Judgment record
Marick Trading Private Limited v Double T Services (Private) Limited
HH 54-17HH 54-172017
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MARICK TRADING PRIVATE LIMITED
versus
DOUBLE T SERVICES (PRIVATE) LIMITED
HIGH COURT OF ZIMBABWE
CHIGUMBA J
HARARE, 4- 5 November 2016, 27 January 2017
Civil Trial
P. C. Paul, for plaintiff
Ms J. B. Wood, for defendant
CHIGUMBA J: Parties who enter into an unsanctioned lease agreement ought not to seek
judicial assistance to enforce their rights and obligations towards each other. As a matter of
public policy, the courts should not and will not provide assistance to parties to an illegal
agreement. This is so because such an agreement is void an initio. There is nothing on which, at
law, either party to such an agreement can base a claim against the other. The plaintiff issued
summons against the defendant, on 16 June 2014, claiming payment of USD$46 982-71, being
defendant’s 50% contribution towards a partnership debt owed to Old Mutual, as well as costs
of suit. The defendant entered notice of appearance to defend on 25 July 2014. According to the
plaintiff’s declaration, the parties entered into an oil extracting business in January 2009, from
the basement of 29 Coventry Road, Harare.
The parties had entered into a contract three years previously in terms of which defendant
would share the total rent payable by plaintiff to Old Mutual in respect of the top floor, the
ground floor, and the basement of the aforementioned premises. The defendant’s half share of
the rent was deducted from the profits of the oil extracting business. During the course of the
partnership a rent dispute arose between the plaintiff and Old Mutual, due to the dollarization of
the Zimbabwean economy. The plaintiff and defendant agreed to dispute the rental claimed by
Old Mutual and to put down the cost of funding the dispute as a partnership expense. The
partnership was dissolved in March 2010. The defendant continued to contribute its share of the
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rent from the oil extracting business. Monthly accounts were prepared during the partnership.
The rent dispute was eventually decided in favor of Old Mutual. Plaintiff was ordered to pay
USD$83 965-43. This is a claim for payment of defendant’s contribution, USD$48 965-43.
The plaintiff’s further particulars included an admission that the lease agreement was
between it and Old Mutual. Clause 7 provided that the plaintiff was to continue to pay rent in the
event of a cancellation dispute. Clause 25 of the lease agreement prohibited sub-letting. Clause
32 provided that disputes be referred to arbitration. Mr Jess Nathan Watson bound himself as
surety for the due performance of the plaintiff’s obligations in terms of the lease agreement.
Defendant filed a plea on 8 January 2015, in terms of which it admitted having entered into a
partnership agreement in respect of an oil extracting business which operated from a small
section of the basement. It denied entering into an agreement to pay 50% of the rent due to Old
Mutual from the plaintiff. It averred that the plaintiff unilaterally and without agreement
deducted 50% of the rent from the oil extracting business. It averred that it constantly protested
against this practice, and that its protests were ignored. The defendant averred that it occupied a
quarter of the building as plaintiff’s sub-tenant.
The defendant denied that it agreed to participate in the costs of the rent dispute between
the plaintiff and Old Mutual. It averred that the only partnership agreement between the parties
was dissolved in March 2010 when the parties vacated the premises. It denied ever approving the
monthly account statements which were produced by the plaintiff. It denied being made aware
of, let alone participating in any arbitration proceedings between plaintiff and Old Mutual. The
defendant denies that plaintiff is entitled to be indemnified by it for 50% of the legal costs of the
arbitration proceedings. On 22 January 2016 the defendant filed a notice to amend its plea, in
terms of which it reiterated that there was never any agreement that it would indemnify the
plaintiff if the rent dispute was decided in Old Mutual’s favor. Further, it averred that the
plaintiff was negligent in the manner in which it conducted the dispute resolution process with
Old Mutual by failing to take reasonable steps to mitigate its damages and legal costs.
The matter was referred to trial on four issues. Whether the parties agreed that the rentals
due to Old Mutual would be a partnership expense, whether the parties agreed to jointly
participate in the rent dispute with Old Mutual, whether the plaintiff incurred any extra costs , by
way of rentals, interest, as a result of the arbitral award(this issue was admitted by the defendant
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in the notice of amendment to the plea), whether the plaintiff was negligent in the manner in
which it conducted the arbitral proceedings, and if so, how much should it be made to pay in
recognition of this negligence.
On 3 November 2016, the plaintiff filed an application to amend its claim to USD$42
619-55 after chronicling how the entire sum due to Old Mutual is calculated. The issue for
determination, according to the defendant’s closing submissions is that of whether the defendant
agreed to pay a 50 % share of the rent payable by the plaintiff to old Mutual in respect of
premises known as 29 Coventry Road, Harare. With all due respect I disagree with this assertion.
