John Sisk & Son Zimbabwe (Private) Limited versus Altem Enterprises (Private) Limited and Ignatius Munemgwa

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JOHN SISK & SON ZIMBABWE (PRIVATE) LIMITED
versus
ALTEM ENTERPRISES (PRIVATE) LIMITED
and
IGNATIUS MUNEMGWA

HIGH COURT OF ZIMBABWE
PATEL J

Civil Trial

HARARE, 9 to 10 November 2010 and 31 March 2011

H. Zhou and R. Moyo, for the plaintiff
B. Chidziva, for the 1st defendant



       PATEL J:     The plaintiff in this matter seeks an order for the

eviction of the defendants from its premises on Arcturus Road, Harare,

and for the payment of holding over damages in the sum of US$1575-35

per month as from 1 March 2009 to the date of ejectment. The issues for

determination are as follows: (a) whether or not the plaintiff lawfully

terminated the statutory tenancy and is entitled to vacant possession of

the premises; (b) whether or not the plaintiff is entitled to holding over

damages as claimed or at all.

       The 2nd defendant is in default, having failed to note an appearance

to defend. Consequently, Adv. Zhou submits that judgment may be

entered against him in favour of the plaintiff in terms of the Summons

and Declaration. However, what the plaintiff seeks is the eviction of the

1st defendant and all those claiming occupation through it, including the

2nd defendant. Moreover, the plaintiff’s claims for holding over damages

and costs of suit are directed only as against the 1 st defendant. In the

event, it is not possible to enter judgment against the 2 nd defendant
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before the plaintiff’s claims against the 1 st defendant are fully canvassed

and resolved.


The Evidence

      Austin Zvidzai has been the plaintiff’s Finance Director since

September 2004. He testified that the plaintiff and the 1 st defendant

entered into a lease agreement in 1998. The premises in question are

presently owned by Escallonia Investments (Pvt) Ltd, a property holding

company that is a wholly owned subsidiary of the plaintiff. The lease

agreement was for an initial period of three years and continued for a

further seven years, terminating on 31 May 2008. Prior to that date, on 30

November 2007, the plaintiff’s agents (Seeff Properties) wrote to the 1 st

defendant stating that the plaintiff wanted to use the premises for itself

and giving three months notice to vacate before 1 March 2009. The

premises   were    required   for   the   storage   of   plaintiff’s    pre-paid

construction materials. Over the past four years, these materials have

been stored in other premises of similar size rented from Keiss

Enterprises at US$450 per month. The 1 st defendant did not vacate the

premises. In May and June 2008, the plaintiff rejected three payments of

ZW$6 million each which were tendered by the 1 st defendant as monthly

rentals. The 1st defendant has not paid any rent since 6 August 2008,

when it forwarded a cheque for ZW$1 as rental for 24 months from

August 2008 to July 2010. The plaintiff rejected the cheque through its

lawyers by letter dated 21 August 2008. The premises have fallen into

extensive disrepair as appears from two inspection reports prepared by

the plaintiff’s agents. The 1st defendant has also committed other

breaches of its tenancy contrary to the provisions of the lease agreement.

These include: paying the rentals due out of time and in respect of a
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period varied unilaterally; subletting part of the premises to the 2 nd

defendant without the plaintiff’s approval; subletting an illegal extension

to the premises constructed without the plaintiff’s consent or approval by

the local authority. All of these breaches are confirmed in the

correspondence between the parties from October 2006 to February

2008. Consequently, the plaintiff’s lawyers wrote to the 1 st defendant on 9

March 2010 cancelling the lease on the grounds of breach and referring

to their earlier notice to vacate. The plaintiff’s claim for holding over

damages of US$1575-35 per month is based on a rate of 35c per square

metre. This rate reflects a rent that is either comparable to or less than

the rentals paid by other tenants at the same address.

      Under cross-examination, the witness accepted that the inspection

reports prepared by the plaintiff’s agents in September 2007 and

February 2008 were not counter-signed by the 1 st defendant. He also

admitted that the plaintiff did not at any stage give the 1 st defendant 14

days notice to rectify the alleged tenancy breaches (other than those

relating to the payment of rent) as required by the lease agreement. He

further conceded that earlier correspondence giving notice to vacate,

from the plaintiff’s agents to the 1 st defendant, did not make any mention

of the plaintiff requiring the premises for its own use. He accepted that

one of the reasons for seeking the 1st defendant’s eviction was that the

plaintiff was not receiving fair value for the premises.

