Gwynne Anne Stevenson and Brian Stevenson v Maxwell Matsvimbo Sibanda

### Preamble
1
HH 187-12
HC 161/08
HC 3212/08
GWYNNE ANNE STEVENSON
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GWYNNE ANNE STEVENSON
and
BRIAN STEVENSON
versus
MAXWELL MATSVIMBO SIBANDA

HIGH COURT OF ZIMBABWE
CHITAKUNYE J.
HARARE, 7 & 8 September, 2011 and 9 May, 2012

Civil Trial

E.W.W. Morris, for plaintiffs
T. Mpofu, for defendant

CHITAKUNYE J: This judgment pertains to two action matters that were consolidated as they involved the same property and virtually the same parties. The plaintiffs are husband and wife. The first plaintiff is the wife whilst the second plaintiff is the husband. The first plaintiff is the registered owner of an immovable property being Subdivision B of Subdivision D of Subdivision A of Lot 4 of Lot A of Colne Valley of Rietfontein, also known as no. 47 Addington Lane, Ballantyne Park, Harare.

The second plaintiff leased the property to the defendant in terms of a lease agreement dated 1 April 2005. Clause 2 of the agreement stated that the lease agreement shall be from 1 April 2005 to 31 October 2006. The agreement was thus to terminate on 31 October 2006. There was provision for renewal of the agreement for one year.

Clause 17 of the lease agreement stated that:-

“The lessee hereby acknowledges that he is, accountable for all repairs and maintenance of the said property, and that he will paint the house cottage, storeroom, and servant’s quarters and make good what needs repairing prior to moving in.”

Clause 19 gave the lessee the first option to buy the property in these terms:-


“NOTWITHSTANDING anything to the contrary herein or elsewhere contained in this agreement, if the lessor wishes to sell the premises at any given time, the lessee shall be given first option at a price agreed between the two parties.”

Before the agreement lapsed the parties engaged in discussions to renew the agreement for a further one year as provided in Clause 2. On 1 November 2006 the parties signed a renewed lease agreement. The new lease contained almost same clauses as the 2005 lease. Thus clauses 17 and 19 remained the same.

On 28 February 2007 the first plaintiff entered into a Deed of Sale of the property with the defendant. Clause 7 of that agreement provided that:

“The purchaser is currently renting the property and will continue paying the monthly rental, equivalent to the official mid-bank rate, of GBP250 (two hundred and fifty British Pounds) until such time as the full purchase price has been paid.”

On 27 April 2007 the first plaintiff purported to cancel the Deed of Sale alleging, inter alia, that the defendant had not paid the first installment. The defendant challenged the cancellation of the Deed of Sale.

On the 10 January 2008 the defendant sued the first plaintiff seeking, inter alia, an order that:-

1) The agreement between the parties remains in force
2) The defendant (first plaintiff) transfer to him Subdivision B of Subdivision D of Subdivision A of Lot 4 of Lot A of Colne Valley of Rietfontein on payment of the purchase price in full in Zimbabwean currency and on compliance with the other terms and conditions of the agreement of sale. (See HC 161/08).

In her plea in HC 161/08 the first plaintiff denied that the defendant was entitled to the order he was seeking. She in turn raised a counter-claim. In her counter claim she sought an order that:-

1) The sale of the property is void;
2) The plaintiff (defendant) shall give the defendant (first plaintiff) immediate vacant possession of the property;
3) The plaintiff (defendant) shall insure the property’s improvements against the risks specified in a standard home owner’s insurance policy, for their current replacement or reinstatement value from time to time, and until on in time as he gives the defendant vacant possession of the property;”


On 24 February 2010 I ruled that the defendant had lamentably failed to establish a *prima facie* case for the enforcement of the Deed of Sale which, as evident from the findings was illegal and I granted an absolution from the instance. Dissatisfied with my decision, the defendant appealed to the Supreme Court. On 14 February 2011 the Supreme Court in case No.SC 68/10 dismissed the appeal. In dismissing the appeal the Supreme Court said, *inter alia*, that:-

“We find that there is no basis upon which to impugn the finding of illegality by the judge *a quo*.”

Thus the issue of illegality and unenforceability of the Deed of Sale was put beyond doubt. What remained was the issue of the lease agreement between the second plaintiff and the defendant. However as owner of the property the first plaintiff sought to pursue the eviction of the defendant from the premises in terms of her counter claim.

The first plaintiff’s counter claim in HC161/08 and the second plaintiff’s claim in HC 3212/08 are the matters before me.

