Environmental Management Authority v Desiree Malaba

### Preamble
1
HB 76/21
HC 2302/19
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ENVIRONMENTAL MANAGEMENT AUTHORITY

Versus

DESIREE MALABA

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 24 MARCH & 13 MAY 2021

Opposed application

O. Kondongwe for the applicant

Advocate S. Siziba for the respondent

MAKONESE J:	This is an application for summary judgment wherein applicant seeks that summary judgment be entered in favour of the applicant against the respondent. The application is made on the basis that the respondent does not have a defence to applicant’s claims.  It is intended by the applicant that appearance to defend was solely entered for the purpose of delay and as an abuse of court process.  For this reason costs are sought against respondent on the punitive side of legal practitioner and client scale.

The application is strenuously opposed by respondent.  Respondent avers that there is a dispute between the parties which cannot be resolved summarily by this court.

Factual background

The facts of this matter may be conveniently summarised as follows.  In June 2015 applicant entered into a written lease agreement with the respondent in terms of which applicant let to the respondent stand 427 and a portion of stand 428, Bulawayo Township.  The leased property comprises an open space and warehouse connected to an outbuilding together with all appurtenances. The lease was for a 10 year duration, renewed annually.  The rent for the property was fixed at USD3 000 per month inclusive of Value Added Tax (VAT) and was to be paid in advance on or before the 1st day of each month.  The rental account was subject to review every 6 months.  Respondent paid the agreed deposit of USD3 000 in March 2016 but immediately defaulted in paying the agreed rental.  Subsequent payments were made sporadically and the trend characterised the respondent’s tenancy.  Respondent continues to occupy the property.  Several remedies have been sent to respondent over the years calling upon her to remedy her default but persistently she has failed to do so.  Respondent fails to pay current and outstanding rent despite indulgences by the applicant.  One such indulgence was the reduction of rent from USD3 00 to USD 1 200 per month.

At the time summons for her eviction and cancellation of the lease was issued, the respondent is either unmoved or completely unable to pay even the reduced rental, let alone clear the arrears which have accumulated over time.  At the time the filing of the application for summary judgment the defendant owed the sum of US$62 458,60 in arrears. Respondent was given an opportunity to come up with a credible payment plan to no avail.  Respondent has made proposals to clear the arrears and on rare occasions has promised to vacate the premises.  All she asked for was time.  She claimed she needed time to vacate the leased property because she had bookings for the use of the wedding venue which she claimed could not cancel without reputational and financial damages.  Respondent claimed that one such booking was an event that was to be booked by the First lady. In a letter dated 24th January 2018 respondent’s legal practitioners wrote to applicant’s lawyers requesting that she be given up to 31st July 2018 to vacate the premises.  Needless to say, respondent has not vacated the premises two years later.

The respondent has set up three ramparts of defence.  Firstly, she has sought to bring political and activists defences when this suited her.  In this regard she sought to rope in the Affirmative Action Group (AAG) to fight on her behalf. She alleged through this group that she was being victimised and treated unfairly by the applicant.  Secondly, respondent made scurrilous allegations to the applicant’s board, portraying herself as a victim of biased decisions by members of applicant’s management.  When these two ramparts have failed her, respondent has pretended to be agreeing to vacate the property.  In reality, the respondent has been seeking breathing space as she seeks an escape route through the courts.  In her opposing affidavit respondent avers that although the lease agreement was signed in June 2015 she only took occupation of the property in US$3 000.  Respondent alleges that she has had partial use of the property and that the property has been sub-let to other tenants.  Further respondent avers that she has been paying something towards the rentals.  Respondent, does not indicate, however had much of the arrears have been cleared.  Respondent seeks to cloud the issue by raising the issue of rates and alleging that applicant has not proved the formula for calculating the rental figure.  What comes out clearly from respondent’s defence is that she does not deny that she is not up to date with her rental payments.  The respondent has remained in the premises inspite of clear proof that she has breached the lease agreement by failing to pay rentals timeously.  Respondent avers that she has raised triable issues and that injustice will be done if summary judgment is entered against her.

Points in limine

The respondent has raised certain preliminary objections which must be resolved before dealing with the merits.

Whether the applicant’s founding affidavit is competent at law

The respondent has challenged the deponent’s authority to depose to the founding affidavit.  This challenge is easily dispensed with a two fronts.  The courts have rules that there is no legal requirement for a party bringing proceedings on behalf of a company to attach a resolution authorising him to act on behalf of the company at the commencement of proceedings.  It is not necessary to attach a resolution of a company when an application is brought to prove that a deponent has authority to bring proceedings on behalf of a company.  It can be produced during the proceedings.  See CABS v Magodo HH-331-15.  Further, the fact that the founding affidavit to the application was not deposed by Chipo Mpofu Zuze is not material to these proceedings.  Rule 64 (2) of the High Court Rules states that the court application in terms of sub rule (1) shall be supported by an affidavit made by the plaintiff or any other person who can swear positively to the facts set out therein, verifying the cause of action and the amount claimed, if any, and stating that in this belief there is no bona fide defence to the action.  This resolves the respondent’s objection.  The preliminary issue is dismissed.  It has no merit.

