REPORTABLE ZLR (9)

Judgment No. SC 8/06

Civil Appeal No. 205/05

KINGSTONS LIMITED v L D INESON (PRIVATE) LIMITED

SUPREME COURT OF ZIMBABWE

ZIYAMBI JA, MALABA JA & GWAUNZA JA

HARARE, JANUARY 9 & MAY 15, 2006

T Biti, for the appellant

E W Morris, for the respondent

ZIYAMBI JA: This is an appeal from an order of summary judgment granted by the High Court and a cross appeal by the respondent against the refusal of the High Court to allow the introduction by the respondent of a supplementary affidavit dealing with points raised by the appellant in its opposing affidavit.

The background facts may be stated as follows.

The respondent is the owner of certain premises situated at Shop 1A, 10 George Silundika Avenue, Harare (‘the shop’), leased to the appellant initially for the period 1 July 1994 to 30 June 1995. The lease was thereafter renewed annually at increased annual rentals until 30 June 2003. On 26 March 2003, the respondent gave the appellant three months notice of its intention to occupy the shop for its own business with effect from 1 July 2003 and, by inference, it required the appellant to vacate the shop not later than 30 June, 2003. The property from which the respondent operates its business is adjacent, and contiguous to, the shop. No response was received from the appellant until 27 April 2003 when the appellant through its legal practitioners, advised the respondent that the appellant would not be moving out in terms of the notice as its status was that of a statutory tenant in terms of s 22 of the Commercial Premises (Rent) Regulations, 1983, SI 676/83 (‘the Regulations’) and that the respondent had no good and sufficient cause to require the eviction of the appellant.

The respondent issued summons in the High Court against the appellant seeking an order of ejectment and, the appellant having entered an appearance to defend, proceeded to apply for summary judgment.

It was averred in the affidavit accompanying the application that owing to the difficult economic climate presently obtaining in Zimbabwe the respondent, who up to 2002 had carried on the business of sales of electrical hardware, had now ventured into the sale of second hand appliances and goods. As a result, the respondent’s premises had become ‘too cramped’ and it was the respondent’s intention to extend its business into the shop. All that was necessary to effect the extension was a door in the wall separating the shop from the respondent’s business premises in order to convert the two premises into one shop. The respondent annexed to its founding affidavit photographs which depict the cramped condition of its business premises as well as items of second hand goods displayed for sale by the respondent therein.

The appellant, in its opposing affidavit, denied that the respondent had good and sufficient cause in seeking its eviction from the leased premises; denied that the respondent sells second hand goods and, therefore, the requirement for more space for its business. It averred that the respondent’s intention was not to occupy the shop itself but to lease the shop to another tenant who would pay a higher rental. Accordingly, so it was averred, the appellant was protected by s 22 of the Regulations which provides as follows:

“(2) No order for the recovery of possession of commercial premises or for the ejectment of a lessee therefrom which is based on the fact of the lease having expired, either by the effluxion of time or in consequence of notice duly given by the lessor, shall be made by a court, so long as the lessee-

(a) continues to pay the rent due, within seven days of due date; and

(b) performs the other conditions of the lease;

unless the court is satisfied that the lessor has good and sufficient grounds for requiring such order other than that-

(i) the lessee has declined to agree to an increase in rent; or

(ii) the lessor wishes to lease the premises to some other person.”

At the hearing, the respondent applied, unsuccessfully, to file a supplementary affidavit in which it responded to the denials and averments made by the appellant in its opposing affidavit. On the application for summary judgment, the learned judge found that the respondent had shown good and sufficient grounds for seeking the ejectment of the appellant from the shop.

Mr Biti, on behalf of the appellant, based his submissions on two grounds. Firstly, he submitted that the learned judge was wrong in concluding that the respondent had shown “good and sufficient cause” for seeking the order of ejectment since the evidence produced by the respondent was insufficient to establish sufficient grounds for requiring the order of ejectment. For example, no plan of the proposed alterations of the premises was provided by the respondent.

The learned judge reasoned as follows:

“It is my considered view that applicant has shown good and sufficient ground for wanting to eject the respondent and recover its shop. Respondent has merely denied that the grounds raised by applicant are bona fide. Respondent has clearly not raised any triable issue by making bare denials of the applicant’s grounds. If such bare denials were to be accepted, very few applications, if any, would be granted for summary judgment. This is so for all the respondent would need to do is to deny whatever applicant says are his good and sufficient reasons.

