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 1^st 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 2^nd 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 1^st defendant and all those claiming occupation through it, including the 2^nd 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 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 1^st 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 1^st 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 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 1^st 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 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 1^st defendant by that deadline, she wrote the letter of 30 November 2007 giving three months notice to vacate. The 1^st 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 1^st 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 1^st 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 1^st defendant took occupation. The allegedly unauthorised extension is a brick storeroom that formed part of the 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 1^st 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 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 1^st 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 1^st 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 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.

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 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 1^st 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 1^st 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 1^st 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 31^st of March 2006”. At that stage, the obvious reason for demanding vacant possession was the failure to compel the 1^st 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 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 1^st 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 to be genuine, does not constitute good and sufficient grounds for the eviction of the 1^st 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 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 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 (2^nd 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 1^st 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 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 1^st 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 1^st 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)

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 1^st 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 1^st defendant was notified of this breach and the cheque tendered by it was rejected. Two further cheque payments made by the 1^st defendant in June 2008 were also rejected for the same reason. In August 2008, the 1^st 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 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 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 1^st 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 1^st 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 1^st 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 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 1^st 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:

1. The 1^st defendant and all those claiming occupation through it, including the 2^nd 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 1^st defendant and all those claiming occupation through it, including the 2^nd defendant, from the said premises.
2. The 1^st 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 31^st 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.
3. The 1^st 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, 1^st defendant’s legal practitioners