1

HB

THE FACTS

2. The respondent sued out a summons against the appellant seeking an order of his eviction from Flat 5 and other ancillary relief. In the particulars of claim the respondent averred that on 14 July 2022 she entered into a lease agreement with the appellant in respect of Flat 5. The appellant agreed to pay monthly rentals in the sum of US$250.00 on or before the first day of each month and undertook to pay all operational costs on a pro-rata basis. The respondent averred further that the appellant breached the lease agreement in that he fell into rent arrears in the sum of US$800.00 and operating costs in the sum of ZW$41 407.89. The respondent prayed for judgment as per the summons.

3. In his plea the appellant admitted that the parties entered into a lease agreement in respect of Flat 5 and rent was agreed at US$250.00 per month. He admitted that in terms of the agreement he had to pay his pro rata share of operating costs but contended that the respondent in breach of the agreement was demanding that he pays for the whole Sanlee Court. He averred that Sanlee Court is occupied by six tenants and his share of the operating costs should be of the total statement. He further disputed that he had breached the lease agreement and attributed his late payment of rent to the conduct of the respondent's agent who refused to accept payment in RTGS dollars and insisted on payment in United States currency. He disputed arrears for both rent and operating costs. He disputed liability to pay costs and collection commission and sought that the claim be dismissed with costs.

THE EVIDENCE

4. At the trial the respondent led evidence through a single witness, one Rodwell Mbirimi a property manager at Bankable Real Estate the managers of the property. The manager testified that the appellant is a tenant at Flat 5. He produced a lease agreement which was received in evidence as an exhibit. His evidence was that the appellant was in rent arrears in the sum of US$800.00 and operating costs in the sum of ZWL$41 408.00. The witness produced into evidence a rent account reconciliation which shows that as at September 2022 the appellant was in arrears in the sum ofUS$800.00. Further he produced a detailed operating costs account showing that the appellant was in arrears in the sum of ZWL41 407.89. On 16 August 2022 the witness sent an e-mail to the appellant informing him that his rent account was in arrears in the sum ofUS$800.00. The respondent promptly replied and apologized for the inconvenience and stated that he was working on the payment and would clear it soon. Invoice No. 305 shows that the April 2022 rent for US$250.OO was paid in ZWL at the rate of US$1=ZWL138-20. The total rent in ZWL was $34 550.00, and on 29 March 2022 respondent made two payments of ZWL17 400.00 each. The witness further testified that the appellant was charged operating costs of the floor area he was leasing. He was not charged operating costs for the whole Sanlee Court. The building has six tenants and the appellant is charged 1/6 of the total operating costs invoice.

5. Under cross examination the witness stated the Council bill is for the whole building and each tenant pays 1/6 of the total bill. Council bills are received at the end of the month and if there is a delay, an estimate is done for the purposes billing the tenants and when the bill is received then a reconciliation is made. He testified further that the invoice sent to the tenants is self-explanatory and shows how the amount is calculated. There are some charges e.g., security charges which are fixed. He persisted that the appellant was in arrears both in the rent and operating costs account.

6. The appellant testified and incorporated into his evidence his synopsis of evidence. His evidence was that he had a valid lease with the respondent. The plaintiffs agent refused to accept payment in RTGS, insisting on United States dollars, which caused him to fall into rent arrears. He said he overpaid rent by US$66.00 and paid 100% of the operating costs instead of his portion of 17% resulting in him paying RTGS43 230.00. Under cross examination he conceded that from May 2022 to August 2022 he should have paid rentals in the sum of US$IOOO.OO but paid US$200 leaving arrears in the sum ofUS$800.00. He conceded that in the email he apologised for the accrued arrears and did not mention that the agent refused RTGS. He did not mention that he was threatened with eviction if he insisted to pay in RTGS. He conceded further that he had previously paid in RTGS. He further conceded that from a council bill of $30 817.09 he paid $5 136.18 which was 1/6 of the bill representing his pro rata payment.

THE FINDINGS OF THE COURT A OUO

7. After a contested trial, the court a quo rejected the appellant's defence that the respondent's agent refused to accept payment in local currency. It noted that the appellant once paid in local currency and it was accepted, and he had the agent's account number and he could have easily made a transfer. The court further found that the appellant sent an e-mail acknowledging the debt and seeking time to make a payment. The court further found that the lease required the appellant to pay rentals in the sum ofUS$250.00 by the 7 of every month, and that as at August 2022 the appellant was in arrear rentals in the sum ofUS$800.00 and that this was a breach of the lease which warranted the respondent to cancel the agreement. Accordingly, the court cancelled the lease and ordered the appellant and all those claiming the right of occupation through him to vacate Flat 5.

