Kingdom Calls (Pvt) Ltd v Sunseeker (Pvt) Ltd

### Preamble
1
HH 301-12
HC 4351/09
KINGDOM CALLS (PVT) LTD
versus
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KINGDOM CALLS (PVT) LTD
versus
SUNSEEKER (PVT) LTD

HIGH COURT OF ZIMBABWE
HUNGWE J
HARARE, 9 December 2010 & 18 July 2012

Opposed Application

P C Paul, for the applicant
S Machiridza, for the respondent

HUNGWE J: The applicant seeks an order declaring that the premises from which the applicant operates are not “commercial premises” as defined in the Commercial Premises (Rent) Regulations 1983 S.I. 676 of 1983 and an order that the applicant has lawfully terminated the mooring contract that it had with the respondent. The applicant also seeks an order directing the respondent forthwith to remove his boats, including the Ambuya Dambudzo from Marineland harbour, and should be fair to do so the sheriff or his lawful deputy carries out the removal.

The respondent opposes the grant of this order.

A director of the applicant, one Derek Adamson, deposed to the applicant's founding affidavit. In it he makes the following averments.

The applicant operates a harbour at Lake Kariba called Marineland. It leases it from African Sun Limited. In December 2006 the applicant concluded a harbour mooring agreement with the respondent in terms of which the respondent was permitted to moor its boat. The agreement could be cancelled on one month’s written notice. In para 5 he makes the following averment.

“5. Respondent simply moors its boat together with tender boats in the harbour and does not and is not permitted to allow any person to reside in the harbour. Respondent hires out its boats and tender boats to its clients and the boats are removed from the harbour for the period that they are on hire. No particular location is reserved for the mooring of the boats and this location is selected by us and is changed from time to time depending on the level of the waters in the lake. Respondent does not occupy our facilities for the purposes of carrying on therein any industry, business, traded or occupation and simply uses the premises for the mooring and storage of the boats during the period that the boats are not being hired out by it. The facilities which we have are and therefore not Commercial Premises as defined in the Commercial Premises (Rent) Regulations 1983 as set out in Statutory Instrument 676 of 1983 and provisions of those regulations have no application to our agreement with the Respondent.”

The order sought is premised on this paragraph.

In the opposing affidavit filed by respondent’s director, Ibbo Mandaza, the respondent answered in the following terms:

“6. AD PARAGRAPH 5

It is untrue that “no particular location is reserved for the mooring of boats” as alleged by the applicant since the respondent's houseboat, like many other houseboats, is allocated a particular parking area. A signpost with the name of the houseboat is fixed into the ground demarcating the packets of the houseboat. This enables clients and various workmen to easily identify the location of the particular houseboat.

Contrary to the applicant's assertion that “the respondent does not occupy our facilities for the business of carrying on therein any industry, business, trade….” the hiring of houseboat to clients is indeed a business. Clients from inside and outside Zimbabwe hire houseboats from the harbour and go out for days on Lake Kariba for relaxation, fishing, holidaying etc. Clients pay a fee for the use of the houseboat, which is like a mini hotel on water, with the boat captain, cook, and deck-hand on board the houseboat. It is therefore a business. Furthermore the applicant operates a shop at the harbour to enable clients to purchase food, drinks, liquor, ice, snacks etc prior to them departing from the harbour onto the lake. The applicant also operates a filling-station (jetty) from which clients re-fuel the houseboats and tender boats on return from the lake. Both petrol and diesel are sold from the filling-station (jetty) by the applicant. Around 150 houseboats and 300 tender boats park and use the harbour at which the applicant runs the business.

The premises are indeed, commercial premises since the boat owners pay a monthly rental to the applicant for the use of the facilities so described. In January 2009 boat owners, including the respondent, were paying to the applicant US$75-00 per month for houseboats, which was increased by the applicant in March 2009 to US$150-00 and back-dated to January 2009. The rentals for tender boats were increased from US$7.00 per month to US$20.00 per month. With such rentals and around 150 houseboats, and 300 tender boats, the applicant is conducting a roaring business for letting out mooring spaces at the harbour, let alone shades for parking tender and speedboats. The harbour is therefore operated by the applicant as a commercial premises and falls under the
 Commercial Premises (Rent) Regulations, 1983. Respondent is equally using the space provided by the applicant to operate its business enterprise… It is for this reason the respondent approached the Rent Board as it was aggrieved by the applicant’s conduct….”

The dispute between the parties can be resolved in terms of the rent regulations, the respondent contends. On the other hand the applicant contends that this cannot be so because the respondent is not a lessee since the harbour cannot be regarded as being commercial premises. Further, the applicant argues, the respondent does not carry out any business at the harbour but simply moors its boats there when not in use. The fact that the applicant conducts its own business there is, according to the applicant, irrelevant.

If I understood the respondent’s argument correctly, which I believe I did, the point it makes is that the whole arrangement must be seen for what it is. Owners of boats are given spaces in which to park their boats. Payment is made in advance on a monthly basis to the applicant. In this manner such payment cannot be anything but rentals.

The Commercial Premises (Rent) Regulations, S.I. 676 of 1983, define commercial premises in s 3(1) as “any premises or part thereof occupied under a lease for the purposes of carrying on therein industry, business, trade or occupation, and includes any ground, parking space, garage, outbuilding, workers’ quarters and other improvement therewith.” The contention here is that the premises are not occupied under a lease nor does the respondent carry on business thereat. In determining the meaning of these regulations, the regulations must be read in the context of the other legislation governing the situation. These statutes create among other things, regions or zones of premises according to use. It is common cause that the harbour is leased by African Sun to the applicant for business or commercial purposes. The applicant however says this is irrelevant as the court should consider only whether the respondent carries on business from the harbour. In *Latimer Manley & Associates (Pvt) Ltd v Laverna Investments (Pvt) Ltd* 1990 (1) ZLR 200 it was held that the premises retain the character to which the zoning given under the Act relates. In my view the court cannot ignore the admitted fact that the applicant leases the same premises from another and in turn charges the users of boat parking space under the lexicon of a mooring contract. It seems to me this is an artificial approach that may well defeat the mischief the legislature indented to avoid.


It is a question of fact and degree as to whether particular premises are 'commercial premises'. This can only be resolved by making a common sense judgment about the facts of each case and not by adopting any absolute rule. Whether one calls it a management contract, or a mooring agreement, the bottom line is that the one party makes payment to the other for the occupation of space equivalent to parking, in advance on a monthly basis. This is a maritime equivalent of lessor- lessee arrangement. In my view the argument put forward on behalf of the applicant cannot succeed.

Since I have decided the matter on the basis of whether the “premises” are commercial premises or not, I find no reason to deal with the other issues raised by the parties.

It the result the application is dismissed with costs.

Wintertons, applicant’s legal practitioners
Muzangaza, Mandaza & Tomana, respondent’s legal practitioners
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