IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CIVIL
CASE NO. 1034/2003
In
the matter between
MODEST
KAMENGA Plaintiff
Vs
ALLEN
MANGO Defendant
Coram
Annandale, ACJ
For
Plaintiff Mr. M. Fakudze
For
Defendant Mr. M, Thwala
JUDGMENT
8 SEPTEMBER 2004
In
its application for summary judgment, the plaintiff seeks an order in
the following aspects:-
Cancellation
of the Lease Agreement;
Ejectment
of the Defendant from the premises;
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Payment
of the sum of E7 600;
Interest
thereon at the rate of 9% per annum;
Costs
of suit on the attorney and own client (scale);
Collection
commission at the rate of 10% on the total claim;
Further
or alternative relief.
Plaintiff
issued summons in May 2003, some one and a half years ago. Therein,
it is stated that the parties entered into a written agreement of
lease, with the plaintiff being represented by Swaziland Property
Market (Pty) Ltd., a firm of Estate Agents. Clauses of the agreement
referred to in the particulars of claim are that the lease would be
for a period of one year, commencing on the 1st February 2003. The
defendant is alleged to have been in occupation since then. The
rental payment was agreed to in the sum of E3 880 per month. The
usual term that non-payment of rental by the due date would lead to a
right to cancel the lease is alleged.
Probably
due to a typographical error, as there is a blank line in the
particulars, which was not rectified afterwards, it is not also
alleged that in such event, the lessor shall have a right to re-take
vacant possession of the
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leased
premises, as is provided under clause eleven of the agreement. No
issue was made of this omission.
It
is further alleged that in the event that the lessor or his agent has
to instruct attorneys to enforce any conditions of the lease or to
recover any due monies, the lessee will be liable for costs on the
attorney/client scale, including collection commission at the rate of
10% on the total claim.
All
these allegations are in line with the agreement of lease between the
parties, a copy of which is attached to the summons.
The
final allegations in the summons are that the defendant has failed to
pay rentals due for the months of April and May 2003, resulting in
arrears to the amount of E7 600, which despite demand, defendant
fails or neglects to pay, wherefore the relief claimed is set out, in
the same terms as now sought by the application for summary judgment.
Following
on Defendant's notice to defend, the plaintiff applied for summary
judgment. In his affidavit to support the application, plaintiff's
agent, a director of the estate agents which represented him in the
lease
4
agreement,
made the standard allegations. He confirms the cause of action,
states his belief in the absence of a bona fide defence and alleges
that notice to defend was entered solely for the purpose of delaying
the action.
The
latter allegation is denied in the defendant's opposing affidavit and
continues to set out some background facts. He says that he is also
an estate agent and that two prospective tenants approached him,
seeking a place to rent. As he had none available and knew of the
premises listed with the plaintiff's agents, he approached the agents
"to offer them the tenants". The prospective tenants could
only afford the premises if they shared the rent, one to occupy the
main house and the other a one bedroom outbuilding. He states that:
"Mr.
Masina (my underlining) from Swaziland Property Market acting on
behalf of plaintiff rejected the idea of having two tenants in one
property and it was at that point that I offered to act as a
middleman and sign the lease on behalf of both tenants with whom I
was to in turn enter into two individual lease agreement(s). Through
this arrangement I was to collect the rentals from both tenants and
then transmit same in one payment to Mr. Masina of Swaziland Property
Market. The first payment which was for March rentals plus the
customary deposit, was transmitted by me by cheque dated the 14th
March 2003."
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This
confessed conduct of the defendant must be viewed against clause 10
of the lease agreement. It reads, under the heading: Cession,
Assignment and Subletting;-
"The
lessee shall not have the right to cede or assign this lease or to
sub-let the whole or any portion of the leased premises without the
prior written consent of the lesser which consent shall not be
reasonably withheld."
It
is to be noted that the defendant entered the lease agreement in his
personal capacity and not representing the two prospective tenants he
mentioned. Also, it is clear from his own version that the
plaintiff's agents were not in favour of having two tenants. No
permission was sought or granted to sub-lease. The defendant says
that the arrangement was that he would collect rentals from the two
tenants and transmit it as one payment to plaintiff's agent, with the
first such payment, for March 2003, being paid on the 14th March by
way of his own cheque. He then avers that Mr. Masina (my underlining)
of plaintiff's agent approached the tenants directly at the premises
and demanded that they pay all future rentals directly to him. He
says that this information was conveyed to him by the two tenants,
and that Masina apparently was unhappy with the delay occasioned by
the defendant
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first
having to get the cheques of the tenants cleared before defendant
paid the plaintiff.
Defendant
states that he and Masina came to an agreement about the above
matter, in that Masina would collect the rent from the tenants
directly, not from the lessee, the defendant, to "...cut on the
time for the cheque clearances and therefore to minimise the
inconvenience on himself and his principal."
Due
to his belief that Masina now dealt directly with the tenants (and
not the lessee), he was "shocked" to receive a letter dated
the 22nd April 2003 from plaintiff's agents that he was given notice
to vacate the leased premises. It also states that he breached the
lease agreement by defaulting with rental payments in that the rental
for March was paid late and nothing for April, rental being due
monthly in advance. He says that he went to the agent's offices and
found Masina in the company of the two tenants, it being "proof
to me that as per our verbal agreement (that) he had continued to
deal directly with them". He blames Masina for the financial
loss of plaintiff, and says that Masina served notice to vacate on
the tenants directly.
