proof of purchase of the disputed portion of the farm, rather they relate to the joint venture business of buying cattle, stockfeed for fattening them and dipping chemicals. Later on, the two concluded a lease agreement on 21 January 2006 whose terms and conditions are spelt out in the document on page 1 of his bundle of documents. The material terms of the agreement were that the lease would commence on 8 May 2006 when the defendant would take occupation of Usher Paddock, the previous lessee having vacated on 7 May 2006. The defendant was to pay two heifers annually as rentals effective 1 January 2007. The defendant breached the lease agreement by failing to pay the agreed rent, and, despite several demands, he never effected even a single payment. This prompted him to give the defendant written notice of six months on 3 September 2008 of termination of the lease agreement effective 3 March 2009….,. He denied that he sold the land in question to the defendant or that this suit was engendered by a dispute over ownership of an Isuzu motor vehicle the parties are embroiled in in case number HC1558/08.

He then closed his case.

The defendant gave the following evidence:

The plaintiff is his mother's young brother. In 2003, the two of them began discussing the sale of Usher Paddock. He started paying for it in 2004. The purchase price was Z$1 billion. The agreement was unwritten and the payment terms were that he was supposed to pay any amount till he reached the Z$1 billion mark. There were no fixed instalments regarding the amount or the date - he would pay whenever he got the money. After finishing paying the Z$1 billion they drafted the ''lease'' agreement in 2006. The plaintiff told him that his neighbours, such as Khuphe, with whom he was having quarrels should not know that he had sold the paddock to him otherwise he would lose the land because neighbours were alleging that the farm belonged to the Government. He agreed to the sham lease agreement although he knew that he had purchased the land because he trusted the plaintiff as his uncle.

He denied being engaged in any project with the plaintiff that necessitated him writing the plaintiff cheques or giving him money. All the cheques drawn in the plaintiff's favour were for payment of the farm, though there were other cheques he wrote when selling/buying cattle but this was after having fully paid for the farm. One cheque was even written ''last payment.'' Prior to the motor vehicle dispute, the plaintiff never demanded rentals from him and he never paid anything in pursuance to the lease agreement. He produced his bundle of documents to buttress his evidence showing four cheque stubs with various dates and amounts paid to P.N. Mabuza averring that they constitute some of the proof of the payment for the purchase price of the farm as well as two bank statements. 

He then closed his case.

I will deal with the three issues referred to trial seriatim….,.

(2) WHETHER, IF THERE IS A LEASE AGREEMENT, PLAINTIFF IS ENTITLED TO AN ORDER EJECTING DEFENDANT FROM USHER PADDOCK, KALANGA FARM, FIGTREE AND PAYMENT OF ARREAR RENTALS AS CLAIMED

Having found that the agreement is one of lease, the court is behoved to determine whether the defendant has breached that agreement thereby entitling the plaintiff to an order for ejectment and payment of the claimed arrear rentals. It is a term of the lease agreement that the defendant was to pay two heifers annually as rent with effect from 1 January, 2007. It is common cause that the defendant has not paid any rentals - let alone as agreed upon. This conduct, non payment of rent, amounts to a material breach of any lease agreement entitling the lessor not only to cancellation of the lease but also to ejectment of the errant defendant from the rented premises. On 3 September 2008, the plaintiff gave the defendant six months notice of termination of the lease agreement on account of various breaches, including non payment of rentals, and to vacate the premises on 3 March 2009. To date, the defendant is still in situ. Clearly, the plaintiff is entitled to the defendant's eviction from the farm. The plaintiff is as well entitled to aggregate arrear rentals of four heifers for 1 January 2007 and 1 January 2008….,.

Having found, as I have done, in regard to the foregoing two issues referred to trial, there is no need to deal with the third issue that was also referred to trial as it has been overtaken by those findings.

In the result I order as follows:

(i) The cancellation of the agreement of lease between the parties in respect of Usher Paddock, Kalanga Farm, Figtree be and is hereby confirmed;

(ii) The plaintiff is granted leave to eject the defendant from Usher Paddock, Kalanga Farm, Figtree within seven days of this order;

(iii) Defendant shall pay plaintiff four heifers as arrear rentals and two heifers annually as holdover damages with effect from 1 January 2009 to date of vacation of the paddock;

The defendants have also argued that the plaintiff has used the wrong procedure by seeking an order for eviction before the agreement is cancelled. They further argued that the plaintiff should sue for damages and arrear rentals only.

The defendants, not in so many words, 'admit that they are in rent arrears', which in itself is a breach of the agreement.

The defendants' failure to pay rent, in those circumstances, entitle the plaintiff to cancel the agreement. This is one of the relief it is seeking. Failure to pay rent entitles the landlord to cancel the agreement. See Venter v Venter 1949 (1) SA 768 (A-D). 

Notice to vacate

It is the respondents' contention that the Arbitrator did not make a finding on the issue of whether the notice to terminate the lease agreement was valid. It was submitted on behalf of the respondents that award envisages stay of the respondents on the premises as being unlawful for the reason that the applicant had redevelopment plans. The view is erroneous as the lease agreement between the parties was binding at the material time. The applicant gave, as its reasons for terminating the lease, as non-compliance with municipal by-laws as well as failure to meet minimum health standards. The notice is therefore invalid and the respondents had no obligation to comply with same.

I do not understand the basis of the respondents' position. The notice given by the applicant, and which is on page 41 of the record, was given in terms of clause 42 of the Lease Agreement. The clause, among other things, authorizes the premature termination of the agreement if the landlord wishes to demolish the premises and redevelop the site. The Arbitrator applied his mind to this issue on page15 of the award, which is page 154 of the record, whereby he makes a finding that the requisite six calendar months notice was given to the respondents. He further went on to give the meaning of clauses 41 and 42 of the Lease Agreement and concluded by saying that the respondents had failed to establish their allegations that the applicant was acting in bad faith.

The Arbitrator might have been wrong in arriving at that decision in the respondent's view. The position is settled in our law regarding wrong decisions by Arbitrators. See Catering Employers Association of Zimbabwe v Deputy Chairman, Labour Relations Tribunal & Anor HH206-00 where it was stated:

“Even where the Arbitrator made a finding that was erroneous or unreasonable the court should not interfere but it could only interfere if the decision was attended by a gross irregularity or it resulted in a failure of justice.”