In HC 3212/08 the second plaintiff alleged that the defendant had breached some terms and conditions of the lease agreement signed on 1 November 2006 and valid for a year. As a result of the breaches he cancelled the lease agreement and notified defendant of the same. Despite this cancellation defendant has refused to vacate the property. The second plaintiff thus seeks an order that:-

a) Defendant shall give the plaintiff immediate vacant possession of the property, in good order and in a clean sanitary condition and with all damaged, broken or missing items repaired and or replaced; b) Defendant shall pay holding over damages from 1 July 2007 to the date upon which plaintiff is given vacant possession of the property, in the amounts of the rents which could have been obtained for the property on the open market during that period.(before amendment)c) Defendant shall pay the plaintiff’s costs of suit on the legal practitioner and client scale.

In his plea defendant conceded that he initially entered into a lease agreement which was for the period 1 April 2005 to 31 October 2006. Thereafter the agreement was renewed for a year from November 2006 to 31 October 2007. Before the expiration of the 2nd lease agreement he entered into a Deed of Sale with the first plaintiff as owner of the property. He acknowledged the obligations he undertook in terms of the lease agreements. He however contended that those obligations fell away when he entered into a Deed of sale and tendered full payment in Zimbabwean currency to the first plaintiff. He thus did not deny not paying rentals since March 2007, and not allowing lessor’s agents to inspect the premises in terms of the lease agreement since then.

From the pleadings and evidence led certain facts are common cause. It is common cause that the first plaintiff is the registered owner of the property in question. Her rights of ownership are not under challenge. The first plaintiff’s agreement of sale with defendant was illegal and thus no legal rights to enforce that agreement can be claimed there from.

The second plaintiff entered into a lease agreement with defendant which agreement was subsequently followed by the already stated Deed of Sale. That lease agreement contained clauses which required the defendant to maintain the premises and to allow the lessor or his agent to inspect the premises. There was also a clause to the effect that the defendant had to insure the property.

It is further common cause that the defendant has not paid any rentals since March 2007. He has been staying in the property despite his own acknowledgment that plaintiffs told him to vacate the property.

When this court and the Supreme Court dismissed his claim, he still remained occupying the premises without paying anything towards his occupation thereof. It is further common cause that the registered owner of the property and the lessor have asked defendant to vacate the property. The defendant has refused to vacate the property despite there being no valid lease agreement between the parties and him not paying anything for his occupation.

It is in these circumstances that the core issues maybe identified as:-

1) whether or not defendant must be evicted
2) whether or not defendant is liable to pay the plaintiff holding over damages; and
3) If defendant is liable to pay holding over damages, the quantum of such damages.

The first plaintiff gave evidence in support of her claim. She confirmed that she is the registered owner of the property in question. As the owner she has asked the defendant to vacate her property as she has no contractual relationship with him that would entitle him to stay in her premises. The sale agreement she had entered into with him fell through and the lease agreement he had entered into with the second plaintiff was cancelled due to various breaches by the defendant. For the period he has continued to stay without her authority she would like him to pay holding over damages.

Brian Stevenson gave evidence next. In his evidence he confirmed that he entered into a lease agreement with defendant. That lease agreement came to an end as the defendant breached some terms of the agreement. He confirmed that the defendant stopped paying rent and has not paid any since March 2007. As a result he issued summons in case HC 3212/08. The breaches included, *inter alia*, non payment of rent, denial of access to inspect the premises and failure to insure the property in terms of clause 16 (b) of the lease agreement. As a result of all these breaches he would want the defendant to vacate the premises and to pay holding over damages for the period he has been staying on the property without paying any rent. It had always been his intention, with the consent of his wife, to use the property to raise some income but has not been able to do so due to the defendant’s unlawful occupation of the property.

The last plaintiffs’ witness was one Patrick Graham Ridgeway. He is an Estate Agent with Graham Real Estate. He testified that he has been an Estate Agent since 1973. Upon the request of the plaintiffs he visited no. 47 Addington Lane, Ballantyne Park, Harare for purposes of inspection so that he could assess what would be reasonable rental for the premises. On his initial visit he was denied access and so he gave his estimate based on what he could see from outside and the information he got from the local authority. In May 2011 he had access to the premises and he prepared another estimate of what he deemed reasonable rentals for such a property. The schedules he prepared as a result of the visits were tendered into evidence as exhibits. The rental accumulation from February 2009 to September 2011 was put at a total of US $ 55 500.00. (See exhibits 1 and 2)

The defendant thereafter gave evidence. At the outset the defendant conceded that under cross examination in case HC 161/08, in the main case, he had conceded that if the sale agreement is to be void, then he had no right to be in the property. He however sought to say that he made a mistake in making that concession. He said that:


“I made a mistake on the fact that I should not remain in the house. I had to remain in the house on the basis that I have done a lot of improvements to the property that is why I have to remain in the house.”