      Patience Munetsi joined Seeff Properties in February 2001 and is

presently its Rent Manager. She has managed the lease in casu since

January 2007. Her evidence was that when she inspected the premises on

two occasions in 2007, she was told by the 2 nd defendant and another

individual that they were there as the 1 st defendant’s sub-tenants. She

found that the portions occupied by these two sub-tenants were badly
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disrepaired. In November 2007, in order to regularise the occupation of

the premises by the sub-tenants, she wrote two letters to the 1 st

defendant proposing separate leases and rentals for all three occupants.

She also noted the illegal structural extension and sought a response by

the end of 23 November 2007. In the absence of any response from the

1st defendant by that deadline, she wrote the letter of 30 November 2007

giving three months notice to vacate. The 1st defendant’s application to

the Commercial Rent Board, dated 27 November 2007, was not served on

the plaintiff’s agents and they did not receive any notice of hearing from

the Board. She accepted that previous notices to vacate were given to the

1st defendant because of disagreement over rentals. The dispute was not

referred to arbitration because the plaintiff wanted to avoid litigation. On

24 January 2008, the 1 st defendant wrote to the effect that it was

negotiating the outright sale of its business to the 2 nd defendant. The

latter then wrote to the plaintiff on 22 February 2008 stating that the

proposed sale did not materialise. His letter shows clearly that he was

occupying the premises without the owner’s consent. At the present time,

he is not in occupation but his machinery is still in situ. The witness

conceded that the inspection reports compiled in September 2007 and

February 2008 were not confirmed by the 1 st defendant and that the

latter was not called upon to rectify the listed defects in accordance with

the lease agreement.

      Brian Fraser is the 1st defendant’s Managing Director. At the

commencement of the lease, the 1 st defendant and its sister company ran

a furniture manufacturing and rug weaving business. His evidence was

that the leased premises were disrepaired and unutilised for about three

years before the       1st defendant took occupation. The allegedly

unauthorised extension is a brick storeroom that formed part of the
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leased premises from the very outset. It was not built by the 1 st

defendant but by one of the plaintiff’s subsidiary companies. He referred

to the letters from the plaintiff’s agents in January and February 2006,

giving notice to vacate, which showed that the real reason for the plaintiff

seeking eviction was the 1st defendant’s failure to agree to the higher

rentals proposed by the plaintiff. He also confirmed the correspondence

between the parties and their lawyers, from November 2007 to February

2008, revolving around the second notice to vacate given on 30

November 2007. Immediately before that notice, he had applied to the

Commercial Rent Board for the determination of a fair rent. He did not

serve the letter of application on the plaintiff or its agents and he heard

nothing further from the Board thereafter. He has never seen the

inspection report, dated 26 February 2008, relating to the condition of

the premises. In the ensuing correspondence in March 2008, his lawyers

made it clear that the premises were not in good condition from the

outset. As regards the timing of rent payments, his cheque payment of

ZW$6 million for May 2008 was rejected by the plaintiff’s lawyers because

it was made one day out of time. He had attended the agents’ offices to

make payment the day before, but the offices were closed. In June and

August 2008, he tendered two further cheque payments of ZW$6 million

each and a third cheque payment of ZW$1 following the devaluation of

the Zimbabwe Dollar. All of these payments were also rejected. (He later

conceded that his tender of ZW$1 was in hindsight not fair or

reasonable). On 9 March 2010, the plaintiff’s lawyers wrote to the 1 st

defendant giving a third notice to vacate requiring the premises for the

plaintiff’s own usage and, alternatively, cancelling the lease agreement

on the grounds of breach. They also wrote to the 2 nd defendant on the

same date, but this letter was not copied to the 1 st defendant. The day
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before the trial commenced, he visited the warehouse of Keiss

