Nigel M Bailey v FlemFlora (Pvt) Ltd and The Sheriff of Zimbabwe

### Preamble
1
HH 730-17
HC 9686/17
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.

NIGEL M BAILEY

versus

FLEMFLORA (PVT) LTD

and

THE SHERIFF OF ZIMBABWE

HIGH COURT OF ZIMBABWE

DUBE J

HARARE, 19 and 23 October 2017 & 2 November 2017

Urgent Chamber Application

F Chimwamurombe, for the applicant

D Ndawana, for the respondent

DUBE J: The applicant seeks stay of execution pending the outcome of an application for rescission of judgment.

The brief background to this application is as follows. The applicant leased FlemFlora Farm from the respondent. The first respondent is the owner of the farm which has become the center of this dispute. The second respondent has chosen not to defend this application.

Sometime in 2012 the first respondent (hereinafter referred to as the respondent) signed a lease agreement with the applicant for the lease of the farm.  The applicant claims that he subsequently subleased the farm to Minscord Enterprises, a company he owns , for purposes of its farming activities. His business went into rental arrears forcing him to surrender some of his assets as a pledge for the outstanding arrear rentals. The applicant and his business left the premises on 31 March 2015 after giving notice to vacate the farm. He does not owe the respondent any monies in rentals which he cleared by way of a pledge. The applicant avers that some former workers remained at the farm having refused to move with the applicant and his business to Macheke. He contended that the former employees are at the farm illegally. He avers that the respondent is aware of the dispute between him and the employees.

Unbeknown to him default judgment was obtained against him by the respondent for recovery of some arrear rentals. The applicant avers that he was shocked to receive a warrant of execution and subsequently a notice of attachment of property on 15 October 2015 to recover $77 000.00 as arrear rentals. He did not become aware of the summons that triggered this matter. He has since applied for rescission of the order granted in default. The applicant’s explanation for the default is that he did not become aware of the summons. He had left the farm more than two and a half years before. He takes issue with the fact that the respondent decided to serve the summons at the farm when according to the pledge agreement, his domicilium citandi was at an address in Borrowdale Brook. He had personally vacated the premises and he left his former employees at the farm who did not inform him of the summons. He submitted that he did not become aware of the summons and hence was not in willful default.

He is being asked to pay a debt he does not know. He cleared his debt when he pledged his property in settlement of the arrear rentals. The rentals claimed were incurred after he vacated the farm. He refutes that he owes the respondent any arrear rentals. He is applying for stay of execution pending an application for rescission of judgment that he filed to reverse the default judgment. Allowing execution to proceed will cause inconvenience and irreparable harm to him. He has asked this court to deal with this matter on an urgent basis because he will suffer irreparable prejudice if execution proceeds. He contends that he has no other remedy apart from the present application for stay of execution. Further that the balance of convenience and the interests of justice favor the granting of this application.

The respondent opposed the relief sought. It submitted as follows. The applicant was in occupation of the respondent’s farm from the time that the lease agreement was signed to the time that he was evicted in April 2017. The applicant never handed over vacant possession of the premises to the first respondent as his or the company’s employees remained on the premises in their staff quarters. Although the parties signed a pledge agreement, this did not mark the end of the relationship between the parties as his employees remained on the premises. The respondent is unaware of a sublease agreement with any third party. The applicant continued to remain in occupation of the premises and owes rentals up to the date of eviction.  The respondent submitted that the applicant was properly served because he had not vacated the premises, but conceded that if the applicant did not see the summons, there was no question of willful default. It submitted however that that despite this, the applicant is not guaranteed that he will get the default judgment rescinded. There are many other considerations that have to be taken into account in an application for rescission of judgment that  have to be considered cumulatively in deciding whether another court is likely to find that good cause for rescission of judgment has been shown. The applicant does not have a bona fide defense on the merits of the main matter and is unlikely to succeed in the application for rescission of judgment. The respondent did not take issue with the urgency of the matter.

The applicant seeks a prohibitory interdict. The requirements of a temporary interdict have been laid out in a number of cases. They are;

A prima facie right

A well  granted apprehension of irreparable harm

The balance of convenience must favor the granting of the interdict

Absence of any other satisfactory remedy.

See Setlogelo v Setloqelo 1914 AD 221 for these requirements.

A party who has obtained an order has the right to enforce it. In deciding whether to allow a party to proceed with an execution, the court enjoys wide discretionary powers. The court has the power to set aside or suspend a writ of execution upon request.  It is the duty of the court to control its own processes. The court will only suspend or set aside a writ where an applicant has proved the existence of special circumstances justifying such course of action, See Mupini v Makoni 1993(1) ZLR  80.