8. In respect of the appellant's challenge that he was billed 100% of the operating costs, the court a quo found that the appellant's version was not true. The court noted that in terms of the contract the appellant was liable to 1/6 of the operating costs, and the statement showed that he was billed 1/6 of the costs. The court further found that the appellant was liable to pay the operating costs as claimed by the respondent. The court a quo further found that in terms of the lease agreement the appellant was obliged the pay interest on all arrears.

9. On 6 January 2023 court a quo made the order couched in the following terms:

   1. "The lease agreement between the plaintiff and defendant, due to the defendant's breach of failure to pay rentals be and is hereby cancelled.

   2. The defendant and all those claiming occupation through him be and are hereby evicted from Flat 5 Sanlee Court, 39 JMN Nkomo Street, Bulawayo. iii. The defendant make payment of the following amounts: a. Outstanding rentals of US$800.00 or equivalent thereof in local currency at interbank rate prevailing on the day defendant makes payment.

      2. Outstanding operating costs of ZW$41 407.89.

      3. Interest in terms of clause 32.4 of the parties' lease agreement.

      4. Holdover damages equivalent to the monthly rentals ofUS$250.00 (inclusive of VAT) or equivalent thereof in local currency at the interbank rate prevailing on the day defendant makes payment, with effect from August 2022 to date of full eviction together with accrued operating costs if any are due.

      5. Costs of suit."

PROCEEDINGS BEFORE THIS COURT

[10] The appellant was aggrieved by the decision of the court a quo. He, thus launched this appeal on the following grounds:

ISSUES FOR DETERMINATION

[11] At the commencement of the hearing, the appellant abandoned grounds of appeal 1 and 2. It seems to me, on a consideration of the grounds of appeal and the submissions made before this court that the real issue between the parties is whether the court a quo correctly found that the respondent had proved her case as required by the law.

SUBMISSIONS BEFORE THIS COURT

12. In the written heads of argument submitted in support of the appeal the evidence presented before the court a quo shows that the appellant made numerous payments to the respondent after he was allowed to make payments in RTGS dollars. The court a quo is said to have accepted annexures showing payments made by the appellant. The court a quo is criticised for the alleged failure to factor into the equation the amounts paid by the appellant and simply confined itself to the fact that at some point the appellant acknowledged indebtedness in the sum of US$800.00. It was contended that the court failed to consider the payments made after the appellant admitted owing the sum ofUS$800.00. It was further submitted that the court did not calculate the amount owed by the appellant but simply granted the claim as per the summons. In oral submissions the appellant submitted that he made an over payment to the respondent i.e., in US$66,00 and $43 000 RTGS. The appellant prayed that the appeal succeeds.

13. In written heads of argument counsel for the respondent had taken a point in limine that the grounds of appeal were not clear and concise. This point was not persisted with in oral argument. On the merits the respondent submitted that the appellant fell into arrears from June 2022 and admitted before the court a quo that at the time of the issuance of the summons he was in arrears in the sum ofUS$4800.00 and that he was previously allowed to make payment of rentals in RTGS. The respondent submitted further that the building had six tenants and the appellant was required to pay 1/6 of the operating costs. He was not, as he alleges, required to pay 100% of the operating costs. Regarding holding over damages, it was contended that the appellant held onto the property and the court a quo ordered him to pay damages equivalent to the monthly rent in the sum of US$250.00, not US$800.00 as contended by the appellant. The respondent submitted that the appeal be dismissed with costs.

DID THE APPELLANT BREACH THE LEASE AGREEMENT

14. A tenant has no right to occupy the leased property save in return for payment of rent. See Altem Enterprises (Pvt) Ltd v John Sisk and Sons (Pvt) Ltd S C 4/2013. If the tenant fails to pay rent, then the landlord would be entitled to cancel the lease immediately. In fact, a tenant who is not paying rent in terms ofthe lease agreement is in unlawful occupation ofthe property. In Supline Investments (Pvt) Ltd v Forestry Commission 2007 (2) ZLR 280 (H) at p 281 the court stated thus:

"A tenant has an undisputed obligation to pay rental for property that he hires from the landlord. That is the sine qua non for his continued occupation of the leased property. He has no right to occupy the landlord's property save in return for payment of rent. Where the tenant disputes the amount of the rentals chargeable for any premises, in my view, that challenge does not absolve the tenant from paying any rentals at all. The minimum that the tenant must pay is the amount that it contends represents fair rentals for the premises. This, the tenant must pay to avoid being ejected on the basis of nonpayment of rentals even if its challenge to what

constitutes fair rental is subsequently validated. At most, the tenant can pay the disputed amount and claim or be credited with the difference once its contentious as to what constitutes fair rentals are validated."

