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BP ZIMBABWE (PVT) LTD

HIGH COURT OF ZIMBABWE

Special case

D Ochieng, for the plaintiff

MUREMBA J: The plaintiff issued summons for the ejectment of the defendant from
stand number 10232 Highfield Township, also known as Machipisa Service Station Corner
112th and Main Street, Machipisa, Harare (hereinafter referred to as the stand or premises).
This stand belongs to a company called Solta Trading (Pvt) Ltd (hereinafter referred
to as Solta). In September 1998 the plaintiff and Solta entered into a written lease agreement
in respect of the stand. In terms of the lease agreement the plaintiff would lease the premises
from Solta until 31 July 2024. In or about October 1998 the plaintiff took occupation of the
stand and built a filling station and related facilities. The premises were thereafter commonly
called ‘BP Machipisa Service Station.’
The lease agreement gave the plaintiff the right, at its sole discretion, to sub-lease the
premises. In 2006 the plaintiff exercised that right by subletting the premises to Solta under a
written sub-lease agreement. The sub- lease period would run from 1 January 2006 to 31
December 2006. At the commencement of the sub-lease agreement Solta took occupation of
the premises. Notwithstanding the termination of the sub-lease agreement by effluxion of
time, Solta remained in occupation after 31 December 2006.
In terms of the sub-lease agreement of 2006 Solta was not allowed to sub-let the
premises without the prior written consent of the plaintiff. The relevant clause read that Solta
“shall not be permitted to cede, assign or make over its rights and/or obligations under this
agreement nor to sublet or part with the possession of the leased premises without the prior
written consent of the Lessor”
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Despite the sub-lease agreement of 2006 Solta went on to sub-let the premises to the
defendant in February 2009 without the prior written consent of the plaintiff. The defendant
assumed occupation of the premises and is still in occupation.
The plaintiff contends that it is entitled to protect its rights of use and occupation by
seeking the ejectment of the defendant who is a wrongful occupier as the sub-lease agreement
was concluded without the plaintiff’s prior written consent.
In resisting the claim for ejectment the defendant contends that it is neither party nor
privy to the lease agreements which were entered into by and between the plaintiff and Solta.
The defendant said that it is party to a subsisting lease agreement between itself and Solta.
The defendant states that it has no contractual or other legally binding relationship with the
plaintiff. The defendant contends that:
(i) The plaintiff has no cause of action against it.
(ii) Solta cannot be a tenant at its own property so the alleged sub-lease agreement
between the plaintiff and Solta is invalid. Consequently the requirement for
Solta to obtain the plaintiff’s prior written consent for sub-leasing to the
defendant is invalid.
(iii) Alternatively, even if the sub-lease to Solta was valid, it had expired by the
time of the sub-lease to the defendant. Solta was no longer bound by the
alleged stipulation against sub-leasing.
On the day of the trial the parties’ legal practitioners agreed to proceed by way of a
special case in terms of Order 29 of the rules of this court. They submitted that by reason of
neither of them being party nor privy to the agreements alleged in their respective cases, as
summarised above, they cannot lead evidence to counter factual allegations they are not
aware of. They submitted that however, certain legal issues arise which if determined, have
the effect of disposing of the matter without the need for any evidence to be led before the
court.
The issues for determination, as agreed upon by the parties, are as follows.
1 Does the plaintiff have a valid cause of action against the defendant on the
pleadings before the court?
2 Consequently does the plaintiff have a right to seek the defendant’s ejectment
from the premises?
3 Is a person legally capable of leasing his or her own property from his/her own
tenant?
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4 Consequently, was the alleged sublease of the premises by the plaintiff to Solta
legally valid?
5 Was Solta bound by the covenant against sub-leasing at the time of its agreement
with the defendant, such that this sub-lease was legally invalid?

The parties stated that if the above questions are all answered in the affirmative, the
plaintiff will be entitled to an order for the ejectment of the defendant and costs of suit.
Conversely, if any one of the questions is answered in the negative the plaintiff’s case must
fail and costs of suit must be awarded to the defendant.
In my view issues 1 and 2 are one issue. It follows that if the plaintiff has a valid
cause of action against the defendant then it has the right to seek the defendant’s ejectment
from the premises. Issues 3 and 4 are one issue as well. If a person is legally capable of
leasing his own property from his or her tenant then it follows that the sub-lease of the
premises to Solta by the plaintiff is legally valid. Issues 2 and 4 are therefore superfluous. So
in essence I have three issues to deal with, the third issue being issue number 5.
I propose to deal with issue number 3 first, then 1 and lastly issue number 5.

