1

HH 88-2009
HC 3861/08
`ALLIANCE FRANCAISE
versus
ADRIEN ORFORD
and
LESLEY ORFORD
(T/A ALO ALO RESTAURANT)

HIGH COURT OF ZIMBABWE

PATEL J

Opposed Application

HARARE, 21 May and 1 September 2009

Mr. Chikumbirike, for the applicant

Adv. Uriri, for the respondents

PATEL J: The background to this matter is as follows. On

the 6th of February 2006, the parties herein entered into a lease
agreement to run for a period of 36 months, from the 1 st of January
2006 to the 31st of December 2008, in respect of certain premises
situated in Harare. On the 30th of January 2007, the parties
concluded an addendum to the main agreement, providing for an
option to renew and other incidental matters.
At the beginning of 2008, the applicant prepared a fresh draft
agreement requiring, inter alia, usage of the premises in a manner
that would be complementary to the applicant’s cultural activities.
This draft was rejected by the respondents on the ground that it was
an entirely different lease arrangement with more onerous
obligations.
On the 27th of March 2008, the applicant’s lawyers gave the
respondents notice to vacate the premises on the 31 st of December
2008, indicating that the applicant intended to utilise the premises
for its own use.
In June 2008, the applicant proposed an increase in monthly
rental from $4 trillion to $60 trillion. The respondents in turn
consulted various estate agents and tendered $25 trillion as being a
fair and reasonable rental.
 2
HH 88-2009
HC 3861/08
In July 2008, the applicant filed the present application
seeking an order requiring the respondents to vacate the premises
by the 31st of December 2008. The respondents resisted the
application on the ground that the applicant did not want the
premises for its own use but for some other ulterior purpose, viz. in
order to lease the premises to another party and/or accrue higher
rentals.
For reasons which are not clear from the record, the
applicant’s lawyers only applied in February 2009 for the matter to
be set down for hearing. Moreover, they have not applied to amend
the relief that was originally sought, viz. eviction of the respondents
by the 31st of December 2008.

Duration of Lease
The original lease agreement of 2006 was filed of record as
Annexure A to the applicant’s founding affidavit. In terms of the
Second Clause, the lease “shall continue to run for the term or
period of 36 months on and up to 31 st December 2008”. The Third
Clause stipulated the monthly rent for the first 12 months.
Thereafter, the rent was to be reviewed “in line with current market
trends” (as per the original typed wording) or “monthly in line with
inflation” (as per the manually amended version).
At the hearing of this matter, Mr. Chikumbirike attempted to
disown the latter version with the specious explanation that the
manual amendment was in anticipation of what was to be
incorporated in the revised draft agreement. However, given that
the amended version was in fact filed by the applicant itself, and
cited without any qualification in the founding affidavit as the
governing lease agreement, it must be the version that must be
adopted for the purposes of this application.
Under the common law, an essential ingredient of a
contractual lease is that the amount of the rent payable by the
lessee must be fixed or that some definite mode of fixing the rent
 3
HH 88-2009
HC 3861/08
must be agreed upon. In other words, the rental must be in an
ascertained or ascertainable amount. See Totoyi v Ncuka 1909 EDC
115. See also Film and Video Trust v Mahovo Enterprises (Pvt) Ltd
1993 (2) ZLR 191 (H) at 195, citing Brown v Hicks (1902) 19 SC 314
at 315 & 316:
“Until the rent, or some definite mode of fixing the rent,
is agreed upon, there is no contract of letting and hiring of the
house. The letting of services stands upon the same footing.”

In this context, an objective indicator determined by a public

body would afford a definite mode of fixing an ascertainable rent. In
the instant case, I am of the view that the stipulated review of the
rental “monthly in line with inflation”, in accordance with the
inflation index compiled and published by the Central Statistical
Office, provides an objective indicator and definite mode for fixing
the monthly rent. It follows that the duration of the contractual lease
between the parties was a term of 36 months, expiring on the 31 st of
December 2008. Thereafter, inasmuch as the respondents did not
exercise their option to renew the lease, the contractual lease
lapsed and was converted into a statutory tenancy under Part IV of
the Commercial Premises (Rent) Regulations 1983.