It is my considered view that the main issue to be determined in this matter was and always will
be whether the plaintiff was entitled to sub-let the premises known as 29 Coventry Road, Harare
to the defendant or to anyone else for that matter. If the plaintiff was not authorized by Old
Mutual to sub-let the premises to the defendant, on what legal basis can it then approach the
court seeking to enforce an unsanctioned under the table agreement between it and the defendant.
As usual in all matters of Landlord –Tenant rights and obligations we are guided by the lease
agreement, the one between the plaintiff and Old Mutual is attached at Rp11-32. The first thing
to note is that the leased premises are described as the property, in the interpretation section,
which is to be interpreted to mean stand number 4491 Salisbury Township, Harare. This is not
the lease agreement for 29 Coventry Road, Harare, but it was attached to the further particulars
requested by defendant as part of the pleadings.
The second thing to note is that this lease agreement was signed on 8 September 2008,
and that one of the plaintiff’s directors agreed to act as surety to guarantee the performance of
the plaintiff’s obligations to Old Mutual. That lease was valid for a year, up to August 2009.
Clause 25 of this lease states that the lessee shall not be permitted to cede, assign or pledge the
lease or any of its rights hereunder, nor to, sublet the whole or any portion of the premises, nor to
permit any other party to occupy any part of the premises or to conduct business therein or
therefrom (the underlining is mine for emphasis).Clause 25.3 states that the lessee accepts that
breach of this clause shall be fundamental breach entitling the lessor to cancel the lease
agreement without notice. The plaintiff did not attach any other lease agreement to the pleadings.
It made a bare averment during the evidence of its director that there was an agreement between
it and the defendant. The court must decide if the plaintiff showed, on a balance of probabilities,
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that Old Mutual allowed it to sublet 29 Coventry Road Harare to the Defendant, otherwise the
legal basis on which plaintiff is relying on to pursue defendant, will not have been established.
The law that governs the standard and burden of proof in civil cases is trite. It is trite
that;- “…in a civil case, the standard of proof is never anything other than proof on a balance of
probabilities. The reason for the difference in onus in civil and criminal cases is that, in civil
cases the dispute is between individuals, where both sides are equally interested parties. The
primary concern is to do justice to each party, and the test for that justice is to balance their
competing claims. See City of Gweru v Mbaluka1. In the case of Zimbabwe Electricity Supply
Authority v Dera2the court said the following, on the issue of proof in civil cases;-
“The degree of proof required by the civil standard is easier to express in words than the
criminal standard, because it involves a comparative rather than a quantitative test.
The civil standard has been formulated by Lord Denning as follows;-
“It must carry a reasonable degree of probability but not so high as is required in a
criminal case. If the evidence is such that the tribunal can say ‘we think it more
probable than not’, the burden is discharged, but if the probabilities are equal it is not”.
It is clear that what is being weighed in the balance is not the quantum of the evidence or
its weight, but the probabilities which arise from the circumstances of the case. See Selamalele v
Makhado3. It has also been said that;- ‘It is not a mere conjecture or slight probability that will
suffice. The probability must be of sufficient force to raise a reasonable presumption in favor of
the party who relies on it. It must be of sufficient weight to show the onus on the other side to
rebut it”. See West Road Estates Ltd v New Zealand Insurance Company Ltd 4. Put differently,
‘he who alleges must prove’. See Pillay v Krishna 5. It is equally trite that;-
“…the true onus never shifts. However in some cases the impression of shifting may be derived
from the fact that there are different issues in the pleadings. The onus on the different issues
is fixed initially by the pleadings and does not change”. See Klaasen v Benjamin6.
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HH 93-14 (one of my own judgments)
2
1998 (1) ZLR 500 (S), Miller v Minister of pensions [1947 2 All ER 372 @ 374
3
1988 (2) SA 372 @ 375D-E The preponderance of probability in favor of the party bearing the onus
must be strong.
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1925 AD 245 @ 263
5
1946 AD 946
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1941 TPD 80
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The onus rested on the plaintiff to prove that Old Mutual had consented to the sub-letting
of 29 Coventry Road Harare to the defendant. Not only has the plaintiff failed to discharge this
onus in my view, plaintiff has gone further to fail to prove what it alleged. The lease agreement
attached to the pleadings relates to different premises from those identified in the summons and
declaration. That lease agreement expressly prohibits sub-letting, labelling it fundamental breach
which goes to the root of the lease agreement entitling the lessor to cancel the lease agreement.
There is no evidence in the pleadings, or which was alluded to during the course of the trial, on
which the court can find, on a balance of probabilities, that the plaintiff had been authorized to
sub-let the premises known as 29 Coventry Road, to the defendant, by Old Mutual..