Enterprises. He observed that the total area of the warehouse was about

200 square metres and that the plaintiff was utilising approximately half

of that storage space. With respect to the plaintiff’s list of items stored at

the warehouse as at 4 August 2009, the quantities actually there are

considerably less than those listed. The 1 st defendant is willing and

prepared to store the plaintiff’s materials in the spare storage capacity of

about 400 square metres within the leased premises. The area actually

occupied by the 1st defendant is approximately 3000 square metres and

not 4500 square metres as is averred by the plaintiff. As from August

2010, he offered a monthly rental of US$800 which was comparable to

the rents paid by other tenants in the complex at that time. As appears

from the correspondence between the parties’ lawyers in September

2010, this offer was rejected as having become academic after the

issuance of Summons in this case. At the present time, the amount of

US$1575 claimed by the plaintiff represents a fair rental. The 1 st

defendant is now prepared to pay US$800 per month from March 2009 to

August 2010 and US$1575 per month from September 2010 onwards.

      Under cross-examination, the witness explained that the rug

weaving business was sold to some friends in June 2006 and that they

continued to contribute 30% of the monthly rent to the plaintiff. They

later extended their business to pottery manufacturing. In 2007, they

sold the rug weaving business to the 2 nd defendant and donated the

pottery business to a former employee. Neither the latter nor the 2 nd

defendant has paid any rent to the 1st defendant or the plaintiff. The

witness admitted that the plaintiff and its agents were not told about any

of these occupants of the premises. As regards the two inspection

reports compiled in September 2007 and February 2008, the first is
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broadly accurate while the second is only partially correct. He did not

receive either report from the plaintiff’s agents. Most of the defects listed

in these reports were present from the outset of the lease. He did not

notify the defects to the agents, despite the obligation to do so under the

lease agreement, because of the excellent relationship between the

parties.


Statutory Tenancy

      By virtue of sections 22 and 23 of the Commercial Premises (Rent)

Regulations 1983 (S.I. 676/1983), when a lease expires by effluxion of

time or in consequence of notice duly given by the lessor, a statutory

tenancy is automatically created by operation of law. The new

relationship between the parties is subject to the same rights and duties

and is governed by the same terms and conditions as applied under the

contractual lease, except where these are inconsistent with the

Regulations. See Chibanda v Hewlett 1991 (2) ZLR 211 (H). Thereafter, the

statutory tenant is entitled to remain in the leased premises and cannot

be evicted so long as he continues to pay the rent due, within seven days

of the due date, and performs the other conditions of the lease. The rent

due in this context is the fair rent fixed by the Commercial Rent Board or,

in any other case, the rent due in terms of the lease. An order for the

eviction of a statutory tenant may only be granted where the lessor has

good and sufficient grounds for requiring such order, other than that the

lessee has declined to agree to an increase in rent or that the lessor

wishes to lease the premises to some other person.

      In the instant case, it is common cause that the contractual lease

expired on 31 May 2008. It is also not in dispute that the 1 st defendant

became a statutory tenant after that date.
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Good and Sufficient Grounds for Eviction

      What constitutes good and sufficient grounds for the eviction of a

statutory tenant is obviously not susceptible of exhaustive definition. Be

that as it may, it is settled law that such grounds exist where the lessor

genuinely requires the use of the leased premises for the operation of a

business. See Moffat Outfitters (Pvt) Ltd v Hoosein & Others 1986 (2) ZLR 148

(S) at 154; Checkers Motors (Pvt) Ltd v Karoi Farmtech (Pvt) Ltd 1986 (2) ZLR

246 (S) at 250; Boka Enterprises (Pvt) Ltd v Joowalay & Another 1988 (1) ZLR

107 (S) at 115; Mobil Oil Zimbabwe (Pvt) Ltd v Chisipite Service Station (Pvt)

Ltd 1991 (2) ZLR 82 (S) at 88; Delco (Pvt) Ltd v Old Mutual Properties (Pvt) Ltd

1997 (2) ZLR 414 (S) at 417.