Where a party seeks stay of execution pending an application for rescission of judgment, the court has to be satisfied that he has shown an entitlement to the relief sought. In considering whether the applicant has shown the existence of a prima facie entitlement to the order sought, the court will examine the merits of the application for rescission of the judgment. The court will take the same approach as a court dealing with an application for rescission of judgment and consider whether the applicant will be able to show good cause for rescission of the default judgment. The court will mainly focus on two essential elements, thus, his explanation for the default and whether he has a bona fide defense which carries some prospects of success. If the application for rescission of judgment has no merit, there will be no useful purpose in granting this application. If on the other hand the applicant has prospects of success in that application, the more reason why this application ought to be granted.

The applicant avers that a wrong defendant has been brought before the court. Central to the determination of this issue is a consideration of whether the applicant gave vacant possession of the farm. The principle of vacant possession of property in leasehold property is one recognized under Roman Dutch law. There is very little case law on it in Zimbabwe. The term has not been defined and is mainly referred to in a generalized fashion. Most vacant possession case law authorities in South Africa involve vacant possession of property in property sales and cases where vacant possession is provided under the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998. In Bourbon - Leftley v Turner 1963 (2) SA 104 (C), the court dealt with vacant possession in a challenging involving peaceful and undisturbed possession given by a lessor to a lessee and held that a large Cooker left in the kitchen was likely to interfere materially with enjoyment of property. The concept of vacant possession is more developed under English law with most of the authorities found under the English law system. The concept is little understood under our jurisdiction and needs to be developed.

The term vacant possession is not as straightforward as it seems. The locus classicus case is the case of NYK Logistics (UK) Ltd v Ibrend Estates BV (2011) a South Wales court decision. In this case, the court discussed the meaning of the term vacant possession as follows.

“The concept of vacant possession in the present context is not, I consider, 	complicated. It 	means what it does in every domestic and commercial sale in which there is an obligation 	to give vacant possession on completion. It means that at the moment that vacant possession is 	required to be given, the property is empty of people and that the purchaser is able to assume and 	enjoy immediate and exclusive possession, occupation 	and control of it. It must also be empty 	of chattels, although the obligation in this respect is likely only to be breached if any chattels left 	in the property substantially prevent or 	interfere with the enjoyment of the right of possession of 	a substantial part of the 	property.”

These sentiments aptly summarize the definition of ‘vacant possession’. The facts of this case involved workmen who remained on the property for a day after the date of vacation to finish off some work. The court held that even though the landlord was advised that some workmen would remain behind, vacant possession was not given. Although this case involved vacation upon a sale, these same principles are equally applicable in the context of vacation of a leased property.

Vacant possession’ is a property law concept. Case law authority reveals that vacant possession is a term relevant to sales of property as well as lease agreements. Where a seller sells property he is required to give vacant possession of the property to the purchaser upon completion of the sale agreement. In the context of a lease, when a lessee vacates a property on either termination of the lease agreement or on notice, he is obliged to give vacant possession of the property to the landlord. Vacant possession may be expressly provided for in a contact or it may be implied. In Cook v Taylor 1942 Ch. 349 at p 352, the court said the following,

“where a contract is silent as to vacant possession, and silent as to any tenancy to which the property is subject ,there is impliedly a contract [to the effect]that vacant possession will be given on completion.”.

Most leases do not contain clauses providing for vacant possession. Where the requirement for vacant possession is not expressly provided for, it is often implied in the contract of lease as a matter of law. A landlord who leases a property has a duty to give vacant possession to the tenant at the beginning of the lease agreement. Conversely, upon expiry of the lease agreement or where the tenant gives notice to vacate or on expiry of the lease, he must ensure that he gives vacant possession of the leased premises to the landlord. He must ensure that when he vacates the premises, he leaves the property in a state fit for occupation by the lessor. Where a tenant vacates a premise at the end of the lease agreement, vacant possession is given if the lessee vacates the premises and he gives exclusive and immediate possession of the leased premises to the landlord. The landlord must retain exclusive possession of the property.

Vacant possession is not delivered if there is an impediment to the landlord’s possession, enjoyment and occupation of the leased property on expiry of the lease agreement. A tenant vacating a property has a legal obligation to ensure that the premises are left in a state fit for the landlord to occupy on vacation of the premises. ‘Vacant possession’ entails an occupier of property completely vacating the premises and leaving the landlord to enjoy full possession and control of the premises. The property should be free from occupation by any person or any goods belonging to the lessee.  There should not be any impediment to his occupation. If any possessions are left on the premises, they should be such that they do not interfere with the lessor’s possession, occupation and control of the premises or any part of it, See Legal and General Assurance Society Limited v Expeditors International(UK) (2006), EWHC 1008 (Ch) Cumberland Consolidated Holdings Limited v Ireland [1946] K.B.264

If the landlord cannot use the properly or any part of it because some person occupies it, then, the lessee has not been given vacant possession. The lessee is obligated to pay rentals for the time that any person or his property remains on the leased property. The fact that the lessor has been advised that there are people or property that has remained on the property does not absolve the lessee from paying rentals. A court dealing with a dispute over vacation of a premise need not   concern itself with the reasons for the failure to vacate or legal impediments the lessee faces in removing any people from the premises. The court’s  concern is purely whether the lessee gave vacant possession of the premises on the agreed  date of vacation.

