Lease Agreements re: Termination, Notice of Termination & the Exceptio Doli Mali iro Lessee Eviction & Incidental Possessors

HB157-16 : NRZ CONTRIBUTORY PENSION FUND vs JOSRO ENTERPRISES (PVT) LTD t/a ASCOT PUB & GRILL
Ruled By: TAKUVA J

This is an application for summary judgment in the summons proceedings under case number HC39/15 wherein the applicant claimed the following: (a) An order declaring that the defendant's refusal to sign a lease agreement with the applicant in respect of the applicant's premises, namely, Shop 24/25 Ascot Shopping Centre, situate on Stand 16440, Bulawayo, constitutes repudiation of the ...

This is an application for summary judgment in the summons proceedings under case number HC39/15 wherein the applicant claimed the following:

(a) An order declaring that the defendant's refusal to sign a lease agreement with the applicant in respect of the applicant's premises, namely, Shop 24/25 Ascot Shopping Centre, situate on Stand 16440, Bulawayo, constitutes repudiation of the lease between the parties and same is terminated with effect from the date of this order;

(b) Alternatively, an order that the lease agreement between the parties be and is hereby terminated forthwith in terms of clause 33.1 as read with sub-clauses 33.1.1 and 33.1.3 thereof by reason of the respondent's breach of 8.1; 17.1.2; 17.1.3; 20.1 and 20.5 of the lease agreement.

(c) An order that the respondent vacate the applicant's premises, namely, Shop 24/25 Ascot Shopping Centre, situate on Stand 16440, Bulawayo within 14 days of this order failure of which the Sheriff of this court be and is hereby ordered to forcibly evict the respondent.

(d) Payment of US$16,000= and US$866=20 being arrear rentals and operating costs respectively, hold over damages of US$26=66 per day and further operating costs the respondent would have incurred as at the date of judgment.

(e) Costs of suit on an attorney and client scale in terms of clause 33.2 of the lease agreement.

In this application, the applicant sought summary judgment in respect of paragraphs (a), (b), (c) and (e).

The claim in paragraph (d) has been excluded.

What happened here is that the parties entered into a written agreement on the 20^th of October 2004, prepared by the applicant's erstwhile real estate agent, Knight Frank Zimbabwe, in terms of which the applicant let to the respondent certain business premises, being Shop 24/25 Ascot Shopping Centre, situate on Stand Number 16440 Ascot Township, Bulawayo. The lease agreement is attached as Annexure C to the founding affidavit.

In terms of the lease agreement, the parties were entitled to seek renewal of the lease as and when it expires. That agreement expired on the 30^th of November 2013. Prior to the expiry of the lease, the applicant, through its current real estate agent, John Pocock and Company (Pvt) Ltd, prepared a written lease agreement to renew the expired lease between the parties with effect from the 1^st of December 2013.

On two separate occasions, the respondent collected copies of the written lease agreement from John Pocock and Co. (Pvt) Ltd to sign and return same, but, despite several reminders, the respondent never signed or returned the draft lease agreement. To date, the respondent persists with its refusal to sign a written lease agreement to renew the expired one and the applicant has not condoned that conduct. In sub-clause 33.1 as read with sub-clause 33.1.1 and 33.2.3 the lease provides that the applicant is entitled to forthwith cancel the lease agreement in the event that the respondent commits any of the breaches specified therein.

The respondent failed to pay monthly rent and operating costs in advance on the first day of each month and not later than the seventh day of the month, thereby breaching sub-clause 8.1 as read with sub-clause 33.1.1 of the lease agreement. The respondent further breached sub-clauses 20.1 and 20.5 as read with sub-clause 33.1.3 of the lease agreement by failing to carry on its business in the leased premises in compliance with the laws and regulations governing the Restaurant Special Liquor Licence.

The application for summary judgement is opposed by the respondent on the following grounds:

1. There is inordinate delay in filing the summary judgment application. The contention here being that for a summary judgment application to qualify as summary, it must be made summarily. Reliance was placed on Stanbic Bank Zimbabwe Ltd v Dickie and Ano 1998…,.

2. In case number HC39/15, the applicant claimed payment in a sum of US$1,600= and US$806=20 as arrear rentals and hold over damages in a sum of US$26=66 per day in addition to the other relief recited. Yet, in this application, there is no monetary claim against the respondent.

3. The matter ought to be referred to arbitration.

4. The respondent was not obliged to sign the draft lease agreement as it became a statutory tenant upon expiry of the lease on the 30^th of November 2013.

5. The applicant, by accepting payment of overdue rentals and operating costs, waived its right to cancel the lease on the ground of breach of sub-clause 8.1.

6. The respondent did not breach sub-clauses 20.1 and 20.5.

The issues

1. Whether the respondent has any bona fide defence to the applicant's claims.

2. Whether the respondent ought to pay costs of suit on an attorney and client scale.

The Law

The starting point is Order 10 Rule 64 which states -

“(1) Where the defendant has entered appearance to defend to a summons, the plaintiff may, at any time before a pre-trial conference is held, make a court application in terms of this rule for the court to enter summary judgment for what is claimed in the summons and costs.

(2) A court application in terms of sub-rule (1) shall be supported by an affidavit made by the plaintiff or by any person who can swear positively to the facts set out therein, verifying the cause of action and the amount claimed, if any, and stating that in his belief there is no bona fide defence to the action.

(3) A deponent may attach to his affidavit filed, in terms of subrule (2), documents which verify the plaintiff's cause of action on his belief that there is no bona fide defence to the action.

(4) Order 32 shall apply to the form and service of an application in terms of this rule and to any opposition thereto.”

The courts have, on innumerate times, stated the legal principles applicable to summary judgment applications. In Scropton Trading (Pvt) Ltd v Khumalo 1998 (2) ZLR 313 (S)…, it was held that:

“A plaintiff seeking summary judgment must bring himself squarely within the ambit of Rule 64(1) of the High Court Rules which requires that the cause of action must be verified. It must be substantiated by proof and the supporting affidavit must contain evidence which establishes the facts upon which reliance is placed for the contention that the claim is unimpeachable.”

The nature of the defences that ought to be raised to successfully oppose an application for summary judgement was highlighted as follows in Kingstons (Pvt) Ltd v L D Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S)…,:

“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 bold, 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 his confidence and provide sufficient information to enable the court to assess his defence. He must not contend himself with vague generalities and conclusory allegations not substantiated by solid facts.”

The Supreme Court further held at p 452E that:

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

See also Hales v Doverick Investments (Pvt) Ltd 1998 (92) ZLR 235 (H)…,.

In casu, in order to assess whether or not the defendant has a bona fide defence, it is necessary to examine more closely the grounds of opposition to the application.

(i) Firstly, the respondent argued that the application for summary judgment is stale in that it was not raised “summarily”.

This argument is without merit, in my view, in that the primary rule on when a summary judgment application can properly be made is Rule 64(1) of the Court's rules. It provides as follows:

“Where the defendant has entered appearance to a summons, the plaintiff may, at any time before the pre-trial conference is held, make a court application in terms of this rule for the court to enter summary judgment for what is claimed in the summons and costs.”…,.

In casu, the respondent's contention that there has been inordinate delay is misplaced as the application was made within the time limit stipulated in Rule 64(1) supra.

(ii) Secondly, the respondent argued that the cause of action has not been verified because of the variance in figures in the summons and founding affidavit.

Again, this submission is without basis in that it overlooks the fact that the applicant has relied on two distinct causes of action, namely;

(a) Repudiation; and

(b) Breach.

In respect of the latter, the respondent has not sought a specific remedy in respect to the figures. In any case, from the nature of the contract, the figures were always going to vary. The issue, in respect of the breach, was that the respondent, by failing to pay rent in terms of the lease agreement, was in breach. The extent of the breach is insignificant in the circumstances.

(iii) Thirdly, the respondent submitted that the matter ought to have been referred to arbitration in terms of the arbitration clause in the lease agreement.

In Recoy Investments (Pvt) Ltd v Tarion (Pvt) Ltd 2011 (2) ZLR 65 (H), it was held…, that:

“In terms of Article 8 of the schedule to the Arbitration Act, which is clear and admits of no ambiguity, the court has the jurisdiction to hear the matter where none of the parties has applied for a stay of the proceedings and a consequential referral to arbitration. A party wishing to have the matter decided by arbitration is obliged to set the terms of the dispute. An arbitration process cannot be set in motion in the absence of a dispute. Before reference to arbitration, there must therefore exist a dispute which is capable of formulation prior to the appointment of an arbitrator. In the absence of a dispute, an arbitrator cannot be appointed and therefore can be no reference to arbitration…,. The respondent did not allege that there was a dispute and had not applied for a stay of proceedings. The court accordingly had jurisdiction.”

See also Cargill Zimbabwe v Culvenham Trading (Pvt) Ltd 2006 (1) ZLR 381 (H).

By parity of reasoning, the respondent in casu did not frame a dispute for referral to arbitration and did not apply for stay of action proceedings under HC39/15. Consequently, nothing turns on the arbitration clause in the lease agreement. In any case, the relief sought by the applicant, being a declaratory order, can only be issued by this court in the exercise of its power under section 14 of the High Court Act [Chapter 7:06].

(iv) Fourthly, the applicant's contention is that the respondent's refusal to sign a written lease agreement renewing the lease entered into on 20^th October 2004, which expired on 30^th November 2013, constitutes repudiation by the respondent of the landlord-and-tenant relationship between the parties.

The basis of the applicant's contention is that from July 2013 it changed its real estate agents from Knight Frank to John Pocock and Company (Pvt) Ltd. The agreement entered into by the parties, on the 20^th of October 2004, was prepared by Knight Frank. It became imperative that John Pocock and Company (Pvt) Ltd assume their mandate to administer the applicant's property at issue in terms of a written agreement prepared by them and not by Knight Frank. Thus, the expiry of the lease on the 30^th of November 2013 was the rightful opportunity to replace the Knight Frank lease agreement with one prepared by John Pocock & Co (Pvt) Ltd.

The respondent admitted that it refused to sign the lease but denied that this is tantamount to repudiation. It contends that once a written lease agreement expires, the tenant becomes a statutory tenant and the lease is automatically extended by operation of the law on the same terms and conditions as those which obtained under the expired lease.

It appears the respondent's contention is not applicable in casu because of the provisions of clause 3.5 of the lease agreement signed by the parties. It provides:

“If the tenant fails to give notice, as provided in this clause, 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…,.”

In view of the above, there was no justifiable reason for the respondent's refusal to sign a renewal lease prepared by John Pocock and Company in November 2013. I take the view that such refusal constitutes a repudiation of the landlord-and-tenant contractual relationship between the parties. In light of that, the applicant is entitled to accept the respondent's aforesaid repudiation.

(v) Waiver of the right to cancel was the fifth ground raised by the respondent.

The argument is that by accepting the payment of overdue rentals outside the stipulated time, the applicant waived its right to rely on the failure to pay rentals on time as a ground for termination of the lease.

This contention is devoid of merit in light of the carefully and extensively worded provisions of sub-clause 40.1 of the lease agreement which reads as follows:

“The failure by the landlord to exercise any right shall not be deemed to be a waiver of any of his rights in terms of this agreement and the acceptance of any overdue rent shall not constitute a waiver of any right which the landlord has to cancel this lease arising out of such breach or late payment of rent.”…,.

The net effect of non-variation and non-waiver clauses is to negative the raising of such defences.

In Agricultural Finance Corporation v Pocock 1986 (2) ZLR 229 (SC), the court had occasion to consider the combined effect of a non-variation and non-waiver clauses in a lease agreement which are similarly worded to sub-clauses 40.1 and 40.2 of the lease in casu. The court's decision is captured in the head note which reads as follows:

“A non-variation clause in a contract entrenches the requirement that any variation has to be in writing but does not prevent a party for whose it is inserted from waiving the requirement.

A non-waiver clause negatives any raising of a waiver or any estoppels in that it amounts to notice given in advance acknowledged by the other party, that conduct which might otherwise be a waiver or give use to an estoppels may not be taken to be such conduct.

The combine effect the two clauses is that two parties to a written agreement containing carefully and extensively worded non-variation and non-waiver clauses cannot enter an enforceable oral agreement departing from the written terms since to the extent it is a variation of the contract it is precluded by the non-variation clause whereas if it be said to be a waiver or conduct giving rise to an estoppels then the non-waiver clause provides the complete answer to the point.”…,.

In casu, the respondent's contention that the applicant waived its right to cancel the lease on the ground of breach of sub-clause 8.1 thereof is not a bona fide defence. The non-waiver clause in the lease agreement (sub-clause 40.1) provides the complete answer to the respondent's contention and the applicant's claim for cancellation of the lease agreement on grounds of breach by the respondent is, in my view, unassailable.

(vi) Finally, the respondent denied breaching sub-clauses 20.1 and 20.5 of the lease agreement. These two sub-clauses provide as follows;

“20.1 The tenant shall keep and maintain the Leased Premises and carry on his business therein in compliance with all laws and for regulation made from time to time.

20.5 The tenant agrees to abide and comply with all such Government or Municipal Regulations or Bye-Laws as may relate from time to time to the use of the Leased Premises. In the event of the Tenant failing so to carry out any obligation imposed by any such Regulations and Bye-laws…, and the Landlord may treat any breach of such Regulations and By-laws as a breach of the Agreement.”

In order to prove the breach, the applicant attached annexure “D” to the founding affidavit which is a copy of the respondent's “Restaurant Special Liquor Licence”. Also attached is annexure “E” a letter from the Bulawayo City Council dated 25 March confirming at the respondent's licence for the leased premises is for a restaurant special. Further, in paragraph 4(b)(vi), 10 and 11 of the respondent's plea attached to the founding affidavit as annexure “B”, it is clear from the averments therein that the respondent, in breach of the terms of the Restaurant Special Liquor Licence, operated as a pub and night club.

In light of the above, it cannot be a bona fide defence to deny such a glaring breach.

The applicant, as the innocent party, is entitled, in terms of clause 33.1 as read with sub-clauses 33.1.1 and 33.2.3 of the lease agreement, to exercise its right to seek cancellation of the lease agreement.

