Court name
Harare High Court
Case number
HC 4437 of 2010
Case name
Tobbacco Sales Floor Ltd v Swift Dept Collectores (Pvt) Ltd t/a Rugby Auctions
Law report citations
Media neutral citation
[2011] ZWHHC 111

                                                                                                  

TOBACCO SALES FLOOR LIMITED

versus

SWIFT DEBT COLLECTORS (PVT) LTD

t/a RUBY AUCTIONS

 

 

HIGH COURT OF ZIMBABWE

GOWORA J

HARARE, 22 March and May 2011

 

 

D Halimani,for the applicant

T R Hove,for the respondent

 

 

            GOWORA J: The applicant is the registered owner of a warehouse situate at Tobacco Sales Floor Complex, Gleneagles Road, Harare. The applicant carries on business at the said premises as a tobacco auction floor. On 11 July 2007 the applicant concluded a written agreement with the respondent in terms of which the latter leased from the applicant a portion of the warehouse; to wit an area of 1241.91 square metres. The lease was to endure for a period of three years, commencing on 1 June 2007 and terminating on 31 May 2010. On 14 December 2009 the applicant addressed a letter to the respondent and informed it that it would not be renewing the lease as the premises were required by the applicant for its own use. A further letter was written to the respondent on 29 April 2010 again reiterating its position that it intended to use the area occupied by the respondent and that consequently the lease would not be renewed at the expiry of the lease period.  The applicant contends that it intends to use the premises for its expansion program and that this constitutes good and sufficient grounds for this court to grant an order for the ejectment of the respondent from the premises it is occupying.        

            The respondent denies that the applicant is entitled to an order for its eviction on several grounds. Firstly, it argues that the lease agreement was verbally extended when the applicant accepted payment for rent for the month of June 2010. The respondent also contends that during the currency of the written lease agreement a pattern of behaviour had emerged on the part of the applicant, where each time the applicant considered that there were arrear rentals, the applicant would send a written notice to the respondent requiring it to vacate the premises on the basis of the alleged arrears. Hence, upon receiving the two notices of December 2009 and April 2010 it made the decision that it would not vacate the leased premises.

Secondly, the respondent avers that the applicant’s former Managing Director had  advised it to ignore the notice to vacate and consequently, based on that advice, a decision was made to ignore the notice. The respondent also considers that the reason why the applicant seeks its eviction is because the parties had initially negotiated to set up a partnership in the respondent’s business. This fell through and it is the belief of the respondent that this is the motive for the applicant to actively seek the eviction of the respondent from the premises. The respondent therefore doubts that the applicant is acting in good faith.

Lastly, the respondent contends that there exist disputes of fact such that this court cannot, on the papers decide whether or not the lease was renewed with Mr Mangena and that the court would need to hear from Mr Mangena on the issue relating to the alleged renewal. If the lease was not renewed then the respondent would be a statutory tenant and the applicant would need to show that it was acting in good faith.    

            In answer to the papers filed by the respondent, the applicant filed together with its answering affidavit, an affidavit from the Chairman of the Tobacco Industry Marketing Board. The affidavit was commissioned by an R Gunn whom both parties agree is a member of the board of directors of the applicant. The respondent has therefore in its heads of arguments raised a point in limine challenging the admissibility of the affidavit in question. The   respondent contends that the said Gunn is an interested party in these proceedings and that as such, the affidavit commissioned by him should not considered by this court as Gunn cannot be considered as unbiased. According to the respondent, Gunn has a pecuniary interest in the proceedings before me and consequently the affidavit he commissioned is tainted and should not be regarded.

            Per contra, the applicant contends that by virtue of the provisions of s 3 of the schedule to the regulations, the affidavit is exempted from the prohibition contained in S 2 of the Justices of the Peace and Commissioners of Oaths (General) Regulations , 1998 S.I 183/98. The prohibition contained in s 2 is as follows;

 

“(1) No justice of the peace or commissioner of oaths shall attest any affidavit relating to a matter in which he has any interest.

 

  1. Subsection (1) shall not apply to the affidavits specified in the schedule.”

The schedule to the regulation lists a number of persons who are exempted from  the prohibition contained in s 2 above. The applicant contends that Gunn is covered by the exemption contained in s 3 of the schedule which is to the following effect:

 

“ 3. Affidavits attested to by a person who is neither a legal practitioner nor a member of the Public Service and whose only interest therein arises  out of his employment and in the course of his duty.”

