Paul Westwood v Mercers Property Brokers

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                                                                               HH 281-2011
                                                                             CIV (A) 433/10
PAUL WESTWOOD
versus
MERCERS PROPERTY BROKERS

HIGH COURT OF ZIMBABWE
PATEL J & CHIWESHE JP

Civil Appeal

HARARE, 30 June 2011 and 30 November 2011

C.W. Gumiro, for the appellant
I. Maja, for the respondent


           PATEL J:      This is an appeal against the decision of the Harare Magistrates
Court, sitting on 10 June 2010, granting an eviction order against the appellant. The
appellant seeks an order setting aside that decision and dismissing the respondent’s
application for eviction of the appellant. He also seeks an order for costs on a legal
practitioner and client scale.
   The original grounds of appeal were that the court a quo erred in:
   (i)       finding that the respondent had locus standi to institute litigation on behalf
             of its principal;
   (ii)      arriving at its decision to grant the eviction order without according the
             appellant an opportunity to make submissions on the merits;
   (iii)     failing to take into account that the appellant was a statutory tenant and
             granting the eviction order without being furnished with an eviction
             certificate from the Rent Board;
   (iv)      finding that the appellant was in breach of his obligation to pay rentals,
             which were duly accepted by the respondent.
   At the hearing of the appeal, Mr. Gumiro withdrew the second ground of appeal.
He also withdrew the third and fourth grounds of appeal when it became evident that
the appellant had paid his monthly rentals either out of time or only in part. He had
therefore lost his statutory tenancy status. The learned magistrate’s finding in this
regard is unassailable and must therefore be upheld. Consequently, the only remaining
ground of appeal relates to the locus standi of the respondent to institute eviction
proceedings in the court a quo.
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Issues in limine
       Before the hearing of the appeal, Mr. Maja sought condonation for the late
filing of the respondent’s heads of argument. The lawyer who initially dealt with the
matter had left the firm and the respondent had been attempting to settle the matter
with the appellant. On these grounds, the application for condonation and upliftment
of the bar was granted by consent.
       Mr. Maja raised the further point that the appellant’s opposing affidavit in the
court below had not been commissioned. This nullified his opposition and, therefore,
there was no basis for his grounds of appeal founded on the averments contained in
his opposing affidavit.
       It is not in dispute that this issue was only raised belatedly in the respondent’s
heads of argument. As a rule, a matter not raised in the court a quo cannot be raised
on appeal, which must be confined to the correctness of the decision appealed against.
However, a question of law may be advanced for the first time on appeal provided
that: the point is covered by the pleadings; there would be no unfairness to the other
party; the facts are common cause or virtually incontrovertible; and no other or further
evidence would have been produced that could have affected the point. See Donnelly
v Barclays National Bank Ltd 1990 (1) SA 375 (W) at 380-381; applied in
Austerlands (Pvt) Ltd v Trade & Investment Bank Ltd & Others 2006 (1) ZLR 372 (S)
at 378. While I am not convinced that all of these criteria are fulfilled in casu, it
seems to me that the point raised herein can be satisfactorily disposed of without
disadvantage to either party.
       It is trite that an affidavit must be duly commissioned in order to be validly
attested and for the averments contained in it to be recognised in legal proceedings.
See Manyika v Manyika 1983 (2) ZLR 198 (H). Nevertheless, it is also trite that not
all procedural irregularities suffice to vitiate the proceedings in question. It must be
shown, additionally, that the party concerned was prejudiced by the irregularity. See
Nyahuma v Barclays Bank (Pvt) Ltd 2005 (2) ZLR (S) 435.
       In the instant case, the copy of the affidavit that was served on the
respondent’s lawyers was duly commissioned, as was the copy retained by the
appellant’s lawyers. Only the copy filed with the Court was not commissioned. Mr.
Maja accepts this and concedes that no prejudice was occasioned to the respondent by
the defective Court copy. In these circumstances, it seems to me that we are perfectly
justified in exercising our discretion, under Rule 4(c) of the High Court Rules 1971, to
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                                                                          CIV (A) 433/10
condone this irregularity on the equities. It is accordingly so condoned and the
respondent’s objection in limine is dismissed.

The Merits: locus standi
       In Ashley v South African Prudential Ltd 1929 (1) TPD 283, the agent in
question was given authority to obtain title deeds but not authority to sue. Tindall J
observed as follows, at 285:
                “The institution and prosecution of legal proceedings is an important
       step which may involve the principal in great expense and I see no
       justification for holding, that where a principal authorises an agent to demand
       and receive a thing, the principal must be taken to have intended to include the
       authority to bring and prosecute legal proceedings. There is no reason for
       construing the word ‘demand’ in a sense other than its ordinary sense which is
       well understood and means ‘claim’, in other words an extrajudicial demand.”

       Again, in Mtemererwa & Another v Tawarwisa & Another 2004 (2) ZLR 172
(H), the agent himself had signed the relevant purchase agreement on behalf of the
purchaser. Nevertheless, the Court accepted with approval the rule crisply and
concisely stated in Herbstein & van Winsen: The Civil Practice of the Superior
Courts of South Africa (4th ed.) at p. 233 that:
               “Authority to demand transfer does not include authority to institute
       legal proceedings to obtain transfer on behalf of the principal”.

       Kamocha J went on to hold, at 175, that:
               “In casu the power of attorney nominated and appointed the agent for
       managing and transacting all the principal’s affairs involving the purchase of
       the property. There would be no justification for construing it to have
       authorised him to bring and prosecute legal proceedings. He had no mandate
       to do that.”

       It is common cause that the lease agreement in casu, dated 6 March 2009,
purports to have been made and entered into by the respondent as agent for the owner
of the property in question. However, the agreement was not signed by the respondent
but by the owner himself qua lessor. It was therefore the latter who granted vacant
possession of the property to the appellant. Moreover, clause 17 of the agreement,
relating to the enforcement rights of the lessor, contemplates that it is the lessor who
would instruct his attorney to make demand and to institute legal proceedings against
the lessee. By the same token, the property management mandate executed by the
owner on 27 February 2009 only allows the agent to manage the property. It does not
expressly authorise the respondent to sue on behalf of the owner.
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          Having regard to the case authorities cited above, I see no reason, in the
present context of landlord and tenant, to deviate from the rationale applied in those
cases. No matter how broad the agent’s mandate to manage the leased property on
behalf of the owner or lessor, he must be given specific authority to sue before he can
institute legal proceedings against the lessee, whether for rentals due or for recovery
of the property.
          In the instant case, no such authority was given to the respondent by its
principal, either in its management mandate or in the lease agreement. It follows that
the respondent lacked the requisite locus standi to institute proceedings for eviction
on behalf of its principal, and that the court a quo clearly erred in its finding to that
effect.
          As regards costs, contrary to the appellant’s contention in this regard, clause
17 of the lease agreement is expressly limited to the recovery of all legal costs that
may be incurred by the lessor in enforcing his rights under the agreement. It does not
confer any right on the lessee to recover his costs on a legal practitioner and client
scale. Quite apart from the lease agreement, the appellant has not proffered any other
ground or justification for claiming costs on a higher scale.
          In the result, the appeal is allowed with costs on the ordinary scale. It is
ordered that the judgment of the court a quo be set aside and substituted with the
following:
                 “The application for eviction is dismissed with costs”.


CHIWESHE JP:             I agree.




Mhiribidi, Ngarava & Moyo, appellant’s legal practitioners
Maja & Associates, respondent’s legal practitioners