Mashonaland Turf Club v Peters And Another (8 of 2021) [2021] ZWHHC 8 (29 March 2021)

1 HH 08/21 HC 8393/13 MASHONALAND TURF CLUB versus SUSAN PETERS and GIBSON INVESTMENTS (PRIVATE) LIMITED HIGH COURT OF ZIMBABWE DUBE-BANDA J HARARE, 8 December 2020 and 29 March 2021 Application for absolution from the instance Advocate R Goba for the plaintiff Advocate T. Magwaliba for 1st and 2nd defendants DUBE-BANDA J: At the close of the case for the plaintiff, the defendants moved an application for absolution from the instance, alleging that for reasons to be adverted below, the plaintiff had failed to make a case requiring the defendants to be placed on their defence. In this case, plaintiff sued out a summons against the 1st and 2nd defendants, praying for the following orders: a. Eviction of defendants from stand 19260 of stand 14908 Borrowdale, otherwise known as Borrowdale Race Course; b. Arrears for rent, electricity, water and rates in the sum of US$155 726-33; c. Holding over damages in the sum of US$17 155-00 per month and further rent, rates, water and electricity charges as may be due on the date of eviction; and d. Costs of suit. On the 10 October 2016, plaintiff filed a notice of amendment to its summons and declaration. It deleted paragraph (a) of its prayer, deleted paragraph (c) of its prayer and replaced it with the following:- “Arrear rentals in the sum of US$17 155.00 per month calculated from the 1st July 2013, and such rates, water and electricity charges as may be due on the date of the order.” It deleted paragraph (9) and (10) of its declaration, and deleted the words “the date of eviction” in paragraph 14 of the declaration. Prior to the amendment filed on the 10 October 2016, paragraph 9 of the declaration read as follows: “Accordingly, the plaintiff has on account of defendants’ adverse conduct aforesaid unjust enrichment, and in the HH 08/21 HC 8393/13 absence of a lease agreement terminated the arrangements on notice. Plaintiff is entitled to the eviction of defendants and all persons claiming title through them from the premises.” Paragraph 10 read as follows: “It is fair, just and equitable that the defendants be evicted from the plaintiff’s property.” Paragraph 14 read as follows: “1st and 2nd defendants are liable to plaintiff for rent at the rate of USD 17 155.92 per month and payments for water, rates and electricity as may be incurred from July 2013 to the date of eviction.” After the amendment, plaintiff prays for the following: a. Arrears for rent, electricity, water and rates in the sum of US$155 726-33; b. Arrear rentals in the sum of US$17 155.00 per month calculated from the 1st July 2013, and such rates, water and electricity charges as may be due on the date of the order. c. Costs of suit. In terms of the joint pre-trial conference minute, the issues were identified as the following: 1. What were the terms upon which the defendants took occupation of the various spaces at the plaintiff’s property being stand 19206 Borrowdale, Harare (“the premises”)? 2. Whether the defendants are in breach of the terms upon which they took occupation of the various spaces at the premises. 3. Whether the defendants are obliged to pay rentals in terms of the valuation of the leased premises by Richard Ellis Africa. If so, what is the quantum of the rentals and from when do the rentals payments commence? 4. Whether the defendants are liable for holding over damages, for what period and at what rate? 5. Whether the defendants are obliged to pay the plaintiff’s rate, water and electricity. 6. Whether plaintiff is obliged to compensate the defendants for the improvements and developments made by the defendants on the premises. HH 08/21 HC 8393/13 At the pre-trial conference the onus on issues 1, 2 and 4 was put on the plaintiff, and the onus on issue 3 on the defendant. At the commencement of the trial, the parties, by consent, deleted issues 4 and 6, and the onus on issue 3, originally on the defendants, was shifted to the plaintiff. The issues for trial are these; and the onus is on the plaintiff on all issues. 1. What were the terms upon which the defendants took occupation of the various spaces at the plaintiff’s property being stand 19206 Borrowdale, Harare (“the premises”)? 2. Whether the defendants are in breach of the terms upon which they took occupation of the various spaces at the premises. 3. Whether the defendants are obliged to pay rentals in terms of the valuation of the leased premises by Richard Ellis Africa. If so, what is the quantum of the rentals and from when do the rentals payments commence? 