In view of the above, the applicant's claims for cancellation of the lease on the basis of repudiation by the respondent, or, alternatively, on the basis of breach of the lease, are unassailable and the respondent has no bona fide defence thereto….,.

In the result, it is ordered that:

1. Summary judgment be and is hereby granted to the applicant.

2. A declaratur be and is hereby issued that the lease agreement between the parties, in respect of Shop 24/25 Ascot Shopping Centre, situate on Stand 16440, Bulawayo, be and is hereby terminated by reason of the respondent's repudiation.

3. Alternatively, it is ordered that the lease agreement between the parties be and is hereby terminated forthwith in terms of clause 33.1.1 and 33.1.3 thereof by reason of the respondent's breach of clause 8.1; 20.1 and 20.5 of the lease agreement.

4. The respondent, and all those claiming occupation through it, be and are hereby ordered to vacate Shop number 24/25 Ascot Shopping Centre, situate on Stand 16440, Bulawayo within 14 days of this order failure of which the Sheriff of this court be and is hereby ordered and empowered to forcibly evict the defendant.

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

Hillock and Another v Hilsage Investments (Pty) Ltd 1975 (1) SA 508…, is authority that a party, other than the owner, can recover premises from a third party without having to prove ownership. This flows from the legal premise that a lessee is not allowed to challenge the right or title of the lessor. See Hillock and ...

HH159-12 : URMILLA GIGA vs ALBION PROPERTIES and MESSENGER OF COURT HARARE and APPLISET INVESTMENTS (PVT) LTD
Ruled By: UCHENA J

The applicant was the first respondent's tenant at Number 5 Albion House, 74 Harare. She was evicted from the premises without being given 48 hours notice as provided by Rule 4A(1) of Order 26 of the Magistrate's Court (Rules 1980).

She seeks an order of this court reinstating her into the premises pending the hearing of her application for the condonation of her late noting of an appeal against the decision of the magistrate on the strength of which the first respondent evicted her from the property.

The first respondent was the applicant's landlord for eleven (11) years. It sought and obtained an eviction order against the appellant. The order was enforced in the manner already explained above.

The second respondent is the Messenger of Court Harare. He is an officer of the Magistrate's Court entrusted with the responsibility of enforcing that court's orders.

The third respondent is the first respondent's new tenant with whom it entered into a lease agreement after this application had been issued and served on the first respondent. It has not yet taken occupation of the property in dispute.

The applicant was aware of the court's order for her eviction. She was then being represented by her erstwhile legal practitioners whom she instructed to appeal against the magistrate's decision. She, in her founding affidavit, said she was surprised when the Messenger of Court gave her notice and forthwith evicted her. She, on inquiring with her erstwhile legal practitioners, was advised that they had not filed the appeal as instructed as she had not paid them. She has since retrieved her file from them and instructed her current legal practitioners to note the appeal and file an application for condonation of the late noting of the appeal concurrently with this application.

The applicant's property was removed from the premises and is now stored outside her residential property and is exposed to the elements. She therefore filed this urgent application in which she seeks reinstatement mainly on the ground that her ejectment did not comply with Rule 4A(1) of Order 26 of the Magistrates Court Rules.

Counsel for the first respondent submitted that this application is not urgent because the applicant did not immediately act after her ejectment.

Counsel for the applicant submitted that she acted as soon as she could in the circumstances of this case.

She was surprised by the ejectment as she believed her erstwhile legal practitioners had attended to her appeal against the magistrate's decision, though she erroneously believed that the appeal would suspend the magistrate's decision. She was ejected without the requisite 48 hours notice. She had to retrieve her file from her erstwhile legal practitioners, and instruct her current legal practitioners. She had to do this in the circumstances she had been plunged into by the unprocedural eviction.

I am satisfied that the delay between 16 November 2011, when she was ejected, and her filing this urgent application, on 21 November 2011, has been adequately explained.

I am also satisfied her erstwhile legal practitioners failure to note the appeal, and the sudden unprocedural ejectment, justifies the hearing of the applicant's application on an urgent basis.

Her application is strengthened by her having been evicted without being given 48 hours notice.

Rule 4A(1) of Order 26 of the Magistrate's Court (1980) Rules, which provides for the notice, provides as follows;

“(1) Upon receiving —

(a) A warrant of execution against property; or

(b) A warrant of ejectment and execution against property; or

(c) A warrant of delivery and execution against property;
the Messenger shall, within twenty-four hours or as soon as circumstances permit, go to the house or place of business of the execution debtor and deliver to the debtor or leave at the house or place of business, a notice warning the debtor of the date of the proposed execution of the warrant, which date shall not be sooner than forty-eight hours after the notice was so delivered or left:

Provided that the Messenger need not deliver or leave such a notice in any case in which he has reasonable grounds for believing that immediate execution of the warrant is necessary in order to prevent the execution debtor from concealing or disposing of any property in order to avoid its attachment.”

The second respondent did not oppose this application, nor did he file any papers explaining why he executed without giving the requisite 48 hours notice.

Counsel for the first respondent submitted that the Messenger of Court's inadvertent failure to deliver or leave notice to the judgment debtor in terms of subrule (1) shall not invalidate the ejectment.

Counsel for the applicant submitted that the issue in this case is not on failure to deliver or leave the notice but giving inadequate notice contrary to subrule (1). Subrule (2), which the respondent's counsel relied on, provides as follows:

“(2) An inadvertent failure by the Messenger to deliver or leave a notice in terms of subrule (1) shall not invalidate any attachment, sale in execution, or ejectment effected in accordance with a warrant.”

The first respondent's submission cannot be accepted in view of the fact that there is no evidence that there was an inadvertent failure to deliver or leave the notice at the applicant's premises.

The applicant's case is in fact that she was given notice, but was evicted without being given 48 hours after that notice which would have given her time to take legal action against that notice. Her claim is that the second respondent acted unlawfully by not giving her 48 hours during which he should not have ejected her after the delivery of the notice.

That argument is supported by Rule 4A(1) of Order 26 which is couched in peremptory terms and provides exceptions which would justify failure to give 48 hours notice. The Rule requires the Messenger of Court to deliver notice “of the date of ejectment which date shall not be sooner than forty-eight hours after the notice was so delivered or left.”

The exceptions are provided in the proviso to subrule 4A(1) which deals with circumstances when a Messenger can justifiably not deliver or leave notice of ejectment or attachment.

The first respondent's opposing papers do not allege the existence of such circumstances.

The second respondent, who the proviso authorizes to make such a decision, did not file any papers to oppose this application nor did he file any papers supporting the first respondent's opposition of this application.

There is therefore no explanation before this court justifying the immediate ejectment of the applicant.

In the absence of such an explanation, I hold that the applicant was unlawfully ejected from the premises.

Counsel for the first respondent argued that as the horse has already bolted from the stable, the application should be dismissed as the premises have already been occupied by a new tenant.

Counsel for the applicant then applied for the joinder of the third respondent who was alleged to be the new tenant who had taken occupation of the premises.

The application for joinder and postponement was not opposed.

The third respondent and his legal practitioner appeared before the court and confirmed that it had entered into a lease agreement with the first respondent for the premises in dispute. It however told the court that it had not yet taken occupation of the premises, contrary to what the first respondent had told the court.

The lease agreement was entered into after the first respondent had been served with notice of this application.

The illegality of the applicant's ejectment, and the fact that the third respondent and the first applicant entered into the new lease agreement when these proceedings were pending, and that the third respondent has not yet taken occupation, justifies an order for the reinstatement of the applicant into the premises in terms of the draft provisional order.

The provisional order is therefore granted in terms of the draft order.

SC40-15 : INDIUM INVESTMENTS (PVT) LTD vs KINGSHAVEN (PVT) LTD and DANIEL SHUMBA and LINDA SHUMBA
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GOWORA JA, HLATSHWAYO JA and MAVANGIRA AJA

On 28 February 2008, under case no. HC1239/08, the appellant caused summons to be issued against the respondents seeking an order for the cancellation of a lease, and, consequent thereto, the eviction of the respondents from the leased premises.

On 10 December 2008, a second summons was issued by the appellant under case no.6969/08 wherein it sought the eviction of the respondents due to the expiry of the lease.

The High Court dismissed the claims with costs.

The appellant was aggrieved by the dismissal and has noted this appeal.

THE FACTUAL BACKGROUND

The basic facts surrounding the dispute are the following:

The appellant (hereinafter referred to as “Indium”) is the registered owner of certain immovable property, being Stand 450 Avondale West Township of Stand 390 Avondale West, also known as 108 West Road, Strathaven, Harare, (hereinafter referred to as “the premises”). The first respondent (hereinafter referred to as “Kingshaven”) is a private company registered as such under the laws of Zimbabwe. The second respondent (hereinafter referred to as “Shumba” and the third respondent, his wife, are the only shareholders of and directors in Kingshaven.

Kingshaven carries on business in the hospitality sector and is in occupation of the premises by virtue of a lease concluded on 14 December 2007 with Indium. Notwithstanding the date of signing, the agreement was to come into force on 10 December 2007 and was to endure for a period of 365 days, terminating automatically on 9 December 2008.

Shumba and his wife are shareholders in a Close Corporation, ERF Bryanstan Cc, which is duly registered as such under the laws of South Africa.

ERF Bryanstan is the registered owner of an immovable property, being Portion 2 of ERF 825 Bryanstan Township also known as 17 Portman Road, Bryanstan Sandton, Johannesburg.

In 2007, ABSA Bank, in whose favour ERF Bryanstan had registered a mortgage against the property, called up the mortgage and executed against the same.

In an effort to save the property, Shumba approached Jayesh Shah (hereinafter referred to as “Shah”) for financial assistance, and this culminated in a number of agreements.

The first agreement consists of a loan between Shah, on the one part, as lender, and Shumba and ERF Bryanstan Cc, on the other, as borrowers. The loan amount is UD$500,000.

The second agreement is for the sale of the entire shareholding in Indium concluded by Shumba and his wife, on the one part, as sellers, and Jayesh Shah and Shaleetha Mahabeer, on the other, as purchasers.

The last agreement is the lease agreement concluded between Indium, as lessor, and Kingshaven, as lessee on 14 December 2007.

The two matters instituted by Indium were, by consent of the parties, consolidated for trial before the High Court.

In dismissing the claims, the court a quo stated:

“He intended to secure a windfall by all means legally possible. His legal practitioner advised a web of agreements to ensure he remained within the realms of the law. A loan here, a purchase of shares there and a lease with a buy-back option to crown it all, was all it took to secure apparent control of the debtor's immovable property in Zimbabwe without any reference to its true value.

Clearly, whatever the parties decided to call it, the agreement to take over control of the plaintiff company from Shumba, without paying for it, amounted, in my view, to a pactum commissorium.

It is the substance, not the form, to which the court looks when deciding the true nature of an agreement.

Consequently, therefore, the second issue, whether annexure “C” amounts to a pactum commissorium is determined in defendants' favour.

I have already found that the payment, in South Africa, by Shah, was intended as a loan, as pleaded by plaintiff; therefore, there is no evidence to suggest that the same payment doubled as payment for shares in Indium Investments (Private) Limited.

That issue is resolved in favour of the defendants as well.

The transactions were clearly in fraudum legis. The law in this jurisdiction is clear. Where the contract which is in fraudum legis is performed, the court cannot come to either party's assistance.”

The appeal is premised on the following grounds:

1. That, the court a quo erred in not finding, that, in the absence of a plea for rectification of a contract, the parole evidence rule operates to exclude extrinsic evidence to disprove the contents of a written contract. (sic)

2. The court a quo erred in not finding, that, returns lodged with the Registrar of Companies are prima facie proof of the correctness thereof, and the same cannot be impugned without the joinder of the Registrar of Companies.

3. Consequently, and for the stronger reason in view of grounds of appeal 1 and 2 above, the court a quo erred in holding that the respondents had discharged the onus of justifying possession of the appellant's property within the context of the actio rei vindicatio.

4. The court a quo erred in fact and in law in holding that the agreements in question were simulated agreements which “mimicked” the South African agreements.

5. The court a quo erred in any event in holding, that, the agreements the subject of the litigation were in fraudem legis in that they sought to evade the exchange control legislation, in view of the fact that free funds were paid to the credit of a South African resident, and in not finding, that, the fact that such South African resident was a citizen of Zimbabwe and did not give rise to the need for exchange control approval.(sic)

6. The court a quo erred in fact and in law in holding, that, the agreements the subject of the litigation a quo were a pactum commissorium.

Counsel for the appellant urged us to find, that, the learned judge in the court a quo had not dealt with the case that was placed before him.

It was his contention, that, the matter before the court was principally for the cancellation of the lease agreement between Indium and Kingshaven and consequential relief. He argued that it was essentially a rei vindicatio.

What the court a quo did, however, it is argued, was to turn its focus on a completely different issue which it could not competently determine and made findings which cannot be supported.

It is contended, that, the court thereby misdirected itself.

In my view, the dispute can be resolved by this court having regard to the manner in which the court a quo dealt with what it referred to as the simulated agreements, and, secondly, dealing with the actio rei vindicatio in accordance with the claims in the summons.

THE ALLEGEDLY SIMULATED AGREEMENTS

In answer to the claim for the eviction of Kingshaven from the premises, the respondents raised various defences, namely, that Shumba and his wife had borrowed a specified sum of money from Shah, and that, as security for their due performance thereon, the latter had demanded security in Zimbabwe in the form of shares in Indium. They pleaded, further, that the parties entered into a simulated agreement for the sale of shares in Indium which ultimately resulted in the lease agreement providing for a buy-back option in favour of Shumba and his wife.

There is no suggestion on the papers that Indium participated in any of the agreements except the lease.

It then begs the question which parties the court a quo referred to when it concluded that the agreements were fraudum legis.

It is common cause, that, the loan agreement was between ERF 825 Bryanston Cc, in which Shumba and his wife owned shares, and Shah.

ERF Byanston Cc was not cited as a party to the proceedings before the court a quo.

Shah only appeared in the proceedings in the court a quo as a witness on behalf of Indium.

In the circumstances, the court could not have properly considered the loan agreement, or its legality, in the absence of the parties thereto.

I turn next to the “share sale” agreement in relation to the shares in Indium.

