THE Financial Gazette Versus Grashie Sapplies (Pvt) LTD

### Preamble
HH 32-2010
HC 4380/08
THE FINANCIAL GAZETTE
versus
GRASHIE SAPPLIES (PVT) LTD
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THE FINANCIAL GAZETTE
versus
GRASHIE SAPPLIES (PVT) LTD

HIGH COURT OF ZIMBABWE
BHUNU J
HARARE, 8th 2009 and 18th May 2009 and 24 February 2010

C Nyandoro, for the applicant
C Nhema, for the respondent

Application for Summary Judgment

BHUNU J: This is an application for summary judgment. The bulk of the facts in this case are not in dispute. It is common cause that on 27 June 2005 the parties concluded an agreement of lease wherein the applicant company let its property known as Shop No. 3 at Fingaz House measuring 84.75 square metres in extent to the respondent company.

The applicant's claim is for the eviction of the respondent and all those claiming occupation though it from the premises. The applicant alleges that on 26 October 2007 it instructed its letting agents Knight Frank Zimbabwe to give the respondent three months notice to vacate the premises on the grounds that it required the premises for its own use. As a result Knight Frank Zimbabwe gave the respondent the required three months notice extending from 1 November 2007 to 31 January 2008.

The applicant's complaint is that despite the expiration of the notice period the respondent has steadfastly refused to vacate the premises in terms of the notice to vacate.

The respondent admits refusing to vacate the premises but denies that it received the three months notice as alleged by the applicant. By denying receipt of the alleged notice the respondent is raising a material dispute of fact thereby casting the onus of proof on the applicant.

In a bid to prove its case the applicant has not filed a copy of the written notice from its letting agents. The notice Reads:

"Dear sir

RE: NOTICE TO TERMINATE LEASE – SHOP 3 FINGAZ HOUSE. HARARE.


We write to advise that your landlord intends to use for owner occupation purposes/carry out refurbishment in the space that you are currently leasing.

"In accordance with the Commercial Rent Regulations you are hereby given 3 months notice effective 1 November 2007 to 31 January 2008 to vacate the leased premises and please ensure that the keys are handed over to our offices by no later than 12 noon on 31 January 2008 or earlier.

Yours faithfully,

Signed

F Makoni – Commercial Management.
For and on behalf of KNIGHT FRANK ZIMBABWE

(Blank) (Blank)
I………………representing …………… confirm receipt of the original copy of this letter.

(Blank) (Blank)
SIGNED…………………………..Date……………………..

cc Landlord"

It is pertinent to note that the portion where the respondent was supposed to sign acknowledging receipt of the written notice is not signed. We therefore have on the papers proof that the notice was written but there is no proof that it was served on the respondent or its proxy. This undoubtedly raises a triable factual issue

That being the case the application for summary judgment cannot succeed. It is accordingly ordered that the application be and is hereby dismissed with costs.

Musunga and Associates, applicant's legal practitioners
C Nhema and Associates, respondent's legal practitioners
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