 

Gunn is not a legal practitioner nor is he a member of the Public Service. He is a  director in the applicant. Apart from being a director of the applicant, I have not been given anything to suggest that he has interest in the applicant extending beyond his occupation of a seat on the board of directors. Miss Hove suggests that by virtue of his being a director he has a pecuniary interest in the resolution of the matter as it would be in the interests of the applicant for the respondent to be ejected from the premises.

It is generally accepted that the word interest must be given a limited meaning, and cannot be extended to cover the remote and indirect interest that an employee of an attorney has in the matters dealt with in the attorney’s office.

            Neither counsel addressed the question of the exception as it relates to the director of a company. It must be accepted that a director of a company occupies a position materially different from that of an employee. It is common cause that in this case Gunn is not an executive director of the applicant. According to Cilliers & Benade[1]the mere fact of holding officer as a director creates no contractual relationship between the company and the director. The articles of association of the company also do not create such a relationship. In addition, the occupation by a director of the position of director does not make him an agent of the company, it also does not make him an employee unless he has entered into a separate contract with the company as such.

Gunn is not an employee of the applicant nor could he have attested to the affidavit in the course of his duties. It cannot be the function of directors of the applicant to attest to affidavits. The exception therefore does not apply to him. What remains to be decided is whether or not, as a director of the applicant he can be said to have an interest in the matter before me. 

What is clear and obvious is that the policies of a company are carried out and implemented through decisions made by the board of directors. Being an artificial person the board of directors of a company is its human agency. In the present circumstances it therefore becomes pertinent to determine if the board, of which Gunn is a member, can be said to have an interest such as would disqualify one of them from attesting to an affidavit in a matter in which the company has an interest.

The case before me is not specifically to do with a financial dispute, it is concerned rather with the applicant wishing for the lawful eviction of the respondent from its premises. The board of the applicant would not be performing its functions as a board if it did not ensure that this happens as ultimately the applicant would stand to benefit in the long run from the eviction. In ant event, it is trite that litigation involving a corporate must be authorised by such entity. Gunn as a member of the board would have been one of the people who actually authorised the litigation to evict the respondent. The deponent to the founding affidavit filed on behalf of the applicant could only have done so on the authority emanating from the board. If the board sanctioned it, it therefore stands to reason that Gunn was aware of the litigation to evict the respondent. The reason for the applicant seeking the eviction of the respondent is that it has expectations of an increase in the deliveries of tobacco to its floors. This has a financial benefit, in that it would not make business sense for the applicant to seek to remove a tenant from its premises unless such result would be of financial gain to it in the long run. In any case its business is auctioning of tobacco so an increase in deliveries can only result in more revenue for it.

What constitutes interest has been defined in a number of authorities emanating from South Africa, but not yet in this jurisdiction. It appears settled that interest goes beyond social or ethical interest. Interest in the context of this matter would be synonymous with an expectation of a favourable result from this court. Where the person administering the oath and ultimately commissioning the affidavit has an interest in the contents of the affidavit it is clear that there is an element of bias on the part of the commissioner. Further where one is associated with a party or who filed proceedings in a matter and the person concerned is required to administer an oath to a deponent to an affidavit which has a bearing on the outcome of the litigation brought by the party he has an association with, then clear bias can be said to exist. A commissioner has a duty to ensure that a deponent to an affidavit swears to the truthfulness of the contents of the affidavit. If the commissioner himself is not just acquainted with the facts, wishes them to be placed before the court and wishes that the court has regard to them in the resolution of a dispute, I would suggest that such commissioner has an interest going beyond mere social or ethical interest. The applicant has a proprietary interest to protect, and Gunn, as a director in the Board running the affairs of the applicant cannot be said be said to be a disinterested party.

In the circumstances of this case, is the position contended by the applicant that Gunn does not have an interest in the determination of this matter in his capacity as a director of the company sustainable? The short answer is that he would have an interest and that evidently, a board resolution to the effect that the respondent be evicted had been passed. In my view, Gunn has an interest in this matter and the affidavit that he attested to as commissioner of oaths cannot be given regard to in the determination of the dispute. It has been tainted.

I turn now to the merits of the application. The applicant has sought the eviction of the respondent from its premises on the premise that it has good and sufficient grounds to require the eviction of a tenant. This is relief that is available in a situation where there is no formal lease between the parties and the tenant has by some process become a statutory tenant. The averment is made that the lease between the parties has expired. The applicant did not however, in its founding affidavit refer to the respondent as a statutory tenant.

