Sydney Mazambara v Milan Djordjevic

### Preamble
1
HH 472-18
CIV ‘A’ 475/15
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SYDNEY MAZAMBARA

versus

MILAN DJORDJEVIC

HIGH COURT OF ZIMBABWE

CHITAKUNYE AND NDEWERE JJ

HARARE, August 16, 2018

Civil Appeal

Appellant in person

E Z Mapendere, for the respondent

CHITAKUNYE J. This is an appeal against the whole judgement passed by a magistrate at Harare magistrate court in which he granted summary judgment against the appellant.

The grounds of appeal were couched as follows:

The court a quo grossly erred and misdirected itself in finding that the respondent had locus standi to sue in contract.

The court a quo grossly erred in granting summary judgement when it was clear that there was no lease agreement between the parties.

The court a quo misdirected itself in granting summary judgment when the Appellant had demonstrated a bona fide defence and triable issues.

On the date of the hearing, the appellant abandoned grounds 1 and 2 but persisted with the third ground.

The circumstances leading to this appeal maybe summarised as follows:

On the 19th September 2014 the Appellant entered into a lease agreement with Letwin Emmanuel in respect of property known as 4 Kinross, Alexandra Park, Harare. The  property was managed by Luxury Real Estate Agents and the rentals were supposed to be paid to the said Letwin Emmanuel, through the estate agent’s account or directly to Letwin Emmanuel. Letwin Emmanuel was the legal owner of the property and had title deeds. In terms of the written lease agreement between the parties rent was set at US1 000 00 per month.

Sometime in March 2015 Letwin Emmanuel sold the property to the respondent, Milan Djordjevic. The sale to the respondent was conducted only after appellant had been given a right of first refusal which he did not take up.  The respondent duly obtained title on the 21st April 2015 in his name.

After the property had been sold appellant was advised of such sale by Luxury Real Estate by letter dated 4 March 2015 in which the managing agent stated, inter alia, that:

“We wish to advise you that as a follow up to our letter to you of right of first refusal 	following the placement of 4 Kinross on market, we would like to advise you that the 	property is now sold and as such we would like to give you three (3) months notice. The 	notice period commences on the 7th March 2015 and is set to expire on 7th May 2015 upon 	which you are expected to give vacant possession of the property.”

Upon having knowledge that the property had been sold to the respondent, the appellant stopped paying rentals to the appointed agent, luxury Real Estate. Neither did he pay to Letwin Emmanuel nor to the respondent as the new owner in terms of the title deeds.

On the 16th July 2015 the respondent issued summons against the appellant for:

Eviction of the appellant and all those claiming occupation through him from the said premises;

Payment of US$2 000.00 being balance in respect of arrear rentals;

Payment of holding over damages from 1st July 2015 at the rate of US$1 000.00 per month to the date that Plaintiff gets vacant possession of the property in question;

Interest at the prescribed rate of 5% per annum from the date of issue of summons to date of payment in full; and

Costs of suit on a legal practitioner and client scale.

The appellant entered appearance to defend and served it on the respondent’s legal practitioners on the 31st July 2015. On the 6th August, Respondent filed an application for summary judgement.

The appellant opposed the application on the basis that he had not entered into a lease agreement with the respondent but with Letwin Emmanuel, respondent’s predecessor in title. The appellant further contended that the respondent could not sue him in contract or for breach of the lease agreement, arguing that respondent was a stranger to that lease agreement.

He also contended that respondent was out of time as the appearance to defend had been filed at court on 27 July 2015, albeit not denying serving the same on respondent’s legal practitioners on the 31st July 2015.

Appellant also disclosed that he was suing Letwin Emmanuel for moneys he believed his former land lord owed him and that the former land lord must be joined in the proceedings. Because of issues to do with his erstwhile land lord appellant contended that summary judgement should not be granted. It is pertinent to note that in his opposition appellant did not deny that he had since stopped paying rentals as alleged by respondent.

After hearing arguments the learned trial magistrate correctly in our view granted summary judgement.

Order 15 rule 2(1) of the Magistrates Court (Civil) Rules 1980 states that:

“Upon the hearing of an application for summary judgment, the defendant may—

(a) ……; or

(b)…….; or

(c) satisfy the court by affidavit then filed, which may be supported by viva voce evidence or otherwise, that he has a good prima facie defence to the action.”

It was thus upon the appellant to satisfy court that he had a good prima facie defence to the action. A prima facie defence is an explanation which on the face of it discloses a plausible defence to the action.

In casu, the appellant’s contention that the respondent had no locus standi to sue him for eviction and arrear rentals was not valid at all. It is unfortunate that in spite of the fact that appellant was legally represented he persisted with such a defence even to the extent of appealing against the magistrate’s decision on this aspect.

It is trite law that upon the sale of immovable property, the purchaser becomes the successor in title and assumes all responsibilities and rights of his or her predecessor in title. This basic rule, which appellant’s erstwhile legal practitioner ought to have been aware of, finds support in the concept of huur gaat roor koop.