The parties to the sale of the shares were, on the one part, Shumba and his wife, as sellers, and, on the other part, Jayesh Shah and Shaleetha Mahabeer.

The last two were never before the court as parties and the agreement for the sale of shares could therefore not be scrutinised to any extent by a court in their absence.

Consequently, the determination by the court of the issues related to the lease agreement concluded by Indium and all the respondents in reference to the share sale agreement was highly irregular.

It follows, therefore, that, any issues referred to the trial court for determination in relation thereto would be irregular. It is therefore logical to conclude that the court a quo dealt with matters and issues that were not before it.

This leaves Indium, Kingshaven, Shumba and his wife.

They were parties to a document, being the lease agreement, which is the only document properly before the court.

Those were the parties that were before the court, and, therefore, the only dispute for determination was that arising from the lease agreement in respect of which the court had to determine the respective rights and obligations of the parties before it....,.

THE VALIDITY OF THE LEASE AND THE REI VINDICATIO

I turn, then, to discuss the real issue before the court a quo, that is, the claim for the eviction of Kingshaven, and through it, Shumba and his wife, from its premises.

The preamble to the lease agreement acknowledges that Jayesh Shah and Shaleetha Mahabeer have become the beneficial owners of shares in Indium Investments (Private) Limited. The relevant provision states:

“Whereas, by a sale of shares agreement between JAYESH SHAH and SHALEETHA MAHABEER, on the one part, and DANIEL SHUMBA and LINDA SHUMBA, on the other, JAYESH SHAH and SHALLETHA MAHABEER have become the beneficial owners of shares in INDIUM INVESTMENTS (PRIVATE) LIMITED.”

In turn, Indium is the registered owner of the premises.

In terms of clause 3.1 of the lease agreement, the lessee undertook to deposit an amount of Z$ One Billion as security for the due performance by it of its obligations under the lease. Rental for the premises was set at Z$ One Billion per month payable in advance and reviewable from time to time.

In recognition of the prior ownership of the shares in Indium, by Shumba and his wife, in terms of clause 13.1 of the lease, the latter were granted an option to re-purchase the shares in Indium. The option was to expire on 9 October 2008.

It is common cause that the option was not exercised.

In February 2008, Indium advised Kingshaven, that, it was in breach of its obligations under the lease to pay rentals and cancelled the lease. On 10 December 2008, the lease also expired through the effluxion of time. Indium again issued summons, this time claiming return of the premises by virtue of the expiry of the lease through the effluxion of time.

In the plea to the claim for their eviction from the premises, the respondents admitted, that, the appellant was the registered owner of the premises.

The claim, as pleaded by the appellant, was a simple actio rei vindicatio.

The nub of the actio rei vindicatio is that an owner is entitled to reclaim possession of his property from whosoever is in possession thereof. As was stated in Chetty v Naidoo 1974 (3) SA 3…,:

“It may be difficult to define dominium comprehensively (cf. Johannesburg Municipal Council v Rand Townships Registrar & Ors 1910 TS 1314 at 1319), but, there can be little doubt…, that, one of its incidents is the right to exclusive possession of the res, with the necessary corollary that the owner may claim his property wherever found, from whomsoever holding it.

It is inherent in the nature of ownership, that, possession of the res should normally be with the owner, and, it follows, that, no other person may withhold it from the owner unless he is vested with some enforceable right against the owner (e.g. a right of retention or a contractual right).”

As a consequence, once the ownership by Indium of the premises was acknowledged and accepted by the respondents, all that the court a quo had to determine was whether Kingshaven had any legal right to remain in possession of the same.

Therefore, the simple task before the court a quo was to decide whether or not a lease agreement existed between the parties as alleged, and, thereafter, to determine whether or not the claim for eviction on the lease was well founded.

This, the court failed to do.

It went on to make wider pronouncements on relationships that were not before it. It thereby misdirected itself.

The principle of rei vindicatio was applied in Stanbic Finance Zimbabwe Ltd v Chivhungwa 1999 (1) ZLR 262 (H) by MALABA J…, where he remarked as follows:

“The principle on which the actio rei vindicatio is based is that an owner cannot be deprived of his property against his will and that he is entitled to recover it from any person who retains possession of it without his consent.

The plaintiff, in such a case, must allege, and prove, that he is the owner of a clearly identifiable movable or immovable asset and that the defendant was in possession of it at the commencement of the action.

Once ownership has been proved, its continuation is presumed.

The onus is on the defendant to prove a right of retention: Chetty v Naiddo 1974 (3) SA 13 (A) at 20A-C: Makumborensa v Marini SC130-95 p2.

It follows, that, the action is based on the factual situation that prevailed at the time of the commencement of the legal proceedings.”

Once an owner proves that the property is his and that the defendant originally obtained possession of the res pursuant to a contract, the owner is obliged to prove that such a contract has expired or that he was entitled to cancel it and has indeed terminated it.

In Chetty v Naidoo 1974 (3) SA 3 it was emphasised that:

“…,. a plaintiff who claims possession by virtue of his ownership must, ex facie his statement of claim, prove the termination of any right which he concedes the defendant would have had but for the termination.”…,.

The only defences available to a defendant in the position of the respondent are the following;

(i) That he had a right to possess;

(ii) That he was not in possession; or

(iii) That the plaintiff is not the owner.

It is worth noting, that, the respondents did not plead any of these defences.

In truth, they could not have, as they had a lease with Indium the termination of which they did not deny or place in issue. The validity of the lease agreement is confirmed.

Counsel for the appellant has, however, further submitted, that, the court, in the face of this clear claim, then went on to grant judgment in favour of the respondents in the absence of a counter claim.

In African Farms and Townships v C.T. Municipality 1963 (20) SA 555 (AD) STEYNE CJ made the following remarks:

“Counsel for the appellant further argued, that, the order in the original proceedings, which as such is an order dismissing the application, is to be equated with absolution from the instance, leaving the issue undecided.

In my view, there is no substance in that argument.

As Sande, De Diversis Regulis ad l. 207, points out, the res judicata is not so much the sentential, the sentence, or the order made, as the lis or negotium, the matter in dispute or question at issue about which the sententia is given, or the causa which is determined by the sententia judicis.

As pointed out in Purchase v Purchase 1960 (3) SA 383 (N) at p385, dismissal and refusal of an application have the same effect, namely, a decision in favour of the respondent.

The equivalent of absolution from the instance would be that no order is made, or that leave is granted to apply again on the same papers.

In Commissioner of Customs v Airton Timber Co Ltd 1926 CPD 351 at p359, WATERMEYER J, draws a distinction between the actual judgment and the reasons for judgment, and expresses the view, in effect, that, where the decision of a particular question, although dealt with in the reasons for judgment, is not incorporated in the actual judgment, and the question is not necessarily determined by the judgment, the matter is not res judicata.

I do not understand this to mean, that, where a Court decides the particular issue raised and dismisses the application, the question decided is not res judicata. If that is what it does mean or imply, I would be unable to agree with it.

In the present case, having regard to the judgment, the import of the order is clearly that, on the issues raised, the Court found against the appellant and in favour of the respondents.”

A dismissal of the plaintiff's claim is a judgment in favour of a defendant.

It is my view, that, the dismissal had the effect of awarding the respondents judgment in their favour.

I turn next to the relief being sought.

In the prayer, the appellant seeks an order for the setting aside of the judgment of the court a quo and its substitution with an order entering judgment in its favour in terms of the summons.

In addition to the cancellation of the lease, Indium sought the following relief:

“2. An order directing the defendants, and all those claiming occupation through them, to vacate the premises situate Stand 450 Avondale West Township of Stand 390 Avondale West, otherwise known as 108 West Road, Strathaven, Harare (“the premises”).

3. An order that in the event that within forty-eight (48) hours of the date of the above order being issued and the defendants failing and/or neglecting and/or refusing to comply, the Sheriff for Zimbabwe, or his lawful deputy for Harare, duly assisted by the Zimbabwe Republic Police if need be, be authorised empowered and directed to eject the defendants from the premises, and all those claiming occupation through them, and to hand over vacant occupation of the premises to the plaintiff or its authorised agent or representative.

4. An order precluding and restraining the defendants from removing any item of property from the premises.

5. An order for payment of the sum of $Z2,567,000,000 (two billion five hundred and sixty seven million dollars) together with interest thereon calculated at the prescribed rate to the date of payment as follows;

5.1 On Z$567,000,000 (five hundred and sixty seven million dollars) with effect from 10 December 2007;

5.2 On Z$1,000,000,000 (one billion dollars) with effect from 1 January 2008; and

5.3 On Z$1,000,000,000 (one billion dollars) with effect from 1 February 2008.

6. An order for holding-over damages at the rate of Z$4,000,000,000 (four billion dollars) per month with effect from 1 March 2008 to the date that the plaintiff recovers vacant occupation of the premises aforesaid, such rate to be adjusted from time to time in accordance with market rates.

7. An order for interest on the sum of holding over damages aforesaid at the prescribed rate from the date each amount becomes due and payable.

8. An order for payment of the sum of Z$10,000,000,000 (ten billion dollars) together with interest thereon at the prescribed rate from the date of judgment to the date of payment.

9. Costs of suit as between legal practitioner and client.”

The appellant sought for an order confirming the cancellation of the lease.

It is common cause that the lease has expired through the effluxion of time. Its expiry is not in dispute and it is not necessary to confirm its cancellation.

As a consequence, an order for the eviction of the respondents from the premises will issue.

The interdict against the removal of items from the premises was never put in issue.

However, the claim for the payment of sums under various heads was not considered by the court a quo.

Neither counsel addressed us on the issue.

The record is clear, however, that, no evidence was adduced by Indium in respect of the sums of money being claimed under the various heads.

The claim for holding over damages is premised on the lease agreement and it would follow from a confirmation of the cancellation of the lease.

The same considerations would apply to the claim for arrear rentals as that would be a consequence of the finding that a valid lease existed between Kingshaven and Indium.

The amounts claimed were denominated in the local currency and were never converted to the United States Dollar currency in the trial below. They therefore remain an issue for determination by the court a quo.

In view of the position taken by the court a quo not to delve into the merits of the claim for ejectment and consequential relief flowing therefrom, it seems in order that the parties be given an opportunity to have that aspect of the dispute fully ventilated and determined by the court.

In the premises, it is only appropriate to grant relief in respect of the eviction and the interdict and to remit the matter to the court a quo for the determination of what sums of money, if any, may be due to Indium.

The trial court can take judicial notice of the fact, that, the country, and, indeed, every person in the country uses foreign currency to transact and that the country adopted a multi-currency regime with effect from February 2009.

It is also worthy to note, that, the Zimbabwe Dollar has since been demonetized.

To that end, justice would best be served if the parties were to adduce evidence from experts in the field of real estate as to any sums that may be owing under the headings on which the matter is remitted for the adduction of evidence.

With regard to the sums being claimed for payment of costs on the various agreements concluded between the parties, no evidence was led in the court a quo, either as to the amounts being claimed in the local currency, if any, or the rate of exchange that should be applied in converting the said sums to the US Dollar.

This claim must fail.

Accordingly, the appeal succeeds to the extent that the lease agreement is held to be valid and an order for the eviction of the respondents shall ensue.

The matter is remitted for the determination of the arrear rentals and holding over damages before the court a quo.

Accordingly, the following order will issue:

“IT IS ORDERED THAT:

1. The appeal is allowed with costs to the extent provided for hereunder:

(i) The judgment of the court a quo is set aside and substituted with the following:

(a) It is declared that the lease agreement between the plaintiff and the first respondent has terminated through the effluxion of time.

(a) The defendants, and all those claiming occupation through them, shall vacate the premises, being Stand 450 Avondale West Township of Stand 390 Avondale West, otherwise known as 108 West Road, Strathaven, Harare within seven (7) days of the date of this judgment, failing which the Sheriff for Harare or his lawful deputy is hereby authorised to eject them from the same and give vacant possession to the plaintiff or its duly authorised agent or representative.

(b) The defendants be and are hereby precluded and prevented from removing, with the exception of personal items belonging to them, any item of property from the premises.

(c) The claim for payment of Z$10,000,000,000, being costs for the preparation of various agreements concluded by the parties, is hereby dismissed with costs.

2. The issue relating to the payment of sums of money claimed under paras (e) to (g) of the prayer in the declaration are remitted to the court a quo for a determination on the substance of what sums are due and owing.”

HH40-08 : DHLIWAYO RODGERS vs SHAUN MANDAA KUDINGA
Ruled By: MTSHIYA J

This is an opposed application wherein the applicant seeks the following order:“1. The notice to terminate the lease agreement entered into between the applicant and the respondent on 28 August 2003 in respect of Number 5 Jacaranda Close, Hatfield, Harare be and is hereby declared null and void.2. The applicant ...

This is an opposed application wherein the applicant seeks the following order:

“1. The notice to terminate the lease agreement entered into between the applicant and the respondent on 28 August 2003 in respect of Number 5 Jacaranda Close, Hatfield, Harare be and is hereby declared null and void.

2. The applicant shall be entitled to renew the lease agreement every three years effective from 1 October 2007 until 30 September 2013.

Alternatively

3. The respondent shall pay the applicant damages in the sum of $204 billion for the loss of income incurred by the applicant due to the premature termination of the agreement of lease entered into by the parties on 28 August 2003.

4. The respondent be and is hereby ordered to pay costs of this application.”

The order in the alternative was correctly abandoned at the commencement of proceedings since the relief sought was not properly before the court.

It is common cause, that, on 28 August 2003 the parties entered into a lease agreement in respect of a property known as Number 5 Jacaranda Close, Hatfield. In terms of the lease agreement, the applicant was to use the premises as lodges. The lease agreement commenced on 1 October 2003 for an initial period of twelve months subject to the following renewal option contained in the ninth clause of the lease agreement:

“The lessee, shall, at the conclusion of the above mentioned period, be entitled to a renewal of this lease for a period of twelve months renewable for three years up to ten years maximum at a monthly rate of $…,. and otherwise on the same terms and conditions (except as regards renewals): provided that written notice of renewal be given by the lessee to the lessor at least one month beforehand.”