14. In casu the summons was issued on 26 August 2022. The rent account reconciliation shows that as at the date of issuance of summons the appellant was in rent arrears in the sum of US$800.00. He had not paid rent for the months of May, June, July and August resulting in arrears. He paid US$IOOO. 00 and then paid US$200.00 leaving a balance of UD$800.00. Under cross examination the appellant admitted that indeed as at August 2022 he was in rent arrears in the sum of US$800.00. The appellant's submission that he fell into arrears because the respondent's agent refused to accept RTGS insisting on United States dollars cannot be correct. This is so because he paid the April 2022 rent in RTGS, and in his email dated 16 August 2022 he apologized for falling in to arrears and said he was working on making the payment, he faced a difficulty caused by a break-in at the shop resulting in thefts of money and other items. He did not say he fell into arrears because the agent refused to accept payment in RTGS. Therefore, contention that he fell into arrears because of the refusal to accept RTGS was just an afterthought. In terms of the lease agreement failure to pay rent on the stipulated timeline warrants the cancellation of the agreement. See Rolen Trading (Private) Limited v Parkside Holdings (Private) Limited SC 106/22. At the moment he fell into arrears with his rent payment he became an unlawful occupier of Flat 5. In the circumstances, the court a quo correctly found that the respondent lawfully cancelled the lease agreement, and the appellant had no lawful right to continue to occupy the Flat 5. Thus, the respondent was entitled to an order confirming the cancellation of the lease and eviction of the appellant from the leased premises.

[16] The appellant contended that the court a quo misdirected itself in granting the claim of US$800.00 towards the rentals when he had fully paid all the arrears. This argument is untenable. I say so because the court a quo accepted the rent reconciliation produced by the respondent. And it is trite that an appellant court seldom interferes with factual findings of the lower court. It can only do so where such findings are clearly unreasonable and not supported by the facts. See Bakari v Total Zimbabwe (Pvt) Ltd SC 226/16; Barros v Chimponda 1999 (1) ZLR 58(S). On the recorded evidence I have no basis to say the court a quo was wrong in accepting the rent reconciliation produced by the respondent. The reconciliation clearly shows that as at 26 August 2022 the date of issuance of summons the appellant was in rent arrears in the sum of US$800.00. The court a quo cannot be faulted in granting judgment in the amount claimed in the summons when it was the amount owed as at the date of the summons.

17. The appellant also attacks the order of holdover damages. A claim for holding over damages as stated in Balvant Patel t/a Reliable Hardware v C.A Angelos (Pvt) Ltd HMA44-20 is based on a breach of the contractual obligation to give vacant possession of the property on termination of the lease agreement. In casu the appellant remained in occupation after 26 August 2022, therefore by operation of Clause 35 of the Lease he was obliged to pay holding over damages. The court a quo ordered payment of holding over damages in the sum of US$250.00 per month. The amount of US$250.00 is the prejudice the respondent suffered on a monthly basis caused by the appellant's failure to vacate Flat 5 in August 2022. He had to pay this amount until the date of full eviction. This cannot be faulted.

18. The appellant contends that he was charged operating costs for the entire building. I do not agree. The evidence is clear that he was charged 1/6 or 17% of the operating costs of the building. And this represented his share of the lettable area. He was ordered to pay ZWL $41 407 89, which is 1/6 of the total bill of the operating costs. This in accordance with the terms of the lease agreement and cannot be faulted.

19. My view is that if a tenant at execution stage is levied more than it owes in rent arrears, operating costs and holdover damages it cannot challenge these issues by way of an appeal. These issues must be taken up with the court of first instance, this can, for example, be way of an application for stay of execution. This is so because it is the court of instance that must look at its judgment and the amounts paid and determine whether the payments have liquidated the debt in full. This cannot be the function of an appeal court. Moreso, in that such would involve

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considering payments and other evidence made after the date of the judgment. In the circumstances, the submission by the appellant that at execution stage he had liquidated the amounts owing in full, is not for the appeal court to determine.

DISPOSITION

[20] In general, the appellant's submissions represented an attack on the cogency of the trial court's judgment without reference to the evidence on record or to the exhibits produced by the respondent. He merely referred to his rent reconciliation statement which was rejected by the court a quo. Our attention was not directed to any evidence which the trial court had overlooked or incorrectly understood. The court a quo made factual findings in arriving at the decision to allow the respondent's claim. It is a settled principle that this court will not easily interfere with factual findings made by a lower court unless the findings are grossly unreasonable. see ZINWA v Mwoyounotsva 2015 (1) ZLR 935 Hama v NRZ 19960) ZLR 664 (S); Reserve Bank ofZimbabwe v Corrine Granger andAnother SC 34/01); R v Dhlumayo & Another 1948 (2) SA 677 (A) at 705-706; S v Naidoo 2003 (1) SA 347 (SCA) para 26; Chioza v Siziba SC 16/11. None of the findings of the court a quo can be faulted. It is for these reasons that this appeal must fail.