When asked if he had been compensated for the improvements he said no. However under cross examination he confirmed that he has not made any claim for compensation for any improvements he claims to have made.

When further examined by his counsel the defendant was heard to say that:

“The only thing I pray for is that I sold my property hoping to buy this property and I also effected a lot of improvements to buy it. I have looked after it as mine.”

The impression given is that the defendant does not want to vacate the property, not because of a lease agreement with the plaintiffs but because he sold his property hoping to buy this property and that he effected improvements. The defendant is not even asking to be given 1st option to buy the property should the plaintiffs wish to sell the property. He is simply saying ‘I will stay put because I sold my property intending to buy this property and I made some improvements’.

He also conceded under cross-examination that he has not even computed the cost or value of improvements he claimed to have effected. This is despite his admission that plaintiffs have demanded that he vacates the property and he has known of this demand for the last 5 years.

It is my view that the defendant was a poor witness by any standards. He seemed unsure of himself regarding the legal basis for his continued occupation of the plaintiff’s property.

His yet to be quantified claim for improvements was not shown to be for anything beyond what the lease agreement required of him at the time he took occupation in terms of clause 17. The assertion that he sold his house in pursuance of his effort to buy this house cannot be a reason not to vacate the premises in question. As this court and the Supreme Court have shown, the Deed of Sale was illegal and thus unenforceable. The defendant cannot be heard to seek to enforce an illegal agreement through the back door. In any case the seller was clear that the defendant did not pay the purchase price even under that illegal agreement. Clearly in my view the defendant has nothing to enforce.


The assertion that if he vacates the plaintiffs will be unjustly enriched was not credible at all. It is him who is intent on staying in the house without having bought it, who will be unjustly enriched by his continued stay in the house.

The defendant’s counsel made tremendous effort at pointing out that despite a lack of a contractual relationship in the form of a valid lease agreement the defendant must not be evicted till such time he has been compensated, which compensation he has not yet claimed or quantified. The arguments were in my view not sustainable. The second plaintiff having shown that defendant breached the terms and conditions of the lease agreement it was for defendant to show that despite the breaches there was some legal principle that entitled him to continue occupying the property for free.

In Omarshah v Karasa 1996 (1) ZLR584 (H) GILLESPIE J discussed in some detail the law pertaining to tenants who would be resisting eviction on the basis of having made some improvements to the leased property. At p 589E-F thereof he concluded thus-

“The effect of this law is unequivocally that a lessee, and consequently, the defendant, has no right of retention of occupation of leased property after the termination of the lease as a lien against compensation for improvements.”

That case makes it clear that-

“A tenant who has effected improvements has no *ius retentions* in respect of the leased property. His right is limited to claiming compensation only after the property has been vacated.” (Page 585A-B)

Having considered the evidence and the arguments before me I am of the view that the defendant has no defence to the claim for eviction.

The next issue pertains to holding over damages. Before closing the second plaintiff’s case, the plaintiff applied to amend prayer B to the declaration by the deletion of the original claim and the substitution of a claim for ‘payment of $55 500 being holding over damages from February 2009 to September 2011, and $3 250 for every month from 1 October 2011 until the defendant vacates the property in question.’

The defendant opposed the application. After hearing counsel for both parties I indicated that the matter should proceed as if the amendment was granted and that parties can make fuller submissions on that issue should they wish to. The parties have now made the submissions. From their submissions it is clear to me that the defendant’s opposition is really a matter of splitting hairs.

Counsel for both parties confirmed that court has a wide discretion on whether to allow an amendment or not. In the exercise of that discretion certain fundamental considerations must be taken into account.

In *UDC Ltd v Shamva Flora (Pvt) Ltd* 2000 (2) ZLR 210(H) CHINHENGO J had occasion to discuss the granting or refusal of an application to amend pleadings. After discussing a number of authorities the Honourable judge at p 216G to 217B stated that:-

“The approach of our courts has been to allow amendments to pleadings quite liberally in order to avoid any exercise that may lead to a wrong decision and also to ensure that the real issue between the parties may be fairly tried. This liberality is only affected where to allow the amendment would cause considerable inconvenience to the court or prejudice a party or where there is no prospect of the point raised in the amendment succeeding or where matters set out in the amendment are vague and embarrassing and therefore excipiable: *Levenstein v Levenstein* 1995 SR 91; 1995 (3) SA 615 (SR). Thus, the question of prejudice to the other party if the amendment is allowed is a paramount consideration. It is singularly important where such prejudice cannot be compensated for by an appropriate order for costs: *Angelique Enterprises (Pvt) Ltd v Albco (Pvt) Ltd* 1990 (1) ZLR 6 (H). It is accepted, however, that there will be no prejudice if the parties can, for the purpose of achieving justice, be placed in the same position as they were when the pleading which is sought to be amended was originally filed.”

