Washmate Motors Centre (Private) Limited v City of Harare

The applicant leased stand 729 Lomagundi Road, Greencroft, Harare from the respondent City of Harare pursuant to a written lease agreement signed in October 2009 for the purpose of operating a car sales business. The lease agreement expired by effluxion of time on 30 September 2012. On 1 October 2012, the respondent's City Treasurer wrote to the applicant giving three months' notice terminating the lease and requiring the applicant to vacate by 31 December 2012, following a Council resolution to evict all car sales operations due to proliferation along road verges. The applicant continued in occupation after 31 December 2012 and paid rent for January 2013. On 9 January 2013, the respondent served a notice on the applicant in terms of clause 18(2) of the Urban Council (Model) (Use and Occupation of Land and Buildings) By Laws 1979 (SI 109/79) requiring the applicant to vacate within 48 hours and threatening summary eviction. The applicant then launched an urgent application seeking an interim interdict and challenging the constitutional validity of the By Laws.

• Whether the applicant had a prima facie right to remain in occupation of the premises after 31 December 2012
• Whether tacit relocation of the lease had occurred
• Whether the notice dated 1 October 2012 was properly served on the applicant
• Whether the applicant met the requirements for an interim interdict
• Whether the applicant disclosed all material facts to the court
• Whether SI 109/79 was ultra vires the Constitution and invalid

The application was dismissed with costs.

Where a lease expires by effluxion of time and the landlord expressly permits the tenant to remain for a fixed further period (express relocation), this constitutes a new contract and onerous terms from the expired lease will not be incorporated unless expressly agreed. Service of notice at the leased premises is adequate where the lease has expired and the domicilium in the expired lease has not been expressly incorporated into the relocation. Payment of rent by a tenant with knowledge that the landlord has terminated the lease and does not consent to continued occupation does not create a prima facie right to remain in occupation. An applicant seeking an interim interdict must establish a prima facie right even if open to doubt; mere continued occupation without lawful entitlement after termination of a lease does not constitute such a right.

The court observed that the applicant was at liberty to contest the propriety of SI 109/79, but noted that such a constitutional challenge does not automatically translate into a prima facie right entitling the applicant to interim relief by way of interdict. The court made strong observations about the applicant's conduct, noting it was aware of the respondent's position through the newspaper publication and the notice to cease operations, yet did nothing visible to renew the lease or challenge the notices until faced with imminent eviction. The court commented that 'rocket science is not required' to deduce that the applicant knew the lease would not be renewed. The court emphasized the importance of utmost good faith in applications of this nature, citing N & R Agencies v Ndlovu, Shungu Engineering v Songondimando, and Graspeak Investments v Delta Corporation.

This case reinforces important principles in Zimbabwean law regarding: (1) the requirements for establishing tacit relocation of a lease agreement; (2) the distinction between express and tacit relocation and the incorporation of terms from expired leases into new letting arrangements; (3) the strict duty of utmost good faith in urgent applications requiring full disclosure of all material facts; (4) the application of the test for interim interdicts; and (5) that payment of rent after expiry of a lease, particularly when done in bad faith with knowledge that the landlord does not consent to continued occupation, does not create enforceable rights. The judgment emphasizes that applicants cannot build a case on selective disclosure of facts and that courts will dismiss applications where material facts are deliberately withheld.