KUDYA
J: This is an appeal from the judgment
of a magistrate sitting at Harare
on 5 August 2010 in which she granted an order of eviction to the respondent
against the appellant.
On
1 July 2010 the respondent filed a court application for the eviction of the
appellant. The appellant opposed the application. The matter was determined on
the basis of the averments made in the affidavits filed of record by the
parties. On 23 March 2010 the respondent wrote to Mr Ameet Hargovan at the
leased premises giving the appellant three calendar months notice from 1 April
to 30 June 2010 purportedly in terms of the Rent Regulations SI 32/2007 to
vacate the premises. In that letter it was indicated that the parties executed
the lease in 2007. The sole reason advanced therein was that the respondent
wanted to take full occupation of the premises. The letter was responded to by
Hargovan on the appellant's letter head on 10 May 2010. The appellant refused
to vacate the property alleging that it was being victimized for declining to
accede to a rental increase. It did not disclose the date on which the rental
increase had been proposed but in its reply of 14 May the respondent disclosed
that the letter declining the increase had been written by the respondent on 12
October 2009. It denied that the notice was actuated by the refusal to pay
higher rentals but by the desire to fully utilize and occupy the property in
line with the respondent's board resolution of 4 January 2010. It averred that
the appellant was aware at the time the lease was executed that the respondent could
not fully use the property. On 17 May the appellant responded and remained adamant
that it would not be vacating the premises come 30 June.
The
founding and opposing affidavits captured the essence of the above mentioned
correspondence. In the answering affidavit, in response to an averment that the
respondent sought to evict the appellant in order to lease out the property to
another tenant at a higher rental, the respondent denied the existence of a
rent dispute. It also disputed that it intended to sublet the property to a
third party. It maintained that the premises were required for its own use. It
emphasised that it initially used the premises before its business sufferred a
down turn during the hyperinflationary era which caused it to lease them to the
defendant but with the new economic dispensation its business had improved
prompting it to seek repossession of the premises. In oral argument in the
court a quo, the respondent's counsel
made the following submission:
“The reason for
the application is that the applicant now wants the premises for its own use.
Applicant had leased the premises to the tenant when it was not viable for it
to use the premises in issue. Things have changed for the better; it wants to
use the premises for its expanding business. Applicant's current business is
being carried out from the back office of the premises and now applicant wants
her front office.”
The
appellant maintained its stance that the respondent did not require the
premises for its own use but wanted it evicted in order to lease the premises
at a higher rental to a new tenant.
The
court a quo was satisfied on the
papers that the respondent genuinely sought the eviction so that it would
utilize the premises. In its notice of appeal, the appellant attacked the
judgment on two broad grounds, firstly that the notice to terminate the lease
was invalid and secondly that the respondent failed to establish good and
sufficient grounds for the repossession of the premises. The respondent,
however, raised two preliminary issues against the validity of the appeal.
The
first was that the notice of appeal was invalid for want of compliance with r
29 (1) of the Supreme Court rules which was incorporated for appeals from the
magistrates to the High Court by the Magistrates Court Amendment Act no.
9/1997. It sets out six mandatory requirements which must be stated in a notice
of appeal. In the instant case the notice of appeal fell short of the
requirements of r 29 (1) (a) in that it did not set out in its preamble the
date on which the judgment appealed was granted nor the court from which such
judgment emanated. All it did was state the name of the magistrate who
delivered the judgment and the date of 6 August 2010 that the appellant became
aware of the judgment. It will be recalled that the judgment was granted on 5
August 2010 by the magistrate sitting at Harare Magistrates court. Mr Fitches, for the respondent submitted on
the authority of Matanhire v BP & Shell Marketing Services (Pvt)
Ltd 2004 (2) ZLR 147 (S) that the notice of appeal was a nullity. It is
correct that the failure to adhere to the strict requirements of r 29 fatally
affected the validity of the notice of appeal in that case. The rationale for
requiring the date of judgment was spelt out by MALABA JA, as he then was, in
the Matanhire case at 150A in these
terms:
“The purpose of
requiring the date when the decision appealed against to be stated in a notice
of appeal is to enable the respondent and the court to determine ex facie the notice of appeal whether
the provisions of r 5 of the [Supreme Court (Miscellaneous Appeals and
Offences)] Rules prescribing the time limit in which the appeal should be
instituted and the notice of appeal filed delivered and filed, were complied
with.”