On 20 August 2007, a Miss Winnie Samukange (“Samukange”), whose signature appears on the original lease, sent the following letter to the applicant:

“Dear Sir,

Following our phone discussions regarding the above property, I would like to inform you that the owner, Mr Shoorayi Mandaa, will be returning to Zimbabwe from the USA where he has been residing for the past twelve years. He would want to live on the property and has asked that the property be availed to him by 20 November 2007 thus giving a three months notice from the date of this letter.

You will recall that the current lease (copy attached) was initially for twelve months then renewable every three years pending his return. We would like to emphasize the fact that the above property is strictly residential although it was running as Benzuu Lodges when we bought it in 2000. It is therefore not licensed to run as a Lodge Business.

We would also want to advise Prime Real Estate, by copy of this letter, about the position. Mr Mandaa would want the next three months rental to be paid at Number 70 St Patrick's Road, Hatfield as from 31 August 2007 when Prime Real Estate closes the file for the property.

We wish you all the best in future business.

Yours Sincerely
Winnie Samukange

cc: Prime Real Estate”

The above letter led to this court application wherein, in his founding affidavit, the applicant, in part, states:

“On 20 August 2007, the respondent's representative, Mrs Winnie Samukange, wrote a letter to me notifying me of three months notice of the respondent's intention to terminate the lease agreement. Annexure 'B' hereto is a copy of the said letter.

Annexure 'B' is in breach of annexure 'A1–A3' in that according to the first and ninth clause thereof, after the expiry of the initial twelve months, I am entitled to renew the lease agreement every three years up to a maximum period of ten years.

In that regard, the lease agreement having commenced on 1 October 2003, I am entitled to renew the lease agreement every three years up to the year 2013.

The intended termination of lease is therefore premature by six years.”

Winnie Samukange apparently signed the lease agreement on behalf of the respondent.

On 19 November 2007, Winnie Samukange filed an opposing affidavit whose opening part reads as follows:

“I, Winnie Samukange, duly authorized thereto by a Power of Attorney granted to me by Shorayi also known as (Shaun) Mandaa Kudinga the respondent attached hereto as annexure 'D' do hereby take oath and state that the under-mentioned facts are true and correct to the best of my knowledge and belief.”

There was no power of attorney attached to the affidavit.

In the opposing affidavit, Winnie Samukange goes on to state the following:

“3.1 The lease agreement was subject to renewal on condition that the owner does not want to use the property.

3.2 In the notice referred to by the applicant, para 2 in particular states that the option to renew is only available if the owner does not require the said property for his use.

3.3 I am advised by my legal practitioners of record and verily believe the same to be true that such option is not a clear right and the tenant's right cannot take precedence over the owner's rights of the property.

3.4 In terms of the Commercial Rent Regulations, the owner of a building is entitled to cancel the agreement on good and sufficient grounds. The respondent submits that he has good and sufficient grounds for the ejectment of the applicant for the following reasons:

(i) As stated in the notice, the respondent requires the property for his own use;

(ii) As the owner of the property, his rights takes precedence over that of the tenant; and

(iii) It has come to my attention that the applicant has not been maintaining the property in good condition and his continued stay will result in the depreciation of the property in value.

3.5 I am thus advised that the notice given to the applicant is valid, and, in any event, the applicant was not entitled to an automatic renewal of the lease. Further, the applicant is guilty of causing material damages to the said property in that he has caused the following damages:

(a) Sewage piping in and out of the house is blocked and the septic tank has not been emptied and is over flowing; this is a health hazard to the occupants and neighbours. If this status is not urgently addressed the respondent will incur exorbitant costs to address the same.

(b) Leaking thatch on one of the outside buildings. Again, if the same is not urgently attended with the rain season coming the building might be damaged extensively.

(c) Walls are dilapidated.

3.6 Furthermore, he had been operating illegally without the requisite licenses from the City Council and Zimbabwe Tourism Authority. To date, he has since been fined twice for contravening the regulations. The Zimbabwe Tourism Authority has given him an ultimatum for him to regularize the same, failing which the applicant will be forced to close the said business.”

After the applicant's answering affidavit, filed on 27 November 2007, Winnie Samukange filed a “supplementary affidavit” on 18 January 2008. This affidavit was filed together with another “affidavit in support of counter application.”

The record does not reveal the filing of a formal application in respect of a counter claim in the form specified in the Rules of this Court.

However, the purported counter-claim was for the following relief:

“It is ordered that:

(1) Within ten days of the service of the order on him, the applicant, Mr Rodgers Dhliwayo, and those claiming through him vacate with their goods and other belongings Stand 5 Jacaranda Road, Hatfield.

(2) Failing compliance, the Deputy Sheriff Harare is hereby authorised to eject him in terms of para 9.

(3) Pending vacation on the premises, the applicant shall pay to the respondent $100,000,000 (one hundred million dollars) per month as holding over damages from the date of the application to the date of vacation.

(4) The applicant shall pay the cost of the counter application.”

On 5 February 2008, the applicant responded to the respondent's supplementary affidavit. He stated, in part:-

“2. On 24 January 2004 my legal practitioners were served with the respondent's supplementary affidavit sworn to by Winnie Samukange. I wish, once again, to bring the court attention to the fact that Winnie Samukange has got no locus standi to swear to such affidavit in this matter because she does not have the power of attorney from the respondent to swear to any affidavit in this matter.

3. Annexure 'D' referred to in her opposing affidavit was not attached and I have not had sight of such power of attorney to date.

4. I am also informed by my legal practitioners, that, no party to legal proceedings has the right to file a supplementary affidavit without leave of court. No leave to file the supplementary affidavit has been sought and granted; and, as such, the supplementary affidavit is not properly before the court.

5. In this regard, I am only responding to the supplementary affidavit simply to put my position on record as regards the contents of the supplementary affidavit.”

The applicant also responded to the issue of a counterclaim in the following terms:

“5. Ad Paragraph 6

(i) If the respondent wants to take over the premises for his own use, before the expiry of the period agreed, then, he is in breach of the agreement. As for the issue of the licence, I have made efforts to obtain one but my efforts yielded no results. I refer to paragraphs 6(e)-(g) of my answering affidavit in the main claim in this matter, and wish to incorporate the contents thereof as if they were specifically stated herein.

(ii) I am not sure of what is meant by 'permitted the premises to predominately to offer commercial sexual intercourse services.' I have not employed anybody to offer sexual services to anyone at the premises. I therefore deny any wrongdoing. I challenge the author of this affidavit to produce evidence to the court proving what she mean by offering commercial sexual intercourse services. In the absence of proof of what she means, then this becomes a bold allegation which should be thrown out by the court.

6. Ad Paragraphs 8–10

There are no valid reasons why I should vacate the premises, and, so, the given notice should be declared null and void. I am not trying to delay vacating the premises but exercising my rights with the agreement. I have paid all the rentals to date and I have got no objection to payment of the rental at the rate of $100,000,000 (one hundred million dollars) per month until this matter is finalized.

However, the rest of the terms of the order sought should be dismissed with costs.”

At the commencement of the proceedings, counsel for the applicant raised two main points in limine:

(1) He submitted that the failure by Samukange to produce a power of attorney under which she claimed authority to act on behalf of the respondent, meant that she had no locus standi. He argued that without the power of attorney Winnie Samukange could not:

(a) Issue the notice of 20 August 2007 appearing on page 2 herein;

(b) Depose to affidavits in this matter;

(c) File a counter-claim; and

(d) Instruct legal practitioners.

(2) Notwithstanding lack of authority on the part of Winnie Samukange, counsel for the applicant also argued that the counter-application purportedly filed was not in compliance with Rule 229A of the High Court Rules.

In response to the lack of authority on the party of Winnie Samukange, counsel for the respondent conceded that no power of attorney had indeed been produced. He, however, believed that there must have been a power of attorney when the notice was issued.

Relying on Chiadzwa v Paulkner 1991 (2) ZLR 33 (SC), counsel for the respondent argued, that, the fact that Winnie Samukange's founding affidavit clearly set out the cause of action, there was no need for a power of attorney. He then urged the court to take a robust view on the issue of Winnie Samukange's authority, thus urging the court to accept that the absence of a power of attorney should not invalidate the proceedings.

I shall now deal with the first point raised in limine.

If I find that Winnie Samukange should have been empowered by a power of attorney from the respondent, that will then mean that she had no locus standi and the proceedings will stand invalidated. That would, in turn, dispose of this matter.

Winnie Samukange's first statement in her opposing affidavit is to the effect that she derives her authority from a power of attorney, but, unfortunately, she fails to produce such a power of attorney. All we are told is that there must have been a power of attorney which might have gone missing. The argument goes further to say she is the one who signed the lease agreement which was binding on both parties. The applicant, it is argued, should not start questioning her authority at this stage.

This submission is made despite the fact that Winnie Samukange herself knew that in order to legally represent the respondent she needed authority in the form of a power of attorney. This is what she states in the first statement of her opposing affidavit.

Notwithstanding the existence of a binding lease agreement, I am not persuaded by the respondent's argument. There might indeed have been authority to sign the original agreement, but, again we do not have proof of that authority except that no issue was raised then.

It must be borne in mind that a power of attorney may be general or special. The authority from a power of attorney may, apart from being general or special, be for a specific purpose and for a specific period.

In casu, the absence of proof of the existence of any power of attorney makes it impossible to establish a link between Winnie Samukange and the respondent. It is also not possible to establish the kind of authority she had. There is no single document in the papers establishing a link between Winnie Samukange and the respondent.

It is my belief that the case relied on by the respondent, namely, Chiadzwa v Paulkner 1991 (2) ZLR 33 (SC), could only have assisted if there was evidence that Winnie Samukange had authority to act for the respondent. In the main that case related to matters of evidence.

In Chiadzwa v Paulkner 1991 (2) ZLR 33 (SC) GUBBAY CJ…, states:

“Thus, the affidavit must fulfil three requirements –

(a) It should be made by the plaintiff himself or by any other person who can swear positively to the facts;

(b) It must verify the cause of action and the amount, if any, claimed; and

(c) It must contain a statement by the deponent, that, in his belief, there is no bona fide defence to the action…,.

Where the affidavit is not that of the plaintiff himself, the deponent, while not requiring any special authority from the plaintiff to make the affidavit, must belong to a particular class of persons, namely, those who can swear positively to the facts.”…,.

There is nothing before me which describes or identifies Winnie Samukange.

I cannot establish who she was. The document that could have told me to what class of persons Winnie Samukange belongs has not been produced.

I do not believe that the capacity “to positively swear to the facts” can also entitle a deponent to initiate legal processes without the specific and proven authority of the plaintiff or respondent.

Consequently, my finding is that Winnie Samukange could not issue the notice of 20 August 2007 and could also not swear to the affidavits filed in respect of this case.

Winnie Samukange had no locus standi in this case.

Having ruled that Winnie Samukange had no locus standi, it follows, that, the notice of 20 August 2007 must be declared null and void. The finding also means that the purported counter-claim by the respondent is not properly before the court since it was filed by a person with no locus standi.

All in all, and given the nature of the valid points raised in limine by the applicant, there is no way a robust approach can be applied to condone the irregularities on the part of the respondent. The application should therefore succeed.

It is therefore ordered as follows:

1. That the notice issued by the respondent, on 20 August 2007, terminating the lease agreement entered into between the applicant and the respondent on 28 August 2003 be and is hereby declared null and void.

2. The counterclaim filed by the respondent on 18 January 2008 be and is hereby dismissed; and

3. The respondent shall pay the costs of this application.

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

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

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

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

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

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

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

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

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

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

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

The application was opposed by both respondents.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is not in dispute.

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

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

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

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

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

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

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

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

“(1) In this Act —

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

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

“(1) In this Act —

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

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

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

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

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

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

The Administrative Justice Act applies fully to such a decision.

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

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

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

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

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

It failed to do so.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In the result, I make the following order:

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

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

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

Appealed
SC63-21 : GATEWAY PRIMARY SCHOOL and KM RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION vs MARINDA FENESEY and THE SHERIFF OF ZIMBABWE
Ruled By: HLATSHWAYO JA, GUVAVA JA and BHUNU JA

The appellants are appealing against the entire judgment of the High Court delivered on 24 May 2017 under judgment number HH329-17. That judgment granted the respondent a provisional spoliation order in the following terms:“TERMS OF THE FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order ...

“TERMS OF THE FINAL ORDER SOUGHT

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

1. The first, second, and third respondents be and are hereby interdicted from interfering in any manner with the applicant's business operations at the tuck shop situated at Gateway Primary School. Including, but not limited to barring her potential customers from buying from the tuck shop.

2. The first, second, and third respondents be and are hereby ordered not to unlawfully evict the applicant from the tuckshop at Gateway Primary School.

3. The first, second, and third respondents to pay costs at an attorney and client scale, the one paying and the others to be absolved.

INTERIM RELIEF GRANTED

Pending confirmation or discharge of the provisional order, the applicant is granted the following relief:

1. The first, second, and third respondents be and are hereby ordered to remove their additional locks at the tuck shop at Gateway Primary School upon service of this order and take all necessary steps to ensure that the applicant's peaceful and undisturbed occupation of the tuck-shop is restored failing which the fourth respondent be and is hereby authorised to remove the locks abovesaid.

2. The second applicant (sic) be and is hereby ordered to publicly, and, at an assembly, reverse the order he imposed on school pupils and teachers not to buy at the applicant's tuckshop at Gateway Primary School.

3. The applicant's legal practitioners are hereby given leave to serve the order on the respondents.”

The appeal is strenuously opposed by the respondent.

The facts giving rise to the appeal are, to a large extent, common cause. It is however convenient to give a brief resume of the material facts of this case at this juncture.

The undisputed facts are that the first appellant is a primary school whereas the second appellant is its headmaster and overall administrator. The third appellant is the school's Parents Association capable of suing and being sued in its own name. It assists in the smooth running of the school. Among other functions, it generally manages the tuckshop.

The third appellant leased out the school tuck shop to the first respondent as its statutory tenant sometime in 2011. The lease agreement was subsequently renewed from September 2016 to September 2017.

On 5 February 2017, the Chairman of the Parents Association Committee wrote to the first respondent giving her two months notice of its intention to terminate the lease agreement with effect from 6 April 2017. The letter reads:

“Dear Marinda

Notice of Termination of lease contract

We refer to the tuck shop lease agreement which was renewed in September 2016 expiring on 8 September 2017.