4. Whether the defendants are obliged to pay the plaintiff’s rate, water and electricity. The plaintiff has led evidence from six witnesses, and placed a plethora of documentary exhibits before court. The witnesses who testified for the plaintiff are; Clever Mushangwe; Haward Mukundu; LIyod Mugabe; Shingirai Tanyanyiwa; Justin Dowa and Brian Blake. At the conclusion of the testimony of Brian Blake, plaintiff closed its case. It is at this stage that Advocate Magwaliba, counsel for the defendants rose and made an application for absolution from the instance. Briefly, the evidence at this stage is that plaintiff is the registered owner of a piece of land being stand number 19206 Borrowdale, Harare. The 2nd defendant had entered into a long lease with the City of Harare, in respect of stand 2344A, Salisbury Township, known as Julius Nyerere Way Parkade (Parkade). In 1995, plaintiff and 2nd defendant entered into a memorandum of an agreement of lease, in terms of which 2nd defendant subleted a portion of the Parkade to the plaintiff. Plaintiff moved out of the Parkade in 2016. Following negotiations, plaintiff and 1st defendant, on the 25th September 2006, signed a memorandum of an agreement of lease, in respect of a portion of plaintiff’s property known as Stallion Bar, situate at Borrowdale Race Course, measuring 100 square meters. This lease terminated on the 30 HH 08/21 HC 8393/13 September 2011. It was not renewed, however the 1st defendant remained in occupation of the premises. On the 8th September 2006, the plaintiff and 2nd defendant signed a Memorandum of Understanding (M. O. U.) in respect of a portion of the Borrowdale Park Race Course, commonly known as the Silver Ring Area. The M. O. U. had a lifeline of six months, from the 1st September 2006 to 28 February 2007. At this stage, the evidence shows that in the Stallion Bar, and the Silver Ring area, 1st and 2nd defendants a swimming pool, gym, salon, a restaurant etc. In terms of the M. O. U. it was agreed that from the 1st March 2007, a lease agreement will be drawn and the MOU would fall away. Notwithstanding the provisions of the M. O. U. and several attempts, including but not limited to drawing of a Memorandum of Understanding (M. O. U.) Ext. C2, (not signed) and a draft Notarial Lease, Ext A6 (not signed), no lease agreement was signed between the parties. A meeting was convened at the offices of Knight Frank estates agents to discuss the rentals to be payable by the defendants for the premises they occupied. In fact 1st defendant walked out and the meeting was aborted. No agreement was reached. Plaintiff engaged Richard Ellis estate agents to evaluate and determine the market rentals payable for the Parkade property and the portions occupied by the defendants at the Borrowdale Race Course. The copies of the valuations are before court, as Ext A8 and A9 respectively. The evidence is that plaintiff wrote-off or cancelled all the rentals it considered due to it, that had accrued before October 2012. From October 2012, plaintiff commenced invoicing defendants for the premises it occupied at the Borrowdale Race Course, as per the Richard Ellis valuations. The Statement of Accounts is before court and marked Ext B4. no rentals were paid. The current stand-off between the parties has been raging on from October 2012 to date. The evidence, at this stage is that the defendants are still in occupation of the plaintiff’s premises at the Borrowdale Race Course, but not paying rent. Defendants’ submissions Defendants contend that plaintiff has not set out any valid or recognisable cause of action which has been established by evidence. On the contrary, the evidence contradicts the pleadings. Consequently, defendants hardly know what case to answer in their defence. HH 08/21 HC 8393/13 Advocate Magwaliba, counsel for the defendants, submits that what remains of the plaintiff’s pleaded cause of action, after the amendment of the 10 October 2016, is that no lease agreement was concluded between the parties. It is submitted that on an analysis of the plaintiff evidence, together with the pleaded defence of the defendants, it is apparent that there was no lease agreement. It is argued that rentals cannot be awarded in the absence of a lease agreement. It is contended that in the absence of a lease agreement, plaintiff needed to plead some other cause. Advocate Magwaliba, submits that in the absence of a lease agreement it is not necessary for the defendants to be called upon to plead. A claim for rentals must always be predicated on the existence of a lease agreement. It is said, in the absence of an allegation of a lease agreement, no judgment can ever be awarded to the plaintiff who sues for rentals. It is submitted that, heaving pleaded that there was no contract, and the evidence proving that there was no contract, the plaintiff cannot be granted relief on any other cause of action. The submission is made, again and again, that in the absence of a lease agreement, rentals cannot be awarded. It is submitted that all the material witnesses of the plaintiff, narrated in great detail efforts made by the parties to come up with a lease agreement. All these efforts, except for the Stallion Bar, failed. In 2011, the lease for the Stallion Bar expired. After the expiry of the Stallion Bar lease, all the spaces occupied by the defendants in the Borrowdale Race Course were not covered by a lease agreement. The M. O. U. Ext. X. is not a lease agreement. Finally, it is submitted that the plaintiff has not established a prima facie case. It is contended that plaintiff’s evidence and the pleadings show that there is no recognisable cause of action, and therefore no prima facie case. This