The respondent contends in argument that this omission is fatal to the applicant’s case as it has sought to establish its case in the answering affidavit. I note, however, that in the opposing affidavit the respondent’s chairman, Lyton Shumba makes the averment in para 11a.4 thereof to this effect:

 

“If the existence of the lease is proved then the question of good and sufficient cause falls away. If the existence of the lease is disproved then we are a statutory tenant and the applicant still has to show that it is acting in good faith and demonstrate good and sufficient cause to evict us.”

 

I find it mischievous therefore for the respondent’s legal practitioners to seek to argue that the applicant had not on its initial application based its claim on the status of the respondent as a statutory tenant. The respondent does not allege or aver that the lease agreement is still extant. Instead, the whole tenure of the opposition is to the effect that the written agreement had expired but that a verbal lease agreement had then been concluded between the parties, but in the event that such lease agreement was not established on the papers, then and in that event the respondent was a statutory tenant and that the applicant had to establish good and sufficient grounds for its ejectment. It is clear therefore that the respondent accepts that the lease agreement signed by the parties on 11 July 2007 expired on 31 May 2010.  

It becomes necessary then to decide whether or not the respondent and the applicant entered into a verbal agreement as contended by the respondent. In para 4a of the affidavit of Shumba it is averred that the lease agreement was renewed with P Mangena the former Managing Director of the applicant. There is no indication of who represented the respondent. The date when the renewal was agreed is also not mentioned. All that is said is that the lease was renewed for a further period of three years and that the rental was set at US$ 600 per month. The deponent states that they were told that they would receive a new written lease agreement shortly thereafter. It never arrived.

The respondent admits that it received a notice from the applicant December 2009 requiring it to vacate the premises at the end of the lease period, but states that the parties were embroiled in a rent dispute wherein the landlord was demanding rent of US $1 200. The respondent was offering US $ 600. The deponent states that by the time the reminder to vacate was sent in April 2010 the respondent had been advised by the Managing Director of the applicant to ignore the notice and pay rentals as the lease had been renewed for a further three years.

In argument, both written and oral, it was the contention of Miss Hove that there are numerous disputes of facts to such an extent that this court cannot decide the matter on the papers before it. The respondent suggests that the matter should be referred to trial so that it can call Mr Mangena, the applicant’s former managing director to give oral evidence as to the dealings between the applicant and the respondent, and specifically for him to come to court and explain why he concluded a verbal lease agreement with the respondent, its terms and why the rental was not increased. The respondent contends further that the applicant cannot confirm or deny the existence of lease, and that the only person who can do this is Mangena who must therefore speak for himself. The respondent also wishes for an opportunity to cross examine him on the issue.    

The applicant strongly denies the existence of any disputes of facts as alleged by the respondent. The applicant contends that where there is an allegation that disputes of fact exist the law is that court, must, if possible take a robust view and common sense approach and not take an over fastidious view of conflicts and must seek to resolve the dispute despite apparent conflict. See Masukusa v National Foods Ltd & Anor 1983(1) ZLR 232 and Zimbabwe Bonded Fibreglass v Peech 1987(2) ZLR 338 (S). In Zimbabwe Bonded Fibreglass v Peech 1987 (2) ZLR 338 (S) GUBBAY JA (as he then was) stated at 339C:

“It is, I think, well established in motion proceedings that a court should endeavour to resolve the dispute raised in affidavits without the hearing of evidence. It must take a robust and common sense approach and not an over fastidious one; always provided that it is convinced that there is no real possibility of any resolution doing an injustice to the other party concerned. Consequently, there is a heavy onus upon an applicant seeking relief in motion proceedings, without the calling of evidence, where there is a bona fide and not a merely an illusory dispute of fact.”   

 

However, before taking a robust view, a court must have concluded or found that in fact there are real or genuine dispute of fact that exist. See Da Mata v Otto 1972 (3) SA 858 and Checkers Motors (Pvt) Ltd v Karoi Farmtech (Pvt) Ltd 1986 (2) ZLR 246 (S).  Although the respondent contends that the applicant was, before embarking on these proceedings, aware that there was a dispute on an alleged renewal of the lease agreement, I am unable on the papers before me to find that that is so. The respondent received two letters written almost five months apart, in which the intention of the applicant to terminate the lease at the expiry of the same was made clear. The respondent did not acknowledge either of them nor did it put the record straight with the applicant, if indeed a verbal agreement had been concluded with Mr Mangena, and express its indignation and make it known that far from the lease expiring at the end of May 2010, the position was in fact that a new lease agreement had been concluded with Mangena. The respondent did not do this. It claims however that it relied on the existence of such verbal lease agreement and that as a result it did not move out of the premises.

