MAVANGIRA J: On 7 February 2001 the first applicant and
the respondent entered into a lease agreement in terms of which the respondent
leased to the first applicant certain premises known as the Boka Tobacco Auction
Floors.
On 24 December 2010, in HC 9478/10,
by the consent of all the parties herein, this court issued an order in terms
of which the respondent herein was allowed reasonable access to the leased
premises on the following conditions:
“1.1 The access shall be restricted to
inspection of the premises and causing necessary repairs thereof.
1.2
The
access shall be exercised upon reasonable written notice being given to the
respondents, through their Chief Executive Officer or the Security Manager, at
least 48 hours before the initial visit to allow proper co-ordination and
facilitation of the exercise after which oral notice to the said company
representatives shall suffice.
1.3
The
applicant be and is hereby directed not to exceed the limits of clause 14 of
the lease agreement executed by the parties on 7 of February 2001”.
The above order ought to be
understood in the context that the applicants herein were the respondents in HC
9478/10 and the respondent herein was the applicant.
In casu the applicants contend that “the respondent has exceeded the
limits of the order and is seeking to achieve an ejectment of the applicants
without following due process”. They allege that the respondent broke into the
premises and also made indications that there would be massive demolitions on
part of the premises. They also allege that the respondent's representative
also advised subtenants on the premises that they were to remove their property
from the premises as the respondent would be undertaking extensive demolitions,
alterations and additions to the premises. The respondent allegedly also caused
the demolition of two pillars holding the main gate, removed asbestos roofing
on the parking sheds and also removed the steel poles. The respondent allegedly
also caused the erasure of the applicants' signage inscribed at the reception
doors and on the premises and has proceeded to have its own name inscribed on
the signage.
The applicants therefore seek in casu a provisional order in the
following terms:
“1. INTERIM
RELIEF GRANTED
Pending the
determination of this matter, the applicants be and is (sic) hereby granted the following relief:
(a)
That
the respondent be and is hereby interdicted from carrying out any ejectment of
the applicants and all those claiming occupation through them from, and or
interfere with the business of the applicants and the sub-tenants at, the
premises situate at 13km peg Simon Mazorodze Road, Harare without the authority
of an order of a competent court.
(b)
The
respondent be and is hereby interdicted from conducting the business of Tobacco
Auction Floors on the premises which form subject matter of the Lease Agreement
executed between the parties on the 7th of February 2001 until
resolution of all disputes relating to, or arising from, the Lease Agreement
which are currently pending in this court in cases number HC 9478, HC 7005/10,
HC 8312/10 and HC 7324/10.
(c)
The
respondent be and is hereby directed to, restore, at its cost, the applicants'
signage at the premises in issue within twenty four (24) hours of this order
being made failing which the applicants shall restore same at the respondent's
cost.
(d)
The
repairs to be effected pursuant to the order made on the 24th of
December 2010 be and are hereby suspended pending finalisation of the matters
pending in this court in cases number HC 7055/10, HC 8312/10 and 7324/10.
2.
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:
(a)
That
the provisional orders issued in this matter be and are hereby confirmed.
(b)
That
the respondent shall pay the applicant's costs of suit on the applicable scale
in terms of the Law Society Tariff for fees charged by legal practitioners or,
alternatively, costs on an attorney –client scale be and are hereby granted to
the applicants”.
The respondent denies that it
intends to unlawfully evict the applicants. The respondent's legal practitioner
submitted that it is rather the applicants who have, without the authority of a
court order barred the respondent from entering or accessing the premises in
defiance of the consent order of 24 December 2010.
The applicants' contention that the
respondent intends to evict them from the leased premises without their consent
or the authority of a court order is based or premised on suspicion and from
certain media reports. It is not based on any direct communication to them from
the respondent. It is the applicants' suspicion that as the respondent has
been, or is to be awarded a tobacco auctioning license and in view of the
nature of repairs or demolitions and alterations that the respondent is
carrying out, it follows that when the tobacco auctioning season starts in
three and half weeks' time, the respondent will conduct the business of tobacco
auctioning from the leased premises thereby effecting a constructive eviction
of the applicants. This appears to be the reason why the applicants have now
barred the respondent from entry into the premises. The applicants do not state
their authority for barring the respondent as alleged.
It appears to me that the
applicants' suspicion as detailed above cannot be justification for the relief
sought in para (a) of the interim relief sought viz, that the respondent be interdicted from unlawfully ejecting
the applicants and from interfering with their business without the authority
of an order of a competent court. In any event, besides it being mere suspicion
on the part of the applicants, it is the applicants' word against the
respondent's word. The respondent has categorically denied harbouring the
intention ascribed to it by the applicants. If anything, despite the clear
provisions of the consent order of 24 December 2010, the respondent finds
itself barred from obtaining access into the premises for the purposes stated
in the order.
