Andrew
Legal Matters
This is one of the contentious issues that has often given property owners headaches. There is a tendency by some tenants to deliberately employ all dilatory tactics in order for them to evade eviction from commercial premises that they will be renting. In other disturbing cases, the tenants will not even be paying rentals in addition to refusing to vacate the premises.
If this is not managed well businesses can end up losing lots of revenue in legal fees prosecuting their cases. This also means that there is need for greater care to be put into the preparation of the lease agreements.
A lease agreement can be terminated for various reasons, one of them is breach. There are also instances where the Landlord now needs use of his or her property. The commercial properties rent regulations make a provision that the Landlord has to establish “good and sufficient” grounds for requiring the premises. What does the term mean, and what is that the Landlord has to establish in order to satisfy the requirement in terms of the law?
“Good and sufficient ground”
The position of the law is settled, the court is empowered to grant the relief of eviction where the lessor succeeds in establishing good and sufficient grounds entitling it to the eviction order. What constitutes good and sufficient grounds set out in s22(2) of the regulations has been discussed in a plethora of cases. See Checkers Motors (Pvt) Ltd v Karoi Farmtech (Pvt) Ltd S 146-86; Moffat Outfitters (Pvt) Ltd v Hoosein and Others 1986 (2) ZLR 148 (S).
The essence of the pronouncements of the Supreme Court in the above case law authorities is that while the Commercial Premises (Rent) Regulations 1983 were enacted to protect tenants, that protection is directed against unscrupulous landlords and not genuine ones who bona fide require to reclaim their property for own use. Indeed, there have been several lessors who do not actually want the property for own use but simply want to evict the tenants from the premises and put another tenant.
The phrase “good and sufficient grounds” is not defined in the regulations except to exclude from it the refusal of the tenant to agree to a rent increase and the desire by the landlord to lease out the premises to someone else who is not the tenant.
The courts in various judgments have defined what constitutes “good and sufficient grounds” for reclaiming the leased premises. ZIYAMBI JA in Kingstons Ltd v D Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S) 457 A–C:
“Our courts have held that the landlord need do no more than assert his reasons in good faith and then to 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 claim. See Film and Video Trust v Mahovo Enterprises (Pvt) Ltd 1993 (2) ZLR 191 (H); see also Newman v Biggs 1945 EDL 51 at 54 and 55. —. 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.”
Good and sufficient grounds for requiring the tenants’ eviction exist where the lessor genuinely requires the use of the leased premises for the operation of a business or it is necessary for the lessor to effect extensive repairs to the premises which repairs cannot be effected while the tenant is in occupation. See Delco (Pvt) Ltd v Old Mutual Properties (Pvt) Ltd 1997 (2) ZLR 415 (S) 417 D – E; Mungadze v Murambiwa 1997 (2) ZLR 44 (S).
While rejecting the old common law rule as propounded by authors on Roman Law and Roman Dutch Law allowing a lessor to eject the lessee without consent if the landlord required the premises for own use (see Wille’s Landlord and Tenant in South Africa 5 ed at 145; Codex Justinianus 4:65:3; Cooper Landlord and Tenant 3 ed at 322) GUBBAY CJ in Mungadze v Murambiwa, supra, at 46D –E remarked;
“In so far as the law of this country is concerned, I conceive of no basis upon which to hold that the rule — even assuming it was received as a legal principle in Holland is applicable today. The position is simply that a landlord and his tenant are bound by the terms of their contract. If a fixed period is agreed, earlier termination will not be possible unless there has been a breach by the tenant.
Notice to quit cannot be given before the expiry of the lease, save where the premises have become dangerous or urgently in need of repair and vacation would ordinarily be permitted to resume occupation upon completion of the repairs. See Moffat Outfitters (Pvt) Ltd v Hoosein and Others 1986 (2) ZLR 148 (S) at 153 A- F.”
Where the land owner wishes to use the premises for its own purposes, the court enquires only as to its bona fides and not as to the reasons why it decided to use the premises for its own purposes: see Mobile Oil Zimbabwe (Pvt) Ltd v Chisipite Service Station (Pvt) Ltd 1991 (2) ZLR 82 (S) 88 C- D; Boka Enterprises (Pvt) Ltd v Joowalay & Another 1988 (1) ZLR 107 (S). It disingenuous to employ dilatory tactics when a landowner genuinely requires premises for own use. It is better to negotiate a long period for you to look for alternative place to operate from.
LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, commercial law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email: attorneyarthurmarara@
gmail.com.
Tinaye Agere
Online Reporter