TM Super Market (Pvt) Ltd v Avondale Holdings (Pvt) Ltd and The Sheriff of Zimbabwe

The applicant and first respondent entered into a lease agreement in 1968 whereby the applicant leased premises at Lot 3 of Lot 22 of Lot 1 Block C of Avondale to operate a supermarket. The lease was renewed periodically and expired on 28 February 2014 according to an arbitral award dated 18 June 2009. The applicant did not vacate upon expiration. On 3 March 2014, the first respondent issued summons in case HC 1747/14 for ejectment, allegedly serving the applicant on 6 March 2014. The applicant did not enter an appearance to defend. Default judgment was granted on 6 May 2014. The Sheriff commenced eviction on 16 May 2014 without notice. The applicant then brought this urgent application for stay of execution pending a rescission application, claiming it was never properly served with the summons. As far back as 1 October 2010, the applicant's director Mr. Beaumont had written confirming the applicant had no intention of contesting the first respondent's right to repossess the premises at lease expiration.

• Whether the applicant was properly served with the summons and declaration
• Whether the applicant was in wilful default
• Whether the applicant had prospects of success in a rescission application
• Whether a stay of execution should be granted where real and substantial justice requires it
• Whether the applicant became a statutory tenant after lease expiration
• Whether the arbitration clause in the expired lease survived to oust the court's jurisdiction
• Whether the applicant waived its rights under the lease agreement
• Whether adequate notice was given to terminate the tenancy

The application for stay of execution was dismissed with costs.

The binding principles established are: (1) A Sheriff's return of service constitutes prima facie evidence of the matters contained therein pursuant to s 20(3) of the High Court Act [Cap 7:06], which can only be rebutted by clear and satisfactory evidence. (2) Where a tenant expressly consents in writing to vacate leased premises at the expiration of a lease and permits the landlord to access the premises for rehabilitation planning, the tenant waives its rights under the lease agreement, including any arbitration clause. (3) An arbitration clause cannot survive the expiration of a lease agreement where the tenant has waived its rights and consented to vacate. (4) Stay of execution pending rescission will only be granted where the applicant demonstrates it was not in wilful default and has reasonable prospects of success in the rescission application. (5) In determining wilful default, probabilities favour a disinterested public officer (the Sheriff) over an interested party with motive to deny proper service.

The court made several obiter observations: (1) Where a company as large as the applicant allegedly has procedures for receiving legal process, one would expect such procedures to be documented and supported by affidavits from senior management, not merely receptionists. (2) The mere fact that an employee has been with a company for 27 years does not form a sufficient basis for believing their evidence. (3) Alleged recipients of service normally have a strong motive to claim that proper service did not take place (citing Fox and Carney (Pvt) Ltd v Sibindi 1989 (2) ZLR 173 (SC)). (4) The court expressed concern that the applicant appeared to cast unsubstantiated aspersions of fraud at the Sheriff without positive evidence, distinguishing the case from Mutebwa v Mutebwa 2001 (2) SA 193 where there was positive proof the Sheriff's return was false. (5) The court questioned how the applicant would overcome difficulties in proving lack of service at the rescission stage when it could not do so at the stay of execution stage.

This case is significant in Zimbabwean landlord and tenant law for establishing that: (1) the Sheriff's return of service constitutes prima facie evidence requiring clear and satisfactory evidence to rebut; (2) a tenant who expressly consents to vacate premises at lease expiration waives rights under the lease including arbitration clauses; (3) arbitration clauses do not survive an expired lease where the tenant has waived its rights; (4) conduct inconsistent with claiming statutory tenancy (such as consenting to landlord's access for rehabilitation planning) defeats such claims; (5) in assessing credibility, courts will favour disinterested public officers over parties with obvious motives to deny proper service.