In para (b) of the interim relief
sought the applicants seek to interdict the respondent from conducting the
business of Tobacco Auction Floors on the premises until the resolution of all
disputes relating to or arising from the lease agreement which are currently
pending in this court. It is common cause that the applicants have been denied
a tobacco auction floor licence by the Tobacco Industry Marketing Board. The
said Board indicated in its letter of 29 November 2010 that it resolved to
award the respondent a licence to operate an auction floor in 2011 subject to
the respondent “and the premises … fulfilling requirements of the Tobacco
Marketing and Levy Act [Cap 8:20] and
SI 29 of 2000, … the Tobacco Industry and Marketing (“Marketing”) Rules, 2000”.
The effect of para (b) of the
interim relief sought appears to me to be to bring the court into the fray or realm
of the issuance of licenses by the TIMB. However, any disgruntlement on the
part of the applicants at the issuance of a licence to the respondent is not a
matter that is before the court. The relationship between the parties in casu is that of landlord and tenant. The
operation or conducting of the business of Tobacco Auction Floors would be done
in terms of an appropriate licence granted for the purpose. The relief sought
in paragraph (b) is therefore not for this court to entertain in these
proceedings. There should ordinarily be a proper procedure provided by the
relevant legislation in such situations. It was not contended that there is no
procedure provided in the relevant regulations in the event of a party being
aggrieved by the refusal or grant of a licence. The clothing of such “aggrievement”
as a basis for the applicants' suspicion that the respondent is about to or
intends to break the law does not in my view, justify or lay the basis for the
granting of the relief sought in both paras (a) and (b).
In addition to what is stated above,
the applicants, by their own admission, have decided to withhold payment of
rentals for the premises for the month of January 2011. They justify this
decision on the basis that they are not certain whether or not they will be
ejected. Thus in one breath the applicants advise the court that they have
decided not to and they have not paid rent as required in terms of their lease
agreement and in the next breath they ask the same court to ensure that the other
party is held to the terms of the same lease agreement which they are breaching
themselves.
It is common cause that the dispute
relating to the rights of the parties in terms of the lease agreement is
pending before the court. The proceedings in which the eviction of the
applicants from the leased premises is sought is also pending before the court.
In all, the parties they have four matters pending in the High Court. The
applicants seek the relief stated in paras (a), (b) and (d) pending the
determination of the said pending matters yet they have decided to withhold
payment of rentals to the respondent before the same matters have been
determined. If the applicants' clear or prima
facie right is based on their rights
in terms of the lease agreement, as they contend, it makes a mockery of justice
for them to ask the court to grant the relief that they seek when they have
decided to conduct themselves as if they are not bound by the lease agreement.
Clause 14 of the lease agreement
which was referred to in the order of 24 December 2010 provides as follows:
“14. LESSOR'S
RIGHT OF ENTRY
14.1.
The
lessor's representatives, agents, servants and contractors may at all
reasonable times enter the property, or any part of the property, in order to
inspect it, to carry out any necessary repairs, replacement or other works of a
structural nature, or to perform any other lawful function in the bona fide interests of the lessor. The
lessor shall ensure that this right is exercised with due regard for, and a
minimum of interference with, a beneficial enjoyment of the property by those
in occupation thereof.
14.2.
The
lessee shall not, however, cause or allow any major building works to be
carried out anywhere upon the property without the lessor's prior written
consent. The lessor shall ensure that, even after the lessee's consent is so
obtained, the building works are completed within a reasonable time”
The relief
sought in para (d) is in effect a review of an order issued by this court on 24
December 2010. It does not appear to me to be a competent order for this court
to grant. In any event, in answer to the
court's question as to the competency of such an order, the applicants' legal
practitioner submitted that he had also advised his clients earlier about his
doubts as to its competency and about the possibility of the court raising such
a query. He was unable to make any submissions in support of the competency of
such an order. It is not proper for a legal practitioner whether in an urgent
chamber application or otherwise, to seek from the court an order which he
knows to be incompetent. Such conduct is reprehensible.
As for the
order sought in para (c) of the interim relief wherein the respondent is to
restore the applicants' signage, the applicants' justification is that the
respondent has exceeded the limits of the order of 24 December 2010. If the
respondent has exceeded the limits of the order as alleged, the applicants'
remedy would appear to be, as submitted on behalf of the respondent, to bring
contempt of court proceedings against the respondent. The applicants have
chosen not to do that. Rather, after denying the respondent access granted to
it in terms of the order of 24 December, 2010, they then instituted these
proceedings in which the relief which they seek, if granted, has the overall
effect, in the main, of circumventing the said consent order.
In the
result I am not satisfied that the applicants have established a right; that
they have established a reasonable apprehension of irreparable harm and that
there is no other alternative remedy. The applicants have not laid a basis
justifying the court exercising its discretion in their favour and granting
them the relief that they seek in the provisional order attached to their
application. The applicants' own admitted conduct further tips the balance
against them. Costs will follow the cause.
I therefore
dismiss the application with costs.
Wintertons, applicants' legal practitioners
Scanlen
& Holderness, respondent's legal
practitioners