(a) Whether or not a person can lease his or her own property

The defendant argued that a person cannot lease his or her own property from his or
her own tenant. He made reference to the case of Grootchwaing Salt Works v Van Tonder
1920 AD 492 at 497 wherein INNES CJ remarked that no man can hire his own property.
Innes CJ further stated that the capacities of both lessor and lessee cannot competently reside
in the same individual. In casu the defendant argued that when the plaintiff sub-leased the
premises to Solta it reverted full rights in the property to Solta as the owner such that it was at
liberty to lease the property to any willing tenant without recourse to the plaintiff.
I had occasion to read the case of Grootchwaing Salt Works and upon reading it I
realised that its facts are distinguishable from the facts of the present case. In that case the
lessee, Grootchwaing Salt Works was hiring a certain piece of land from the lessor. The terms
of the lease agreement conferred certain rights over the adjoining unleased land of the lessor
which included free use of stone , clay and earth so far as these materials were required in
connection with the lessee’s salt business. However, the lessee subsequently bought the
property that it was leasing from the lessor and became the owner thereof. Despite this
development Grootchwaing Salt Works sought to enforce the rights which it used to enjoy as
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a lessee over Van Tonder’s unleased property. INNES CJ said that clearly the relationship of
lessor and lessee had come to an end between the parties when the former acquired the
property and as such Grootchwaing Salt Works could not continue to enjoy rights it used to
enjoy as a lessee. Those rights could only be enjoyed by a lessee. So for Grootchwaing Salt
Works, Ltd to enjoy those rights it meant that it had to be paying rent. This is what prompted
INNES CJ to make the remark that no man can hire his property. If Grootchwaing Salt
Works, Ltd was to pay rent it would be paying it to itself because it had become the owner.
INNES CJ said that a person can neither be his own creditor nor his own debtor. If there is no
other debtor then the debt is extinguished.
The Grootchwaing Salt Works, Ltd scenario is not the scenario that we have in the
present case. I am persuaded by the case of Total Oil Products (Pty) Ltd v Perfect & Another
1964 (2) SA 297 (D) which the plaintiff referred to. It is a case which almost falls on all fours
with the present case. In that case the owner of certain premises (first respondent) leased
them to a petroleum company (the applicant), which had lent it R10, 000. The applicant then
sublet the premises back to the owner (first respondent). The terms of the lease and the terms
of the sub-lease differed considerably. According to the terms of the sub-lease the applicant
was entitled to cancel the lease agreement and re-enter the premises if the first respondent
failed to pay rent when it became due. The first respondent then failed to pay rent when it
became due. Apparently it had sub-let a portion of the premises to the second respondent (at
least the sub-lease agreement allowed the first respondent to sub-let). When the applicant
gave notice to the first respondent terminating the sub –lease agreement for failure to pay rent
on time the first respondent handed over possession of the premises to the applicant minus
the portion that was now being leased by the second respondent. The applicant instituted
proceedings against the second respondent for its ejectment. The respondents’ legal
practitioner Mr Pretorius relying on Voet 19.2.4. argued that the owner (first respondent)
cannot hire its own property from its tenant (the applicant) and as such when it contracted
with the second respondent it did so in its capacity as the owner not as a tenant. So it had the
right to lease the whole or a portion of the premises as the owner.
However, the passage from Voet which Mr Pretorius sought to rely on has the
following paragraph,
“The hiring of one’s own property is only so ineffective when no other person has obtained
any right over our property. Certainly to the extent that a right has been established in another
over our property it is understood to have been alienated by us; and thus there is a hiring of it
not as being ours but as belonging to another.”
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FRIEDMAN AJ had this to say about Mr Pretorius’ submissions in view of the above
passage,