The respondent in a summary judgment application has to do more than just raise denials. He has to raise triable issues which consist of averments or denials, which if proved at the trial will constitute a defence. I find that respondent has failed to raise such triable issues in this matter. I am of the view that applicant clearly set out in detail why it needs to expand its existing second hand goods business and how it proposes to do it. He has suggested that an interlinking entrance between the shops would be erected giving access from one shop to the other, together with shelving which would be needed. For the respondent to suggest that some plan should have been provided would not amount to raising a triable issue. I have been impressed by applicant’s photographs which amply demonstrate the extent to which his current shop is under pressure. I also fail to understand the basis upon which respondent suggests that applicant requires the premises for speculative purposes. Such suggestions have not been supported by any evidence.

In the result, I find that the applicant has shown good and sufficient grounds for requiring ejectment of the respondent.”

I find no fault with the reasoning of the learned judge.

It was accepted by Mr Biti during argument that the evidence necessary to prove good and sufficient reasons must vary with the complexities of each case. We were referred to the following passage in Boka Enterprises (Private) Limited v Joowalay & Anor 1988 (1) ZLR 107 (SC) at 114 G-H to 115A-C:

“In the Checkers Motors case, supra, the view was expressed that if an owner is able to prove that he reasonably requires the use of the leased premises for the operation of his business, a court would be justified in attaching substantial weight to such factor in determining whether there are good and sufficient grounds for an eviction order. That decision did not, however, lay down that it is incumbent upon the owner to establish that he “requires” the premises for his personal use, in the sense of “needs”, though on the particular facts Karoi Farmtech did so require them.

Each case of an owner genuinely seeking the use of leased premises for himself must be assessed on its own merits. It will not be enough for him somewhat naively to proclaim: “The premises belong to me and I now desire to use them for my own purposes”. That would not constitute good and sufficient grounds. The court would want to know the precise use to which it was intended to put the premises. If that use were found to be illegal or frivolous or, having regard to the owner’s circumstances, unreasonable, the eviction of the lessee would be refused.”

Mr Biti argued that this placed the onus on the landlord at all material times to prove that he requires the property for his own use. That may be so but what is the degree of proof required? In the same case at p 114 B-C GUBBAY JA, as he then was, remarked:

“In conclusion on this aspect, I do not think it out of place to repeat what I said in Checkers Motors (Pvt) Ltd v Karoi Farmtech (Pvt) Ltd S-146-86:

In cases such as this care must be taken not to elevate every alleged dispute of fact into a real issue which necessitates the taking of oral evidence, for to do so might well encourage a lessee against whom ejectment is sought to raise fictitious issues of fact thereby delaying the resolution of the matter to the detriment of the lessor.

Mr Donagher’s final argument was that, accepting that the respondents were to be taken as bona fide in their desire to establish and operate a general dealer’s business at Stand 1091, they had nonetheless failed to discharge the onus cast upon them by s 22(2) of the Commercial Premises (Rent) Regulations 1983, of showing that they had "good and sufficient grounds" for requiring the appellant’s eviction.

The phrase “good and sufficient grounds” is not defined in the Regulations. Save for providing that such grounds exclude the refusal of the lessee to agree to an increase in rent and the wish of the lessor to lease the premises to someone other than the lessee, no guidance is given to the court as to the factors to be taken into account in making its determination.

In the nature of things, it is hardly possible, and certainly undesirable, for this court to attempt to itemise the grounds which would be regarded as good and sufficient. And no general rule would be likely to cover all the varying circumstances which may arise in determinations of this type. What is clear, however, is that the court is enjoined to exercise a value judgment.

In the Checkers Motors case, supra, the view was expressed that if an owner is able to prove that he reasonably requires the use of the leased premises for the operation of his business, a court would be justified in attaching substantial weight to such factor in determining whether there are good and sufficient grounds for an eviction order……”

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 & Video Trust v Mahova Enterprises 1993 (2) ZLR 191; See also Newman v Biggs 1945 EDL 51 at 54 and 55.

The learned judge a quo attached substantial weight to the fact that the respondent’s intention was to use the property for the extension of his business.

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. See Moffat Outfitters (Private) Limited v Hoosein & Ors 1986 (2) ZLR 148 (SC). The learned judge, as he was enjoined to do, made a value judgment. It has not been alleged that the learned judge was biased or his finding capricious nor was it alleged that the use to which it was intended to put the property was illegal or frivolous or that the learned judge acted on a wrong principle.

The two properties are adjacent and contiguous to each other and all that has been alleged by the respondent to be necessary is an archway between the two in order to grant access from the one to the other.