Termination of Lease
The next question is whether the contractual lease was
terminable by notice given before the date of its expiry – as was
done by the applicant in March 2008. The lease agreement itself, as
read with the addendum of 2007, does not entitle the applicant to
terminate the lease by notice or otherwise, except on the ground of
material breach, at any time before the expiration of the fixed term
of 36 months.
In this regard, Mr. Chikumbirike contends that at common law
the lessor is entitled to give notice of termination to coincide with
the date of expiration so long as he respects the fixed term of the
lease. No authority was cited for this spurious proposition and I am
unable to find any merit in it for the simple reason that a fixed term
 4
HH 88-2009
HC 3861/08
lease terminates ipso facto upon the expiry of the fixed term,
without the need for any notice of termination from either party. The
giving of notice to terminate so as to coincide with the date of
expiry of the lease is legally pointless and practically futile.
In the instant case, Mr. Chikumbirike’s assertion is rendered
even more untenable by dint of the option to renew granted to the
respondents. In terms of the Fourth and Sixth Clauses of the lease
agreement, as substituted by the addendum, the respondents had
the option to renew the lease for a further period of 36 months by
giving written notice of their intention to do so no later than 3
months prior to the 31st of December 2008. This option, subject only
to the satisfactory performance by the respondents of their
obligations in terms of the lease, further precluded the applicant
from terminating the lease before the expiry of its fixed term.
It follows from the foregoing that, except for material breach
of the lease agreement by the respondents, the contractual lease
between the parties was not terminable by the applicant by notice
given at any stage prior to the expiration of the fixed period of 36
months. It also follows that the purported notice of termination
given by the applicant in March 2008 is a nullity with no legal force
or effect insofar as concerns the duration of the lease in casu.

Statutory Tenancy
As I have already stated, the respondents did not duly
exercise their option to renew the lease before the expiry of the
contractual lease on the 31st of December 2008. Therefore, as from
the 1st of January 2009, they became statutory tenants of the
demised premises under Part IV of the Commercial Premises (Rent)
Regulations 1983 (S.I. 676/1983), as amended.
Section 22 of the Regulations restricts the ejectment of
statutory tenants and provides as follows:
“(1) For the purposes of subsection (2), “rent due”, in relation
to commercial premises, means—
 5
HH 88-2009
HC 3861/08
(a) where the determination of a fair rent in terms of
Part II is in force in respect of premises, the rent fixed
thereby, as varied from time to time in terms of that
Part; or
(b) in any other case, the rent due in terms of the lease.
(2) No order for the recovery of possession of commercial
premises or for the ejectment of a lessee therefrom which is
based on the fact of the lease having expired, either by the
effluxion of time or in consequence of notice duly given by the
lessor, shall be made by a court, so long as the lessee—
(a) continues to pay the rent due, within seven days of
due date; and
(b) performs the other conditions of the lease;
unless the court is satisfied that the lessor has good and
sufficient grounds for requiring such order other than that—
(i) the lessee has declined to agree to an increase in
rent; or
(ii) the lessor wishes to lease the premises to some
other person.”

Section 23 sets out the rights and obligations of statutory

tenants and governs the giving of notice by lessors and lessees as
follows:
“A lessee who, by virtue of section 22, retains
possession of any commercial premises shall, so long as he
retains possession, observe and be entitled to the benefit of
all the terms and conditions of the original contract of lease,
so far as the same are consistent with the provisions of these
regulations, and shall be entitled to give up possession of the
premises only on giving such notice as would have been
required under the contract of lease or, if no notice would
have been so required, on giving three months notice:
Provided that, notwithstanding anything contained in
the contract of lease, a lessor who obtains an order for
recovery of possession of the premises or for the ejectment of
a lessee retaining possession as aforesaid shall not be
required to give any notice to vacate to the lessee.”