The opposing affidavit is devoid of detail on the alleged renewal of the lease agreement, but seems to have focused on the wrangles that the parties had on rent. Despite receiving two notices, one in December 2009 and another in April 2010 clearly spelling out the applicant’s desire not to renew the lease upon its termination, the respondent did not choose to respond. Yet it responded to letters that were raising issues to do with arrear rentals. Prior to the two notices referred to above, the respondent had also received notices from the applicant seeking to terminate the lease agreement. The respondent appears to have responded to some, but ignored others. The notices seem, however, to bear out the contention by the respondent that during the currency of the lease the applicant had sent various notices to the respondent, purportedly seeking the termination, prematurely, of the lease. Certainly the relationship appears to have been far from amicable, but, in my view, the respondent had to show on the papers that after the expiry of the written lease agreement it was renewed verbally as suggested in the opposing affidavit.

The respondent’s failure to respond to the initial letter dated 14thDecember 2009 and the remainder in terms of which it was informed of the termination of the lease is remarkable if viewed against the backdrop of the claim by the respondent that the lease had been renewed verbal with the Managing Director Mr Mangena. One would have expected an immediate response from the respondent categorically stating that the lease had been renewed and a firm refusal to move out based on the alleged renewal. One would have, as well, expected the respondent to have responded to the notices by advising the applicant that it had concluded a verbal lease with the Managing Director and consequently was disregarding the notices, especially in view of the fact that the managing director who had brokered the lease had left the employ of the applicant. This is especially surprising given the respondent’s penchant to respond at every turn to a perceived wrong in the past. It is therefore inconceivable that it would have ignored two notices demanding it vacate the premises on the basis of an expired lease agreement. Instead the respondent did not react, all it did was to pay rent on 1 June 2010.

As part of its papers the respondent annexed papers filed in the magistrates court by both parties. The applicant had filed an application for the eviction of the respondent which application it subsequently withdrew. The respondent had in turn, filed an application for a mandament van spolie after the security guards employed by the applicant had denied access to the respondent’s clients into the premises. In an affidavit deposed to by Lyton Shumba the following statement is made in regard to an alleged verbal lease agreement;

 

“On 1 of June 2010, the applicant paid rentals for the month of June 2010. A copy of the said receipt is annexed hereto as Annexure B. In terms of a verbal lease agreement between the parties, once they accept rent the lease would automatically be renewed for a period of three years.”                    

 

 This statement in my view is very different from the one in the opposing affidavit from the same deponent to the effect that they had renewed the lease agreement with the former managing director. From the statement quoted above, it is clear that the respondent says that the payment of the rent would constitute renewal of the lease agreement. This is a far cry from the averment that the lease had been renewed with Mangena. It is trite that until rent or some mode of fixing the rent is agreed upon there is not contract of letting or hiring premises.

The lack of detail on the alleged verbal lease points to a lack of existence of any agreement between the parties, if the details had been agreed the respondent would have been happy to provide them to the court. I find no evidence that a verbal lease agreement was concluded between the applicant and the respondent and in my view the respondent in the absence of renewal had become a statutory tenant.

            Both parties are correct in arguing that the applicant can only succeed if it proves that good and sufficient grounds exist for the respondent to be evicted from the premises it presently occupies. The applicant is the business of tobacco auction. This entails the acceptance of tobacco from farmers which is then auctioned through the offices of the applicant. The applicant contends that due to an increase in the production of tobacco it finds itself in need of more space to accommodate the upsurge in deliveries to it premises. It is incumbent upon the applicant to establish that indeed thee has been an increase in its business operations such that there is need for the ejectment of not just the applicant but its other tenants from the rented premises.  In considering what a court should have regard to when assessing what amounts to good and sufficient grounds under the regulations BEADLE CJ in Trustees in Mashonaland of the Church of the Province of Central Africa v Timms 1973 (1) RLR 307 (GD) at 312H-313A stated;

 

“The Regulations provide no yardstick as to what a court should regard as sufficient ground for ordering the ejectment of a statutory tenant. The application of this section was considered by the Appellate Division in the case of Tucker v Buchan 1968 (4) SA 809 (RAD). The judgment in that case did not attempt to itemise the grounds which a court would regard as sufficient. The approach of MACDONALD JA, in that case clearly indicates that the court must make a value judgment based on the merits of each particular case, and that this is the manner in which I consider I must approach the this matter.”              