The learned Judge was satisfied, upon perusal of the photographs attached to the application, that the respondent’s existing premises are too cramped and that the respondent’s desire to occupy the space presently occupied by the appellant was bona fide.

It is readily apparent from the photographs of the interior of the respondent’s existing premises that there are displayed therein, goods other than electrical components. The photographs depict a wine rack with a bottle of wine, an antiquated tumble dryer and what appears to be an old oven, among other things.

In view of the above considerations, I find no reason to hold that the court a quo was wrong in the conclusion at which it arrived, namely, that the respondent’s desire to make use of the shop for the expansion of its business was bona fide.

It was correctly submitted, on behalf of the appellant, that the Regulations were enacted for the protection of tenants. See Moffat Outfitters supra, at p 154 C-D. However, the protection afforded is meant to be from unscrupulous landlords – not those who are genuine in their desire to reclaim their property for their own use.

The second contention advanced by Mr Biti was that the appellant having raised a triable issue, it was wrong of the court to grant summary judgment since the issues raised by the defendant were to be proved at the trial of the matter and not to be determined by the court at summary judgment stage. That in itself means, in my judgment, and it was so submitted in argument by Mr Biti, that the court before which an application for summary judgment is made has no discretion to decide whether or not the defendant has raised a bona fide defence but that once a defence is raised which, if proved at the trial, could amount to a defence to the claim, the court must fold its hands and refuse the application for summary judgment.

This would be an untenable situation for, as Mr Morris submitted, the debtor who in answer to an application for summary judgment consequent on his failure to make payment on due date swears in an affidavit that “the debt was paid. I deny that the debt remains unpaid” without producing a receipt or an affidavit of a witness or some other document proving payment, would escape an order for summary judgment on the basis that he has raised a triable issue which must be determined at the trial.

Care must be taken not to elevate every alleged dispute of fact into a real issue which necessitates the taking of oral evidence, for to do so might well encourage a lessee against whom ejectment is sought to raise fictitious issues of fact thereby delaying the resolution of the matter to the detriment of the lessor.

See Boka Enterprises (Private) Limited v Joowalay & Anor 1988 (1) ZLR 107 (SC) at 114.

The above remarks, though made in a case where the respondent had proceeded by way of ‘notice of motion’ (now known as a ‘court application’) are, in my view, equally applicable in the instant matter where the respondent proceeded by way of summary judgment.

Not every defence raised by a defendant will succeed in defeating a plaintiff’s claim for summary judgment. Thus what the defendant must do is to raise a bona fide defence - a ‘plausible case’ - with ‘sufficient clarity and completeness to enable the court to determine whether the affidavit discloses a bona fide defence’. He must allege facts which, if established, ‘would entitle him to succeed.’ See Jena v Nechipote 1986 (1) ZLR 29 (SC); Xavier Francis Mbayiwa v Eastern Highlands Motel (Pvt) Limited S-139-86; Joan Spencer Rex v Rhodian Investments Trust (Private) Limited 1957 R & N 723.

If the defence is averred in a manner which appears in all circumstances needlessly bald, vague or sketchy that will constitute material for the court to consider in relation to the requirement of bona fides Breitenbach v Fiat SA (Edms) Bpk 1976 (2) SA 226 at 228D-E).

The defendant must take the court into his confidence and provide sufficient information to enable the court to assess his defence. He must not content himself with ‘vague generalities and conclusory allegations not substantiated by solid facts’. See District Bank Ltd v Hoosain & Ors 1984 (4) SA 544 at 547G-H; Xavier Francis Mbayiwa v Eastern Highlands Motel (Pvt) Limited (supra); Hales v Doverick Investments (Private) Limited 1998 (2) ZLR 235 (H).

It is an understatement to say that the appellant’s opposing affidavit goes nowhere near to satisfying the above criteria. It simply contained bare denials - that the respondent deals in secondhand goods, that the respondent requires the shop for the expansion of his business and that the premises presently occupied by the respondent are no longer adequate for his business - and a bald unsubstantiated averment that “applicant desires to take over the property so that it can enter into a more profitable lease agreement.” It gave the court no information with which to assess its defence but was content with ‘vague generalities and conclusory allegations not substantiated by solid facts’. Accordingly the court a quo was correct in granting summary judgment as prayed.