We regret to advise that after much deliberation and thought, the Parents Association Committee hereby gives you notice of their intention to terminate the lease agreement (without renewal) with yourself with effect from the end of the first term. Our notice period is therefore effective from 6 February until 6 April 2017.

We thank you for your tenancy over the many years with the Gateway Community as well as the rent payments that have always been on time.

We trust that this is sufficient notice for you to make the necessary arrangements. If you have any further queries, please do not hesitate to contact the undersigned.”

Aggrieved by the intended termination of her tenancy of the tuckshop, the first respondent consulted her lawyers who took the view that the notice was a legal nullity.

They, accordingly, wrote to the third appellant, on 5 April 2017, challenging the lease termination on the grounds that the notice period was inadequate and that it did not provide good and sufficient reasons for the termination.

Unperturbed by the threatened legal challenge to its notice to terminate the lease agreement, the third appellant proceeded to execute its cancellation of the lease agreement in terms of its written notice of 5 February 2017.

The validity of the termination of the first respondent's lease, and tenancy of the disputed property, is hotly contested.

It is however common cause that schools closed on 6 April 2017 and the parties proceeded on end of term school holidays, during which period the tuckshop was closed.

The point of departure is the circumstances surrounding the closure of the tuck shop and its reopening at the end of the school holidays in May 2017.

The first respondent's version, in her founding affidavit, is that, at the end of term she locked her tuckshop and went away without any event. During the holidays, she fully restocked her tuck shop in anticipation of the reopening of the school. Upon her return, on 9 May, at the end of the school holidays, she unlocked the tuckshop only to discover that the second respondent had issued orders banning her customers, mainly teachers and students, from buying anything from the tuck shop. Guards were posted at the tuckshop to enforce the ban.

On 10 May 2017, she found herself locked out of the tuckshop.

Additional locks had been placed on the entrance door by the appellants acting in concert and common purpose.

It was her case, that, by locking her out, the respondents were unlawfully violating her peaceful and undisturbed possession of the tuck shop hence her urgent application for a provisional spoliation order for relief.

On the other hand, the respondents, in their opposing affidavit, deposed to by the third appellant's Chairman, one Justice Marwisa, denied ever locking the first respondent out of the tuckshop as alleged or at all.

He deposed that when given notice of termination of the lease agreement, the first respondent agreed and voluntarily cleared the tuckshop and left without any problem on 6 April 2017.

Accordingly, he denied that the first respondent was in peaceful and undisturbed possession of the tuckshop when the true owners of the tuck shop, Gateway Trust, recovered possession of the tuck-shop.

In short, the appellants case is that the first respondent voluntarily surrendered possession of the tuckshop to the lessor.

The learned judge in the court a quo believed the first respondent and disbelieved the appellants.

He found in her favour that she was in peaceful and undisturbed possession of the tuck shop prior to the unlawful dispossession, much to the chagrin of the appellants - hence this appeal.

The appellants raised the following grounds of appeal:

1. The learned judge in the court a quo erred at law and in fact in failing to find that the first respondent was not in peaceful and undisturbed possession of the tuckshop at the time of the alleged closure of the tuck shop. This requirement of spoliation was not established.

2. The learned judge in the court a quo erred at law in finding that the deprivation of the tuckshop amounted to unlawful deprivation since the first appellant was given notice of termination of the lease.

3. In the alternative, the learned judge in the court a quo grossly misdirected himself at law in failing to exercise his discretion not to grant the order sought given the circumstances of the matter that the continued operation of the tuckshop was not in the best interest of the children.

Although the appellants raised three (3) grounds of appeal, there is, in reality, one cardinal issue for determination.

The primary issue advanced for determination is whether or not the respondent was in peaceful and undisturbed possession of the tuckshop prior to the alleged unlawful dispossession.

The last two grounds of appeal are mere make-weights which add no value or cogency to the appeal.

Although there are apparent material disputes of fact, no one has complained that they were incapable of resolution on the basis of the papers filed of record.

The learned judge in the court a quo was therefore correct in disposing of the matter before him on the basis of the papers filed of record.

While preparing this judgment, it however occurred to me that a vital legal issue upon which the resolution of this appeal revolves was omitted. The crisp issue omitted for consideration is:

Whether an interdict having the effect of a final order can be sought through a provisional order?

Both counsel for the appellants and the first respondent have since filed useful supplementary heads of argument at the court's special instance and request.

They are agreed, that, a spoliation order, being a form of a final interdict, cannot be granted as a provisional order. It can only be granted as a final order.

Undoubtedly, both counsels are correct in their appreciation of the law in this respect.

The leading case on this settled point of law is Blue Rangers Estates (Pvt) Ltd v Muduvuri & Anor 2009 (1) ZLR 368.

That case is authority for the proposition that a spoliation order, being a final and definitive order, cannot be granted as a provisional order.

That being the case, it follows, that, the respondent erred and strayed into the realm of illegality when it sought a spoliation order in the form of a provisional order.

Consequently, the court a quo also erred, and fell into grave error, when it granted the first respondent a provisional spoliation order contrary to the dictates of the law.

While admitting that the provisional order granted by the court a quo is fatally defective, the first respondent has implored this Court to come to its rescue by resort to the court's powers under section 22(1) of the Supreme Court Act [Chapter 7:13] in the interests of justice.

The relevant parts of the section relied upon provide as follows:

“22 Powers of Supreme Court in appeals in civil cases

(1) Subject to any other enactment, on the hearing of a civil appeal, the Supreme Court —

(a) Shall have power to confirm, vary, amend, or set aside the judgment appealed against or give such judgment as the case may require;

(b) May, if it thinks it necessary or expedient in the interests of justice —

(i)…,.

(ix) Take any other course which may lead to the just, speedy, and inexpensive settlement of the case;”

On a proper reading of section 22 of the Supreme Court Act, it is clear that it confers no power of substitution on the court. It can only confirm, vary, amend, or set aside the judgment appealed against or give such judgment as the case may require.

The power “to give such judgment as the case may require” is in my view, not an open cheque for the court to go on a frolic of its own giving any judgment it desires.

That power is confined to what it is authorised to do under section 22 of the Supreme Court Act.

As the power of substitution is not given under section 22 of the Supreme Court Act, the court cannot exercise such power. If it does, it acts without jurisdiction.

That being the case, this court cannot substitute a final order for a provisional order.

By the same token, both the court a quo and this Court cannot give the respondent a relief that she did not ask for in the court a quo.

It is now settled law, that, a court has no jurisdiction to determine issues not placed before it because it is bound by the pleadings. It cannot go on a frolic of its own: see Nzara & Ors v Kashumba NO & Ors SC18-18…,.

Section 22(1)(b)(ix) of the Supreme Court Act is a procedural section which does not give any substantive relief.

Reliance on it for the granting of a final order, in place of the provisional spoliation order granted by the court a quo, is therefore misplaced and untenable at law.

In the final analysis, the urgent chamber application, being fatally defective, the appeal can only succeed.

It is accordingly ordered that:

1. The appeal succeeds with costs.

2. The whole judgment of the court a quo be and is hereby set aside, and, in its place, the following be substituted:

“The urgent application for a provisional spoliation order be and is hereby dismissed with costs.”

View Appeal
HH329-17 : MARINDA FENESEY vs GATEWAY PRIMARY SCHOOL and K M RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION and THE SHERIFF OF ZIMBABWE
Ruled By: MUSAKWA J

This is an application for a spoliation order. The draft order reads as follows -“TERMS OF FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the following terms;1. The 1st, 2nd and 3rd Respondents be and are hereby interdicted from ...

This is an application for a spoliation order. The draft order reads as follows -

“TERMS OF FINAL ORDER SOUGHT

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

1. The 1st, 2nd and 3rd Respondents be and are hereby interdicted from interfering in any manner with the Applicant's business operations at the tuck shop situated at Gateway Primary School, including, but not limited to barring her potential customers from buying from the tuckshop.

2. The1st, 2nd and 3rd Respondents be and are hereby ordered not to unlawfully evict the Applicant from the tuck-shop at Gateway Primary School.

3. The 1st, 2nd and 3rd Respondents to pay costs of suit on an attorney and client scale, the one paying the others to be absolved.

INTERIM RELIEF GRANTED

Pending confirmation or discharge of the provisional order, the Applicant is granted the following relief:

1. The 1st, 2nd and 3rd Respondents be and are hereby ordered to remove their additional locks at the tuckshop at Gateway Primary School upon service of this order and take all necessary steps to ensure that the Applicant's peaceful and undisturbed occupation of the tuck shop is restored failing which the 4th Respondent be and is hereby authorized to remove the locks above said (sic).

2. The 2nd Applicant (sic) be and is hereby ordered to publicly, and at an assembly, reverse the order he imposed on school pupils and teachers not to buy at the Applicant's tuck shop at Gateway Primary School.

3. The Applicant's legal practitioners are hereby given leave to serve the order on the Respondents.”

The background to this application is that the applicant leased a tuckshop that is situated at Gateway Primary School. The agreement was concluded with the Parents Association Committee of Gateway Primary School.

The applicant has been a statutory tenant since 2011.

On 6 February 2017, the applicant was given notice of termination of the lease with effect from 6 April 2017.

On 5 April 2017, the applicant's legal practitioners wrote to the chairman of the Parents Association Committee challenging the termination of the lease without good cause.

The applicant claims that she stocked the tuckshop in anticipation of the opening of the second term of schooling.

On 9 May 2017, which was the opening day of school, it is alleged that the second respondent barred everyone from buying from the tuck shop. The ban was announced at the school assembly. People were deployed to guard against anyone buying from the tuckshop. The applicant tried to engage the second respondent to no avail.

On 10 May 2017, the applicant found that additional locks had been installed on the tuck shop. As a result, she has not been able to access the tuck-shop.

It is the applicant's contention, that, she had hitherto been in peaceful and undisturbed possession of the tuck shop. Consequently, she was despoiled of her peaceful and undisturbed possession of the tuckshop.

The respondents contend, that, the applicant accepted the termination of the lease. She only flipped on 5 April 2017.

When she voluntarily gave up possession, the Gateway Schools Trust took over the premises.

It is also contended, that, the applicant was never in possession of the premises during the month of April. It is also disputed that she stocked the tuck shop.

There is further averment that the second and third respondents did what was in the best interests of the pupils whom the applicant was swearing at.

Although in the opposing papers the respondents had raised some points in limine, counsel for the respondents abandoned them in favour of the matter being heard on the merits.

That is quite commendable, as it has become predictable, in urgent applications, for the opposing side to raise preliminary issues.

Counsel for the applicant submitted, that, there was no response to the letter of 5 April, which suggests an admission of the unlawful conduct complained of. He further submitted, that, in terms of the oral lease, the applicant would not pay rentals during school holidays as there was no business to be conducted. However, the applicant had access to the tuck shop during the holidays.

The denial of access, by placing additional locks, is in violation of section 24 of the Commercial Premises (Rent) Regulations, S.I.676 of1983, SI676/83.

He further submitted that a tuck shop fits within the definition of commercial premises.

Regarding the contention that a spoliation order may not be granted where it is not practicable to do so, counsel for the applicant submitted that there is no averment that someone else has taken over the premises.

In submitting that the requirements for spoliation had been proven, he outlined them as -

(a) Peaceful and undisturbed possession; and

(b) Unlawful deprivation.

Whilst conceding the legal requirements for spoliation, counsel for the respondents submitted that this is not a case of spoliation.

According to him, spoliation is proprietary and does not apply to personal rights. He further submitted, that, the applicant's possession of the premises ended when the lease was terminated. Thus, possession of immovable property must be factual. Quasi-possession does not apply.

Counsel for the respondents also submitted that the applicant was misconceived to claim that the Commercial Premises (Rent) Regulations, SI676/1983 apply to the facts of the matter. This is because Gateway Primary School does not constitute commercial premises.

Counsel for the respondents further submitted, on the authority of De Jager and Others v Farah and Nestadt 1947 (4) SA 28 that a court has discretion not to grant a spoliation order where it is not practicable to do so.

Thus, it was his submission that the applicant's return to the premises would poison the learning environment. This is because the relationship between the parties is said to have deteriorated.

Reference was made to an incident wherein the applicant is said to have scolded one pupil calling her an idiot.

I do not think that it can be argued, seriously, that the applicant was not in possession of the tuck shop.

Once it is admitted that there was a lease agreement, then the issue of possession is established.

The applicant had access to the tuckshop from where she conducted her business.

Even though the applicant was not in exclusive possession of the tuck-shop, as it would be closed during holidays, it cannot be said she forfeited her overall physical control.

I am not persuaded that the tuck shop does not constitute commercial premises.

This is because, in terms of the Commercial Premises (Rent) Regulations, S.I.676/83 commercial premises are defined as -

“'commercial premises' means any premises, or part thereof, occupied under a lease for the purpose of carrying on therein any industry, business, trade or occupation, and includes any ground, parking-space, garage, outbuilding, workers quarters, and other improvement let therewith;”

There is no doubt that the applicant was conducting business under a lease with the respondents. This is irrespective of the fact that Gateway Primary School, on which the tuckshop is situated, may not be commercial premises for other purposes.

For purposes of a spoliation order, possession is not dependent on who has better title between an applicant and the spoliator.

What is necessary to prove is that the applicant was unlawfully dispossessed, or was unlawfully prevented from resuming possession after temporarily relinquishing physical control over the thing where there is reasonable belief that the applicant would be able to resume such control whenever he required the thing: see H. SILBERBERG, The Law of Property -1975.

With the requirements for spoliation having been set out, the only valid defences available are that -

(a) The applicant was not in peaceful and undisturbed possession of the thing in question at the time of the dispossession;

(b) The dispossession was not unlawful and therefore did not constitute spoliation;

(c) Restoration of possession is impossible;

(d) The respondent acted within the limits of counter-spoliation in regaining possession of the article.

In this respect, see the case of Kama Construction (Pvt) Ltd v Cold Comfort Farm Co-Operative and Others 1999 (2) ZLR 19 (SC).

There is dispute between the parties regarding whether the applicant had relinquished possession of the tuck shop by virtue of the notice that was given by the third respondent.