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The
defendant continues to state in his opposing affidavit that the
plaintiff's action is misconceived in that it targets him while the
people who actually stayed there are known to the plaintiff and his
estate agents. He notes that no mention is made of the rental deposit
that was paid together with the rentals for March.
The
essence of his stated defence is set out to be that:-
"...In
as much as I personally signed the lease agreement it was known to
all parties involved that my signing was merely to facilitate the
contract between Swaziland Property Market acting on behalf of
Plaintiff and the two tenants who were ready and willing to enter
into the contract."
As
stated above, the position is not that the defendant represented two
tenants when the lease agreement was entered into. He represented
himself. Further, no sub-leasing was permitted in terms of the
contract, without written approval of the lessor, which the defendant
readily admits was not acceptable to the lessor, who did not want two
tenants in the same property.
The
defendant then goes on to attack the plaintiff's agent. He states
that it is Mr. Masina, the person who he said had acted for the
plaintiff's
8
agent
when he sought to have two tenants lease the premises, who is to
carry the blame. He states that
"Masina's
conduct of deciding to take over the regulation of the affairs of the
tenants while in occupation of the property through the above
arrangement, signalled an end of my involvement with the running and
management of the property and its tenants (my underlining). It is
therefore naive on the part of the plaintiff to let the tenants
vacate without making means to secure their rental owing, only to
turn around and demand that from me. The actual service was never at
any point rendered on me."
I
find it difficult to accept the attitude expressed by the defendant.
The plaintiff and his agents had a lease agreement with the defendant
and not with two other people who may have occupied the premises. It
is the defendant who, contrary to the express terms of the contract
and against the stated rejection of his idea to have two tenants
occupy the premises and share the rent, nevertheless placed two
tenants in the property. He now feigns surprise at the action of the
plaintiff to seek outstanding rentals from him, the lessee. There is
no contract between plaintiff and the two tenants, furthermore, the
"arrangement" that he refers to, was sought from the
plaintiff's agents but refused.
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In
view of the defendant's response, plaintiff sought and was granted
leave by the court on the 25th July, 2003 to file a replying
affidavit.
Therein,
plaintiff's representative states that the defendant approached him
in his personal capacity when the lease was entered into and that he
did not mention that he acted for anyone else. He denies any
knowledge of any arrangement as alleged by the defendant. This
replying affidavit, as well as the supporting affidavit, was deposed
to by Manene Khombelwako, not Masina. Khombelwako states that it is
he who went to the leased premises when no rentals came from the
defendant to demand it of him, but that he found different tenants
there, not the lessee/defendant. These people told him about a lease
agreement they had with the defendant and that they had paid rent. He
wanted their proof of payment, therefore one of them attended at his
office, where the defendant saw her. He vehemently denies any
agreement between himself and defendant, in variation of the lease
agreement with the defendant.
From
a reading of the papers, the defendant states that the "agreement"
was between himself and a Mr. Masina, while Khombelwako
10
refers
to himself as the one who did not do so. No affidavit of Masina has
been filed to admit or deny the allegation and Khombelwako does not
explain the position of Masina in his agency, nor whether Masina was
entitled or not, to make such an arrangement.
For
some unknown reasons, neither of the attorneys who appeared at the
hearing of the summary judgment application argued this point. The
defendant mentions Mr. Masina by name as the person with whom he came
to the alleged arrangement. He stated that Masina is the person he
dealt with from the onset, yet Khombelwako addresses all of the
personal references as if he is Masina. I cannot understand or accept
that Mr. Masina and Manene Khombelwako are one and the same person.
This
leaves me with no choice but to accept the papers as I find them -
this is that the defendant has raised a defence, based on an alleged
agreement he had reached with a Mr. Masina of the plaintiff's estate
agent, the terms and existence of which are not denied by the
plaintiff. The plaintiff has chosen to file a replying affidavit
which he denies the alleged agreement, but it is denied by a
different person than the one with whom it is alleged to have been
made, and further with a total absence of any
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explanation
as to the identity of Masina, vis-a-vis Khombelwako. Otherwise put,
the latter may well deny the existence of the alleged arrangement,
but the defendant never stated that the arrangement has been made
with him, but that it was made between defendant and Masina.
It
is this basic and crucial aspect of identity that neither of the
attorneys, nor Khombelwako for that matter, seem to have noted. It is
precisely because of the defence that the defendant has raised in his
opposing affidavit that the plaintiff obtained leave of court to file
a replying affidavit. No less than nine (9) times the plaintiff's
agent states that the defendant is put to proof of his allegations.
That is what the plaintiff challenges the defendant to do. I thus
find it anomalous that the plaintiff still wants to have summary
judgment, a remedy that is not suitable where there is a triable
defence or a dispute of fact. The plaintiff has joined issue through
its replying affidavit. The defendant in summary judgment proceedings
need not prove its defence on any balance of probabilities, but need
at least raise an arguable and triable issue. From the above, it is
clearly the case at hand that there is a defence which was raised by
the defendant against which issue is taken with, which has not been
dealt with by the plaintiff's reply.
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Accordingly,
the application for summary judgment stands to be dismissed, with
costs. The matter is referred for trial.
JACOBUS
P. ANNANDALE
ACTING
CHIEF JUSTICE
Nike 