See also ZESA v Maposa 1999 (2) ZLR 4522 where GUBBAY CJ stated:

“An award will not be contrary to public policy merely because the reasoning or conclusions of the Arbitrator are wrong in fact or in law.”

As demonstrated…, a valid lease excludes an owner's entitlement to exclusive possession of the res.

The court a quo made a specific finding that the appellant's lease had been determined. We have examined the record and assessed the evidence.

The court was correct.

Wilson Museva said, in his evidence-in-chief, that when the appellant occupied the house as a tenant, it had been explained to him that, among other things, at some point the respondent would reclaim the house. He said the appellant had been duly served with a notice to vacate. In fact, the aspect of the notice was common cause.

In cross-examination, Wilson Museva maintained that the appellant's lease had expired in or about 2008 and that he had never had it renewed. Of course, the appellant disputed this. Both Museva and the appellant were quizzed extensively on it in cross-examination. The appellant said on inception, he had been given a lease which would expire within a year. On whether or not he had had the lease renewed, the appellant prevaricated. He claimed to have had the lease, and those of several others, renewed by some Member of Parliament. But according to his testimony, that alleged renewal had only been in the year prior to the proceedings. That would be 2013.

Yet he had started staying in the house in 2006.

In our view, the evidence established, on a balance of probabilities, that, firstly, the appellant's lease had been determined by effluxion of time. It had been for one year - from 2006. It had not been renewed. Therefore, it had lapsed. There was no proof that another lease had been incepted in the year preceding the trial as the appellant claimed, or at all. The onus had been on him to prove this. He failed to discharge it.

Secondly, and more importantly, it was apparent that the appellant occupied the house at the respondent's pleasure. He took occupation on the understanding that whenever the respondent wanted its house back, he would have to vacate. The respondent was not into real estate. The houses had been built for its own employees. It was only because of the downturn in its business that the houses had become white elephants. The respondent had been deserted by a large number of its employees. In order to cut down on its losses, a decision had been taken to lease the houses to third parties. The appellant had been one such.

Of course, the appellant would be entitled to a reasonable notice. This had been duly given. There was no contest on whether or not the notice had been given, or on whether or not the period thereof had been reasonable. Therefore, the lease between the appellant and the respondent had been determined. It being the only basis for suspending the respondent's entitlement to the exclusive ownership of the house, the appellant had no basis for resisting eviction….,.

Having been satisfied that the evidence in the court a quo sufficiently canvassed the issue of the determination of the lease agreement, what remains is to consider whether the pleadings did so too.

The basic and fundamental principles of pleadings is threefold:

1. To ensure that the parties know the point or points of issue between them so that they know what case they have to meet;

2. To assist the court by defining the limits of the action;

3. To place the issues raised in an action on record so that a judgment on such action may bar further litigation on the same issues again;

See Hackleton Investments [Private] Limited v Time Bank of Zimbabwe Ltd 2000 [1] ZLR 60 [H] and BECK's Theory and Principles of Pleading in Civil Actions, 5^th ed…,.

Pleadings must be brief and concise. They must be couched in summary form. They should state facts - and relevant facts only. Evidence and/or law are/is not pleaded: BECK's Theory and Principles of Pleading in Civil Actions, 5^th ed.

A summons should disclose a cause of action. Cause of action means the combination of facts that are material for the plaintiff to prove in order to succeed: see Dube v Banana 1998 [2] ZLR (HC)…,. The facts must enable the court to reach a conclusion regarding the point in issue: see Controller of Customs v Guiffre 1971 [2] SA 81 (R)…,  and Patel v Controller of Customs & Excise 1982 [2] ZLR 82 (H)…,.

In casu, the respondent's summons…, averred that it was the owner of the house occupied by the appellant; that it now wanted its house back; and that the appellant had ignored its notice to vacate.

Admittedly, such thrift in the formulation of the cause of action can be perilous.

However, this case was proceeding in the Magistrate's Court, not the High Court, where, comparatively, formalism is less stringent. But, at any rate, the cause of action was sufficiently disclosed. Among other things, although the lease and its determination were not expressly pleaded, in our view, the averment that the respondent had demanded that the applicant should vacate the house, was sufficient to inform the court that whatever right the appellant had previously obtained to occupy the respondent's house, it had since been terminated. So this averment was speaking to the determination of the lease agreement.

We are fortified in this finding by how the appellant went on to plead. Undoubtedly, he quite understood that the respondent was pleading the determination of the lease. In his plea on the merits he stated:

“1. The Defendant avers that he has not breached the conditions of the lease agreement.”

Of course, the respondent's cause of action was not breach, but termination on notice.

When the matter came to trial, the evidence covered both termination on notice and by effluxion of time. Therefore, we are satisfied that the respondent proved its case. The appellant should not seek to evade his common law and moral obligations by remaining in occupation.

Regarding costs, we agonised over whether to follow the general rule that they should follow the event, or whether to deprive the respondent given that, in our view, it had been both the major architect and genesis of the confusion that permeated this case. However, having regard to the appellant's common law and moral obligations as a tenant to give up rented premises upon the expiry of the lease, and his refusal to do so, we felt it unnecessary to penalise the applicant for having taken steps to evict him.

The plaintiff is the owner of a business complex in the central business district known as Bulawayo Centre where is located premises measuring in total 844,9 square metres which it let out to the first defendant by a written lease agreement signed on 7 and 8 March 1999 but the lease was to subsist from 1 September 1999 for an initial period of five years in terms of clause 1.1.

It was to be renewed for another period of five years at the expiration of the initial period in terms of clause 1.2. as read with clauses 3 and 4 of the lease agreement.

In terms of clause 3(c), the tenant had the right to renew the lease at the expiration of the initial five year period for a renewal period of another five years provided that the tenant was not in breach of any of the terms of the lease at the time the tenant sought to exercise the right of renewal. Whichever way, clause 3(f) of the lease agreement gave the lease an indefinite lifespan terminable on its terms. It reads:

“If the tenant fails to give notice as provided in sub-clause (e) above, this lease will continue from the termination date of the lease period (or the renewal period) on the same terms and conditions but subject to three calendar months' written notice of termination by either party and the rent shall be determined in terms of clauses 5 and 31 hereof. However, the landlord may, during the last three months of the lease period (or the renewal period) give the tenant no less than two calendar months' notice to terminate this lease on the termination date of the lease period (or the renewal period).”…,.