The applicant denies that she acquiesced to the notice, hence the letter of 5 April.

The other contention is that if she had voluntarily vacated the tuck shop, there would have been no need to install the additional locks. In addition, there would have been no need to make an announcement at assembly.

I would therefore hold, that, the applicant was unlawfully deprived of possession of the tuckshop. This destroys the respondents defence that the applicant voluntarily vacated the tuck shop.

It can be noted that the notice of termination did not advance any reasons.

This does not accord with section 22 of the Commercial Premises (Rent) Regulations, S.I.676/1983 which provides that -

“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.”

The fact that the applicant refused to vacate the premises did not empower the respondents to resort to unorthodox means to gain control of the premises. This runs contrary to the well-established principle that no one must take the law into their own hands.

The law on spoliation is aimed at protecting a possessor in retaining physical control or regaining it where he or she has been unlawfully deprived of such possession: see WILLE's Principles of South African Law, 7th ed.

The placing of additional locks on the tuckshop violates section 24 of the Commercial Premises (Rent) Regulations, SI 676/83 which provides that -

“No lessor of commercial premises shall —

(a) Without a lessee's consent, and without reasonable excuse, cause the removal from the premises of any property belonging to the lessee; or

(b) Prevent a lessee from using or occupying the premises; unless he has obtained an order of court for the removal of such property, if appropriate, or for the recovery of possession of the premises or the ejectment of the lessee therefrom.”

As regards whether restoration is possible, the contention by the respondents is untenable.

The argument, that the relationship between the parties has deteriorated was never advanced in the notice of termination. The claim that the applicant verbally abused a pupil cannot be an adequate reason to deny restoration as the aggrieved party has sufficient remedies to pursue. In addition, there was no averment by the respondents that a new tenant has since taken over the premises.

Accordingly, a provisional order is granted in terms of the draft.

HB53-15 : ZB BUILDING SOCIETY vs TAKESURE MASANZU
Ruled By: MOYO J

The plaintiff issued summons in this matter seeking an order as follows:

(a) Eviction of the defendant and all those claiming right of occupation through him from a property known as House Number 5 Cypress Avenue, Masasa, Kwekwe.

(b) Payment of $3,478 being arrear rentals for the period extending January 2013 to December 2013.

(c) Holding over damages at the rate of $11=50 per day from January 6, 2014 to the date of eviction.

(d) Payment of the sum of $169=32 being arrears ZETDC bills and $243 being the Municipality bills.

(c) Costs of suit at a higher scale.

It is important to note, that, the plaintiff's witness advised the court that claim number (d) on the summons was being abandoned because the utility bills had been paid by the defendant to the relevant authorities.

The plaintiff's case is that the defendant took over occupation of Stand 5 Cypress Avenue, Masasa, Kwekwe, after the decease of one Chengoma who was the lessee leasing the property from the plaintiff.

The plaintiff was made to understand, that, the defendant was related to the late Chengoma and would want to remain in occupation and take over the lease.

The plaintiff allowed the defendant to remain in occupation on condition the defendant paid monthly rentals in the sum of $345 per month.

They were to assess the defendant's performance on payments before crafting a lease in the defendant's name.

The defendant fell into arrears shortly after this arrangement was made resulting in the plaintiff instituting this action.

The defendant, on the other hand, agrees that he took occupation of the property in issue and that he was to pay $345 per month, but, that, in fact, he had entered into a rent to buy agreement with the plaintiff.

In giving evidence, the defendant told the court, that, in the rent to buy agreement he was to pay $345 per month and he was supposed to have paid $9,600 by 31 August 2013.

He however told the court, that, he did not pay the $9,600 by 31 August 2013 as the Bank had said he could be given an indulgence to pay within another three months. He said however he did not pay the $9,600 even by December 31, 2013 as he had only paid $7,500 by then.

Asked what the precise terms and conditions of the rent to buy agreement were, he said he was to pay $9,600 at $345 per month by 31 August 2013.

The defendant also told the court, that, it was another term of the agreement that he would then pay about $25,000 “soon after paying the $9,600” to make up the total purchase price of $35,000.

He said that his agreement with the Bank was oral.

The defendant failed to produce proof of payments for the rentals per month from 2012 to date. He only tendered about nine copies of deposit slips all with dates in 2012. They were marked Annexure “A”.

From the facts before me, the following are common cause:

(a) That the defendant took occupation of the plaintiff's property sometime in 2012–2013.

(b) That the defendant did make some payments towards rentals.

(c) That there are no rental slips for the years 2013, 2014 and 2015.

(d) That the property, i.e. Number 5 Cypress Avenue, Masasa, Kwekwe belongs to the plaintiff.

(e) That an agreement was reached between the parties resulting in the defendant occupying the plaintiff's property; whatever nature of agreement, whether it was a rent to buy or lease, but, the bottom line is some agreement was reached.

Looking at the plaintiff's allegations, that the defendant inherited Chengoma's lease whom they were made to believe was his relative, and the rentals agreed upon, as well as the payment slips tendered by the defendant, the plaintiff's case sounds, in my view, to be plausible.

On the other hand, the defendant's case creates numerous problems and I list them herein.

Assuming that the court were to accept the defendant's version of events, there are these challenges in adopting that version:

(1) The parties entered into an oral rent to buy agreement

This raises eyebrows as any person who owns an immovable property to the value of $35,000 would not behave in such a manner - moreso a Building Society.

On the other hand, the plaintiff's explanation for the oral lease agreement is plausible in that the defendant was taking over Chengoma's lease, as a relative, and this would entail continuity. Also, that they did not immediately reduce the agreement to writing since they wanted to observe the defendant's conduct with regard to payments makes sense.

(2) The defendant says, that, the agreement was that he takes occupation, pays $345 per month as rentals in a rent to buy agreement, and that he should have paid $9,600 by 31 August 2013 from January 2012.

2012 had 12 months, and, from January 2013 to August 2013 its 8 months, meaning, that, there is a total of 20 months. At $345 per month, for 20 months, mathematically, the defendant would have paid $6,900.

So, it would not make sense that the Bank agreed with him that he pays $9,600 by 31 August 2013, from January 2012, at the rate of $345 per month.

(3) When he was asked for the precise terms of this rent to buy agreement, he said that he was to pay about $25,000 “soon after paying the $9,600.”

What kind of agreement is this?

(4) The defendant did not comply with the terms of the agreement he alleges was entered into.

He never paid $345 per month consistently for the 20 months stretching from January 2012 to 31 August 2013. Neither did he pay the $9,600 by 31 August 2013.

He says that he was given a leeway to pay within 3 months from the last date given; but, it is also his evidence that he had not paid the $9,600 by December 2013. He also did not pay the balance of about $25,000 “soon after paying the $9,600” as he never paid the $9,600 in the first place.

Clearly, the defendant is being untruthful with the court from the aforestated analysis.

He wants to take the court in a long meandering route destined nowhere. He is merely wasting the court's time and is indeed abusing court process in my view.

He knows that he entered into a lease agreement with the plaintiff, defaulted on rentals, and then decide to come up with a concocted rent to buy story that was falling apart on its own.

I accordingly grant the plaintiff the following relief for the aforestated reasons:

(a) Eviction of the defendant and all those claiming right of occupation through him from the property known as House Number 5 Cypress Avenue, Masasa, Kwekwe.

(b) Payment of $3,478 being arrear rentals for the period extending January 2013 to December 2013.

(c) Holding over damages at the rate of $11=50 per day from January 6, 2014 to the date of eviction.

(d) Costs of suit at a higher scale.

HH48-12 : ENOCK GOVHA vs ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE and ANOR
Ruled By: MATHONSI J

This is an application for rescission of a judgment of this court entered in default in favour of the first respondent on 26 June 2008 in terms of which the eviction of the applicant and those claiming occupation through him from premises known as 1495 Chiwaridzo Township Bindura was ordered together with costs of suit.

On 4 February 2008, the first respondent issued summons out of this court in case number HC642/08 alleging that the house in question had been leased to the applicant by written lease agreement signed by the parties on 20 December 2003, which lease could be terminated by the first respondent in the event that the applicant left employment with the first respondent.

The first respondent further averred, that, the applicant's employment having been terminated on 31 March 2007, a point which is now hotly disputed by the applicant who claims having retired from the first respondent's employ in October 2005, the lease had been terminated.

The first respondent then sought an order for eviction as a consequence of the applicant's failure to vacate the house following such termination.

According to the Deputy Sheriff's (second respondent herein) return of service filed of record in that matter, the summons was “served on defendant Enock Govha” on 29 February 2008.

On 12 May 2008, the first respondent submitted an application for default judgement which was granted on 26 June 2008 aforesaid. In due course, a writ of ejectment was issued and the applicant's eviction was sought.

It is that default judgment which the applicant seeks to have rescinded arguing that he was not in wilful default as he was never served with the summons.

The applicant has cited the Deputy Sheriff in this application as second respondent and attacked his return of service as being “false and misleading” given that on the day the second respondent alleges he served the summons personally upon him, he (the applicant), was enjoying the fruits of his retirement in his communal home, he having relocated there in January 2006 following his retirement either in October or December 2005.

It is not clear when, as he mentions two (2) different months in 2005 as his retirement date.

It is not clear whether this application was served upon the second respondent as no proof of such service was filed.

What is clear though is that the second respondent has not challenged the serious allegations made against him regarding service of the summons. His failure to do so may be due to the fact that he did not have notice of the application.

The applicant states, in his founding affidavit, that, he only became aware of the existence of the default judgment when the second respondent sought to evict his daughter from the house on 1 November 2008.

He goes on to say, that, he should be allowed to contest the eviction because he bought the house from the first respondent and he paid the full purchase price.

In support of that claim, he has filed documents showing that the first respondent, as employer, offered houses to its employees, including the applicant. Those documents also show that the housing units were valued, their values determined and what each employee was expected to pay as the purchase price assessed and agreed.

The applicant also submitted his payslip showing that deductions were made by the first respondent from his salary under the caption “rent to buy”. The same payslip also reflects the balance after each deduction of the said 'rent to buy' showing that the amount charged was being progressively reduced. In addition, he filed receipts issued by the first respondent for further lump sum payments marked “payment of House 1495.”

For that reason, the applicant is of the firm view, that, having paid the full purchase price for the house, he cannot be evicted from it and has prospects of success on the merits.

The first respondent strongly opposes the application on the basis that the applicant has not shown good and sufficient reasons for the rescission of the judgment entered in default.

It has been argued on behalf of the first respondent, that, as the owner of the house, with title, it is entitled to vindicate against the applicant and that there was never an agreement of sale between the parties involving the house in question.

Counsel for the first respondent insisted that the relationship between the parties was governed by the written lease agreement signed in December 2003, which document the applicant says only recorded the financial arrangement between the parties for the conveyance, to the first respondent, of the purchase price. He vehemently argued, that, in terms of that lease agreement, the applicant would only be eligible for consideration to purchase the house at the expiration of 60 months from the date of the signing of that lease agreement.

Regrettably, counsel for the first respondent did not explain what governed the relationship between the parties before the lease agreement of 29 December 2003 was signed.

He took the view, that, as the applicant retired in March 2007, before the 60 month period had expired, he was not eligible to purchase the house and the first respondent was entitled to reclaim it.

There is a dispute as to when the applicant retired and two (2) different letters purporting to inform him of his resignation have been produced.

The first respondent produced a letter dated 14 November 2007 recording the applicant as having resigned on 31 March 2007.

Counsel for the applicant insists that letter is a recent fabrication by the first respondent, and has produced a letter written by the applicant's Human Resources Manager, M. Nyamadzawo, on 22 June 2005, giving the applicant notice of his retirement on 31 December 2005.

The first respondent has not explained the circumstances under which that letter was written if the applicant had not resigned.

Rule 63 of the High Court of Zimbabwe Rules 1971 provides:

“(1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application not later than one month after he has had knowledge of the judgment, for the judgment to be set aside.

(2) If the court is satisfied, on an application in terms of subrule (1), that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court considers just.”

Subrule (2) of Rule 63 was interpreted succinctly in the seminal case of Stockill v Griffiths 1992 (1) ZLR 172 (S)…, as follows:

“The factors which a court will take into account in determining whether an applicant for rescission has discharged the onus of proving 'good and sufficient cause' as required to be shown by Rule 63 of the High Court of Zimbabwe Rules 1971 are well established. They have been discussed and applied in many decided cases in this country: see, for instance, Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd SC16-86 (not yet reported); Roland and Anor v Donnell 1986 (2) ZLR 216 (S) at 226E-H. Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211C-F. They are:

(i) The reasonableness of the applicant's explanation for the default.

(ii) The bona fides of the application to rescind the judgment; and

(iii) The bona fides of the defence on the merits of the case which carries some prospects of success.

These factors must be considered not only individually but in conjunction with one another and with the application as a whole.”…,.

The explanation given by the applicant, for failure to respond to the summons, is not
convincing, especially as it does not appear that the second respondent, who claims to have served the summons personally on the applicant, has been served for him to responded to the accusations levelled against him.

I agree with counsel for the first respondent, who relies on the authority of Gundani v Kanyemba 1988 (1) ZLR 226 (S), that, the second respondent's return of service is prima facie proof of service and can only be rebutted by concrete evidence being placed before the court.

However, that is not the only factor to be considered in deciding whether the applicant for rescission of judgement has discharge the onus of showing “good and sufficient cause” for the rescission.

I had occasion, in Mazuva v Simbi and Ors HB155-11, a matter in which an applicant for rescission had not given a good explanation for failure to act, to comment…, that, even in such a situation such applicant can still discharge the onus if all the factors are taken together. In that matter, I stated:

“While the explanation for the first respondent's failure to respond to the application in HC905/10 is what MAKARAU JP (as she then was) referred to in Mwanyisa v Jumbo & Ors HH03-10 as 'a dog's breakfast' if the factors to be taken into account in deciding a rescission of judgment application, as set out in Stockill v Griffiths (supra), are taken in conjunction with one another, the applicant has discharged the onus of proving 'good and sufficient cause' for the rescission of the judgment entered on 1 July 2010. It simply cannot stand.”