Whether the High Court has jurisdiction

The respondent takes the point that this court has no jurisdiction to determine the matter in terms of clause 17 of the lease agreement.  This part is not seriously taken and a reading of the clause shows that the parties did not give exclusive jurisdiction to the Magistrates’ Court.  The parties simply agreed to be bound by the Magistrates’ Court’s jurisdiction if they chose to do so.  The jurisdiction of the High Court was not ousted by this clause.  The High Court has argued jurisdiction over all persons and merits as provided by the law.  This preliminary objection is clearly disingenuous.  It has no merit whatsoever.  The point in limine is dismissed.

The merits

It is settled law that where a respondent has no bona fide defence to  a claim and appearance to defend has been entered in order to buy time, the applicant’s recourse is to apply for summary judgment without having to go through a lengthy and costly trial procedure.  In order for respondent in an application for summary judgment to successfully resist the application, it must show that there is a good and prima facie defence in terms of Rule 60 (1) (b).  See Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 335 (H).

Order 10 Rule 64 (1) of the High Court Rules 1971 clearly provides that in a case where a respondent in a claim for a liquidated amount, has filed an appearance to defend, the applicant may at any time before a pre-trial conference is held, make an application for the court to enter summary judgment for what is claimed in the summons, together with costs of suit.  In order for an applicant to succeed in a claim for summary judgment, he must, in his founding affidavit aver facts which are unanswerable by the respondent.  See Omarshah v Karast 1996 (1) ZLR 584 and Shepstone v Shepstone 1974 (2) SA 462 (N) at 467E-H, where it was held that the court will be disposed to grant summary judgment where, giving due consideration to the information before it, it is persuaded that applicant has an unanswerable case.  In this matter the applicant’s case is clear cut and unanswerable.  Respondent has without doubt breached the lease agreement by failing to pay rentals as they fell due, even when the rentals were reduced from USD3 000 to USD1 200 per month.

It is established on the papers that respondent has failed to pay rentals for her occupancy of the leased premises.  She alleges that the amounts being claimed by applicant include rates which have not been proved by the Bulawayo City Council.  She alleges that applicant is renting out the same premises to an “illegal tenant” and claims rentals to offset her rent arrears.  Crucially, though. Despite these rather flimsy defences, the undeniable fact is that the respondent was not paying rent and sought to occupy the premises rent free.  In this case, the respondent filed her defence to the summons in bad faith and in order to frustrate eviction.  She does not deny her liability to pay rentals and yet in the same vein she does not state that she is paying the required rent and rates even though the rent was reduced.  It seemed logical, that where the tenant becomes unreasonable or refused to pay rent and has breached the lease agreement the landlord is entitled to cancel the lease agreement and evict the tenant from the leased premises.  In Supplies Investments (Pvt) Ltd v Forestry Commission 2001 (2) ZLR 280 it was held as follows:

“A tenant has an undisputed obligation to pay rental 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 checking does not absolve the tenant from paying rentals at all.  The minimum that the tenant must pay is the amount that it concedes represents fair rentals for the premises.  Thus, the tenant must pay to avoid being ejected on the basis of non-payment of rentals even if its challenge to what constitutes fair rental is subsequently validated.  At most the tenant can pay the disputed amount and claim or be credited with the defence once its contentious as to what constitutes fir rentals are validated.”

In accordance with the well established principle in summary judgment applications that court is entitled to enter summary judgment where the applicant has a clear and unassailable case.  The respondent cannot defeat an application for summary judgment by raising unconvincing defences to the applicant’s claims.  The respondent has failed to establish a bona fide defence.  When it has stated her side has attempted to settle the matter amicably and promising to vacate the leaded premises.  When pressure has been applied to evict her she has resorted to tactics that include the recruitment of the back empowerment organisation known as the AAG.  This approach is a clear indication of respondent’s desperation.  In all the circumstances this court is clearly entitled to enter summary judgment, particularly as the application is merited and respondent has not furnished a bona fide defence to the claims.

It is clear that there are no triable issues between the applicant and respondent.  Had there been such, respondent would have averred so in its plea or at least in a detailed opposing affidavit as required by the Rules of this court.

It is settled that summary judgment can only be refused where there is a possibility that an injustice will be done.  See Jena v Nechipote 1986 (1) ZLR 29 (S).  On the facts of this matter there is no evidence or suggestion that such an apprehension exists. The respondent has been given indulgence to settle the arrears and to vacate the premises.  Respondent has chosen to abuse court process and refuse to vacate the premises.

In the circumstances, the court makes the following order:

It is ordered that summary judgment be and is hereby entered for the applicant.

An order  confirming the cancelation of the lease agreement between applicant and respondent in respect of premises situate on stands 427 and 428 Bulawayo Township be and is hereby granted.

An order that respondent pay to the applicant a sum of US$52 600,00 being arrear rentals be and is hereby granted.

An order that respondent and all persons claiming ownership of the premises situate at stand 427 and a portion of stand 428, Bulawayo Township be ejected from the premises is hereby granted.

The respondent is ordered to pay the costs of suit.

Dube, Manakai & Hwacha, applicant’s legal practitioners

Mlweli Ndlovu & Associates, respondent’s legal practitioners