Following a lengthy, but turbulent, relationship spanning over a decade, the plaintiff instituted summons action against the defendants on 21 July 2014 for the confirmation of the cancellation of the lease agreement entered into between the parties, the eviction of the first defendant and “all persons claiming title or occupation through it”, outstanding rent and operating costs, as well as holding over damages.

The defendants entered appearance to defend following service of summons upon them on 28 July 2014, and in their joint plea they denied liability to the plaintiff in any amount including value added tax. While not challenging the arbitral award fixing fair rent or being involved in the arbitration process giving rise to it, the defendants averred in paragraphs 10 and 11 of the plea as follows:

“10. Ad Para 5

10.1 The 1^st defendant denies that it is indebted to the plaintiff in the sum of US$506,395=84 or in any other sum and puts plaintiff to the proof thereof.

10.2 1^st defendant avers that the plaintiff has failed to articulate how it arrives at the said figure of US$506,395=84 in clear and simple terms.

10.3 The plaintiff has failed to state the amount apportioned to rent and the period for which such rent is claimed.

10.4 Plaintiff has also failed to state the amount apportioned to operating costs and what such operating costs are and the period for which they are claimed.

10.5 1^st defendant further avers that plaintiff's claims prior to 21 July 2014 are, in any event, prescribed or that the plaintiff is not entitled to back date the rentals to any date prior to the arbitrators determination.

10.6 1^st defendant further avers that the parties agreed to a rental of $600= per month for the period commencing the date of dollarization and that the arbitrator's determination only applies for the period where there was no such agreement.

11. Ad Para 7

1^st and 2^nd defendants aver that they ceded their rights and obligations in the lease agreement to one Gersham Gara and Multishade (Private) Limited with the knowledge of the plaintiff and therefore denies (sic) any liability to the plaintiff.

WHEREFORE defendants pray that plaintiff's claim be dismissed with costs.”

The issues for trial were agreed by the parties at a pre-trial conference held before a judge. They are;

1. Whether the lease agreement between the parties should be cancelled.

2. Whether the 1^st defendant and those claiming occupation through the first defendant should be evicted from the premises.

3. Whether the defendants owe arrear rent and operating costs and the amounts thereof.

4. Whether the plaintiff is entitled to interest on any outstanding amount and the rate thereof.

5. Whether the plaintiff is entitled to levy value added tax on amount due.

6. Whether the plaintiff is entitled to hold-over damages and operating costs from 1 August 2014 to date of eviction.

7. Whether the defendant is liable to pay costs of suit on an attorney and client scale.

At the commencement of the trial, counsel for the plaintiff applied to amend the summons and particulars of claim by substituting the figure of $333,209=47 as arrear rent thereby removing operating costs which are now claimed together with hold over damages.

Only Simon Moyo, a partner in charge of Commercial Management at Knight Frank, the estate agent of the plaintiff, gave evidence on behalf of the plaintiff. The import of his evidence is that the first defendant took occupation of the premises by virtue of a lease agreement aforesaid. He drew attention to clause 3(c) of the lease agreement providing for the tenant's right to renew the lease on the same terms and conditions contained in the written lease and to clause 3(f) which I have already made reference to above. He then made the point that the lease did not terminate owing to that provision even though the tenant did not exercise the option to renew it upon expiration. The relationship of the parties remained governed by the written covenant. Simon Moyo stated that a dispute over fair rent arose between the parties after the tenant refused to accept the rental stipulated by the landlord. The dispute had to be resolved by referral to arbitration after referral to the Rent Board and the Administrative Court failed to settle the impasse. It was referred to an arbitrator, as provided for in clause 5(a) of the agreement, which reads:

“In the event of the parties being unable to agree the rent and/or the annual escalation rate for each succeeding year in terms of clause 4, the rent shall be determined by an arbitrator appointed in terms of clause 31 hereto, who shall thereupon fix as the applicable rent the open market rent for the leased premises on the basis provided for in this clause.”

He stated that the decision of the arbitrator is final and binding upon the parties as set out in clause 31(j) which also entitled either party to make an application to this court for enforcement of the arbitral award.

The appointed arbitrator was Angelbert G.M. Nyandoro of Iwe-Neni Real Estate, who was appointed by the Chairman of the Royal Institute of Chartered Surveyors (Zimbabwe Group) to arbitrate the dispute between the parties regarding the rentals payable for shops 31-34 at Bulawayo Centre measuring 844,9 square metres in extent. Those who participated at the arbitration, according to the arbitral award dated 28 March 2014, were representatives of both the landlord and the tenant, the latter being represented by P Madzivire, a legal practitioner at Joel Pincus Konson & Wolhuter and Gersham Gara. Simon Moyo referred to the arbitral award, pages 27 to 37 of exhibit 1, which fixed the fair rent at;

(i) $1,47 per square metre per month from July 2009 to December 2009 ($1,242= per month);

(ii) $4,16 per square metre per month from January to December 2010 ($3,515= per month);

(iii) $4,72 per square metre per month from January to December 2011 ($3,988= per month);

(iv) $5,38 per square metre per month from January to December 2012 ($4,546= per month);

(v) $5,62 per square metre per month from January to December 2013 ($4,783= per month); and

(vi) $5,75 per square metre per month from January to June 2014 ($4,858= per month).

He stated that the arrear rentals being claimed by the plaintiff have been computed using those fixed rates for all the time that the fair rent remained outstanding as the bickering between the parties raged on. He referred to the schedule of outstanding rent; page 52 of the bundle of pleadings, showing the sum of $333,209=47 being claimed for the duration of that period.

The arbitral award, dated 28 March 2014, was received immediately thereafter, and, although the defendants received their own copy, the plaintiff took the trouble to advise them about the new development in June 2014 and to demand payment of the arrears which were then due within 14 days in terms of clause 6(b) of the agreement. It provides:

“6(a) The rent shall be payable by the tenant monthly in advance, without need for demand and without any deductions whatsoever, on the first day of each month at the offices of Knight Frank in Bulawayo, or such other place in Bulawayo as shall from time to time be notified to the tenant in writing by the landlord. The payment of rent to any unauthorized person in any unauthorized manner shall be at the entire responsibility of the tenant and shall not relieve the tenant from his obligation to pay rent in accordance with the provisions of this agreement.