The cross appeal

The respondent was the successful litigant in the court a quo. It is trite that an appeal can only be noted against the substantive order made by a court and not against the reasons for making, or the process by which it arrives at, the order in question. See Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (SC) at p 124 C-E where GUBBAY JA (as he then was), quoted with approval the following passage from the judgment of CENTILIVRES JA in Western Johannesburg Rent Board & Anor v Ursula Mansions (Pty) Limited 1948 (3)SA 353 (A) at 355:

“…it is clear that an appeal can be noted not against the reasons for judgment but against the substantive order made by a Court. For instance, it is open to a respondent on appeal to contend that the order appealed against should be supported on grounds which were rejected by the trial judge: he cannot note a cross-appeal under Rule 6(4) unless he desires a variation of the order. See Municipal Council of Bulawayo v Bulawayo Waterworks Ltd 1915 AD 611 at pp 625, 631, 632. In the present case the notice of appeal is not against the order granted by the Transvaal Provincial Division but against that part of the reasons for judgment in which it was held that the appellants had acted arbitrarily.”

Mr Biti submitted that the dismissal of the application to introduce a supplementary affidavit was not a substantive order since it did not affect the decision which was arrived by the court a quo.

I am inclined to agree. It seems to me that in effect the appeal is against the process by which the judgment was arrived at, namely, the refusal by the court a quo to allow evidence which the respondent sought to lead but which the court found both to be failing to meet the prescribed legal criteria for the admission of such evidence and to be unnecessary in assisting the court to arrive at a decision on the substantive issue in the matter which was whether or not the respondent had made out a case for the ejectment of the appellant. That was the real issue before the court a quo and it was decided in favour of the respondent who has not appealed against the grant of the order of ejectment in its favour. The following words of GUBBAY JA in the Chidyausiku case supra, at p 124 G-H are in my view equally applicable in the instant case.

“In my view, Mr de Bourbon’s objection is well taken. What this court is being asked to do is not to reverse the order of the learned judge but to cure the procedural defects, by either considering the merits of the application itself or remitting the matter for the learned judge to do so. Once that is done, the appellant will be content whatever the outcome should happen to be.”

In any event, as Mr Biti contended, the drastic nature of the remedy of summary judgment makes strict compliance with the provisions of the Rules peremptory.

Rule 67 of the Rules of the High Court provide as follows:

“No evidence may be adduced by the plaintiff otherwise than by the affidavit of which a copy was delivered with the notice, nor may either party cross-examine any person who gives evidence viva voce or by affidavit:

Provided that the court may do any one or more of the following-

(a) …

(b) ….

(c) permit the plaintiff to supplement his affidavit with a further affidavit dealing with either or both of the following-

(i) any matter raised by the defendant which the plaintiff could not reasonably be expected to have dealt with in his first affidavit; or

(ii) the question whether, at the time the application was instituted, the plaintiff was or should have been aware of the defence.”

In dismissing the application the learned judge said:-

“I agree with Mr Biti’s submission in his heads of argument that Rule 67 has been restrictively interpreted by these courts. That proviso, does not give plaintiff a licence to dispense with the provisions of the main rule itself, which clearly prohibits him from adducing evidence except through his original affidavit. The purpose of the proviso is not to enable a plaintiff to reply to respondent’s affidavit, otherwise summary judgment proceedings would develop into a court application. See Lincoln Court (Private) Limited v Axis International (Private) Limited & Anor HH 54/94, Scotfin Ltd v Afri Trade Supplies (Pvt) Ltd 1993 (2) ZLR 170 (H) and Omarshah v Karasa 1996 (1) ZLR 584 (H)

I also fully agree with Mr Biti’s further submission that the supplementary affidavit which is being sought to be introduced does not take the applicant’s case any further. The applicant claims that it is dealing with issues which it could not reasonably have been expected to deal with in its founding affidavit. The respondent did not introduce anything new in its opposing affidavit. All it did was to question the reasons being proffered by the plaintiff for the ejectment.

It is my view therefore that the proposed affidavit is not introducing any fact nor is it dealing with any new issue. The affidavit in no way advances the plaintiff’s case any further. It is a superfluous affidavit and allowing the same will have the effect of reducing the present proceedings to a mere court application. It is my opinion that the issues raised in the application for summary judgment can be decided without having resort to the supplementary affidavit.”

In view of the above I consider that the trial court’s discretion was properly exercised having regard to the evidence placed before it and the conclusion arrived at was appropriate in the circumstances.

For the above reasons I am of the view that the cross appeal lacks merit and it is dismissed with costs.

In the result it is ordered as follows:

The appeal is dismissed with costs .

The cross appeal is dismissed with costs.

MALABA JA: I agree.

GWAUNZA JA: I agree.

Honey & Blanckenberg, appellant's legal practitioners

Wintertons, respondent's legal practitioners