Here is a company which avails to its employees an opportunity to purchase houses they are leasing from it. It signs an understanding with the employees representatives which has, appended to it, a list of beneficiaries which list sets out the value of each housing unit and the monthly instalment to be paid by each beneficiary - the applicant included. It goes on to deduct the equivalent of such instalment from the applicant's salary clearly stating that it is rent to buy the house and to also show the balance outstanding after such deduction.

The same instalment is reflected on a written lease agreement.

It must be understood, that, in an application of this nature, the applicant is not required to prove his case but merely to show a bona fide defence carrying prospects of success.

Counsel for the first respondent referred me to the case of Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 (unreported) in which the Supreme Court ruled, that, the agreement signed between the first respondent and its employees, on 1 December 2003, which the applicant relies upon, was not a sale.

That issue was considered by MAKARAU JP…, in: 1. Antonio v Ashanti Goldfields Zimbabwe Ltd & Anor; 2. Mujati v Ashanti Goldfields Zimbabwe Ltd & Anor; 3. Ashanti Goldfields Zimbabwe Ltd v Bonde 2009 (2) ZLR 371 (H); which matters involved the same arguments as in casu.

She distinguished that case and concluded…, as follows:

“I am bound by all decisions of the Supreme Court on points of law. Where, however, the facts that were placed before the Supreme Court are different from the facts before me, I believe I am at liberty to interpret those facts in light of the law handed down by the Supreme Court. The doctrine of stare decisis applies to points of law and not to factual disputes.”

I find myself in agreement with that postulation.

I am not aware if that judgment has been challenged, but, until such time that it is overturned, I am entitled to use it as I am persuaded by it.

Following the guidance given in Stockill v Griffiths 1992 (1) ZLR 172 (S), to consider the factors not only individually but in conjunction with one another and with the application as a whole, I am of the view, that, the applicant has discharged the onus resting on him to show 'good and sufficient cause' for the rescission of the default judgment.

Justice demands that the issues raised ought to be interrogated fully in a trial and that the applicant should not be shut out, as it were, on the technicality of default judgment.

In the result, I make the following order; that

1. The default judgement entered on 26 June 2008 be and is hereby rescinded.

2. The applicant should file his notice of appearance to defend in HC642/08 within ten (10) days of the date of this order.

3. The costs of this application shall be costs in the main action.

HH103-12 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED T/A FREDA REBECCA MINE vs TATENDA TAKAVADA
Ruled By: MUTEMA J

This is an application for summary judgment whose draft order reads:

“1. The respondent be and are (sic) hereby ordered to vacate the plaintiff's premises to wit House No. 1117 Haka Way, Chipadze Township, within seven (7) days of this order.

2. The respondent pays costs of suit.”

This is one of several similar matters in which the applicant is seeking the eviction of its former employees from company houses on the basis that the former employees were mere tenants whose employment has since terminated.

The former employees, just like the respondent herein, argue that the applicant sold the houses to them.

The respondent argues that he has a bona fide defence to the applicant's claim. That defence is explained as follows:

In 1998, the applicant, as part of its staff retention scheme, proposed to sell its housing units to its employees over a five year period. By then, the life-span of the mine had been projected to be around five years. The scheme would also help the applicant realize better value from the disposal of the houses in that manner as opposed to by selling them upon closure of the mine in an environment akin to a ghost town.

As a sequel to the proposal, a lot of deliberations were held on the issue and a Housing Committee was put in place composed of representatives of the employees and the applicant.

The relevant minutes were attached to the opposing papers.

Minutes of 8 May 2003 read:

“2.1 Sale of Residential Properties

The process was still ongoing and progressing well. The Finance Director, together with the workers representative went to consult a lawyer to resolve the outstanding issues. The lawyer came up with what he advised as the best option. Minor changes were made to what the lawyer proposed to suit the employee's needs. Whether that is acceptable will be determined when forms are taken back to the lawyers. IT WAS AGREED that the issue be pursued closely so that it comes to rest.”

Minutes of 24 August 2003 read:

“2.1 Sale of Residential Properties

There was a lot of progress on the sale of residential properties. A hurdle on the revaluation of the houses was cleared with Mr Kwaku-Akosah-Bempah when he visited the mine during the second quarter. The Finance Director, together with the worker's representative, had been to the lawyer with the final draft to which the lawyer had already responded….,.”

Thereafter, what was termed a Memorandum of Agreement BETWEEN Ashanti Goldfields Management and Employees was signed. It provided:

“Ashanti Goldfields Zimbabwe agrees to dispose of its housing units situated in Chiwaridzo, Grey Line Flats and Low Density to its employees who are sitting tenants effective 1 December 2003. Find the agreed prices attached.”

The attached schedule has names of the sitting tenants, house number, new valuation of the house, and monthly repayment amount.

On 12 December 2003, the respondent (and other employees) entered into what is headed Agreement of Lease with the applicant.

The material clauses of the “lease” state that the lease period would be for five years, monthly rent of not more than 25% of the lessee's basic salary which would escalate periodically at a rate and on the basis described in Annexure 'A' viz:

“The value of the property will be revalued each time the employee is awarded the annual salary increment. The outstanding balance as at the effective date of the increment is what is revalued. The revaluation will be calculated as follows:

50% of the salary increment (%) x the outstanding balance (as at that date). The revalued outstanding balance will then be divided by the remaining period to get the monthly payment.”

The purported lease agreement was simply a vehicle through which deductions would be made from the respondent's salary.

This explains why the applicant, on the respondent's payslip, put a deduction titled “Rent to Buy” and why the applicant accepted a lump sum payment in full and final settlement of the sums payable to it under the agreement of sale before the expiration of the purported lease period.

Also, the minutes of 16 December 2003 are apposite. The relevant part reads:

“3.0 Sale of Residential Properties

There was a lot of progress on the sale of residential properties. Management had approved and concluded the sale. The employees are busy filling in the contract forms.”

Pertinent to note here is that this was said after 12 December 2003 purported lease agreement.

While there exists a plethora of case law on the subject of summary judgment, the locus classicus is that of Maharaj v Barclays National Bank Limited 1976 (1) SA 418 (AD)…, where CORBETT JA said:

“Accordingly, one of the ways in which a defendant may successfully oppose a claim for summary judgment is by satisfying the court, by affidavit, that he has a bona fide defence to the claim. Where the defence is based upon facts, in the sense that material alleged by the plaintiff in his summons…, are disputed, or new facts are alleged constituting a defence, the court does not attempt to decide these issues or to determine whether or not there is a balance of probabilities in favour of one party or the other.

All that the court enquires into is:

(a) Whether the defendant has fully disclosed the nature and grounds of his defence and the material facts upon which it is founded; and

(b) Whether, on the facts so disclosed, the defendant appears to have, as to either the whole or part of the claim, a defence which is bona fide and good in law.”

On the facts so disclosed in casu, I am persuaded that the respondent's defence is bona fide and good in law.

I also derive solace in reaching this conclusion from the salutary words of GUBBAY JA…, in Jena v Nechipote 1986 (1) ZLR 29 (S)…, where the LEARNED JUDGE OF APPEAL held:

“All the defendant has to establish in order to succeed in having an application for summary judgment dismissed is that there is a mere possibility of his success; he has a plausible defence; there is a triable issue; or there is a reasonable possibility that an injustice may be done if summary judgment is granted.”

The respondent's explanation, expounded above, right through its chronology of events pertaining to the disposal of residential properties, does amount to a trial issue. There exists a reasonable possibility of an injustice being done if summary judgement were to be granted.

I am constrained to utter the following strictures concerning the applicant's obduracy.

As stated above, there are scores of similar cases involving the applicant and its former employees. One such is Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Joachim C Nguwo HH58-12 wherein I dismissed a similar application on the same grounds.

The applicant seems to be engaged in a process of judge-hunting because several similar cases are either pending before other judges or have been dealt with meeting with the same fate of dismissal.

In 1. Simbarashe Antonio v Ashanti Goldfields Zimbabwe Limited & Registrar of Deeds; 2. Kingstone Mujati v Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine & Registrar of Deeds; and 3. Ashanti Goldfields Zimbabwe Limited v Kwadzanayi Bonde HH135-09 MAKARAU JP…, following a full trial based on similar claims, distinguished Ashanti Goldfields Zimbabwe Limited v Clemence Kovi SC07-09 which the applicant seems to rely on in its claims and held that the facts in HH139-09 established a sale.

Those facts fall on all fours with the facts in casu as well as those in Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Joachim C Nguwo HH58-12 in which I dismissed the application for summary judgment and gave the respondent unconditional leave to defend.

Although the judgment in 1. Simbarashe Antonio v Ashanti Goldfields Zimbabwe Limited & Registrar of Deeds; 2. Kingstone Mujati v Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine & Registrar of Deeds; and 3. Ashanti Goldfields Zimbabwe Limited v Kwadzanayi Bonde HH135-09 was appealed against, and the appeal is still pending, it is only prudent and proper that the applicant should await its outcome and stop judge hunting in order to avoid creating a multiplicity of contradictory judgments involving the same issue thereby causing confusion and injustice.

Since the facts and argument in casu fall on all fours with the cases dealt with by MAKARAU JP…, cited supra, and Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Joachim C Nguwo HH58-12 I dealt with supra, the present application for summary judgement be and is hereby dismissed and the defendant is given unconditional leave to defend the action.

The applicant is ordered to pay the costs of this application.

HH271-13 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDDA REBECCA MINE vs NYASHA MUTENGWA
Ruled By: MAWADZE J

This is an application for summary judgment wherein the applicant seeks the eviction of the respondent and all those claiming occupation through him from House Number 1131, Chipadze Township, Bindura and costs of suit.

The facts of this matter are largely common cause:

The respondent was employed by the applicant. With the passage of time, the apparently benevolent employer, being the applicant, decided to sell some of the houses to some employees who were sitting tenants.

Some sort of agreement was entered between the applicant, represented by its General Manager and Financial Director, and the employees, represented by the Workers Committee members being the Chairman and two Committee members.

The said agreement or memorandum is dated 1 December 2003 and is in the following terms;

“MEMORANDUM OF AGREEMENT BETWEEN ASHANTI GOLD FIEDS MANAGEMENT AND EMPLOYEES

Ashanti Goldfield Zimbabwe agrees to dispose of its housing units situated in Chiwaridzo, Grey Line Flats, and Low Density to its employees, who are sitting tenants, effective 01 December 2003. Find the agreed prices attached.”

The said agreement is attached to the applicant's founding affidavit as Annexure F1 to F4.

Attached to this agreement is a schedule which has a list of the employees involved, the house they occupy, the value of each house (in Zimbabwe dollars) and the monthly instalments or repayment each employee was to pay.

The respondent occupied House No.1131 which was then valued at Zimbabwean dollars $1,200,000 and was to pay a monthly instalment of Zimbabwe $20,000.

Pursuant to the signing of the Memorandum of Agreement explained above, and on 12 December 2003, the applicant and the respondent entered into what is called “Agreement of Lease” in which the applicant agreed to lease House No.1131 Chipadze, Bindura (the house) to the respondent for a period of 60 months (5 years) commencing 1 January 2004 at the monthly rentals of Zimbabwean $20,000 which was reviewable in accordance with Annexure 'A' to that lease agreement (which provided for revaluation of the property whenever employees are awarded a salary increment).

These monthly rentals were deducted from the respondent's salary.

Clause 3 of the lease agreement provided for the option to buy the house. It provides as follows;

“3. OPTION TO PURCHASE

3.1. The lessee shall have the option to purchase the property after sixty months.

3.2. The rentals paid by the Lessee to the Lessor in terms hereof shall be taken and be deducted from the amount due in respect of the purchase price determined in accordance with the provisions of Clause 3.1. (above).”

The lease agreement is signed by a representative of the applicant and the respondent.

From other decided cases I have been referred to, dealt with by this court, it is common cause that a number of employees entered into such a lease agreement.

It would appear to my mind, that, the dispute in this case, and other cases already dealt with by this court, relates to interpretation to be accorded to the “Memorandum of Agreement” dated 1 December 2003 and the lease agreement dated 12 December 2003 and the relationship between the two documents.

I shall revert to this point later.

After the issuing of the Memorandum of Agreement, on 1 December 2003, and before the signing of the lease agreement, on 12 December 2003, the Workers Committee, through what was now called the Housing Committee, issued out a Memorandum to all employees of the applicant copied to the applicant.

This Memorandum explained the Agreement reached on 1 December 2003. Most importantly, it invited the employees who were sitting tenants to take up the offer to buy the houses.

The relevant part of this Memorandum, dated 2 December 2003, reads as follows;

“Please note that you have until February 29, 2004 to decide whether to purchase the house you are living in or not, after which date the offer will be extended to an employee who is willing to purchase the property. The offer is now open, therefore, employees who are ready can see the Members to formalise the purchase.”…,.

It was after this invitation that the respondent entered into the lease agreement with the applicant on 12 December 2003.

In addition to that, the respondent has attached as Annexures A1 to A3 his payslips which reflect that money was deducted from his salary which money is reflected as “rent to buy”.

The payslips are as follows;

A1, dated 31 October 2004, has a deduction indicated as “Bal rent to buy $52,755”

A2, dated 25 March 2004, has a deduction indicated as “Bal rent to but $116,000”

A3, dated 25 June 2004, has a deduction reflected as “Bal rent to buy $56,895”

The respondent has also attached to his opposing affidavit a memorandum from the applicant, written by the applicant's Financial Controller to the respondent and copied to the Housing Committee dated, 14 March 2004. Its contents are as follows;

“This memo serves as an acknowledgement that we have received $1,100,000 (one million one hundred thousand dollars) as payment towards yours house. The outstanding balance is now $60,000 (sixty thousand dollars).”

It is common cause that the respondent, who was employed by the applicant, and was the sitting tenant in this house as at 1 December 2003, was summarily dismissed on 15 July 2009 following a disciplinary hearing held in terms of their Code of Conduct.

This means, that, as at the date of his dismissal, the respondent has been in occupation of the house for a period of sixty seven (67) months - which is in excess of the sixty months stipulated in the Lease Agreement dated 12 December 2003.

After the dismissal, on 15 July 2009, the respondent, on 4 September 2009, was advised to vacate the house on the basis that the lease agreement which entitled him to occupy the house had lapsed due to the termination of the respondent's contract of employment (see Annexure D to the applicant's founding affidavit).