(b) In the event of the rent for any review or renewal period not being determined before specific date the tenant shall continue paying rent at the monthly rate paid immediately prior to such review or renewal period. Upon agreement or determination of the rent for such period the tenant shall, within fourteen (14) days of such agreement or determination, pay to the landlord in the specified manner any arrears resulting from such increased rents not having been paid since the commencement of such period.”

The witness testified that in line with the foregoing provisions, the tenant was notified of the arrears that had accumulated as a result of the dispute in respect of both rent and operating costs and was asked to pay within the requisite fourteen (14) days. The arbitrator had determined the fair rent backdated to July 2009 when the dispute arose but the tenant refused to sign the addendum incorporating the new rental and did not bother to pay the rent arrears of $333,209=47 as required.

He went on to say that the landlord computed the operating costs and interest as appears on pages 37-38 of exhibit 1. Operating costs are claimed from July 2014 to date in the sum of $266,665=68 to date which figure incorporates holding over damages which are also due in terms of clause 32(a) and (b). Interest is determined in terms of clause 30(f) which states that the interest rate on arrear rent or any other amount due shall be at the monthly compounded rate of 2% per annum above the current lending rate charged by the landlord's Bank. It is that rate which was used to calculate the interest being claimed.

The defendants breached clauses 6(a) and (b) by failing to pay the fixed fair rent thereby entitling the plaintiff to approach this court in terms of clause 30(a)(i) and (ii) which provides:

“In the event of:

(i) The rent being in arrears after the seventh (7^th) day of the month for which it is due, whether the same has been legally demanded or not; or

(ii) Any payment in terms of clauses 7, 8, 9, or 21(d) thereof being in arrears -

the landlord shall be entitled to cancel this lease forthwith, without prejudice to any right of action or remedy by the landlord for the recovery of rent, damages or other relief arising out of the provisions of this agreement…,.”

The other clauses referred to in that clause relate to payment of rates and taxes, good tenancy deposit, payment of electricity, water, refuse, sanitation and other charges as well as insurance. Default in payment of those, which the witness said encompass what has been referred to in this action as operating costs, entitles the landlord to cancel the lease in terms of clause 30(a). Where the landlord litigates in that regard, clause 30(b) entitles it to recover costs on the scale of legal practitioner and client as well as collection commission. The witness said it was on the strength of clause 30 that the plaintiff instituted the summons action aforesaid. Clause 32 allows for the recovery of holding over damages. It reads:

“32(a) Should the landlord cancel this lease and should the tenant dispute the landlord's right to do so and remain in occupation of the leased premises pending the determination of such dispute, the tenant shall, nevertheless, continue to pay all rents and other amounts due to the landlord in terms of this agreement on the due dates thereof and the landlord shall be entitled to accept and recover such payment without prejudice to the landlord's claims for cancellation then in dispute, and the tenant shall otherwise continue to observe all obligations imposed upon him by the agreement.

(b) Should such dispute between the landlord and the tenant be determined in favour of the landlord, such payments shall be deemed to be amounts paid by the tenant on account of damages suffered by the landlord by reason of the unlawful holding over by the tenant.”

Regarding the claim for value added tax, he said that although at the time the lease agreement was drafted there was no legislation imposing the payment of such tax, it has since come into effect. The landlord is required to pay value added tax on amounts due for rent at the end of each month even where receipts have not been made from the tenant. As a statutory requirement, the landlord is therefore enjoined to levy that tax on the tenant who cannot lawfully refuse to pay it.

Commenting on the defendant's assertion that they ceded their rights and obligations under the lease to one Gersham Gara and Multishade (Pvt) Ltd, Simon Moyo said that the defendants were not allowed to unilaterally cede the lease. They did approach the landlord with that request but it was rejected out of hand. Instead of handing back the premises if the defendants were no longer interested, they pretended as if they were in occupation when, as it now turns out, it was Gersham Gara masquerading as the first defendant. The arrangement between the defendants and Gersham Gara has nothing to do with the plaintiff which continues to regard the first defendant as the tenant which should be evicted together with those claiming through it.

Simon Moyo presented his evidence very well and with dignity. He was aided by documentary evidence including the lease agreement governing the relationship between the parties and the schedules showing how the amounts claimed are computed as well as the arbitral award forming the basis of the arrears.

I embrace his evidence.

The presentation of that evidence and its credibility did not stop counsel for the defendants making an application for absolution from the instance at the close of the plaintiff's case. She did a critique of the plaintiff's case starting from what may have appeared as confusion arising from the amendment of the plaintiff's claim at the commencement of trial, through the contents of the summons and particulars of claim right up to the provisions of the lease agreement which the defendants argued could no longer be relied upon by the plaintiff because it has expired.

I agreed with counsel for the plaintiff that this was now a new case for the defendants as it traversed what they had pleaded.

Counsel for the defendants submitted that because of the criticism made against the plaintiff's case nothing was left of it upon which a reasonable court applying its mind reasonably could find for the plaintiff. She submitted that both the claims for rent and for operating costs have not been proved and that the claim for interest was abandoned. The claim for confirmation of cancellation of the lease agreement is meaningless while that for eviction is misplaced because, to the knowledge of the plaintiff, there is a new occupant at the premises who is not the first defendant.

She submitted that the plaintiff has therefore failed to prove a prima facie case, and, as such, absolution from the instance should be granted.

While the arguments advanced on behalf of the defendants warrant a closer examination in deciding the matter, they, however, were made prematurely. The attack on the contents of the summons and particulars of claim should have, in all fairness, been raised as an exception to the summons or as a preliminary point and not at the close of the case for the plaintiff.

The test for absolution has been stated in a number of cases. In United Air Charterers v Jarman 1994 (2) ZLR 341 (S)…, it was said that:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court directing its mind reasonably to such evidence could or might (not should or ought to) find for him.”