court is invited to grant absolution in favour of the defendants, with costs of suit. Plaintiff’s submissions Advocate Goba, counsel for the plaintiff, submits that the application is misconceived. It is said defendants are mistaken as to what this court has to consider at this stage of the proceedings. It is argued that the entire submissions of the defendants, would perhaps carry HH 08/21 HC 8393/13 some weight if raised at the end of the trial. It is argued that at this stage, it is not about the quality and credibility of the evidence, it is about the existence of the evidence. It is contended that the defendants are operating on a mistake that the issue is whether there was a lease agreement, it is said this would be an issue if the defendants were not in occupation of the premises. It is argued that rent can be awarded in the absence of a lease agreement, as long as the defendants are in occupation of the premises. It is contended that paragraph 5 of the declaration relates to the Stallion Bar, wherein a lease agreement was signed between the plaintiff and the 1st defendant, (copy of the lease is before court and marked Ext. Y). The lease terminated on the 30 September 2011, and the 1st defendant remained in occupation. It is submitted that if the lease expires, Commercial Premises (Rent) Regulations and the common law govern the new situation. Which states that as long as the lessee retains possession of the premises, he shall observe and be entitled to the benefit of all the terms and conditions of the original contract of lease. It is submitted that paragraph 6 of the declaration speaks to the cause of action, being “occupation without an agreement.” It is said the absence of an agreement is not a defence. It is argued that paragraph 8 of the declaration, also speaks to the cause of action, “occupation without agreement.” It is submitted that defendants cannot occupy the premises and not pay rent, by occupying the premises, defendants tacitly accept the obligation to pay rent. It is contended that 1st defendant must be put to her defence and explain why she is not paying rent of the Stallion Bar. It is said both defendants are in occupation of the premises, and must be put to their defence and explain why, notwithstanding the occupation, they are not paying rent. It is argued that, defendants cannot ask for absolution from the instance, when they are in occupation of plaintiff’s premises and not paying rent. Finally, this court is being asked to dismiss this application and put both defendants to their defence. The law The law relating to absolution from the instance is settled in this jurisdiction. Afrasia Bank Limited v Drummond Ranching (Private) Limited and others HH 237/17; Gascoyne v Paul & Hunter 1971 TPD 170; Supreme Service Station (Pvt) Ltd (1969) v Ford Gooldridge (Pvt) Ltd 1971 (1) RLR 1 (A); Edmond Totri and George Patrinos v Phathisani Nkomo HB 222/20. When absolution from the instance is sought at the close of plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a court, applying its mind HH 08/21 HC 8393/13 reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff. See: Klein v Kaura (I 4315 / 2013) [2017] NAHCMD 1; Gordon Lloyd Page & Associates v Rivera and Another 2001 (1) SA 88 (SCA); Gascoyne v Paul and Hunter 1917 TPD 170 at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958(4) SA 307 (T). This implies that a plaintiff has to make out a prima facie case – in the sense that there is evidence relating to all the elements of the claim – to survive absolution because without such evidence no court could find for the plaintiff. See: Marine & Trade Insurance Co Ltd v Van der Schyff 1972(1) SA 26 (A) at 37G-38A. Clause Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A); Sithole v P G Industires (Pvt) Ltd HB-47-05; Marine & Trade Insurance Co Ltd v Van der Schyff 1972(1) SA 26(A); Moyo v Knight Frank & Anor HB-87-05 and Ikeogu v Guard Alert (Pvt) Ltd HB- 13-08. Absolution at the end of plaintiff’s case ought only to be granted in a very clear case where the plaintiff has not made out any case at all, in fact and law. The court should be on the guard for a defendant who attempts to invoke the absolution procedure to avoid coming into the witness box to answer uncomfortable facts having a bearing on both credibility and the weight of probabilities in the case. Where the plaintiff’s evidence gives rise to more than one plausible inference, anyone of which is in his or her favour in the sense of supporting his or her cause of action and destructive of the version of the defence, absolution is an inappropriate remedy. Perhaps most importantly, in adjudicating an application of absolution at the end of plaintiff’s case, the court is bound to accept as true the evidence led by and on behalf of the plaintiff, unless the plaintiff’s evidence is incurably and inherently so improbable and unsatisfactory as to be rejected out of hand. See: Dannecker v Leopard Tours Car & Camping Hire CC (I 2909/2006) [2015] NAHCMD 30. An application for absolution from the instance should be granted sparingly. The court must generally speaking, be shy, frigid, or cautious