Touch the Sky (Pvt) Ltd and Anor v Modern Motors (Pvt) Ltd (HC 3229 of 2004) [2004] ZWBHC 121 (8 September 2004)

Judgment No. HB 121/04 Case No. HC 3229/04 TOUCH THE SKY (PVT) LTD and MUSA MANDAZA versus MODERN MOTORS (PVT) LTD IN THE HIGH COURT OF ZIMBABWE CHIWESHE J BULAWAYO 26 AUGUST & 9 SEPTEMBER 2004 Ms P Dube for applicants A Sibanda for respondents Judgment CHIWESHE J: The applicant sought on an urgent basis a provisional order couched as follows: “A. Terms of the final order sought 1. That the respondent and all claiming through it be and are hereby estopped and interdicted from in any way whensoever or howsoever, directly or indirectly evicting the applicants from the leased premises known as Modern Service Station, corner 11th Avenue/H. Chitepo Street Bulawayo, without a court order or in terns of the lease and if such eviction has already been carried out the respondent be and is hereby ordered to reinstate the applicants into the undisturbed, peaceful possession and control of the leased premises at the respondent’s own expense. 2. That the respondent be and is hereby ordered to pay the costs of this application on an attorney-client scale. HB 121/04 B. Interim Relief sought 3. 4. C. 5. That pending the determination of this matter the applicants are granted the following relief: The applicant’s possession be and is hereby restored. That the respondent be and is hereby immediately interdicted and estopped from in any way whensoever and howsoever, directly or indirectly from interfering with the applicant’s possession, occupation and control of the leased premises known as Modern Service Station, corner 11th Avenue/H. Chitepo Street Bulawayo. Service of the Application and Provisional Order That a copy of this provisional order and court application shall be served on the respondent by the Deputy Sheriff, Bulawayo or her lawful assistant on the respondent or on any responsible person found present at the address for service.” The respondent is the owner of Modern Service Station situated at the corner of 11th Avenue and Hebert Chitepo Street, Bulawayo. In terms of a lease agreement the respondent leased to the first applicant represented by the second applicant the said service station. The lease is for a period of three years reckoned from the 1st April 2003 and subject to renewal. Following a dispute concerning the quantum of rentals due the respondent proceeded on 18 August 2004 to shut down the premises by confiscating all the keys to the service station. In that way the applicant has been effectively locked out and is on that account unable to carry out his business as a fuel retailer. HB 121/04 It is common cause that the respondent acted without a court order. For that reason the respondent is liable to an order of spoliation. The facts thus far are clear and indisputable. The respondent argues that it was justified in its action because it had been defrauded in the manner in which the applicant had understated his fuel sales upon which in terms of the lease agreement depended the quantum of the rentals payable. Annexures “A” (tending to show the “correct” quantities of fuel sold) and “B” purporting to be an admission by the applicant of his indebtedness to the respondent in that regard have been filed to prove the applicant’s alleged fraudulent conduct. The applicant denies any wrong doing and puts the applicant to the proof thereof. However, as correctly pointed out by Miss Dube (for the applicant) whatever the respondent’s complaints may be and however genuine the respondent’s conduct amounts to taking the law into its own hands. In the absence of consent on the part of the applicant to cancel the agreement of sale and vacate the premises the respondent’s remedy is in an application to this court seeking cancellation of the lease agreement and eviction of the applicant. Indeed the respondent concedes that such is the normal procedure in cases of this nature. Further the respondent has indicated it is in the process of filing such an application. Until such is heard and granted, the respondent’s hands are tied. Mr Sibanda (for the respondent) attempted to argue in effect that there may be instances when a party may be justified in taking action against a tenant without recourse to the courts. In the instant case he argued that because the applicant had acted fraudulently to the respondent’s prejudice the respondent was entitled to take the action it took in order to protect its interests. Mr Sibanda was however unable to HB 121/04 quote any authority in support of this novel contention. If there be any room for he argument advanced by the respondent it can only find sympathy where it is shown that failure to act would have resulted in some kind of irreparable harm to the aggrieved party and of such a magnitude as would render recourse to the courts in the first instance untenable. That has not been shown to be the case in this matter. The applicant sought to amend its interim prayer to include a clause restoring the applicant’s peaceful possession of the premises. The objection raised by the respondent is without merit firstly because the nature of a spoliation order is always two fold – to interdict the respondent from disturbing the applicant’s peaceful possession and where he has been dispossessed to restore such peaceful possession; secondly it has not been shown in any event that such amendment is unduly prejudiced to the respondent. It was for these reasons that I granted the application in terms of the amended provisional order. Lazarus & Sarif applicant’s legal practitioners Joel Pincus, Konson & Wolhuter respondent’s legal practitioners