The same principle was stated in another way in Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A) 5D. The court stated:

“The test therefore boils down to this: Is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff? What is a reasonable mistake in any case must always be a question of fact, and cannot be defined with any greater exactitude than by saying that it is the sort of mistake a reasonable court might make – a definition which helps not at all.”

See also Walker v Industrial Equity Ltd 1995 (1) ZLR 87 (S)…,.; Nestoros v Innscor Africa Ltd 2007 (2) ZLR 267 (H)…,.; Manyange v Mpofu & Others 2011 (2) ZLR 87 (H)…, where Patel J…, made the point that:

“In principle, a reticent defendant should not be allowed to shelter behind the procedure of absolution from the instance. And, in practice, the courts are loathe to decide upon questions of fact without hearing all the evidence from both sides, and have usually inclined towards allowing the case to proceed. See Theron v Behr 1918 CPD 443 at 451; Erasmus v Boss 1939 CPD 204 at 207; Supreme Service Station (Pvt) Ltd (1969) v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A) at 5-6. Moreover, at this stage of the trial, it is not pertinent to evaluate the weight of the evidence adduced or the preponderance of probabilities, save where such findings are manifest from the evidence already heard. See Quintessence Co-ordinators (Pty) Ltd v Government of the Republic of Transkei 1993 (3) SA 184 (TK) at 185.”

And Efrolon (Pvt) Ltd v Muringani (2) 2013 (1) ZLR 309 (H)…,.

In the present case, the evidence led on behalf of the plaintiff is that the relationship of the parties is governed by the written lease agreement which, although it ran its course, has remained valid by virtue of clause 3(f). That lease did not terminate when the tenant did not exercise the option to renew it but continued on the same terms. For that reason, unless terminated by the parties on notice, it continues to bind the parties. The failure by the defendants to plead expiration in their joint plea resonates with that formulation.

The evidence led by the plaintiff is that when a dispute over rent arose between the parties, the dispute was eventually referred to arbitration in terms of the lease agreement and an arbitral award was issued on 28 March 2014 in terms of which rent was fixed. Although the award was communicated to the defendants, they have not paid the fair rent fixed by the arbitrator in breach of clause 6(b) of the agreement. It is for that reason that the plaintiff decided to litigate for relief aforesaid. Although the plaintiff's witness was subjected to extensive cross-examination, it focused on discrediting the amounts being claimed. A lot of time was devoted to demanding proof of the various debits that were entered against the defendants' account.

In my view, the production of invoices on the minute details of the claim is not the only way by which a claim may be proved especially where the tenant is bound by clause 6(a) to pay rent “as shall from time to time be notified to the tenant in writing by the landlord” and such monthly notification has been given. The viva voce evidence of the plaintiff's witness, if credible and supported by a rent account which was kept, should suffice.

In that regard, what we therefore have is evidence pointing to the existence of a landlord and tenant relationship between the parties. With all due respect, the timid defence that the rights and obligations of the tenant were ceded to a third party cannot be taken seriously. This is because the plea of the defendants does not suggest that there was authority granted by the plaintiff for the cession but only “knowledge.”

The defendants would want to foist a new tenant on the plaintiff. They may well be entitled to do that depending on the presentation of their own case. What appeared very clear at the close of the plaintiff's case was that there was no privity of contract between the plaintiff and the new occupant. It was therefore for the defendants to tell the court why and how they were released from liability. The plaintiff has covered itself by seeking eviction of those claiming through the first defendant.

There was already evidence, at that stage of the trial, suggesting that the agreement was breached by a failure to pay the stipulated rent and the other related charges. There was nothing pointing to the falsity of that evidence.

My view was that there was evidence upon which a court, directing its mind reasonably to such evidence, could find for the plaintiff regarding what it has sued for. In arriving at that conclusion, I was mindful of the remarks made by BEADLE CJ, which are binding on me, in Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1( A)…, that:

“…, rules of procedure are made to ensure that justice is done between the parties, and, so far as possible, courts should not allow rules of procedure to be used to cause an injustice. If the defence is something peculiarly within the knowledge of a defendant, and the plaintiff has made out some case to answer, the plaintiff should not lightly be deprived of his remedy without first hearing what the defendant has to say. A defendant who might be afraid to go into the witness box should not be permitted to shelter behind the procedure of absolution from the instance.”

See also Munhuwa v Mhukahuru Bus Services 1994 (2) ZLR 382 (H)…,.

It is for the forgoing reasons that I dismissed the application for absolution and placed the defendants to their defence.

The defendants led evidence from Wayne Allan Jones, a Director of a family business known as Ekutulene Investments which he said is a registered company which operated Walkers Pub and Restaurant at the leased premises until sometime in 2011 when, tired and frustrated by Knight Frank's demand for unreasonable rent and operating costs, he handed over the business to his employee, Gersham Gara, free of charge.

Wayne Allan Jones did not attempt to contest liability as a surety.

Prior to that, he had offered to pay rent of $600= per month when the parties could not agree on a fair rent, which amount he started paying in 2009 although he did not sign any addendum to that effect. In fact, the last addendum that he signed was in Zimbabwean dollars. His frustrations stemmed from the landlord's demand for unreasonably high rent and operating costs which no business could sustain and Zimra was also busy penalizing the defendant in assessing taxes because it refused to accept the rent statements from Knight Frank.

The first defendant later proposed a rental of $900= which the plaintiff rejected. As a result, the dispute was then referred to the Rent Board, then to the Administrative Court, and, finally, to an arbitrator. Before the arbitration, he decided to sell the business whose wherewithal was worth $600,000=. After failing to secure a buyer, mainly because no-one was willing to buy a business with a rent dispute, he then gave it to his employee in terms of an agreement signed on 15 August 2011…,. When he did that he wrote to the landlord's agent, in May 2011, advising the landlord that Gersham Gara had taken over the business but a few days later he received a response rejecting Gersham Gara as a tenant and pointing out that the defendants had no right to handover the premises to a third party. This surprised him because Gersham Gara is a very capable person who has been in the industry for a long time. When that happened, the witness said he did not do anything but left everything in the capable hands of Gersham Gara who assured him that he would pursue his own lease in terms of the indigenization laws of this country.

Therein lies the defendants' problem.