                     

There is no set criteria for determining what amounts to good and sufficient grounds and each case must be decided on its facts. It is easier to assess good and sufficient grounds in a situation where the landlord seeks eviction on the basis that it requires to effect necessary renovations to the premises. In such situation the landlord must show that there is indeed an intention to renovate. In casu, the applicant contends that it requires the premises for its expansion program. The respondent on the hand has suggested that the applicant wishes to terminate the relationship due to the acrimony between the parties over rentals.

Indeed there is evidence on the papers that during the respondent’s occupation of the premises the parties have at times been at loggerheads over the issue of rentals. It is fair to state, however, that their differences never escalated to the point where either party sought to terminate the lease on the basis of their differences over what rental should be payable. The evidence suggests that each time there would be an amicable settlement over the rent dispute. The applicant has not, on the papers before sought the eviction of the respondent formally through court process prior to the middle of 2010. I therefore find it difficult to accept the contention advanced on behalf of the respondent that the motive behind the intent to evict the respondent is due to the parties’ inability to agree on rent over the duration of the lease.

It is correct, as stated by the respondent that the applicant had given the respondent notice on several occasions that it should vacate the premises. The respondent has attached to its opposing papers a number of letters either written by the applicant’s officials or by its managing agents, CBRE, in which notice to vacate the premises prior to the termination of the written lease was given. The running theme in all the letters is that the applicant required the use of the premises for itself. The applicant, in all the letters produced on the record indicated that the premises were required for its expansion program. In the founding affidavit the applicant has sought to explain that prior to 2007 there was a decline in the volumes of tobacco being delivered by farmers and as a result there was no need for the applicant to have use of more space than it was in occupation of. It had in fact excess space. A trend developed where the tobacco deliveries increased leading to a realisation and decision by the applicant that it needed to utilise the leased space.  

            The applicant predicted that for the 2010 tobacco season there would be congestion at its floors which would stretch the facilities and possibly lead to a health hazard. The increased floor space, it contended would go a long way in reducing the delays that tobacco farmers were experiencing in having their produce sold. Apart from making these averments the applicant did not produce any documentation in proof of the same. It was only in answer to the contention by the respondent to the effect that the applicant did not have good and sufficient grounds for its eviction from the leased premises that the applicant then sought to produce documents to prove the alleged increase in deliveries. The applicant has as a consequence attached extracts from newspapers, some of which are dated, others are not. An extract from the Business Digest of September 3 to 9 2010 contains an article which confirmed that as at that date a total of 113.1 million kgs of flue cured tobacco had been sold with a value of US344.2 million at the tobacco auction floors that were operational nation wide. The article indicated that projected total sales were 120 million kgs for the season. An earlier article had projected that the sales from tobacco would rake in US $274 million. The article confirmed that sales of tobacco as at the date of the article, July 10 to 22 2010 had doubled from the same period the previous year.

            The respondent has objected to the attachment by the applicant of the newspaper clippings as well the amplification by the applicant of the projected increase in delivery of tobacco to its auction floors. The respondent has argued that the applicant is seeking to make its case in the answering affidavit as opposed to the founding affidavit. It is suggested in argument, that the applicant did not set out a cause of action in the founding affidavit and that it was only in the answering affidavit that it sought to make out its case.

I am not convinced that the respondent is in fact correct. The respondent has, in its opposing affidavit, disputed that the applicant needs the increased floor space for an expansion program. The respondent did in fact challenge the applicant to provide the court with information as to what percentage of expected tobacco grown was to be delivered to it. The respondent has also challenged the applicant to show that the projected increase in tobacco deliveries would see an increase in deliveries to the applicant itself. I believe that the respondent is being impracticable in seeking an assurance from the applicant that there would be an increase in deliveries to its floors. Unless the licence to auction tobacco has been withdrawn one would expect that any registered or licence tobacco auction can only benefit from an increase in tobacco cropping. There is no suggestion on the papers that any farmer intending to grow and market the crop must first register with an auction floor. It is enough in my view that the applicant has shown that there will be an increase in the production of tobacco.

            In my view the assessment of whether or not there is good and sufficient grounds on the papers presented by the applicant must of necessity look at the bona fides of the applicant. In Union Wine & Spirit Corp Ltd v Ferreira 1948 (2) SA 647 (0) at 651-2 DE BEER J stated:

 

“It is difficult to see what more can ordinarily be required of a claimant than that he should assert his good faith, and bring some small measure of evidence to demonstrate the genuineness of his assertion. He can normally scarcely do more, and it rests with the lessee resisting ejectment to bring forward circumstances casting doubt upon the genuineness of his claim.”