The Honourable judge went on to quote with approval the principles to be considered in such applications as summarized by WHITE J in *Commercial Union Assurance Co. Ltd* v Waymark NO. 1995 (2) SA 73 as being that:-

1) “The court has a wide discretion whether to grant or refuse an amendment.
2) An amendment cannot be granted for the mere asking some explanation must be offered therefore.
3) The applicant must show that *prima facie* the amendment ‘has something deserving of consideration, a triable issue.’
4) The modern tendency lies in favour of an amendment if such ‘facilitates the proper ventilation of the dispute between the parties’.
5) The party seeking the amendment must not be *mala fide*.
6) It must not ‘cause an injustice to the other side which cannot be compensated by costs’.
7) The amendment should not be refused simply to punish the applicant for neglect.
8) A mere loss of time is no reason, in itself, to refuse the application.
9) If the amendment is not sought timeously, some explanation must be given.”

In *casu* I am of the view that the application meets the basic principles. The nature of the amendment is such that no prejudice will be occasioned. The defendant has known from inception that the second defendant was seeking holding over damages based on market rentals for the property. The defendant never excepted to the manner in which the claim was presented. The task the second plaintiff had to accomplish was to prove the market rentals he was claiming and justify that the holding over damages must be assessed on the basis of market rentals. Evidence on the market rentals was led as had been expected from an expert witness.

The old prayer ‘b’ read as follows: -

“Defendant shall pay holding over damages from 1 July 2007 to the date upon which plaintiff is given vacant possession of the property, in the amounts of the rents which could have been obtained for the property on the open market during that period.”

The proposed new prayer ‘b’ reads as follows:-

“The defendant shall pay USD 55 500.00 being holding over damages from February 2009 to September 2011 and USD 3 250 for every month or part thereof from 1 October 2011 until the defendant vacates the property in question.”

As can be noted the amendment merely introduced a quantification of the market rentals which had already been claimed and reduced the period of payment of holding over damages. Instead of the period being with effect from July 2007 it was now to be with effect from February 2009.

I am of the view that the application is proper in order that justice is done and should be granted. No prejudice will be occasioned to the defendant. The amendment clarifies the issue of quantum which is to the benefit of the parties. The figures stated are in line with the expert evidence led which evidence the defendant had the opportunity to challenge in anyway possible.

On the question of holding over damages, there is no doubt that the defendant has been in occupation of the property without paying any rentals. There was no agreement between the parties for the defendant not to pay any rentals. The plaintiffs indicated they expected to raise income by leasing the premises but this has not been so. The plaintiffs have thus suffered loss of income for the period the defendant has been in occupation of the premises without paying rent. The second plaintiff has in my view suffered damages and is thus entitled to holding over damages.

Mr. Ridgeway who testified on the quantum was not seriously challenged in his manner of arriving at the monthly rentals. The defendant had the opportunity to challenge the testimony in any way he chose but did not do so successfully. Apart from Mr. Ridgeway’s figures and manner of arriving at those figures there were no contrary figures to show what would have been reasonable rentals for the property in question for the period February 2009 to date. In the absence of any contra evidence I am inclined to accept Mr. Ridgeway’s figures as reflective of the sums plaintiffs lost as a result of the defendant’s occupation of the first plaintiff’s property without paying any rentals.

The defendant’s submission that the figures were not proper or that they were fraudulent was without basis at all. Had the defendant been serious in the contention that the figures were fraudulent surely there was every opportunity for the defendant to bring forth evidence on the reasonable rentals for the period in question.

I therefore find that the second defendant is entitled to holding over damages in the sums assessed.

The next issue pertains to the question of costs. The plaintiffs claimed for costs on a higher scale against the defendant. The defendant in his defence did not attend to that at all. In his closing submissions counsel for the plaintiffs reiterated the plaintiffs’ claim for costs on a higher scale. The defendant’s counsel did not allude to that in his closing submissions.