In W & D Consultants (Pty) Ltd v Doran 2015 (1) ZLR 912 (H) at 923C- G DUBE J aptly noted that:-

The concept of huur gaat voor koop is found under Roman Dutch law and simply means that hire takes precedence over sale. The doctrine was defined in Genna-Wae Properties (Pty) Ltd v MedioTronics (Natal) (Pty) Ltd 1995(2(SA 926(A);[1995] 2ALL SA 410 as follows:

“I hold that in terms of our law the alternation of leased property consisting of land or buildings, in pursuance of a contract of sale does not bring the lease to an end. The purchaser (now owner) is substituted ex lege for the original lesser and the latter falls out of the picture. On being so substituted the new owner acquires by operation of law all the rights of the original lesser under the lease. At the same time the new owner is obliged to recognise the lessee and to permit him to continue to occupy the leased premises in terms of the lease provided that he (the lessee) continues to pay the rent and otherwise to observe the obligations under the lease. The lessee in turn is also bound by the lease and provided the new owner recognises his rights, does not have any option, a right of election, to resile from the contract.’

What the concept entails is that a tenant who entered into a lease agreement prior to the sale is protected from eviction where the property is sold to a third party. He is entitled to remain in occupation of the property until his lease expires.	He must abide by the terms of the lease agreement. See One Nought Three Craighall Park (Pty) Ltd v Jayber(Pty) 1994(4)SA 320(W) and Boshoff v Theron 1940 TPD 299, where  the court  held that a lessee of property transferred from the previous lesser is required to recognise and observe the terms of the lease after transfer.”

Further, at page 924E-F the learned Judge aptly opined that:

“It is a requirement that the tenant should abide by all terms of the contract and continue to pay his rentals to the new owner. Failure to do so amounts to breach. The new owner only has an obligation to adhere to the lease agreement if the tenant is willing to pay rentals and does pay the rentals. Where the tenant fails to pay rentals agreed to with the previous owner, he commits a breach and he is liable to the new owner…..”

It is thus clear that in terms of our law, an agreement of sale does not invalidate or nullify an existing bona fide lease agreement. The new owner substitutes the previous owner and inherits the rights and obligations of the previous owner in terms of the lease agreement. The lessee is enjoined to continue meeting his side of the lease agreement without fail.

In casu, in terms of paragraph 3 of the lease agreement of 19 September 2014, appellant was obliged to  pay monthly rentals in the sum of US$ 1 000.00. In the event of failure to pay the rent paragraph 22 gave the lessor the right to terminate the agreement and take occupation of its premises.

In casu, the appellant did not dispute that he stopped paying rent from when he knew that the property had been sold. Having breached a material term of the lease agreement that respondent had taken over, the appellant had no defence to the claim for eviction. Clearly in terms of the law as stipulated above appellant could only continue to stay in the property upon continued payment of the rent.

Therefore as far as the claim for eviction was concerned, the appellant had no defence, not even a prima facie defence.

It was thus appropriate for appellant to abandon the grounds of appeal that challenged the respondent’s locus standi and right to evict him.

As regards ground number 3 which appellant persisted with, this had no merit at all. In that ground appellant stated that:

The court a quo misdirected itself in granting summary judgement when appellant had demonstrated a bona fide defence and triable issues. As alluded to above appellant lamentably failed to demonstrate a prima facie defence against the claim for eviction. No triable issues were disclosed.

From his submissions appellant seemed to argue that summary judgment should not have been granted because he had issued summons against his erstwhile land lord for refund of his deposit and other costs he had incurred. To this he had attached the summons. As is evident from the summons, respondent was not party to that matter. The issues therein are purely between appellant and his erstwhile landlord. Those are issues the appellant could have pursued whilst meeting his rental obligations to respondent. Indeed as noted above, our law is very clear that a tenant has an undisputed obligation to pay rentals for property he leases 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. (Supline Investments (Pvt) Ltd v Forestry Company of Zimbabwe 2007 (2) ZLR 280(H) at 281)

The record of proceedings did not show that appellant alluded to any counter claim against the respondent as he sought to argue in this court. Clearly his case was one of clutching at anything he thought would save his day but this was to no avail.

As regards appellant’s assertion that the application for summary judgment was filed out of time as it was filed after the 7 days period provided by the rules, I am of the view that the learned trial magistrates correctly dismissed this point.

In terms of Order 10 Rule 1 of the Magistrates Court (Civil) Rules provides that a defendant who intends to defend shall enter an appearance to defend by delivery of a memorandum in writing that he intends to defend.

The term ‘deliver’ is defined in Order 1 Rule 5 as ‘to file of record with the clerk of court and to serve a copy on the other party.’

In casu, since appellant only served a copy of his appearance to defend on respondent’s legal practitioners on 31st July 2015, which should be taken as the date the period begun to run. The respondent was thus within 7 days when he filed his application for summary judgment on 6th August 2015.

The respondent asked for costs on the legal practitioner and client scale. Counsel for respondent argued that such a scale of costs is provided for in the lease agreement and further the appeal was an abuse of court process as appellant had no prospects of success at all.

I am of the view that this is a case deserving of punitive costs. This is a case that may have been pursued out of sheer intransigency on the part of appellant or simply wrong legal advice which has led to respondent being put out of pocket.

When the parties appeared before us for this hearing effort was made for appellant to see reason. Initially he seemed to concede but later retracted and would not go along with any settlement without the need for further costs. He seemed intent on respondent meeting his claim against his former land lord, which claim had nothing to do with respondent. It is only proper that he be visited with costs on the punitive scale.

Accordingly, the appeal be and is hereby dismissed with the appellant to pay costs on the legal practitioner and client scale.

NDEWERE J. I concur ………………………

Mapendere and Partners, legal practitioners for the respondent.