      In Kingstons Ltd v L.D. Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S) at 456-

457, it was observed that:

             “Our courts have held that the landlord need do no more
      than assert his reasons in good faith and then bring some small
      measure of evidence to demonstrate the genuineness of his
      assertion and it rests upon the lessee who resists ejectment to
      bring forward circumstances casting doubt on the genuineness of
      the lessor’s claims ….
             …In determining what constitutes good and sufficient
      grounds, the court makes a value judgment which, if arrived at
      without caprice, bias or the wrong application of principle, will not
      lightly be set aside on appeal.”

      A lessor seeking eviction must show good and sufficient grounds

therefor as at the date of the hearing of the matter. See RK Footwear

Manufacturers (Pvt) Ltd v Boka Booksales (Pvt) Ltd 1986 (2) ZLR 209 (H) at

213. Once the court is satisfied that the lessor wishes to use the premises

for his own purpose, the reason that has actuated the lessor to make that

decision is irrelevant and has no bearing on his bona fides. Moreover, it is

the position of the lessor that has to be considered and not that of the
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lessee or his needs or circumstances. See Air Zimbabwe (Pvt) Ltd v

Springbrook Travel & Safari Tours (Pvt) Ltd HH 194-2001, at p. 3; the Mobil

Oil Zimbabwe case, supra, at 92-93.


Premises Required for Own Use

       One of the 1st defendant’s contentions is that the notice to vacate

given on 30 November 2007 was motivated by the 1 st defendant’s

application for the determination of a fair rent, lodged with the

Commercial Rent Board only three days before. While noting the

coincidence of these events, I am unable to accept this contention for the

simple reason that the 1st defendant’s application was never served upon

or copied to the plaintiff or its agents.

       What is more relevant, in my assessment, is the sequence and

content of the correspondence between the parties from January 2006 to

November 2007. In their letter of 31 January 2006, the plaintiff’s agents

called upon the 1st defendant to vacate the premises “should you be

unable to pay the required rental”. The agents then wrote on 28 February

2006 stating that the plaintiff had declined the 1 st defendant’s offer of

ZW$60 million per month and that “we have been instructed to serve you

with notice to vacate on the 31st of March 2006”. At that stage, the

obvious reason for demanding vacant possession was the failure to

compel the 1st defendant to agree to the increased rent required by the

plaintiff.

       In their subsequent letter of 30 November 2007, the agents gave

another notice to vacate, citing the plaintiff’s wish to use the premises for

itself as the reason for giving notice. However, from the correspondence

between 15 and 22 November 2007, as well as the evidence of Patience

Munetsi, it appears that the real reason for giving notice was the 1 st
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defendant’s failure to respond to the plaintiff’s proposal for three

separate leases by the stipulated deadline of 23 November 2007.

      The plaintiff’s assertion is that it requires the premises in casu for

the storage of construction materials which are presently being stored

elsewhere in a rented warehouse. By so doing, it stands to lose

commercially in that it will forego a monthly income of US$1575 from the

disputed premises while avoiding an outlay of $450 per month for the

rented warehouse space. In principle, this is not a factor that operates

per se to negative the plaintiff’s assertion. That the plaintiff is prepared to

incur some loss in order to facilitate its own business operations does not

preclude the right to repossess its property. It does, however, cast

considerable doubt on the genuineness of the claim that it requires the

premises for its own use. This is particularly so in light of the fact that the

premises are presently owned by the plaintiff’s subsidiary company,

which is in the business of holding property and is presently letting the

whole complex in which the premises are situated. This doubt is

heightened by Brian Fraser’s unchallenged evidence that the plaintiff’s

materials at the warehouse occupy only about 100 square metres of

storage space, as compared with the 3000 square metres or more

occupied by the 1st defendant.

      Having regard to the foregoing, it seems to me that it was the

disagreement between the parties as to the appropriate fair rent and the

alleged breaches of the lease agreement, rather than the plaintiff’s desire

to use the premises for its own business purposes, that prompted the

plaintiff to give various notices to vacate in January/February 2006,

November 2007 and March 2010. I accordingly find that the stated

reason for requiring the leased premises, having been demonstrated not
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to be genuine, does not constitute good and sufficient grounds for the

eviction of the 1st defendant.


Breach of Lease Agreement (General)

      By their letter of 9 March 2010, the plaintiff’s lawyers gave the 1 st

defendant a further three months notice to vacate. In the alternative,

they cancelled the lease on the basis of various breaches of the lease

agreement, which I will now address and deal with.