The respondent refused to vacate the house.

This prompted the applicant to issue summons out of this court in HC4395/09 (main matter) seeking the eviction of the respondent and all those claiming occupation through him and costs of suit.

The respondent entered an appearance to defend and filed a plea, which plea had been dismissed by the applicant as not raising a good prima facie defence, culminating in this application for summary judgement.

It is useful, at this stage, to deal with the respondent's plea (Annexure E to E4 to the applicant's founding affidavit).

In his plea, the defendant stated, that, prior to 1 December 2003, he was occupying the house in issue on the basis of the contract of employment and that since 1 December 2003 he was now occupying the house on the basis of a sale agreement.

The respondent said he has since fully paid for the house and awaits the transfer of the house into his name.

It is the respondent's contention, that, the lease agreement dated 12 December 2003 was the vehicle through which the respondent, and other employees, purchased the houses as they paid for the houses through the process of rent to buy with the monthly repayments deducted from their salaries.

The respondent, in his plea contends, that, he has now acquired rights and interest in the same house hence the applicant cannot evict him from the house.

In fact, the respondent proceeded to file a counter-claim seeking an order to compel the applicant to transfer its rights, interest, and title in the said house to the respondent within 30 days of the grant of such an order and costs of suit.

The question to be addressed in this matter is whether, given the facts I have painstakingly outlined, the applicant is entitled to this extraordinary remedy in the form of a summary judgment?

An application for summary judgment is made in terms of order 10 Rule 64 of the High Court Rules 1971 in circumstances where the applicant is of the belief that the respondent has no bona fide defence to his action.

The respondent may oppose such an application in terms of Order 10 Rule 66(1)(b) of the High Court Rules by showing that he has got a prima face defense to this action.

The law, in relation to the requirements for granting a summary judgment, is clear.

The old case of Roscoe v Stewart 1937 CPD 138 which is cited by the celebrated authors HERBSTEIN and Van WINSEN – Civil Procedure of The Superior Courts In South Africa, 2nd Edition…, makes the point, that, summary judgement is a remedy designed to eliminate or dispose of bogus defences and defences which are bad at law.

The mischief which is curbed by this drastic remedy is to prevent unscrupulous litigants seeking to delay a clear and just claim by raising frivolous defences: see Nedlaw Investments & Trust Corporation Limited v Zimbabwe Development Bank SC05-00 in which it was clearly stated that;

“…, the quintessence of the drastic remedy is that a plaintiff, whose belief is that the defendant's defence is not bona fide and entered solely for dilatory purposes should be granted immediate relief without the expense and delay of a trial.”

In order to successfully fend off an application for summary judgment, a defendant has to show that he has a good prima facie defense to the action.

Our courts have had the opportunity to define what constitutes a good prima facie defence.

In the case of Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235 (H)…, MALABA J…, has this to say;

“…, he must at least disclose his defense, and material facts upon which it is based, with sufficient clarity and completeness to enable the court to decide whether the affidavit discloses a bona fide defence: Haharaj v Barclays National Bank Ltd 1976 (1) SA 418 at 426D…, the statement of material facts (must) be sufficiently full to persuade the court that what the defendant has alleged, if proved at trial, will constitute a defense to the plaintiff's claim.”

Having laid out these principals of law applicable to this case, I now proceeded to apply these principles to the facts of this case.

The applicant believes, that, the appearance to defend entered by the respondent, and his subsequent plea, do not disclose a bone fide defence but was solely entered for purposes of delay.

In argument, the applicant submitted, that, there was never an agreement of sale between the applicant and the respondent.

It is the applicant's view, that, the memorandum of agreement, dated 7 December 2003, cannot be construed as an agreement of sale, and, reliance was placed on the case of Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 in which CHEDA JA had to interpret this same document and clearly stated, that, it cannot be said to be an agreement of sale.

Similarly, the applicant submitted, that, the lease agreement, dated 12 December 2003, cannot be construed also on an agreement of sale as it merely provides, in Clause 3, that, an option to purchase this property would be offered to the respondent after sixty months.

The applicant's case, therefore, is that the agreement of lease, having been terminated after the respondent left the employ of the applicant, the respondent has no right, whatsoever, to remain in the house as the applicant remains the registered owner of the house.

While it is correct, that, the pronouncements of the Supreme Court are binding to this court, I believe the case in which the applicant seems to have reposed all his faith in, of Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09, can be distinguished from the facts of this case.

In fact, MAKARAU JP…, in a number of cases involving the applicant and its employees, in Antonio v Ashanti Goldfields Zimbabwe & Anor; Mujati v Ashanti Golfields Ltd & Anor; Ashanti Goldfieds Zimbabwe Ltd v Bonde 2009 (2) ZLR 371 (H)…, distinguished Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 as follows;

“I am bound by all the decisions of the Supreme Court on points of law. Where, however, the facts that were placed before the Supreme Court are different from the facts before me, I believe I am at liberty to interpret their facts in light of the law handed down by the Supreme Court. The doctrine of stare decisis applies to points of law and not to factual disputes.”

A number of my brother and sister judges who have been seized with matters involving the applicant and its employees, in relation to these houses, have adopted the approach enunciated by MAKARAU JP…, in arriving at a different conclusion, on the facts presented in each particular case, despite the sentiments expressed in Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 in relation to the Memorandum of Agreement, dated 7 December 2003, and the Lease Agreement dated 12 December 2003.

Few examples are sufficient to illustrate this point.

In the case of Ashanti Goldfields Zimbabwe Ltd v Jhafati Mdala HC5664/07 CHATUKUTA J, after a protracted trial, did find, that, on the facts presented before her, inclusive of the Memorandum of Agreement dated 7 December 2003 and the Lease Agreement dated 12 December 2003, indeed, Ashanti Goldfields Zimbabwe Ltd had sold the house to the defendant.

In the case of Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Shingirai Matimura & Ors HH54-11, GOWORA J…, declined to grant a summary judgment wherein the applicant had sought the eviction of the respondents; whilst the respondents had advanced a similar argument like in the instant case. Indeed, the Memorandum of Agreement dated 7 December 2003 and the Lease Agreement, similar to one dated 12 December 2003, were some of the documents in issue in that case.

Lastly, in the case of Govha v Ashanti Goldfields Zimbabwe t/a Freda Rebecca Mine & Anor HH48-12, and, in Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Ephraim Pfidze HH347-12 MATHONSI J, in both cases, faced with facts almost on all fours with the present case, declined to grant a summary judgement in both cases for the eviction of the respondents (employees).

It is clear from the facts of this case that the respondent has raised a good prima facie defence to the action for eviction.

The Memorandum of Agreement, dated 1 December 2003, which I have alluded to in my introductory remarks, shows, that, the respondent was one of the sitting tenants who were eligible to purchase the house in issue. The respondent contends, that, he acted in terms of the Memorandum, dated 2 December 2013, which invited all employees who were sitting tenants to exercise the offer to purchase the houses as at 29 February 2004.

In fact, the respondent argues, that, he proceeded, in exercising this option, to enter into a lease agreement, dated 12 December 2003, which he described as the vehicle with which the employees were to purchase the houses, as they all started to pay what was called “rent to buy”.

Indeed, the respondent attached some of his payslips, for 2004, which show that monthly deductions in various amounts were made as “rent to buy”.

In addition to that, the respondent has included a memorandum from the applicant, addressed to him, acknowledging receipt of $1,100,000 towards the purchase of house, and indicating that outstanding balance as $60,000 only.

As already stated, the respondent was in occupation of this house (as a sitting tenant) for a period in excess of 60 months (Clause 3 of the lease agreement) before he was dismissed from work and the lease agreement purportedly terminated.

Considering all these the factors placed before the court by the respondent, one cannot say, with certainty, at this stage, that the respondent did not exercise the option to purchase the house in issue.

The applicant has not been able to meaningfully explain why, after a period of 60 months, and in view of the proof of monthly deductions and confirmation by the applicant of such payment as part of the purchase price, in March 2004, the applicant is still of the view that the respondent did not purchase the house.

I am satisfied that the respondent has presented an arguable case.

It cannot be said that the defence raised by the respondent is simply raised for purposes of delaying the inevitable. It would therefore be unfair and improper, and this stage, to close the door to the defendant and deny him the opportunity to defend the claim.

On the facts before me, it cannot be said, that, the applicant's case is unanswerable and unassailable.

The parties should be allowed to have their day in court and present evidence on whether the respondent exercised the right to purchase the house in issue and paid the full purchase price.

The claim for eviction, at this stage, is premature.

The application for summary judgment is therefore without merit. In the result, the summary judgement application is dismissed with costs.

prev 1 2 next

Back Main menu

Law Portal
Zimbabwe

Lease Agreements re: Termination, Notice of Termination & the Exceptio Doli Mali iro Lessee Eviction & Incidental Possessors

HB157-16 : NRZ CONTRIBUTORY PENSION FUND vs JOSRO ENTERPRISES (PVT) LTD t/a ASCOT PUB & GRILL
Ruled By: TAKUVA J

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

HH159-12 : URMILLA GIGA vs ALBION PROPERTIES and MESSENGER OF COURT HARARE and APPLISET INVESTMENTS (PVT) LTD
Ruled By: UCHENA J

SC40-15 : INDIUM INVESTMENTS (PVT) LTD vs KINGSHAVEN (PVT) LTD and DANIEL SHUMBA and LINDA SHUMBA
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GOWORA JA, HLATSHWAYO JA and MAVANGIRA AJA

HH40-08 : DHLIWAYO RODGERS vs SHAUN MANDAA KUDINGA
Ruled By: MTSHIYA J

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

Appealed
SC63-21 : GATEWAY PRIMARY SCHOOL and KM RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION vs MARINDA FENESEY and THE SHERIFF OF ZIMBABWE
Ruled By: HLATSHWAYO JA, GUVAVA JA and BHUNU JA

View Appeal
HH329-17 : MARINDA FENESEY vs GATEWAY PRIMARY SCHOOL and K M RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION and THE SHERIFF OF ZIMBABWE
Ruled By: MUSAKWA J

HB53-15 : ZB BUILDING SOCIETY vs TAKESURE MASANZU
Ruled By: MOYO J

HH48-12 : ENOCK GOVHA vs ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE and ANOR
Ruled By: MATHONSI J

HH103-12 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED T/A FREDA REBECCA MINE vs TATENDA TAKAVADA
Ruled By: MUTEMA J

HH271-13 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDDA REBECCA MINE vs NYASHA MUTENGWA
Ruled By: MAWADZE J

Categories

Law Portal Zimbabwe

Lease Agreements re: Termination, Notice of Termination & the Exceptio Doli Mali iro Lessee Eviction & Incidental Possessors

HB157-16 : NRZ CONTRIBUTORY PENSION FUND vs JOSRO ENTERPRISES (PVT) LTD t/a ASCOT PUB & GRILL Ruled By: TAKUVA J

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

HH159-12 : URMILLA GIGA vs ALBION PROPERTIES and MESSENGER OF COURT HARARE and APPLISET INVESTMENTS (PVT) LTD Ruled By: UCHENA J

SC40-15 : INDIUM INVESTMENTS (PVT) LTD vs KINGSHAVEN (PVT) LTD and DANIEL SHUMBA and LINDA SHUMBA Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GOWORA JA, HLATSHWAYO JA and MAVANGIRA AJA

HH40-08 : DHLIWAYO RODGERS vs SHAUN MANDAA KUDINGA Ruled By: MTSHIYA J

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

Appealed SC63-21 : GATEWAY PRIMARY SCHOOL and KM RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION vs MARINDA FENESEY and THE SHERIFF OF ZIMBABWE Ruled By: HLATSHWAYO JA, GUVAVA JA and BHUNU JA

View Appeal HH329-17 : MARINDA FENESEY vs GATEWAY PRIMARY SCHOOL and K M RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION and THE SHERIFF OF ZIMBABWE Ruled By: MUSAKWA J

HB53-15 : ZB BUILDING SOCIETY vs TAKESURE MASANZU Ruled By: MOYO J

HH48-12 : ENOCK GOVHA vs ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE and ANOR Ruled By: MATHONSI J

HH103-12 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED T/A FREDA REBECCA MINE vs TATENDA TAKAVADA Ruled By: MUTEMA J

HH271-13 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDDA REBECCA MINE vs NYASHA MUTENGWA Ruled By: MAWADZE J

Categories

Your Donation.

Law Portal
Zimbabwe

HB157-16 : NRZ CONTRIBUTORY PENSION FUND vs JOSRO ENTERPRISES (PVT) LTD t/a ASCOT PUB & GRILL
Ruled By: TAKUVA J

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

HH159-12 : URMILLA GIGA vs ALBION PROPERTIES and MESSENGER OF COURT HARARE and APPLISET INVESTMENTS (PVT) LTD
Ruled By: UCHENA J

SC40-15 : INDIUM INVESTMENTS (PVT) LTD vs KINGSHAVEN (PVT) LTD and DANIEL SHUMBA and LINDA SHUMBA
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GOWORA JA, HLATSHWAYO JA and MAVANGIRA AJA

HH40-08 : DHLIWAYO RODGERS vs SHAUN MANDAA KUDINGA
Ruled By: MTSHIYA J

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

Appealed
SC63-21 : GATEWAY PRIMARY SCHOOL and KM RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION vs MARINDA FENESEY and THE SHERIFF OF ZIMBABWE
Ruled By: HLATSHWAYO JA, GUVAVA JA and BHUNU JA

View Appeal
HH329-17 : MARINDA FENESEY vs GATEWAY PRIMARY SCHOOL and K M RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION and THE SHERIFF OF ZIMBABWE
Ruled By: MUSAKWA J

HB53-15 : ZB BUILDING SOCIETY vs TAKESURE MASANZU
Ruled By: MOYO J

HH48-12 : ENOCK GOVHA vs ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE and ANOR
Ruled By: MATHONSI J

HH103-12 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED T/A FREDA REBECCA MINE vs TATENDA TAKAVADA
Ruled By: MUTEMA J

HH271-13 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDDA REBECCA MINE vs NYASHA MUTENGWA
Ruled By: MAWADZE J