Sunspike Distributors (Pvt) Limited v Drafter Distributors

### Preamble
HH 58-2005
HC 1633/05
SUNSPIKE DISTRIBUTORS (PVT) LIMITED
versus
DRAFTER DISTRIBUTORS
---------


==============================SUNSPIKE DISTRIBUTORS (PVT) LIMITED
versus
DRAFTER DISTRIBUTORS

HIGH COURT OF ZIMBABWE
KAMOCHA J
HARARE, 4 and 13 July 2005

J Mambara, for the applicant
O Takaindisa, for the respondent

Opposed court application

KAMOCHA J: In this matter the applicant seeks leave to execute a judgment, it was granted by this court on 17 March, 2005, pending appeal.

The circumstances giving rise to these proceedings are that the applicant owns a shop known as Shop 3, Corner 5 South Avenue and Angwa Street, Harare. The applicant was a successor in title to Southern Properties (Pvt) Limited which had entered into an agreement of lease for a one year period from 1 January 2004 to 31 December 2004.

In terms of clause 5 of the agreement the respondent had an option to renew the lease for a further year upon giving written notification to the applicant not less than three months and not more than six months prior to the expiry of the lease. The rental would be mutually agreed upon at the time the option was to be exercised.

The applicant itself was renting premises known as Vivian Watson Building, 32 George Silundika, Avenue, Harare from which it was evicted. It was running its retail business there. It then sought to find alternative premises without success.

That being the case the applicant addressed a notice to the respondent, dated 21 September, 2004, to terminate the lease agreement with the respondent and gave it three months to vacate the leased premises as it wanted them for its own retail business.

In response the respondent, through its legal practitioners in its letter dated 11 October 2004, expressed its wish to exercise its option to renew the lease. It purported to do so in terms of clause 5 of the agreement of lease albeit that it wasout of time. That the respondent did not exercise its option timeously as stipulated by the agreement of lease admits of no doubt.

The respondent should have given written notification to the applicant not less than three months prior to the 31st December 2004. Its written notice was only done on 11 October 2004. That is why this court had no difficult in finding as a fact that respondent did not renew the agreement and that its opposition to the eviction bordered on pure stubbornness.

The court then went on to issue an order that respondent vacates the said premises within 10 days from the date of the order being served on it or failing which the Deputy Sheriff or his lawful assistant was directed, at the instance of the applicant, to evict the respondent therefrom.

Aggrieved by the court's decision the respondent appealed to the Supreme Court on the grounds that:

(a) the court *a quo* misdirected itself by granting an application for eviction when the appellant had exercised its right of renewal; and
(b) the honourable judge misdirected himself by finding that the appellant had not exercised its option to renew the lease." This is essentially one and the same ground on which the court's decision is being assailed. As already stated *supra* the purported option to renew was exercised on 11 October 2004 - way out of time.

The respondent also argued that it became a statutory tenant after the expiry of the lease agreement which argument is also untenable. There is no law prohibiting a statutory tenant from being evicted where proper written notice to vacate has been given in circumstances where a landlord requires the premises for itself. *In casu* the landlord itself which was conducting retail business from premises in Vivian Watson Building, 32 George Silundika Avenue, Harare, had been evicted therefrom. It failed to secure alternative premises for its retail business. There is therefore no legal basis for stopping it from going to its own premises that the respondent was renting. By letter dated 21 September 2004 respondent was properly given 3 months notice to vacate but it refused to do so although it was made aware that applicant required the premises for its own use since it had been evicted from premises it had been leasing.

It seems clear to me that although a litigant has an absolute right to appeal in order to test the correctness of a judgment the appeal *in casu* had not been launched for that purpose. It was clearly only brought as a delaying tactic and as a means of staving off the evil day. In the result the application succeeds.

Turning to the question of costs, I hold a view that this is a proper case to award the applicant costs on an attorney and client scale. Respondent knew that it did not exercise its option for renewal timeously but still refused to vacate the premises when it was properly given notice to vacate and was made aware that the applicant required the premises for its own use. The applicant was finally forced to institute these proceedings. In my view applicant is entitled to recover its full costs.

Consequently I would issue the following order -

IT IS ORDERED THAT:-

(a) Leave to execute pending appeal be and is hereby granted; and

(b) The respondent shall pay costs of this application on an attorney client scale including any costs incurred by the applicant in causing the Deputy Sheriff or his lawful assistant, if need be, to evict the respondent from the said premises.

J. Mambara & Partners, applicant's legal practitioners.

Messrs P. Chiutsi Legal Practitioners, respondent's legal practitioners.
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