They knew they were bound by a lease agreement, clause 19 of which prohibited cession, assignment or transfer of the rights contained in that lease. That clause reads:

“19(a). The tenant shall not sublet or give up occupation or possession of the whole or any part of the leased premises.

(b) The tenant shall not cede, assign or transfer any of his rights, obligations or duties in terms of this lease.

(c) The tenant shall not pledge or assign any of his furniture and equipment brought into the leased premises and the same shall be subject to the landlord's lien at common law.”

They had approached the landlord with a request to handover the lease to someone else but the landlord refused and demanded that they vacate the premises and surrender the keys. Instead of doing that, they decided to do as they pleased and brought in a third party to the leased premises - in clear violation of the lease agreement and disregarding the wise counsel given by the landlord's agent.

If one had any doubt about the wrongfulness of that course of action, such doubt dissipates immediately upon reference to the agreement the first defendant signed with Multishade Investments (Pvt) Ltd represented by Gersham Gara. Clause 4, dealing with liabilities, states:

“The company (Multishade) shall become responsible for all debts and liabilities in respect of the business subsisting on the effective date, and, in particular, the claims of employees for salaries, wages, leave pay, gratuities and any other obligations whatsoever, current rental disputes with the landlord and their agent, suppliers accounts and utility bills, and the company shall indemnify Ekutuleni and its Directors from all actions, claims or demands in respect thereof.”…,.

The defendants were aware of their obligations towards the landlord. They sought to be indemnified by a third party against such liabilities to the landlord. The act of ceding rights was clearly in breach of clause 19 of the lease as I have already said. The landlord was not a party to the agreement with the third party and such indemnity has nothing to do with it. It cannot be used as a weapon of defence against the legitimate claims of the landlord arising out of a binding lease agreement.

A party that elects to ignore the terms of a contract that it entered into freely, to unilaterally substitute a third party for itself in that contract and to then seek to rely on such conduct to escape liability in terms of the contract is engaging in an exercise in futility. This is particularly so where the agreement of the parties contains a non-variation clause as clause 35(b) which reads:

“This lease constitutes the whole of the agreement between the parties and no variation or collateral agreement shall be of any force or effect unless and until recorded in writing in a document or series of letters signed by the parties.”

Where the parties have elected to restrict their own power to vary or discharge their contract by subsequent conduct by a non-variation clause providing that no variation of any of the terms of the contract shall be valid unless it is in writing, the terms of the contract shall bind the parties unless varied in writing by them.

See R. H. CHRISTIE, Business Law in Zimbabwe, 2^nd edition, Juta & Co Ltd…,.; SA Centrale Ko-op Graanmaats Chappy Bpk v Shifren 1964 (4) SA 760 (A) (a judgment in Afrikaans whose ratio on non-variation clauses was adopted by this court in Fillanion v Esat & Another HB106-03).

In addition, in our jurisdiction, the doctrine of sanctity of contract is sacrosanct. It was expressed succinctly by JESSEL MR in Printing Registering Co v Sampson 19 Eq 462…, in the following words:

“If there is one thing that more than any other, public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting and that their contracts, when entered into freely and voluntarily, shall be held sacred and shall be enforced by courts of justice. Therefore, you have this paramount public policy to consider - that you are not lightly to interfere with this freedom of contract.”

Allied to that is the doctrine of privity of contract which is, in essence, the cornerstone of our law of contract. It postulates that a person who is not a party to a contract cannot be held liable or claim on it because he is not privy to the contract.

See PTC Pension Fund v Standard Chartered Merchant Bank Zimbabwe Ltd 1993 (1) ZLR 55.

I must state, for completeness, that Roman–Dutch law, unlike English law, recognizes an extension of the doctrine of privity of contract by accepting the validity of a stipulatio alteri or ius guaesitum tertio, roughly, a contract for the benefit of a third party.

See, generally, R. H. CHRISTIE, Business Law in Zimbabwe, 2^nd edition, Juta & Co Ltd …,.

I conclude, therefore, that the agreement entered into between the first defendant and Multishade Investments (Pvt) Ltd has nothing to do with the plaintiff which was not privy to it. It does not release the first defendant from liability in terms of the lease agreement, which lease agreement the first defendant breached by failing to pay the stipulated rent and other charges as determined in terms of the agreement by a lawfully appointed arbitrator. The breach entitles the plaintiff to cancel the lease and to eviction. That agreement entitles the first defendant to sue Multishade Investments (Pvt) Ltd separately for indemnity and nothing more.

Gersham Gara, who also testified on behalf of the defendants, actually substantiated the plaintiff's claim.

This court has to uphold the sanctity of the contract that the parties entered into which bind the first defendant as already stated. Wayne Allan Jones' entire testimony was concerned with questioning the accounts, not on any other ground, but that the defendants required to be shown all the bills emanating from the service providers. He decried the escalation of the charges and felt that because the first defendant did not agree to pay VAT, that tax should not be levied against it.

Unfortunately, VAT is a statutory levy which should be paid by operation of the law. The tenant does not have to agree to pay it in order for it to be levied. I conclude that the defendants are indeed liable to pay VAT.

The same applies to interest which is provided for in the agreement. It is not enough for the defendants to object to the production of the letter from the Bank attesting to what the Bank interest rate used was. Simon Moyo gave evidence on the computation of interest and submitted schedules showing the interest due. As I have already said, he was an impressive witness whose evidence I have no reason to disbelieve. The claim for interest has been established….,.

In the result, it is ordered that:

1. The cancellation of the lease agreement between the parties is hereby confirmed.

2. The first defendant and all persons claiming title or occupation through it shall be evicted from Shop Numbers 31 to 34 Bulawayo Centre, JMN Nkomo Street and 9^th Avenue, Bulawayo.

3. The first and second defendants shall pay to the plaintiff, jointly and severally, the one paying the other to be absolved the sum of $333,209=47 being arrear rent for the leased premises, together with interest thereon at the rate of 15% per annum from the date of summons to date of payment.

Factual background

The background to the applicant's claims is that on 23^rd October 2014 the applicant and respondent entered into a lease agreement in terms of which the applicant let to the respondent the business premises consisting of three bars, namely, Terrace, Corner Bar and Brass Rail Bar situate at Selborne Hotel, Bulawayo. The following terms and conditions of the written lease agreement are pertinent to the present application:

(a) Clause 1 stipulates that the lease period was to commence from 1^st October 2014 to 30^th October 2015.

