Petromocexor (Private) Limited v Energy Park (Pvt) Ltd and Others

The applicant (Petromocexor) leased Stand 262, Muzarabani Growth Point from the late Pascale Shambi Nyamukondiwa in May 2001 for 25 years from 1 June 2001. The lease provided that the applicant would develop the property for a fuel retail outlet and that all developments and improvements would remain the applicant's sole and exclusive property. The applicant invested substantially, erecting buildings, fuel tanks, pumps and canopy, and obtained necessary approvals and licenses. When new environmental regulations required installation of oil interceptors and separators, the applicant and Pascale agreed that Pascale would forgo annual rentals equivalent to the costs incurred by the applicant. However, before this agreement was executed, Pascale died on 22 January 2016. The second respondent (Freddy Chimbari) was appointed executor dative on 29 July 2016. The applicant suspended operations pending compliance with new regulations but maintained possession through security personnel, removing some movables for security. The second respondent became evasive and eventually accused the applicant of non-payment of rent and invited it to terminate the lease. The applicant discovered that the first respondent (Energy Park) and fourth respondent (Trymore Manyange) were occupying the property and operating a fuel station using the applicant's equipment and developments.

• Whether the applicant had a clear right to possession of the property despite suspension of operations
• Whether the applicant retained ownership of the equipment and improvements installed on the property
• Whether the first and fourth respondents were unlawfully occupying the property and using the applicant's equipment
• Whether the applicant satisfied the requirements for an interdict under the Setlogelo test
• Whether the applicant had a direct and substantial interest in the property to justify declaratory relief under section 14 of the High Court Act
• Whether the lease was validly terminated or abandoned by the applicant's suspension of operations

The application was granted as prayed in the draft order. The court interdicted the first and fourth respondents from using the applicant's equipment, ordered their eviction from the property, and directed them to account to the applicant for all money received from operating the fuel station.

A lessee who suspends operations on leased property to comply with supervening regulatory requirements does not thereby abandon or relinquish the right to possession, particularly where the lease expressly provides that developments and improvements remain the lessee's property and where the lessee maintains security presence on the property. An executor of a deceased lessor's estate cannot permit third parties to occupy property subject to a valid, subsisting lease without properly terminating that lease. A party cannot deny occupation of property while simultaneously claiming possession of the same property in other proceedings (approbation and reprobation). To succeed in an application for an interdict and declaratory relief under section 14 of the High Court Act, an applicant must prove: (1) a clear (not merely prima facie) right; (2) actual or reasonably apprehended harm; (3) absence of alternative remedy; and (4) that the balance of convenience favors the applicant.

The court observed that if the second respondent (executor) had properly engaged with the applicant regarding the new environmental regulations as the deceased lessor had begun to do, the situation could have been resolved and damage arrested. The court also noted that the second, third and fourth respondents' failure to file opposing papers and unsuccessful application for upliftment of the bar left the first respondent in a difficult position as those parties 'would ordinarily have more information regarding the claim and therefore be in a better position to put such information before the court.' The court remarked that the first respondent's conduct in enriching itself through use of the applicant's property and equipment was unjustifiable.

This case establishes important principles regarding: (1) the retention of proprietary rights in leasehold improvements despite suspension of operations; (2) the application of the Setlogelo requirements for interdicts in property disputes; (3) the principle that temporary suspension of business operations due to supervening regulatory requirements does not constitute abandonment of leasehold rights; (4) the duty of parties entering into occupation agreements to conduct due diligence regarding existing rights; (5) the application of the doctrine against approbation and reprobation in property litigation; and (6) the protection of substantial investment in leasehold property. The case also clarifies that executors of deceased estates must engage meaningfully with existing lessees rather than unilaterally seeking to terminate valid lease agreements.