 

I can safely state from a reading of the opposing affidavit, that apart from the alleged rental dispute, the respondent has not brought forth any circumstances that would cast doubt on the genuineness of the claim by the applicant that it requires the premises for its own use. The applicant in its answering affidavit went to great lengths to show how the tobacco deliveries were expected to rise. It has attached clippings from all sorts of newspapers whose running thread on the issue of tobacco is that there has been an increase in production and hence the need for more space at auction floors to accommodate buyers. I cannot see what more the applicant could have done or said to establish good and sufficient grounds for the ejectment of the respondent from the leased premises.

These courts have held that in deciding whether or not a lessor has good and sufficient cause to seek eviction, it is only the position of the lessor that has to be considered, that of the lessee being irrelevant for the enquiry. As discussed above the legislation does not define what good and sufficient cause, but more importantly it only mentions the lessor not the lessee, reinforcing the views by the courts that the position of the lessee is not material. See Mobil Oil Zimbabwe (Pvt) Ltd v Chisipite Service Station (Pvt) Ltd 1991 ZLR 82. It then becomes necessary for the lessee to ‘bring forward’ circumstances casting doubt upon the genuineness of the lessor’s claim. The respondent points to the abortive proceedings in the magistrates court by Portion Muvirimi, the several letters of notice prior to the expiry of the lease period, the letter written in June 2010 seeking legal advice on the way to evict its tenants, and the applicant’s futile attempts at interfering with the respondent’s occupation immediately following the abortive ejectment proceedings as pointers to the applicant’s good faith in seeking its ejectment. Looked at in isolation these factors could indeed point to a lack of good faith on the part of the applicant. However, even taking into account the fractious relationship between the parties over the years, the main theme running through the notices issued by the applicant to the respondent is that it required the premises for its own use. The occasions when there were threats of eviction on the basis of the respondent being in arrears with rent are few. I am convinced that the reason for the ejectment is solely for the wish by the applicant to use the floor space to accommodate tobacco growers.           

            Next it falls for me to consider the length of notice that the respondent must be accorded before it is evicted. The respondent has known from as far back as December 2009 that the applicant required the premises for its use. In April 2010 it was again served with notice that the applicant wished it to vacate by 31 May 2010. The respondent chose not to respond to either notice. Instead, it paid rental in the hope that the applicant would allow the relationship to carry on. The respondent has suggested that a reasonable period of notice for it to vacate would be six months. Apart from the period mentioned in the draft order the applicant has not addressed the question of what would be a reasonable period of notice to be accorded to the respondent in the circumstances. It merely argued that there was no basis for granting the applicant a period of six months notice

            The respondent is in business and would appear to have been in occupation of the premises for quite some time. It requires time to locate space adequate for its purposes and I would assume that would be no mean feat. The applicant has not suggested that the tobacco season will start earlier than January or February in any given year. In deciding what notice to give to a lessee a court must not just consider the needs of the lessor but must also assess the hardship likely to be suffered by the lessee if it is evicted from the premises. It is a value judgment based on all the equities of the case. I am entitled to take into consideration the difficulties that the respondent is likely to encounter in securing accommodation suitable for its purposes. It seems to me that a period of six months to allow the respondent to find appropriate accommodation, given the length of time it has been in occupation would not unreasonable or an inordinate period. The applicant has itself, not advanced any argument to the court alleging any prejudice it would suffer were the respondent allowed a period of six months to vacate the premises.  In addition the lease agreement which governed the parties’ relationship itself provided for a notice period of six months. If the respondent were ejected immediately as required by the applicant hardship will be caused to it. I will therefore be guided by the notice period provided in the lease and require the respondent to vacate within that period.

In the premises I find that the applicant has established that it has good and  sufficient grounds to have the applicant evicted from its premises and an order to that effect will issue. Accordingly an order will issue in the following terms:

        IT IS ORDERED THAT:

  1. The respondent and all those claiming occupation of through it shall vacate the premises situate at Tobacco Sales Floor Complex, Gleneagles Road within six months from the date of service of this order.
  2. The respondent shall pay the applicant’s costs at a scale as between legal practitioner and client.

 

 

 

Wintertons,applicant’s legal practitioners

Hove & Associates,respondent’s legal practitioners

 



[1]Corporate Law  3rdEdition p117