Upon a careful consideration of all the circumstances of the cases I am inclined to agree with the plaintiffs. It was apparent from the inception that the defendant’s defence was porous and untenable. He simply displayed an intransigent attitude hoping that as the plaintiffs’ were not resident in Zimbabwe anymore they may tire and fail to pursue their cases.

At the close of the defendant’s case in HC 161/08 I granted an absolution from the instance and I made clear the illegality of the Deed of Sale the defendant was seeking to enforce. The defendant’s appeal to the Supreme Court was equally dismissed with a clear confirmation of the illegality of the Deed of Sale the defendant sought to rely on. In spite of all this the defendant persisted in seeking to remain in occupation of the property. This was despite his own unequivocal concession in HC 161/08 at p 70 of the appeal record to the effect that if court found that his purported tender of the purchase price was not proper then he will accept that he is in breach of the lease agreement. The confirmation of the illegality of the deed of sale by the Supreme Court should surely have reminded defendant that he was fighting a futile cause.

In HC 3212/08 the defendant did not show that he had any legal right to occupy the property. He clearly breached the terms of the lease and the lessor had on about four occasions written to him advising him of the cancellation of the lease due to those numerous breaches. Despite the stark reality that he no longer had any contractual relationship entitling him to continue occupying the property, he resisted eviction.

As has already been alluded to above, his contention that he has not been paid for improvements he made was without merit as he has not laid any quantifiable claim against the plaintiffs.

I am of the view that the circumstances of the case confirm the need for the defendant to pay the plaintiff’s costs on a higher scale. He deliberately set upon flogging a dead horse purely to harass and harangue the plaintiffs in their cause. Costs will thus be awarded on a legal practitioner and client scale.

In his closing submissions plaintiffs’ counsel indicated that plaintiffs’ were applying for a direction in the order that, in the event that the defendant should file an appeal against it, they be authorized to execute on the order despite such appeal. This, he argued, is because any such appeal would have no prospects of success and would be mala fide. No prejudice could result to the defendant because he pays nothing for his occupation and, in the very unlikely event that such appeal was to succeed, his occupation could be reinstated or damages awarded.

The defendant opposed the order for execution pending appeal as incompetent because it is primarily not one of the issues that the court was called upon to deal with and certainly not an issue dealt with by the defendant in his defence.
 Upon a careful consideration of the arguments and having had sight of the authorities on this subject I am inclined not to grant the prayer. Cleary I am still dealing with the main matter as reflected on the pleadings. Parties need to peruse the reasons for judgment and decide on the way forward.

In Zimbabwe Mining Development Corporation & Another v African Consolidated Resources plc & Others 2010 ZLR 34 at page 38G-H CHIDYAUSIKU CJ had this to say on the issue:-

“The South Cape Corporation case supra is clear authority for the proposition that before a court can exercise the discretion to order execution despite the noting of an appeal, the successful party has to make a special application for such relief. For the court to be able to exercise this discretion properly, the special application must set out in some detail the basis for seeking such relief. The respondent is entitled to an opportunity to respond to the application.”

Later on at p 39D-E he went on to say that:-

“I have serious reservations on the propriety of a judge including in his main judgment an order authorizing execution despite the noting of an appeal against that judgment. It is only in exceptional circumstances that such an order should be made part of the main judgment. …………… In the absence of exceptional circumstances, due process must be observed before issuing such an order. I hold this view because the litigant’s right to appeal should not be abrogated lightly and without due process.”

In casu upon a careful analysis of the arguments and authorities cited I am of the view that no exceptional circumstances were shown to exist warranting the granting of such an order in the main judgment. I will thus not grant such relief.

It is clear to me that, in the circumstances of this case, there is need for a separate application for execution pending appeal.

Accordingly it is hereby ordered that:-

1) The defendant be and is hereby ordered to give the plaintiffs immediate vacant possession of the property in question being Subdivision B of Subdivision D of Subdivision A of Lot 4 of Lot A of Colne Valley of Rietfontein, otherwise known as 47 Addington Lane, Ballantyne Park, Harare, in good order and in a clean sanitary condition and with all damaged, broken or missing items repaired and /or replaced.


2) The defendant shall pay second plaintiff a sum of USD55 500.00 (fifty-five thousand and five hundred United States dollars) as holding-over damages for the period from 1 February 2009 to 30 September 2011 and thereafter USD3 250 (three thousand two hundred and fifty United States dollars) per month or part thereof for the period during which the defendant remains in occupation of the said property from 1 October 2011.

3) The defendant shall pay the plaintiffs’ costs of suit on the legal practitioner and client scale.

Wintertons, plaintiffs’ legal practitioners
Metwa & Nyambirai, defendant’s legal practitioners
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