In
the present matter, I decided to condone the failure to rigidly follow the said
rule for two reasons. The first was that while on the record cover the trial magistrate
endorsed that she granted the order of eviction on 5 August and the handwritten
reasons for judgment and the typed judgment was dated 5 August, the typed order
has the date stamp of 6 August. Order 31 r 1 (a) provides that a notice of
appeal should be filed within 21 days of the date of judgment. In casu the notice of appeal was filed on
11 August. I did not believe it would have been in the interests of justice to
strike off the appeal for the appellant to apply for extension of time to
comply with the rule and condonation for non-compliance. As regards the failure
to indicate the name of the court I believe that the presence of the trial
magistrate's name is in substantial compliance. The second was that such a
failure did not prejudice either party, the court or the due process.
The
second preliminary point raised by the respondent was that the appeal lapsed
for failure to furnish security in terms of Order 32 r 2 of the Magistrates
Court Civil Rules. Mr Fitches
abandoned this submission when the letter filed with the clerk of court on 11
August 2010, which was always part of the appeal record was brought to his
attention. In that letter the appellant undertook to pay the costs of the preparation
of the appeal record. The rule in question reads:
(2) An appeal shall be noted by —
(a) the
delivery of notice; and
(b) unless
the court of appeal otherwise directs, giving security for —
(i) the respondent's costs of appeal to the
amount of one hundred dollars;
(ii) the costs of the
preparation of a copy of the record to the amount estimated by the clerk of the
court:
Provided that a clerk
of the court may, in his discretion, accept a written undertaking from the
appellant to pay for the costs of the preparation of the record.
It seems to me that the in the absence of a
dispensation from the appeal court against the provision of security of the
respondent's costs of appeal and the cost of the record it is mandatory that
the appellant makes provision for the security of costs under both heads. The
wording and positioning of the proviso indicates that it applies to the costs
of the preparation of the record only and not to the provision of the security
of the respondent's costs of appeal. The undertaking given by the appellant was
for the costs of the security of the preparation of the appeal record. The
appellant did not provide for the security of the respondent's costs of appeal.
Thus had Mr Fitches not abandoned his
second preliminary issue, I would have dismissed the appeal for failing to
comply with Order 31 r 2 (b) (i) of the Magistrates Court Civil Rules.
I proceed to deal with the
merits of the appeal. The first ground raised by the appellant was that the
notice to terminate the lease was invalid for two reasons. Firstly, it was
addressed to an individual and not to the appellant, a corporate body.
Secondly, it was based on the wrong subsidiary legislation. The appellant did
not provide authority for the first aspect but relied on Johannesburg City Council v Feinstein & Anor 1953 (3) SA 576 (T) for the second. In regards
to the first aspect, it is clear that the notice to vacate was addressed to “Mr
Hargovan, House of Sandals, Newlands Shopping Centre” and was entitled
“Vacation from property sublet to you: House of Sandals.” The response of
Hargovan of 10 May in which he refused to vacate the property after the
expiration of three months was on the appellant's letter head bearing the name
“ Wellcroft Investments t/a House of Sandals” as was the response he
subsequently made to another letter on the proposed eviction on 17 June. In his
oral submissions Mr Ahmed, for the
appellant, conceded that Hargovan was not only a director but the human face of
the appellant corporation. In my view, by virtue of his position as an
executive officer of the appellant and by his conduct, Hargovan demonstrated
that the notice was properly served on the appellant through him.
The case of Johannesburg City Council v Feinstein & Anor involved an
application by the city council for the eviction of the respondent from its
premises under s 22 (1) of the Rent Act of 1950 for use of the premises in the
public interest. It gave the respondents 12 months notice to vacate but after
12 months the respondents declined to do so. The respondents' occupation was
protected under s 22 as long as they continued to pay rent and perform the
other conditions of their tenancy unless the landlord (“applicant”) established
additional grounds set out in sub-paras. (a) to (e) of s 22 (1). The applicant
desired the premises used as a restaurant by the respondents for itself to
cater for its expanding electrical showroom business. It relied on sub-paras (c)
and (e). The latter allowed repossession if the premises were reasonably
required by the local authority in connection with any scheme for town
improvement or for any other public work which the local authority was by law
entitled to undertake and gave twelve months notice. It was held that the
purpose of expanding its show room business was not in connection with any
scheme of town improvement or any other public work which involved the physical
scheme of constructing buildings, roads or other amenities to improve a town
and not an electricity display warehouse or anything ancillary thereto. Subparagraph
(c) permitted repossession if the lessor reasonably required the premises for
personal use and gave six months notice as long as the notice was not given
prior to 1 July 1951. The municipality had given 12 months notice on 28
September 1950 which was to expire on 27 September 1951. The notice was held to
have been a bad notice as it fell foul of the provisions of sub-para (e).
