Abisha Maurano v City of Harare

### Preamble
1
HH 26-22
HC 2992/21
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ABISHA MAURANO

versus

CITY OF HARARE

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, June 16 2021 and 12 January 2022

Urgent Chamber

M Mavhundusi, for the applicant

R C Muchenje, for the respondent

MANGOTA J:     The applicant filed this application through the urgent chamber book.  He moved me to interdict the respondent from:

evicting him from Stand number 3191 Bluffhill Township, Harare.

demolishing any structures which were/are erected on the same – and

impounding any assets which were/are at the stand.

I heard the application which the respondent successfully opposed.  I dismissed it with costs.

On the day that the application was heard and determined, the applicant wrote to me.  He requested written reasons for the decision which I delivered ex tempore.  He indicated that he intended to appeal my decision.  My reasons are these:

On 16 July, 2019, the applicant, a natural person, leased from the respondent, a local authority which is established in terms of the Urban Councils Act [Chapter 29:15], Stand number 3191, Bluffhill Township, Harare (“the premises”).  The lease was to endure from 1 July 2019 to 31 June 2024.  It conferred upon the applicant the option to purchase the premises if he develops the same to a minimum value which is stated in clause 10.5 within the first five (5) years of the lease.  It also allowed him to renew the lease for a further period which he agrees with the respondent on the same terms as well as other conditions and on a rental which was to be agreed to by the parties.

The applicant’s statement is that on 9 June 2021, the respondent served him with a 48 hour notice to depart from the premises, remove all his property from the same and demolish any structures which he erected on the premises.  The notice constitutes his cause of action.  He complains that the respondent violated his right as contained in the lease, that he has a well-grounded fear of irreparable harm visiting him if the interim relief is not granted, that the balance of convenience favours the granting of the application and that he has no other relief which remains available to him.  He, in short, remains of the view that he satisfies all the requirements for an interdict which he is moving me to grant to him on an interim basis.

That the applicant and the respondent entered into a five-year lease agreement requires little, if any, debate.  The conditions which the applicant states as having been agreed to by the parties is also a matter of common cause.  What, however, remains a matter of debate is the person or entity whom the respondent served with the notice to vacate the premises.

The respondent states, in its notice of opposition, that it did not evict the applicant from the premises.  It alleges that it evicted persons-natural or legal – with whom it has no known relationship.  These, it claims, comprise Honour and Grace Technologies H20 Car Sales/Zeyn Khan.  These, it insists, have no lease with it.  Their presence at the premises, it avers, has no justification at law.

The applicant alleges that the persons whom the respondent is evicting from the premises are non-existent.  He claims that he arranged to operate his car sales business under the name and style of Honour and Grace Technologies H20 Car Sales/Zeyn Khan.  This, he insists, is his trade name.

The applicant, it is observed, signed the lease in his individual capacity.  He represented no one but himself in the lease wherein his identification particulars are given as 63-0267157- Y-63.  He did not, at the time of signing the lease, indicate to the respondent, or to anyone else for that matter, that he would introduce other persons-natural or legal – into his lease relationship with the respondent.  He does not explain why he refrained from doing so when he should have done that if such was his intention.  He should have remained ad idem with the respondent and the terms of the lease.  He could not have his cake and eat it.

It is clear, from a reading of the foregoing, that Honour, Grace and Zeyn Khan are names of natural persons.  Zeyn Khan has his or her identification particulars on some document which the applicant attached to his application.  These appear on Annexure E1 which is at p 31 of the application.  The annexure is a health certificate which the applicant claims relates to his car sales business.  Zeyn Khan’s mobile phone number is 0773 281 489 and his or her email address is zeykhan@gmail.com.  His or her postal address is 7 Jubilee Court, Princess Road, Belvedere, Harare.

The applicant is not being candid with the court and the respondent when he states that the persons whom the respondent is evicting from the premises are non-existent.  He is telling a falsehood when he states that Zeyn Khan is his trade name.  He cannot have a trade name of a natural person who has his or her identification particulars.  The correct position of the matter is that the applicant secured the lease from the respondent and introduced into his business persons who have no relationship with the respondent.  Zeyn Khan is one such person.  He or she cannot remain on the premises without the written consent of the respondent.  His or her presence at the premises constitutes a breach of the contract by the applicant.  He or she has no right to remain at the premises.  He or she has no cause of action against the respondent who is evicting him or her from the premises.

