Court name
Supreme Court of Zimbabwe
Case number
SC 8 of 2006
Civil Appeal 205 of 2005

Kingstons Ltd. v L D Ineson (Pvt) Ltd. (05/05) (SC 8 of 2006, Civil Appeal 205 of 2005) [2006] ZWSC 8 (14 May 2006);

Law report citations
Media neutral citation
[2006] ZWSC 8













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