The notice given in the Johannesburg City Council was
invalidated because it fell foul of the statutory provisions of the Rent Act
No. 43 of 1950. In the present case the respondent premised its notice in terms
of s 30 (2) (c) of the Rent Regulations SI 32/2007. The premises were
commercial premise and not a dwelling. The requisite notice to vacate was
instead governed by s 23 of the Commercial Premises (Rent) Regulations SI
676/1983. Mr Ahmed submitted that the
citation in the notice of the wrong statute invalidated the notice. In the Johannesburg City Council case,
BLACKWELL J at 579B-C stated that:
“I have been referred to authorities both in the
English Courts and in our own, the effect of which is as follows: If a notice
can be given by a lessor to a lessee or by a lessee to a lessor under the terms
of a lease, or, as in this particular case, under the terms of a statute, that
notice is unilateral in character-it has a binding effect. Irrespective of the
will of the recipient, it creates legal rights and imposes legal obligations. That
being so, a notice of this sought must be in the terms of the power to give it
which is created by the instrument or by the Act. The law to this effect was
laid down in England
in the case of Hankey v Clavering 1942 (2) A.E.R. 311 and
followed in our courts in the case of Boerne
v Harris 1949 (1) SA 793 (AD). In
both of those cases notices were sent between landlord and tenant which on the
face of them were wrong, which on the face of them did not conform to the
instrument under the force of which they were given, and therefore were held to
be not appropriate, and the recipient of them might treat them as worthless, as
casting upon him no legal obligation.”
I have read the case of Boerne v Harris, supra. In Bourne's
case the lessee purported to exercise the option to renew the lease for another
five years. The lease which would expire on 15 April 1947 provided in clause 10
for the option to be exercised at least six months before that date. Bourne's
attorneys wrote a letter to the lessor, Harris, which stated that:
“We refer to the lease in respect of the Savoy Hotel,
Somerset West between our client Mr A.L.M. Boerne and yourself, and advise that
our client intends to renew the lease for a further period of five years from
15 October, 1946, in terms thereof”.
BLACKWELL J correctly captured
the majority decision of GREENBERG JA to which WATERMEYER CJ, VAN DEN HEEVER JA
AND HOEXTER AJA concurred. The essence of the majority decision was that a
notice from a landlord to a tenant to vacate leased premises that did not
conform to the instrument under which it was issued was invalid. I was, however,
persuaded by the force of reasoning in the dissenting judgment of SCHREINER JA
who at p 814 held that the notice had to be construed objectively, that is, “as
it would be understood by a lessor having the lease before him or her”. He
summarised his reasoning thus:
“The 'main apparent purpose' of the renewal letter
was obviously and beyond doubt to exercise the lessee's right to renew the
lease; the specific mention of the date was in the nature of a false
description of the right of renewal which he was manifestly seeking to
exercise. No reasonable reader in the position of the lessor could, in my view,
imagine that the lessee was making a mistake as to his legal rights, for under
clause 10 it is perfectly clear that the renewal period can only run from the middle
of April. The reasonable lessor could not fail to appreciate that somehow or
other the date by which notice of renewal had had to be given had been
substituted for the date from which the renewal had to run, and that since
there was no need for the letter to have mentioned any date at all the
reference to an obviously wrong date could not invalidate the notice. Such a
lessor would not only suspect, he would know, that the mistake did not consist
in an intention to renew from the 15th October 1946, the lessee
having misunderstood his legal rights, but that it consisted of an erroneous
setting out of an intention to renew as from the 15th April 1946.”
In the present matter I hold
the view that it was not necessary for the lessor to state in the notice the
statute under which he was giving the lessee notice to vacate. The main
apparent purpose of the notice was to advise the lessee of the termination of
the lease at the expiration of three months. An objective assessment of the
lessee's behaviour reveals that it perfectly understood that it was being
requested to leave the premises at the end of the notice period.
It is for these reasons that I
hold that the notice to vacate that was given by the lessor was valid. The
trial magistrate's decision upholding its efficacy cannot be faulted.