Section 24 prohibits the unlawful removal of property or any

obstruction in the use of leased premises and stipulates that:
“No lessor of commercial premises shall—
(a) without a lessee’s consent and without reasonable
excuse, cause the removal from the premises of any
property belonging to the lessee; or
(b) prevent a lessee from using or occupying the
premises;
 6
HH 88-2009
HC 3861/08
unless he has obtained an order of court for the removal of
such property, if appropriate, or for the recovery of possession
of the premises or the ejectment of the lessee therefrom.”

Notice to Vacate
For present purposes, the overall effect of these provisions is
that, subject to compliance with the terms of the expired lease
agreement, the respondents are entitled to remain in occupation of
the premises and use them without obstruction, unless and until
they voluntarily vacate the premises or are lawfully removed
therefrom in accordance with the Regulations. The applicant has
now approached the Court seeking the eviction of the respondents
from the leased premises. The question that arises is whether or not
it is required to give the respondents, who are now statutory
tenants, any notice to vacate the premises before seeking their
ejectment by the Court.
Section 23 of the Regulations is ambiguously unclear in this
respect. While it might be correct to infer that no notice to vacate
would be required where the lessee fails to observe the terms and
condition of the contractual lease, the position where the lessee
religiously complies with his lease obligations is not at all clear. The
proviso to section 23, in its express terms, only absolves the lessor
from having to give notice to vacate where he has already obtained
an order for recovery of the premises or for the ejectment of the
lessee. The necessary implication, in the case of the good statutory
tenant, is that the lessor is obliged to give him notice to vacate
before approaching the Court for an eviction order. The period of
such notice, again by implication, would be such notice as would
have been required under the lease agreement or, if no notice
would have been so required, a period of three months notice.
In the present case, as I have already stated, the purported
notice of termination given by the applicant in March 2008 is a
nullity insofar as concerns the duration of the lease. It follows that
the applicant has not given the respondents any valid notice to
 7
HH 88-2009
HC 3861/08
vacate. Therefore, if the position postulated above is correct, it also
follows that the applicant is precluded from seeking the eviction of
the respondents and that the present application is premature and
should be dismissed on that ground alone. In any event, for the
reasons that follow, I do not deem it necessary to definitively decide
this point and am inclined to leave it open for present purposes.