It is more probable than not, that the plaintiff sub-let a small portion of those premises to
the defendant without the knowledge or consent of Old Mutual. If such consent had been
obtained, then it is more probable than not, that the plaintiff would have attached it to the
pleadings as part of the further particulars which had been requested by the defendant. Is an
agreement which is illegal enforceable? GUBBAY JA (as he then was) followed this dicta with
approval in Dube v Khumalo 1986 (2) ZLR 103 at 109D-F:
"There are two rules which are of general application. The first is that an illegal agreement which has not
yet been performed, either in whole or in part, will never be enforced (by the courts). This rule is absolute
and admits no exception. See Mathews v Rabinowitz 1948 (2) SA 876 (W) at 878; York Estates Ltd v
Wareham 1950 (1) SA 125 (SR) at 128. It is expressed in the maxim ex turpi causa non oritur actio. The
second is expressed in another maxim in pari delicto potior est conditio possidentis, which may be
translated as meaning 'where the parties are equally in the wrong, he who is in possession will prevail'. The
effect of this rule is that where something has been delivered pursuant to an illegal agreement the loss lies
where it falls. The objective of the rule is to discourage illegality by denying judicial assistance to persons
who part with money, goods or incorporeal rights, in furtherance of an illegal transaction. But in suitable
cases the courts will relax the par delictum rule and order restituion to be made. They will do so in order to
prevent injustice, on the basis that public policy 'should properly take into account the doing of simple
justice between man and man". See Independence Mining (Pvt) Ltd v Fawcett Security Operations (Pvt)
Ltd 1991 (1) ZLR 268 (H).
STRATFORD CJ in Jajbhay v Cassim 1939 AD 537 at 544-545, said :
". . .Courts of law are free to reject or grant a prayer for restoration of something given under an illegal
contract, being guided in each case by the principle which underlies and inspired the maxim. And in this
last connection I think a court could not disregard the various degrees of turpitude in delictual contracts.
And when the delict falls within the category of crimes, a civil court can reasonably suppose that the
criminal law has provided an adequate deterring punishment and therefore, ordinarily speaking, should not
by its order increase the punishment of the one delinquent and lessen it of the other by enriching one to the
detriment of the other. And it follows from what I have said above, in cases where public policy is not
foreseeably affected by a grant or refusal of the relief claimed, that a court of law might well decide in
favour of doing justice between the individuals concerned and so prevent unjust enrichment."
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An agreement which is not legal is not enforceable because it is void ab initio. LORD
DENNING put it succinctly as follows;-
McFoy v United Africa Co Ltd [1961] 3 All ER 1169 (PC) at 1172 I, "every proceeding which is
founded on it is also bad and incurably bad. You cannot put something on nothing and expect it
to stay there. It will collapse." It is this court’s considered view that there is nothing for the
plaintiff to base its claim on. The claim is based on an illegal agreement between the parties to
sublet 29 Coventry Road without the prior written consent of Old Mutual. The evidence does not
support, on a balance of probabilities, the assertion made on behalf of the plaintiff that ‘Old
Mutual was aware’ of the sub-letting. There is no doubt in my mind that the parties connived to
sub-let the premises to the defendant illegally, or put differently, contrary to the terms and
conditions of the written lease agreement between the plaintiff and Old Mutual. There is no
doubt in my mind that the plaintiff is aware that there is no privity of contract between Old
Mutual and the defendant. If there was, then it is more probable than not that Old Mutual would
have sued both plaintiff and defendant in the rent dispute and cited them jointly as parties to the
arbitration proceedings.
These parties are equally in the wrong. The loss should lie where it fell, into the plaintiff’s
literal lap. Judicial assistance should be denied to the plaintiff for sub-letting the premises
without the consent of Old Mutual. This will discourage similar conduct in future. Plaintiff has
no legal basis on which to found a claim to be indemnified by the defendant for costs incurred in
a dispute with its landlord, Old Mutual. Plaintiff cannot, at law seek to share its obligations to
Old Mutual with the defendant, in respect of a lease agreement that the defendant was never
formally, or lawfully made a part of, based on the evidence which is before the court. It cannot
be said that the defendant has been unjustly enriched, or that the court should be persuaded to
exercise its discretion and do justice between man and man. For these reasons, the plaintiffs’
claim cannot and should not, be allowed to succeed. Further, the plaintiff should pay costs on a
punitive scale for seeking to enforce a verbal lease agreement in circumstances where there is no
evidence placed before the court that the plaintiff itself was authorized to sub-let the premises. In
the result, it be and is hereby ordered that;-
1. The plaintiff’s claim be and is hereby dismissed.
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2. The plaintiff shall pay costs on a Legal Practitioner-Client scale.
Messrs Wintertons, plaintiff’s legal practitioners
Messrs Venturas & Samkange, defendant’s legal practitioners