TM SUPERMARKETS (PVT) LTD
CHADCOMBE PROPERTIES (PVT) LTD
HIGH COURT OF ZIMBABWE
PATEL & OMERJEE JJ
HARARE, 14 January and 9 March 2010
Adv. E. Morris & Ms. S. Njerere, for the appellant
Mr. J. Samukange, for the respondent
PATEL J: This is an appeal against the decision of the Provincial Magistrate sitting at Harare Magistrates Court on the 30th of July 2009. The learned magistrate granted an order terminating the lease agreement between the parties and requiring the appellant to vacate the leased premises, failing which the appellant would be evicted by the Messenger of Court.
The appellant initially noted four grounds of appeal. However, at the hearing of the appeal, counsel for the appellant abandoned two of these grounds, the first relating to the absence of any notice cancelling the lease agreement and the second to the supposed granting of leave to execute pending appeal. Consequently, the two remaining grounds for determination in this appeal are as follows:- that the court a quo erred in finding (i) that the lease agreement entitled the respondent to cancel the lease after the breach complained of had been rectified and (ii) that clause 18 (c) of the agreement entitled the respondent to accept rectification and still proceed to cancel the agreement.
Objection as to Record of Appeal
In the midst of the appeal hearing, after full argument by counsel for the appellant, Mr. Samukange raised the objection that the record of appeal was incomplete because the proceedings in the court a quo had not been transcribed and because pages 3 and 4 of the record had not been duly certified. This objection was put forward for the first time in these proceedings, almost two months after the record of appeal had been prepared and filed by the appellant.
Despite this startling 13th hour objection, the Court proceeded with the hearing, having been satisfied by Adv. Morris and Ms. Njerere that there were no proceedings in the court below to be transcribed as the matter was heard by way of application. It was also explained that the ruling at page 3 of the record was a typed version that had been signed by the learned magistrate herself. This was confirmed by a copy of the original hand written ruling which was produced at the Court’s direction after the hearing and after it had been stamped by the relevant Clerk of Court.
In any event, I take the view that counsel’s belated objection and the cavalier manner in which it was raised constitute palpably unacceptable conduct, almost verging on contempt of court. Accordingly, the Registrar is hereby directed to write to Mr. Samukange firmly cautioning him against similar misconduct in the future.
Background and Decision of Court Below
The relevant facts for the purposes of this appeal are as follows. On the 3rd of June 2009, the respondent’s lawyers wrote to the appellant indicating that the appellant was in breach of clause 5 of the lease agreement relating to the payment and computation of monthly rentals. In particular, it was stated that the appellant had failed to pay rentals since January 2009 and that “unless we receive rentals within fourteen days, our client will have no option but to terminate this lease and to eject you from the premises”. Thereafter, on the 10th of July 2009, the respondent wrote to the appellant confirming that “you delivered the outstanding rentals of $3915.00 …….. to Venturas & Samkange on the 8th June 2009” and intimating that this was received without prejudice.
In her ruling on the 29th of July 2009, the learned magistrate confined herself to the late payment of rentals and did not address the other alleged breaches referred to in the letter from the respondent’s lawyers. She found that the appellant had failed to pay rentals timeously. Relying upon clause 18(c) of the lease agreement, she then proceeded to hold as follows:
“That breach, even though it may have been rectified, is sufficient to cause the lessor to elect to cancel the lease. The lease is hereby so cancelled.”
Merits of Appeal
Before turning to the lease agreement in casu, I should note that the case authorities cited by Adv. Morris do not provide any meaningful guidance in this matter. The cases relied upon include Masukusa v Tafa 1978 RLR 167 (AD), Agricultural Finance Corporation v Pocock 1986 (2) ZLR 229 (SC), Stracon Development (Pvt) Ltd v Gruer 1990 (1) ZLR 354 (HC) and Parkview Properties (Pvt) Ltd v Chimbwanda 1998 (1) ZLR 408 (H). These cases are essentially concerned with the acceptance of subsequent timeous payments following previous late payments or underpayments of rent. They are therefore not directly relevant to the issues at hand.
Clause 18 of the lease agreement between the parties stipulates the remedies of the lessor in the event of any breach of the agreement by the lessee. Pursuant to any such breach, the lessor is entitled either (a) to forthwith terminate the lease and eject the lessee or (b) continue the lease and claim rental or remedy of any other breach or (c) in either event, take or enforce any other action or right for damages or otherwise arising from the lessee’s breach.
In the instant case, the appellant breached the lease agreement by not paying the rentals due for several months. However, it then remedied that breach by making payment to the respondent’s lawyers on the 8th of June 2009, within the time limit of 14 days given by them and in accordance with their specific instructions. In essence, the respondent elected to proceed in terms of clause 18(b) of the agreement by accepting the late payment of rentals and continuing with the lease.
In my view, the options given to the lessor under clause 18 of the lease agreement are not conjunctive but disjunctive, as is clear from the use of the words “either” and “or”. See S v Ncube & Others 1987 (2) ZLR 246 (SC) at 264, where GUBBAY JA observed that:
“the word “or” is usually treated as disjunctive unless there is a compelling indication that in its context it means “and”. See Colonial Treasurer v Eastern Collieries Ltd 1904 TS 716 at 719; Hayward, Young and Co (Pty) Ltd v Port Elizabeth Municipality 1965 (2) SA 825 (AD) at 829B; Greyling & Erasmus (Pty) Ltd v Johannesburg Local Road Transportation Board & Ors 1982 (4) SA 427 (AD) at 444C-D.”
Having regard to clause 18 taken as a whole, it is abundantly clear that clause 18(c) is confined to any other action or right, including damages, and does not include the right to terminate the lease and evict the lessee in terms of clause 18(a). Again, the lessor can elect either to terminate the lease under clause 18(a) or continue with the lease under clause 18(b). On a proper construction of clause 18, the lessor cannot straddle both options of formally demanding and accepting the late payment of rent on the one hand and then claiming the right to terminate the lease on the other. In short, the lessor cannot purport to exercise both options in respect of the same breach.
It follows from the foregoing that the learned magistrate below clearly erred in holding that although the respondent had rectified its breach of clause 5 of the agreement, as was specifically required by the respondent’s lawyers, that breach was sufficient to justify the cancellation of the lease agreement. The appeal accordingly succeeds with costs.
As regards costs, I am fully persuaded by Adv. Morris that a special award of costs is warranted in this case in view of the shocking and deplorable manner in which it has been litigated by the respondent’s legal practitioners. The award claimed is for costs at current Law Society Tariffs, as was recently ordered by the Supreme Court in Croco Holdings (Pvt) Ltd v The Hubert Davies Employees Trust (Pvt) Ltd & Others SC 236/08. I also note that a similar level of costs was granted by this Court in favour of the appellant in an earlier postponement of this appeal.
In the result, it is ordered as follows:
- The appeal is allowed with costs on the Law Society Tariff of legal practitioner and own client.
- The decision and order of the 29th of July 2009 by the court a quo are hereby set aside and substituted with:- “The application is dismissed with costs”.
OMERJEE J: I agree.
Honey & Blanckenberg, appellant’s legal practitioners
Venturas & Samukange, respondent’s legal practitioners