Ejectment from Premises

The final issue for determination is whether or not the
applicant has good and sufficient grounds for requiring the eviction
of the respondents as envisaged in section 22(2) of the Regulations.
In Checkers Motors (Pvt) Ltd v Karoi Farmtech (Pvt) Ltd 1986
(2) ZLR 246 (SC), it was held that it is proper to attach substantial
weight to the fact that the owner reasonably requires the use of the
premises for his business operations. However, it was left open as to
whether the hardship the tenant will suffer as a result of eviction
ought to be taken into account in determining the issue of good and
sufficient grounds for eviction.
In Mobil Oil Zimbabwe (Pvt) Ltd v Chisipite Service Station
(Pvt) Ltd 1991 (2) ZLR 82 (SC), it was held that where a landowner
wishes to use the premises for his own purposes, the court enquires
only as to his bona fides and not as to the reasons why he decided
to use the premises for his own purposes. On the facts of that case,
the decision by the appellant to use the premises for its own
purposes was a legitimate and bona fide commercial decision which
constituted good and sufficient cause for the purposes of the
Regulations.
In Film and Video Trust v Mahovo Enterprises (Pvt) Ltd 1993
(2) ZLR 191 (H), the court adopted a robust approach in favour of
the lessor’s position. It was held that an order for the ejectment of a
statutory lessee may be made once the lessor satisfies the court
that it is has good and sufficient grounds to require an order for
ejectment. The needs of the lessee are irrelevant in this regard.
 8
HH 88-2009
HC 3861/08
While ejectment may not be ordered if the lessor’s grounds for
requiring it are that the lessee has declined to accept an increase in
rent or because the lessor wishes to lease the premises to another
person, the fact that other grounds for requiring ejectment may be
motivated by one of those factors is immaterial as long as the other
grounds are genuine. It was further held that all that the lessor is
required to do is assert his good faith and bring some small
measure of evidence to demonstrate the genuineness of his
assertion.
Turning to the instant case, the reasons proffered by the
applicant for recovering possession of the premises are set out in
the letter of the 27th of March 2008 from the applicant’s lawyers to
the respondents’ lawyers. The letter refers to the revised draft
agreement proposed by the applicant but rejected by the
respondents. At page 2 of the letter, it is stated as follows:
“That being the position, my clients are of the view that
since there does not appear to be any co-operation on the
part of your client in relation to certain fundamental aspects,
especially aspects that are covered in the preamble to the
proposed lease agreement, in relation to the complimentary
[sic] nature which they feel your client’s restaurant must give
in relation to the enhancement of the cultural perspectives
which it exists for, my clients do hereby give your clients
notice that at the expiry of the period that relates to the so
called lease agreement, that is the 31st of December 2008,
they intend to utilise the premises that your clients presently
lease for own use. ……..
…….. Please note that the reason for wanting to
terminate the statutory tenancy is not because my clients
require an increase in rent, which however in respect of any
business, is inevitable and in any event, is provided in terms
of the invalid lease agreement but because of the failure to
come to an agreement in respect of certain terms that relate
to complimentary [sic] use of the premises by them in relation
to their activities.
It is not intended that they be leased to any other party,
but they will be exclusively used by them as provided for in
terms of the Rent Regulations.”
 9
HH 88-2009
HC 3861/08
It is also necessary to consider the applicant’s averments in its
founding and answering affidavits. At page 4 of the founding
affidavit, it is stated that:
“8. Consequently for Applicant to utilise the premises by
the 31st of December 2008, and to carry out extensive
renovations necessary for it to utilise the premises, Applicants
[sic] seek a declarator, in terms of section 14 of the High
Court Act, that the Lease Agreement between the parties be
declared invalid for the reasons that appear in Annexure “C”.
9. …….. I must emphasise and reiterate that the
decision to terminate the Agreement (statutory tenancy) is
based on the sincere and bona fide desire by Applicant to use
the premises for own use.”

In the answering affidavit, the above averments are repeated

as follows:
“3. The Applicant have [sic] contended that it requires
the premises for its own use. It intends to renovate the place
as well. ……..
4. The Applicant therefore persists with its claim,
reiterating that it requires the premises for its own use, and
the desire to do so is not motivated by any of the grounds
prohibited by the Rent regulations.”

As averred in its affidavits, the applicant’s unwavering

assertion is that it requires the premises for its own use. However,
neither in the affidavits nor in the letter of March 2008 does the
applicant disclose the specific purpose for which it intends to utilise
the premises. While this reticence does not necessarily preclude the
relief that the applicant seeks, it does render very questionable the
bona fides of its declared reason for evicting the respondents. More
significantly, what the applicant asseverates in its affidavits is
patently belied by the contents of the letter of March 2008. In
particular, the principal and avowed reason for terminating the
lease is “because of the failure to come to an agreement in respect
of certain terms that relate to complimentary [sic] use of the
premises”.
This, it would appear, is the real reason for seeking the
ejectment of the respondents. In the present context, this reason in
 10
HH 88-2009
HC 3861/08
itself cannot constitute a good and sufficient ground for evicting the
respondents inasmuch as the original lease agreement does not
oblige the respondents either to provide the complementary cultural
activities in question or to agree to provide such activities in terms
of some future lease agreement. As statutory tenants, the
respondents are merely bound to observe and adhere to the terms
of the expired lease agreement. They cannot be compelled to
assume or comply with obligations that they have not agreed to
perform.
To conclude, therefore, the applicant has failed to
demonstrate the genuineness of its assertion that it seeks to
recover the premises for its own use. The bona fides of that
assertion is negated by the contents of its own lawyer’s letter. It
follows that the applicant has failed to show that it has good and
sufficient grounds for requiring the ejectment of the respondents
from the leased premises. In the result, the application is dismissed
with costs.

Chikumbirike & Associates, applicant’s legal practitioners

Atherstone & Cook, respondents’ legal practitioners