“It is quite clear that it is not an absolute rule as Mr Pretorius suggests, that a person is not
entitled to hire his own property. When the lease which was entered into between the
applicant and the first respondent was registered against the title deeds of the property, the
applicant acquired a real right in the property. A lease in longum tempus is in the nature of an
alienation. Johannesburg Municipal council v Rand Townships Registrar, 1910 T.S 1314 at p.
1320; Breytenbach v Frankel and Another, 1913 A.D 390 at p.402. The applicant became
entitled to use of the property subject to the terms of the lease. It was then, in my view,
perfectly entitled to sub-let the property to the first respondent which it did on terms and
conditions substantially different from those contained in the lease with the first respondent.
The applicant having obtained a real right in the property of the first respondent, the hiring of
that property to the first respondent was, according to Voet, not ineffective. As the rights and
obligations created by the lease and the sub-lease, differed so materially this is not a case
where there was a “concurrence of the debtor and creditor in the same person and in respect
of the same obligation.” Grootchwaing Salt Works v Van Tonder, 1920 AD 492 at 497.
Generally speaking, the obligations which are imposed upon the applicant by the lease have to
be performed by the applicant under the lease and the obligations which are imposed upon the
first respondent by the lease have to be performed by the first respondent under the sub- lease.
Moreover if this contention of Mr Pretorius were upheld, a most inequitable and anomalous
position would be created. It seems clear- and this was not disputed by Mr Pretorius- that the
agreements of lease and sub-lease, viewed as one transaction, were entered into for the
purpose of giving the applicant security for the grant of R10, 000 made by the applicant to the
first respondent. It was obviously the intention of the parties that the two agreements of lease
should operate as one transaction and that there should be no merger. It is common cause that
this sum of R10, 000 was paid by the applicant to the first respondent, and was to be paid
during the period of the sub-lease in the manner set out therein. If Mr Pretorius’s contention
were to be upheld it would mean that the first respondent, having obtained the benefit of the
sum of R10, 000, would be entitled to deny to the applicant the rights conferred upon the
applicant by the lease.”

In casu the head lease between plaintiff and Solta should run up to 2024 from 1998
and it allows the plaintiff to sublet the premises. It does not say the plaintiff cannot and
should not sublet to Solta being the owner and principal lessor. What is of significance is that
this long lease agreement was Solta’s way of repaying the loan that was advanced to it by the
plaintiff for the purposes of purchasing these premises. The relevant portion of the lease
agreement which is marked annexure A reads,

“AND WHEREAS BP has agreed to assist the Owner (Solta) in the purchase of the property

AND WHEREAS in recognition of such assistance, the Owner is willing to grant to BP a

NOW THEREFORE the parties agree as follows:

1. PERIOD
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The Owner hereby leases to BP who hereby hires from the Owner the property for a period
commencing on 1 September 1998 and terminating on 31 July 2024 unless previously
terminated..

2. …..
3. ……
4. RENTAL

It is recorded by the parties that BP has, by way of a loan, made available to the Owner
certain funding of purchase of the property by the Owner from the Municipality. Accordingly,
rental for the period set out in clause 1 above shall be determined as follows:-

4.1 the full value of the loan made by BP to the Owner and the subject of the Loan
Agreement to which this agreement constitutes Annexure A (hereinafter referred to as
“the Loan Agreement”) together with the cost to BP of construction and development as
set out in clause 3 above, shall be deemed to be the rental paid by BP to the Owner for
the period set out in clause 1 above. Accordingly BP hereby waives its right to
repayment of the said loan and to payment of compensation for any construction or
development undertaken in accordance with clause 3 and such waiver shall constitute
payment in full in advance of the entire rental for the lease period.
4.2 ….
4.3 ….
5 ….
6 ….
7 ….
8 SUB-LEASE

BP will, during the subsistence of this agreement, be entitled, in its sole discretion, to sublet
the property upon such terms and conditions that it sees fit provided that any such sub-lease
shall not contain any term or condition materially in conflict with any term or condition of
this agreement.”

So instead of Solta repaying the loan in cash, Solta would lease the premises to the
plaintiff to the value of the loan. So this is not an ordinary lease agreement. The owner which
is the principal lessor is indebted to the lessee and it has an obligation to extinguish its debt. It
chose to extinguish the debt by entering into a lease agreement whereby the plaintiff would
for 26 years lease the premises without paying a rent as the loan it advanced to Solta in 1998
constituted payment in full in advance of the entire rental for the entire lease period. A lease
of 26 years is a lease in longum tempus simply meaning that it is in long time and long use,
beyond the memory of man and suffices for a real right. FRIEDMAN AJ in the Total Oil
Products case (supra) said it is in the nature of an alienation. In that regard Solta established
in the plaintiff a real right and alienated its property and thus there is hiring of it as the
property of the plaintiff and not as its own property. It is therefore incorrect to say that the
sub-lease to Solta reverted full rights on the property and entitled it to lease the premises to
any willing tenant. To uphold this contention would be to sanction Solta to run away from its
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obligation to repay the loan that was advanced to it by the plaintiff. That will obviously create
an inequitable and anomalous situation.
As correctly stated by the plaintiff the head lease and the sub-lease are two separate
and unidentical agreements. No merger occurred. In terms of the sub-lease agreement which
was produced as Annexure B, Solta was supposed to pay rent in the sum of US$ 4500 per
month reviewable quarterly. In terms of clause 7 (m) thereof the lease was not entitled,
“to cede, assign…. not to sub-let or part with the possession of the leased premises without
the prior written consent of the lessor.”