      Clause 10.7 of the lease agreement precludes any additions or

alterations to the premises without the lessor’s prior written consent,

while clause 12.4 prohibits the breach of any law in regard to the use of

the premises. The plaintiff’s contention is that the 1 st defendant

constructed an unauthorised structure without the plaintiff’s consent or

approval by the local authority. Brian Fraser’s testimony was that the

structure was in existence from the beginning of the lease in 1998 and

was bricked up soon after by the plaintiff’s subsidiary company acting

under instruction from the plaintiff. This evidence could not be gainsaid

by either of the plaintiff’s witnesses who only became involved in the

matter as from 2001 and 2004 respectively. In the event, I take the view

that the plaintiff has failed to establish any breach of the lease in this

regard.

      In terms of clause 10.1 of the lease agreement, the premises were

deemed to be in good order and repair at the commencement of the

lease, in the absence of any written notification of defects within 14 days

of commencement. Thereafter, as required by clause 10.2 to 10.5, the

lessee was obliged to keep the premises in the same good order and

repair and to maintain and repair the interior of the premises as well as

the water, sanitation and electrical installations. According to the
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inspection reports compiled by the plaintiff’s agents in September 2007

and February 2008, there were several material defects in the premises

that had not been attended to. However, it is common cause that these

reports were never counter-signed by or communicated to the 1 st

defendant. Moreover, there is the evidence of Brian Fraser, which

evidence I am inclined to accept, that most of the defects listed in these

reports were present from the outset of the lease and that he elected not

to notify the defects to the agents because of the excellent relationship

between the parties. It follows that in my assessment the plaintiff has

again failed to establish any material breach in this respect.

      Clause 12.6 of the lease agreement prohibits the lessee from sub-

letting the whole or any part of the premises without the prior written

consent of the lessor. The evidence of Patience Munetsi, which is

corroborated by the correspondence between the parties, clearly shows

that parts of the leased premises were separately occupied by the 2 nd

defendant and an unnamed third party. In his testimony, Brian Fraser did

not dispute this but explained how these parties came to occupy the

premises and that neither of them has paid any rent to the 1 st defendant

or the plaintiff. He admitted that the plaintiff and its agents were not told

about these occupants. In any event, it is common cause that the plaintiff

did not give its prior written or verbal consent to sub-let the premises.

That being so, I find it difficult to accept Mr. Chidziva’s submission that, by

proposing separate leases in order to regularise the situation, the

plaintiff tacitly accepted the unauthorised occupation of the premises.

Nor am I able to comprehend his submission that no breach has been

established in the absence of any formal sub-lease agreement between

the defendants. What matters is that the 1 st defendant sub-let separate

portions of the leased premises, whether for rental consideration or
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otherwise, without the prior written consent of the plaintiff. This

indisputable breach of the explicit prohibition against sub-letting clearly

entitled the plaintiff to cancel the lease in terms of the cancellation clause

embodied in the lease agreement. In the absence of this contractual right

to cancel, the plaintiff would have been entitled to cancel at common law

because the breach in question is tantamount to a material breach of the

lease. See Cooper: Landlord and Tenant (2nd ed.) at p. 256.

        Turning to the lease agreement in casu, clause 16.1 stipulates the

right to cancel the lease and repossess the premises in four different

eventualities. Two of these are presently relevant, to wit:

       clause 16.1.1 – the non-payment of rent or any portion thereof on

        due date; and

       clause 16.1.2 – the failure to rectify a breach of any condition of

        the lease within a period of 14 days of written notice having been

        given by the lessor to the lessee requiring such breach to be

        remedied.

    It is common cause that the plaintiff did not give the requisite 14 days

notice requiring the 1st defendant to rectify any of the breaches giving

rise to cancellation of the lease. In this regard, Adv. Zhou seeks to draw a

distinction between the “terms” and the “conditions” of the lease

agreement. He submits that the breaches alleged in casu pertain to terms

and not conditions, and that clause 16.1.2 is confined to conditions and

therefore does not apply to those breaches. I must confess that I find this

proposition quite startling and entirely devoid of merit. I perceive no

material distinction whatsoever between the “terms” of the lease

agreement on the one hand and its “conditions” on the other. In my view,

in keeping with what has become customary usage in the drafting of

commercial contracts generally and lease agreements in particular, the
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two words do not bear any special distinctive signification and are used

interchangeably to denote the respective rights and obligations

conferred upon and assumed by the parties to such contracts.