(b) Sub-clause 3.1 stipulates that monthly rental in the sum of US$3,500=, exclusive of VAT, is payable in advance by the 7^th day of each month.

(c) Sub-clause 27.1 stipulates that notwithstanding the provisions of clause 3 of the lease, for the first four months, from October 2014 to February 2015, the monthly rental is US$2,000= and that the lessee shall make an initial payment of US$5,500= by the 31^st of October 2014.

(d) Sub-clause 19.1 stipulates that should the lessee fail to pay rentals on the due date or commit any breach of any term or condition of the lease, then the lessor shall have the right to forthwith cancel the lease and re-take possession of the leased premises without prejudice to any amount due and payable to the lessor.

(e) Clause 12 stipulates that any indulgence shown by the lessor by accepting late payment of rentals shall not be regarded as a waiver by the lessor of its rights under the lease.

(f) Clause 26 stipulates that the written lease agreement constitutes the whole agreement between the parties and no representations not stated in the lease shall be binding on the parties and any variations not reduced to writing and signed by both parties shall be of no force or effect.

It is not disputed that the respondent breached sub-clause 27.1 of the lease by failing to pay the sum of US$5,500= by the 31^st of October 2014. The respondent further breached sub-clause 3.1 by failing to pay monthly rental in advance by the 7^th of each month. The respondent had accumulated rental arrears in the sum of US$18,133=03 by the 15^th of May 2015. This fact is verified by the schedule of payments in paragraph 7 of the plaintiff's declaration. On 20^th November 2014, the applicants' legal practitioners addressed a letter to the respondents in the following terms:

“Pure Treatment Investments (Pvt) Ltd

46 Lawley Road

Suburbs

Bulawayo

Dear Sirs,

RE: BREACH OF CONTRACT: CANCELLATION OF LEASE AGREEMENT

We write you at the instance of our client, Byrggen Hotels (Pvt) Ltd, whose representative advised us that you have not paid rentals for two months and you have fallen into arrears in the sum of US$4,000=.

You are in breach of contract and we have instructions to notify you, as we hereby do, that the lease agreement is terminated forthwith in terms of clause 19.1. You are directed to render vacant possession of the premises to our client and pay the sum of US$4,000= plus our costs failing which legal action shall be taken against yourselves without notice. This will be at a cost to your pocket.

Be guided accordingly.

Yours faithfully

CALDERWOOD, BRYCE HENDRIE & PARTNERS”

This letter of demand was responded to swiftly by the respondent's legal practitioners who replied, on 21 November 2014, in the following terms:

“Messrs Calderwood Bryce Hendrie & Partners

Bulawayo

RE: PURE TREATMENT INVESTMENTS (PVT) LTD v BRYGGEN HOTELS (PVT) LTD

We refer to the above matter and to your letter dated 20^th November 2014, which has been handed to us for our attention and reply.

On a strictly without prejudice basis our client accepts that it has fallen into rent arrears. Such default will be made good in full or in part on or before the end of November 2014. We note from your letter that you advise that the lease agreement has been terminated forthwith and that our client must vacate the premises. This extraordinary measure appears to be anchored on clause 19.1 of the lease agreement between the parties. This clause, in our view, with respect, is violent, and, in any event, it does not give your client the right to evict ours without due process of law. In any event, clause 3.3 provides that in the case of a default our client shall be given two months written warning, this procedure has not been followed….,.

Our client operates a business and it is common knowledge that the business environment in this country is operating far below expectation and the environment is tough such that targets are rarely realised, if at all. Our instructions are that your client has not helped our client's situation as we lay out below.

Our client has been unable to use to maximum benefits the Brass Rail Bar because of a roof leak; there is also a leak at the Corner Bar and the Terrace Bar. These leaks prevent our client from putting these bars into maximum use, thus affecting his revenue turnover. During the course of November electricity was cut at the premises, due to no fault of our client, as a result, our client was thrown out of business for one and half days. This incident affected our client in a big way, such that he lost business. Your client must accept and take responsibility for these incidents that have negatively affected our client's business.

Having said all this, our client still wants to continue with the lease agreement. As said supra, the default shall be made good on or before the end of the current month. May your client also attend to the defects outlined above.

Yours faithfully

DUBE-BANDA, NZARAYAPENGA & PARTNERS”

It is clear that the respondent did not, at the outset, dispute that they owed arrear rentals.

In another letter addressed to the respondent's legal practitioners on 1^st April 2015, the respondent was advised of the applicant's decision to cancel the lease agreement by reason of breach of the terms of the lease. The respondent continued to blame the harsh economic environment in a letter dated 25^th April 2015. The respondent alluded to the xenophobic attacks in neighbouring South Africa which they claimed led to cancellation of musical shows and loss of anticipated revenue. In subsequent correspondence, the respondent sought to have the amount of rentals reduced. This request was refused and arrears on rentals escalated.

On 28^th April 2015, the applicant's legal practitioners addressed a letter to the respondent as follows:-

“Pure Treatment Investments (Pvt) Ltd t/a Sekunjalo

46 Lawley Road

Suburbs

Bulawayo

Dear Sirs,

RE: TERMINATION OF CONTRACT

We thank you for your letter of the 2^nd instant received on even date.

Our client's instructions are that there is no error in calculation. In fact, the receipts show that you have paid US$13,500= and not US$19,500= as suggested in your letter. Find attached hereto copies of the receipts of payment for the period in question.

Further, we are advised that you have not paid the April rentals. Furthermore, your response failed to address the other issues raised in our letter in respect of stolen drinks, insulting customers and reimbursement of customers.

We shall proceed to issue summons on the basis of breach of contract.

Yours faithfully

CALDERWOOD, BRYCE HENDRIE & PARTNERS”

This letter elicited a venomous response from the respondents, who, on 19^th May 2015, addressed the following letter to the applicant's legal practitioners:-

“Calderwood, Bryce Hendrie & Partners

Bulawayo

ATTENTION: MR Z. NCUBE

Dear Sir,

'Erstwhile Legal Practitioners', the term you coined befits your status too well.