in granting this application. But when the proper occasion arises, and in the interests of justice, the court should not hesitate to grant his application. See: The Board of Incorporators of The African Episcopal Church v Kooper (I 3244/2014) [2018] NAHCMD 5 (24 January 2018) The issue at this stage of the proceedings, is not whether plaintiff has proved his case, but whether there is evidence on record that supports his claim. It is true that in practice the courts loath to decide upon questions of fact without hearing all the evidence from both sides and are usually inclined to proceed with the trial. It is however equally true that there is no wisdom in proceeding with the trial when clearly nothing the defendant will say in his or her HH 08/21 HC 8393/13 defence will change the set of facts established at the close of the case for the plaintiff, facts which, by all means, may never result in the court finding for the plaintiff. Logic would seem to dictate that when that state of affairs has been reached, the court must save time by granting absolution. Application of the facts to the law What is apparent from the evidence at this stage of the proceedings is that the plaintiff is the registered owner of stands 19260 of stand 14908 Borrowdale otherwise known as Borrowdale Race Course, Harare. 1st defendants occupied a portion of the property, the Stallion Bar, through a lease agreement, Ext Y, which expired in 2011, and was not renewed. Notwithstanding the expiration of the lease agreement, 1st defendant remains in occupation of the Stallion Bar. 2nd defendant, in terms of the M. O. U. Exhibit X. occupied another portion of Borrowdale Race Course, known as the Silver Ring area. The evidence at this stage, shows that notwithstanding their occupation of the plaintiff’s premises, defendants are neither paying rent, water, electricity nor rates. Plaintiff have placed evidence before court that the monthly market rental value, for the space occupied by the defendants is US$9 950.00 per month. The defendants have positively refused to pay. The high watermark of defendants’ application is that there cannot be rental payments without a lease agreement. It is argued for the defendants that in the absence of a lease agreement, rentals cannot be awarded. For the plaintiff, it is argued that rent can be awarded in the absence of a lease agreement, as long as the defendants are in occupation of the premises in issue. Advocate Goba, argues that in respect of the Stallion Bar whose lease terminated on the 30 September 2011, and the 1st defendant remained in occupation. She is now a statutory tenant, which means she shall observe and be entitled to the benefit of all the terms and conditions of the original contract of lease. It is contended that 1st defendant must be put to her defence and explain why she is not paying rent of the Stallion Bar. For both defendants, it is contended that by continuing in occupation of the premises, defendants tacitly accept the obligation to pay rent. I am of the view that these are not issues that this court can resolve at this stage of the proceedings. HH 08/21 HC 8393/13 Advocate Magwaliba embarked on a forensic analysis of the plaintiff pleadings in this case, and invited this court to undertake a similar analyse of the plaintiff’s pleadings, the cause of action and the prayers sought. I take the view that this court cannot at this stage of the proceedings, embark on such an analysis, such can be done at the conclusion of the trial. Notwithstanding the alleged deficiencies in the plaintiff’s pleadings, of which I make no finding at this stage, on this facts of this case, this cannot a basis for absolution from the instance. In the premise, I hold the view that the application for absolution from the instance cannot succeed in the present circumstances. In De Klerk v Absa Bank Ltd 2003 (4) SA 315 (SCA) at 321A, the court reasoned as follows on an application for absolution:‘ the question in this case is whether the plaintiff has crossed the low threshold of proof that the law sets when a plaintiff’s case is closed but the defendant’s is not.’ See: Fish Orange Mining Consortium (Pty) Ltd V! Goaseb (I 582/2010) [2018] NAHCMD 154 (8 June 2018). In the light of the legal principles enunciated above, and the evidence on record, I take the view that the necessary threshold has been crossed by the plaintiff in this matter and in the result, the 1st and 2nd defendants should be called to their defence. The defendants have failed to obtain the relief they sought from this court. There are no special reasons warranting a departure from the general rule that costs should follow the result. The plaintiff is therefore entitled to its costs of suit. Disposition In the result, I order as follows: 1. 2. The application for absolution from the instance is hereby dismissed. The 1st and 2nd defendants are ordered to pay the costs jointly and severally, the one paying the other to be absolved. 3. The Registrar shall provide a set-down date for continuation of the trial. Dube-Manikai & Hwacha, plaintiff’s legal practitioners Mawere & Sibanda, defendants’ legal practitioners