   The only breach that is presently relevant, the other alleged breaches

not having been established, is the 1 st defendant’s breach of the

prohibition against sub-letting. In this regard, Adv. Zhou’s alternative

submission is that the 1st defendant was notified of this breach in the

letter from the plaintiff’s agents dated 24 October 2006. As I read the

contents of this letter, although it does make reference to the 1 st

defendant’s failure to inform the agents about the pottery company’s

occupation, it is very loosely and vaguely worded. It does not, in my view,

constitute the requisite 14 days written notice requiring the 1 st defendant

to remedy a specific breach, in conformity with clause 16.1.2 of the lease

agreement. Given the drastic consequences of non-compliance by the 1 st

defendant with any such notice, it was incumbent upon the plaintiff or its

agents to adhere strictly to the provisions of clause 16.1.2, if it intended

at any stage to invoke and rely upon the right to cancel the lease

conferred by that clause. Moreover, assuming that the lease agreement

was prepared and drafted by or on behalf of the plaintiff, it is apposite to

construe its terms and conditions strictly as against the plaintiff. Such

construction accords with the so-called contra proferentem rule.

   To conclude on this aspect of the case, the plaintiff failed to give the

requisite 14 days notice to the 1st defendant to rectify its breach of the

prohibition against sub-letting. Consequently, the plaintiff did not at any

stage accrue the right to cancel the lease conferred by clause 16.1 of the

lease agreement.


Breach of Lease Agreement (Rent Payments)
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      As I have already stated, clause 16.1.1 of the lease agreement

entitles the lessor to cancel the lease and repossess the premises in the

event of the non-payment of rent or any portion thereof on due date. In

respect of this breach, the lessor is not obligated to give any written

notice to the lessee to remedy the breach.

      In May 2008, the 1st defendant paid its monthly rental one day

beyond the seven day time limit stipulated by section 22 of the

Commercial Premises (Rent) Regulations 1983. By letter dated 15 May

2008, the 1st defendant was notified of this breach and the cheque

tendered by it was rejected. Two further cheque payments made by the

1st defendant in June 2008 were also rejected for the same reason. In

August 2008, the 1st defendant tendered a cheque for ZW$1 purportedly

covering rentals for the following 24 months. In March 2010, the plaintiff

cancelled the lease on the grounds of breach and instituted the present

action for eviction. Thereafter, in August and September 2010, the 1 st

defendant tendered monthly payments of US$800 as fair rental for the

premises.

      As regards the first default in May 2008, I am inclined to accept

Brian Fraser’s unchallenged explanation of his attempt to pay the rent by

due date at the agents’ offices. On that basis, in the absence of any case

authority to the contrary that I am aware of, I take the view that the 1 st

defendant was not in breach of its rental obligations and therefore did

not lose the protection of its statutory tenancy at that stage.

      As for the payment of ZW$1 tendered as rentals for 24 months, Mr.

Chidziva persists with the position that this tender was valid and should

have been accepted by the plaintiff. This contention is patently absurd for

a variety of very compelling reasons, not least of them being the

concession by Brian Fraser that in hindsight this tender of ZW$1 was
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neither fair nor reasonable. The amount tendered was unquestionably

derisory and could not possibly have represented a fair rental for the

premises by any measure of value, mercantile or otherwise. The

subsequent tender of US$800 per month, 24 months later, was premised

on the contention that the intervening period had been duly accounted

for by the payment of ZW$1 in August 2008. This contention was not only

mischievous but also obviously fallacious. Moreover, the tender had been

overtaken by events, in particular, the cancellation of the lease and the

institution of this action 6 months before.