The second broad ground of
appeal was that the respondent failed to establish good and sufficient grounds
to justify the eviction of the appellant. The provisions of s 22 of the
Commercial Premises (Rent) Regulations have been set out and interpreted in
many cases in this country both in the High and Supreme Courts.
In Moffat Outfitters (Pvt) Ltd v Hoosein & Ors 1986 (2) ZLR 148 (S) at 154C-D GUBBAY JA, as he
then was, found it undesirable to define the phrase “good and sufficient
grounds.” He held that the burden lay on the lessor to establish those grounds.
The duty of the trial court was to exercise a value judgment without caprice or
bias or the application of wrong principle by considering the particular
circumstances of the case as presented by the lessor and lessee and weighing
them against the purpose behind the promulgation of regulations. He emphasised
that the purpose served by the regulations was to “prevent unscrupulous
landlords from taking advantage of the shortage of commercial premises by
increasing their tenant's rents unjustifiably.”
In the present case, the
respondent, as the lessor, sought to repossess the leased premises for its own
use. It found itself treading in the footsteps of other landlords who had to
come to court to reclaim possession from recalcitrant tenants in such cases as Checkers Motors (Pvt) Ltd v Karoi Farmtech (Pvt) Ltd 1986 (2) ZLR 246 (S); Boka Enterprises (Pvt) Ltd v Joowalay & Anor, 1988 (1) ZLR 107
(S) and Bestafoam (Pvt) Ltd v
Tynedale (Pvt) Ltd SC 54/88.
In Boka Enterprises (Pvt) Ltd v Joowalay, supra, at 115H-116A, it was held that s 22 (2) is worded
in such a way that the court is enjoined to predominantly look at the needs and
circumstances advanced by the lessor to the exclusion of the needs and
circumstances of the lessee. In Film
& Video Trust v Mahovo
Enterprises (Pvt) Ltd 1993 (2) ZLR 191 (HC) at 209E-F ROBINSON
J cited with approval the remarks of PITMAN JP in Newman v Biggs 1945 EDL
51 at 54 and 55 which were approved in Boka's
case, supra, that:
"So far as proof of bona fides was requisite,
it is difficult to see what more can ordinarily be required of a claimant, than
that he should assert his good faith, and bring some small measure of evidence
to demonstrate the genuineness of his assertion. He can normally scarcely do
more, and it rests with the lessee resisting ejectment to bring forward
circumstances casting doubt upon the genuineness of his claim."
Both Mr Ahmed and Mr Fitches
agreed that all that the respondent was required to do in the court a quo was to bring “some small measure
of evidence to demonstrate the genuiness of (its) assertion”. Mr Ahmed reluctantly conceded that that
small measure of evidence had to be establish at the date of hearing and not,
as he had initially submitted, in the notice to vacate. See Film & Video Trust case, supra at 205A-B and 210B.
In his oral submissions Mr Ahmed conceded that para 4 of the
respondent's answering affidavit to the effect that it had leased the premises
which it initially fully utilized to the appellant when its business took a
battering from hyperinflation but required them for its booming business
sufficed to establish the small measure of evidence required to establish good
and sufficient grounds for the termination of the lease. He, however, argued
that the respondent did not genuinely desire the use the premises but wanted to
evict the appellant firstly because it had declined to pay a higher rental and secondly
in order to lease the premises to a tenant who was willing to pay a higher
rental. The two grounds advanced by Mr Ahmed
are a restatement of the grounds set out in s 22 (2) of the regulations which would
deny a lessor the right to evict the lessee. The defendant did not substantiate
these averments. It did not produce any evidence to show on a balance of
probabilities that the respondent requested it to pay a higher rental and it
declined to do so. In fact the documentation it used to establish its refusal
was the letter it wrote to the respondent on 27 October 2008 in which it agreed
to pay US$550-00 per month. It was paying that amount in March 2010 when it was
given three months notice to vacate and it continued to pay that amount after
the cancellation of the lease. Other than its mere say so there was no evidence
led to show that the respondent wished to lease the premises to a third party.
The finding by the trial
magistrate that the respondent genuinely desired to utilize the premises for
its expanding business operations cannot be faulted.
Accordingly, the appeal is dismissed with costs.
HLATSHWAYO J: agrees.
Ahmed & Ziyambi,
appellant's legal practitioners
Jarvis Palframan, respondent's legal practitioners