The applicant attached to the application three annexures.  These comprise:

the Health Registration Certificate – Carwash which was issued to Zeyn Khan on 28 May 2021.

the Shop Licence (Class 7) which was issued to Honour and Grace H20 on 31 December 2021.

the Health Registration Certificate which was issued to Zeyn Khan T/A H20 Carwash on 7 June 2021.

He marked them Annexures E1, E2 and E3.  They respectively appear at pp 31, 32 and 33 of the application.

None of the abovementioned annexures has the name of the applicant.  Yet he claims that they relate to the lease which he signed with the respondent for his car sales business.  None of them indicates that it is his business trade name.  Annexure E3, for instance, indicates that it was issued to Zeyn Khan T/A H20 Carwash.  Whilst the main objective of the lease was for the purposes of selling cars and any other purpose which was/is incidental to that business as clause 7.1 of the lease states, none of the annexures shows that the business was for car sales.

It is common cause that carwash is incidental to car sales.  The question which begs the answer, however, is why did the applicant not have his name on any of the three documents which constitute his business?  It has already been observed that he could not trade as Zeyn Khan when the latter person trades as H20 Carwash.  It is inconceivable that the applicant would have traded as Zeyn Khan, a natural person, when Zeyn Khan trades as H20 Carwash.  That makes no sense at all.

The applicant has no plausible explanation for the persons whom he introduced into the lease without the knowledge and/or written consent of the respondent.  Clause 8.3.3 of the lease remains relevant to the resolution of the dispute of the parties.  It places an obligation on the applicant not to hypothecate the lease or any rights granted in the lease.  It prohibits him from subletting nor parting with possession of the premises or any portion of the same without prior written consent of the respondent.

Clause 10.8 of the lease is more emphatic than clause 8.3.3.   It reads:

“CESSION OR ASSIGNMENT

The Lessee shall not sublet nor cede nor assign its rights in terms of this lease, except with the prior written consent of the Lessor”

The respondent, it is understandable, saw the names Honour, Grace, Zeyn Khan on the papers which related to the applicant’s business at the premises.  It remained alive to the fact that it has no lease with those three natural persons.  It is for the mentioned reason, if for no other, that it addressed its notice to vacate the premises to Car Sale H20 as is stated in Annexure F which appears at p 34 of the application.  Car Sale H20 has no contract with it and should not, therefore, be at the premises. Equally, Honour and Grace have no relationship with it and should not be at the premises.  The issue of Zeyn Khan requires no further comment than the one which was made in the foregoing paragraphs of this judgment.  All the three of them have no cause of action against the respondent.  They have no right to remain at the premises without the written consent of the respondent.

The applicant does not state that he sought the consent of the respondent to introduce Zeyn Khan at the premises.  His statement which is to the effect that Zeyn Khani is his trade name is completely devoid of merit. His further statement which is to the effect that he arranged to operate his business under the name and style of Honour and Grace Technologies H20 Car Sales/ZEYN KHAN is equally without merit.  He cannot, as a natural person, have a trade name.  He cited no law which allows him to operate his business under a trade name.  Counsel for him made a concession on the matter at hand during submissions.  He submitted that the applicant, as a lay person, failed to appreciate that the names which he used were not registered at law and he proceeded to acquire licences and have certificates in those names.

If it is accepted, as it should, that the respondent did not evict the applicant from the premises, the applicant has no cause of action against the respondent.  The applicant is, in my view, the author of his own challenges.  He gave out to the respondent and to the world at large that some persons who are not him were/are operating at the premises.  The respondent had every right to evict from the premises all the persons with whom it has no relationship.  It did exactly that and it, in the process, allowed the applicant to remain operating at the premises alone.  The rights of the applicant as contained in the lease remain intact.  The respondent did not violate any of those rights.  What he requires to do is to observe the terms of his lease and continue to operate his business without introducing persons who have no lease with the respondent.

Because no right of the applicant was interfered with by the notice to vacate which the respondent issued, the application stands on nothing.  It has no merit.  It is, accordingly, dismissed with costs.

Chivoredzingirai Group of Lawyers, applicant’s legal practitioners

Mbidzo, Muchadehama & Makoni, respondent’s legal practitioners