We are not amused by your stupid and silly accusations you come up with at any given opportunity seeking to divert attention from real issues. First, it was the issue of “stolen” drinks and then “the abuse of clients” now authoring threatening letters to your client. Stop being over-zealous and acting like a crazy headless chicken, we are not criminals please treat and respect us as such.

We know they call you Taliban but do not behave like ones to us. Maybe this is why your clients refer you as that “useless one”. Get your act together and behave like a learned legal practitioner. If there are any threats or your clients are being abused simply make a police report. We expect better behaviour from you.

Yours faithfully

PURE TREATMENT SERVICES”

From the tone of this letter, which clearly did not address the issue of the arrear rentals and the alleged breach of contract, the applicant and respondent were not resolving the dispute. It is my view that the respondents were needlessly abusing a legal practitioner doing his job.

Summons were issued against the respondent on 12^th June 2015 and appearance to defend was filed. The application for summary judgment was lodged on 20^th July 2015.

WHETHER THE RESPONDENT HAS RAISED A BONA FIDE DEFENCE

The central issue for determination is whether the applicant's claims are unassailable, or, put differently, whether the respondent has raised a bona fide defence to the claims.

The cancellation clause in the written lease agreement, sub-clause 19.1, confers upon the applicant the right to cancel the lease and evict the respondent from the leased premises in the event of the respondent failing to pay monthly rental on due date or committing a breach of any of the terms of the lease. Any failure by the respondent to pay monthly rental on due date or any breach of any other term of the lease would trigger the process of cancellation of the written lease. The respondent has not disputed that it breached sub-clause 3.1 and 27.1 of the lease agreement by failing to effect the initial of US$5,500= by 31^st October 2014. The accumulation of rental arrears, totalling US$18,133=03 as at 15 May 2014, is irrefutable proof that the respondent violated the terms of the lease agreement thereby entitling the applicant to exercise its right to cancel the lease.

I must point out that the harsh economic environment leading to the late payment of rentals is a moral issue for the parties. The court notes that the prevailing economic situation affects those in Zimbabwe in business across all the financial and industrial sectors. In my view, this moral issue does not absolve or indeed exonerate parties from complying with contractual obligations. Such an approach would lead to chaos in business and many would seek to escape from their obligations on the flimsiest of excuses.

In the opposing affidavit, deposed by Dave Ncube, on behalf of the respondent, the deponent contends that there are triable issues and that the matter should proceed to trial because of the following defences raised in pleadings:-

“19.1 The respondent disputes the amount claimed by the applicant as arrear rentals.

19.2 Respondent's failure to pay monthly rentals timeously was explained to applicant and applicant condoned.”

The defences raised by the respondent in the opposing affidavit are not bona fide and cannot defeat the applicant's claim for summary judgment. The Supreme Court, in Kingstons (Pvt) Ltd v Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S), had occasion to outline the nature of defences that ought to be raised to successfully oppose summary judgement as follows (per head note);-

“In summary judgment proceedings, not every defence raised by a defendant will succeed in defeating a plaintiff's claim. What the defendant must do is to raise a bona fide defence, or a plausible case, with sufficient clarity and completeness to enable the court to determine whether the affidavit discloses a bona fide defence. The defendant must allege facts which, if established, would enable him to succeed. If the defence is averred in a manner which appears in all circumstances needlessly bald, vague or sketchy that will constitute material for the court to consider in relation to the requirement of bona fides. The defendant must take the court into its confidence and provide sufficient information to enable the court to assess the defence. He must not content himself with vague generalities and conclusory allegations not substantiated by solid facts.”

At page 452E, the court went on to state that:-

“Care must be taken, in a suit for ejectment, not to elevate every alleged dispute of fact into a real issue which necessitated the taking of oral evidence, for to do so might well encourage a lessee against whom ejectment is sought to raise fictitious issues of fact thereby delaying the resolution of the matter to the detriment of the lessor.”

In the instant case, the respondent has not denied that it breached the lease agreement. The respondent boldly avers that it disputes the amount of arrear rentals. If the respondent had a bona fide defence, the court would have been duly furnished with documentary proof to establish that the respondent had paid all the rentals on time. The respondent alleges, without substantiating, that the applicant condoned the breach and late payment of rentals. The correspondence between the applicant and the respondent proves beyond dispute that the respondent blamed his problems on the economic conditions prevailing in the country. In any event, the written lease agreement provides that any indulgence which may be shown to the lessee by the lessor shall not be taken as a waiver of the lessor's rights to cancel the agreement by reason of a material breach of the terms of the lease.

See the case of Agricultural Finance Corporation v Pocock 1986 (2) ZLR 229 (SC).

I have no doubt that the respondent failed to raise a bona fide defence to the applicant's claims. The respondent's perceived defence carries no prospects of success if the matter were to proceed to trial. The alleged defences raised in the respondent's opposing affidavit cannot be proved at trial. In Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235 (H)…, MALABA J…., held that:-

“Where a plaintiff applies for summary judgment against the defendant and the defendant raises a defence, the onus is on the defendant to satisfy the court that he has a good prima facie defence. He must allege facts, which if proved at the trial, would entitle him to succeed in his defence at the trial. He does not have to set out the facts exhaustively but he must set out the material facts with sufficient clarity and in sufficient detail to allow the court to decide whether if these facts are proved at trial, this will constitute valid defence to plaintiff's claim. It is not sufficient for the defendant to make vague generalizations or to provide bald and sketchy facts.”

It is my view that the respondent failed to establish a bona fide defence to the plaintiff's claims. His defence is nothing more than a general and vague assertion. In such a scenario it is only appropriate to grant the application for summary judgement. In the result, the following order was made after hearing argument from both parties:-

1. Summary judgment with costs at an attorney and client scale be and is hereby entered in favour of the applicant against the respondent for payment of the sum of US$18,133=03 plus interest thereon at the prescribed rate of 5% per annum calculated from the date of issuing summons to date of payment in full.

2. Eviction of the respondent and those claiming through it occupation from the premises, the Terrace Bar, Brass Rail Bar and Corner Bar situated at the Selborne Hotel, Corner George Silundika and Leopold Takawira, Bulawayo.

3. Payment of hold-over damages was US$3,500 =, exclusive of VAT, from the date of issuing summons to date of eviction.