      It is settled law that where the amount of rent payable has not

been agreed upon by the parties, the lessee must pay that amount which

it contends represents a fair rental. The lessee’s failure to do so entitles

the lessor to cancel the lease and repossess the tenanted premises by

ejecting the lessee. See Supline Investments (Pvt) Ltd v Forestry Company. of

Zimbabwe 2007 (2) ZLR 280 (H) at 281, where it was held as follows:

             “A tenant has an undisputed obligation to pay rentals for
      property that he hires from the landlord. That is the sine qua non
      for his continued occupation of the leased property. He has no
      right to occupy the landlord’s property save in return for payment
      of rent. Where the tenant disputes the amount of the rentals
      chargeable for any premises, in my view, that challenge does not
      absolve the tenant from paying any rentals at all. The minimum
      that the tenant in such a situation must pay is the amount that it
      contends represents fair rentals for the premises. This, the tenant
      must pay to avoid being ejected on the basis of non-payment of
      rentals even if its challenge to what constitutes fair rentals is
      subsequently validated. At most, the tenant can pay the disputed
      amount and claim or be credited with the difference once its
      contentions as to what constitutes fair rentals are validated.”

      I would add to these principles the additional requirement that the

lessee’s contention as to what represents a fair rental must be reasonably

formed and defensible by some commercial criterion. He cannot relieve
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himself of his obligation to pay fair rent by tendering some arbitrary and

paltry sum entirely incommensurate with the rentable market value of

the leased premises.

        It follows from the foregoing that, as from August 2008, the 1 st

defendant was in clear breach of its obligation to pay the monthly rent

due and thereafter lost its entitlement to the benefits and protection of

its statutory tenancy. Consequently, the plaintiff became fully entitled to

cancel the lease on that ground, as it did, and to seek the eviction of the

1st defendant and its sub-tenants from the leased premises.


Holding Over Damages

        In principle, holding over damages should represent the market

rental value of the property in question at the relevant time. See Cooper,

op.cit., at p. 234.

        According to the uncontested testimony of Brian Fraser, the area

occupied by the 1st defendant is circa 3000 square metres. Having regard

to the size of the premises occupied by other tenants in the same

complex and the comparative rents paid by them from March 2009

onwards, I see no reason for departing from the rental amounts

proposed by the 1st defendant at the end of the trial. In the absence of

any expert evidence on the point from an independent estate valuator, I

take these amounts to approximate and represent the fair market rental

for the premises in casu.




Costs

        By virtue of clause 16.2 of the lease agreement, any legal costs and

expenses reasonably incurred by the lessor, consequent upon the
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lessee’s default in the due payment of rent or any other amount owing to

the lessor, are claimable and recoverable by the lessor on an attorney

and client scale. Given the 1st defendant’s clear breach in paying the rent

due as from August 2008, there can be no doubt that the plaintiff is

entitled to its costs on a higher scale.


Disposition

      In the result, the plaintiff is entitled to the relief that it seeks,

subject to the reduction of the holding over damages claimed up to

August 2010. Additionally, inasmuch as the 1 st defendant has been in

occupation of the leased premises for almost 13 years, I deem it just and

equitable that it be given some time to relocate and surrender the

premises.


      Accordingly, it is ordered that:

   (a) The 1st defendant and all those claiming occupation through it,

       including the 2nd defendant, shall vacate the plaintiff’s premises,

       being Lot 2, Manresa, Arcturus Road, Harare, on or before the 31 st

       of May 2011, failing which the Deputy Sheriff be and is hereby

       authorised to evict the 1st defendant and all those claiming

       occupation through it, including the 2nd defendant, from the said

       premises.

   (b) The 1st defendant shall pay the plaintiff holding over damages in

       the sum of US$800 per month from the 1 st of March 2009 to the

       31st of August 2010 and US$1575 per month from the 1 st of

       September 2010 to the date of vacant possession of the said

       premises being given to the plaintiff, together with interest on

       those sums at the prescribed rate, calculated from the due date to

       the date of payment in full.
                                                                         19
                                                                 HH 83-2011
                                                                 HC 1884/10
   (c) The 1st defendant shall pay the plaintiff’s costs of suit on a legal

       practitioner and client scale.




Gill, Godlonton & Gerrans, plaintiff’s legal practitioners
Kantor & Immerman, 1st defendant’s legal practitioners