Failure to vacate the leased premises has consequences for the lessee. A lease agreement does not end until a lessee has given vacant possession of the premises let. Even though a lessee has moved from the premises, for as long as he leaves people on the premises, the vacation does not become effective and he remains tied to the lease agreement.  The lessee’s obligations under the lease continue until full vacation is given. The rent continues to accrue and he is liable for it. He is also exposed to potential litigation for recovery of outstanding rentals.

Coming to the facts of this matter, it is common cause that the applicant left some employees at the farm who failed to vacate the farm when the applicant did. In one breath the applicant says that these are his former employees and in another that they are the subtenant’s employees. Whether these people had been discharged or were still his employees does not assist the applicant. The court is not interested in legal impediments that he faced in trying to evict the employees. How he could have addressed the issue of the employees should not detain the court. The fact is he failed to give vacant possession to the respondent. The applicant sought to argue that the law provides a remedy in the form of a rei vindicatio in a case where a tenant has left people in the premises on vacation. The law places no legal responsibility on a landlord to evict people that remain in the premises on vacation of the premises by the lessee.

These people occupied the farm through him. It was the applicant’s responsibility to ensure that he gave vacant possession of the farm by ensuring that the employees  vacate the farm. The employees presented an impediment to the respondent who was unable, until their eviction, to enjoy full possession and control of the farm or a part of its property, thus the staff quarters they occupied. Even if the employees belonged to the subtenant, it was the applicant’s  responsibility to ensure that they vacate the premises . Where a lessee sublets a premise, a contract comes into place between him and the subtenant. The sublease is only valid up to the termination of the original lease. The sub-lessee is required to give up his tenancy on expiry or termination of the lease. The lessor has no legal relationship with the sub lessee and has no responsibility to ensure his eviction. There was no legal duty on the part of the respondent to ensure that the subtenant and its employees vacated the premises on the date of vacation. The subtenant occupied the premise through the applicant  and was required to give up occupation of the premises when the original lease agreement   came to an end .The applicant was required to ensure that the subtenant vacated the premises when the applicant did.

The fact that the respondent was aware of the applicant’s predicament does not assist the applicant. If the applicant subleased the premises, it was not with the blessings of the landlord. The applicant had the obligation to ensure that he gave vacant possession of the premises. It cannot be said that the lessee gave the landlord vacant possession of the farm. The applicant left his employees at the farm. He failed to give vacant possession and in effect continued at the premises thereby failing to vacate the premises. A breach resulted from the fact that the applicant left some people who occupied the premises unlawfully. The lease agreement did not terminate and he remains bound by the agreement. It will be difficult for the applicant in the application for rescission of judgment to convince the court that he has a bona fide defense on the merits of the main matter. Having found that he did not give vacant possession of the premises, the inescapable conclusion is that he was required in terms of the law to pay rentals for the period that his employees were in occupation of the farm after he left the farm.

I am in agreement with the respondent that the applicant was properly served with the summons because he had not legally vacated the premises at the time of service of the summons upon his employees. The respondent was entitled to serve the summons at the farm because he had not legally vacated the premises. The applicant did not have to be personally served.  Even if I am wrong on the issue regarding the appropriateness of the service, I am of the view that the explanation for the default is reasonable in the circumstances of the case. The applicant did not become aware of the summons and hence did not deliberately refrain from complying with the rules. The concession by the respondent that the applicant was not in willful default because he did not see the summons was properly made. His explanation for the default is reasonable.

I have in the exercise of my discretion decided to dismiss this application. A court dealing with an application for rescission of judgment will be required to consider all factors in such an application cumulatively. It is unlikely that the application for rescission of judgment will succeed. Where an application for rescission of a judgment lacks prospects of success, no matter that an applicant may not have been in willful default that application must fail.

The applicant has failed to cross the first hurdle of a temporary interdict, which is the requirement to show the existence of  a prima facie right to the relief sought. I will not explore the other requirements of a temporary interdict. The application for rescission of judgment lacks merit. There seems to me to be no useful purpose in allowing an applicant to go ahead and pursue a hopeless case. The applicant has not shown special circumstances that justify the stay of execution requested. Staying execution in the circumstances of this case will serve only to delay the matter. Execution must proceed.

In the result it is ordered as follows,

The application is dismissed with costs.

Mberi Chimwamurombe Legal Practice, applicant’s legal practitioners

Gill, Godlonton & Gerrans, 1st respondent’s legal practitioners