As was stated in the Total Oil Products case (supra) this is not a case where there was
‘concurrence of debtor and creditor in the same person and in respect of the same obligation.’
It was therefore permissible and valid for Solta to lease its own premises from the plaintiff.
The lease agreement granted the plaintiff a real right over the property.
The plaintiff is correct in saying that when Solta took occupation of the premises in
2006 it was doing so as a sub-tenant and not as the owner of the premises. It was therefore
bound by the terms and conditions of the sub-lease agreement. One of the conditions was that
it was not supposed to sublet the premises without the prior written consent of the plaintiff.
Under the circumstances the plaintiff had stepped into the position of the owner or the
landlord or the lessor while Solta had stepped into the position of the lessee.

(b) Whether or not the plaintiff has a valid cause of action against the defendant.

The defendant’s argument is that the plaintiff is suing the defendant basing its cause
of action upon a breach of contract by Solta. The defendant avers that it being neither party
nor privy to that contract the plaintiff cannot succeed in its claim without having sued Solta
as the first defendant in this matter. The defendant argues that the plaintiff must first prove
that Solta breached the sub-lease agreement. It averred that in the absence of Solta the
plaintiff’s allegation that there was breach of contract by Solta will remain an unproven
allegation.
In Pedzisa v Chikonyora 1992 (2) ZLR 445 (S) @ 453 Gubbay CJ as he then was
said,
“It is trite law that where a contract of lease contains prohibitions against sub-letting, cession
or assignment, either absolutely or without the lessor's consent, a sub-lease, cession or
assignment, entered into by the lessee, without title to do so, is valueless and confers no rights
on the third party; for he can acquire no greater rights in the property than the lessee has.
Thus, if the third party enters into occupation of the leased property, the lessor is
entitled to an ejectment order against him. See Stalson v Brook 1922 WLD 143; Akoon v
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Jhavary 1934 NPD 282 at 285; Hissaias v Lehman & Anor 1958 (4) SA 715 (T) at 719B-C;
Wille Landlord and Tenant in South Africa 5th ed. at pp 123 and 124. A further obvious
consequence of the prohibition is that the court will refuse to enforce the sub-lease, cession or
assignment, at the instance of the lessee. To do otherwise would be to confer a right upon the
lessee not given him by the lessor.”

R.H Christie in Business Law in Zimbabwe 2nd Edition 1998 at p 286 states that with a
sublease there is no privity of contract between the landlord and the sub-tenant. He further
states that because there is no privity of contract between the two a landlord who sues to eject
a subtenant sues in delict not contract. See also Greenhalgh v Rowley 1925 SR 30 33.
At p 287 R. H Christie citing the case of Potgieter & Another v Van Der Merwe 1949
(1) SA 361 (A) says,
“When the landlord’s consent is required but the tenant has sublet without it the landlord is
entitled to the ejectment of the subtenant and, if the lease contains a forfeiture clause, also of
the tenant.”

In MacDonlad, Patterson’s Tutor Dative v Hume 1875 Buch 8, the owner of the
property instituted an action for the ejectment of a sub-lessee who had been put in occupation
of property by the tenant without his consent. The tenant was not joined as a co-defendant,
but the court made an order for the ejectment of the sub-lessee.
In Akoon v Jhavary 1934 NPD 282 a lessee put in occupation a sub-lessee without
obtaining the necessary consent of the owner. The owner sued for the ejectment of the sub-
lessee without joining the lessee and an order was made for ejectment against him.
HATHORN J remarked that the owner of the property had proved that he was the owner and
that he had not given the sub-lessee the right of occupation. Consequently the lessee was said
to be a trespasser. The learned judge went on to say that it might have been wiser to join the
lessee, but the omission to join him was not fatal. See also Hamza v Bailen 1949 (1) SA 993
C.
In Hissaias v Lehman & Anor 1958 (4) SA 715 (T) at 719C ROPER A.J stated that
the correct position of the law is that the owner of a property can directly sue for the
ejectment of a sub-tenant who has been allowed occupation by the tenant without obtaining
his (owner) consent. He said that if this was not the position it might be impossible for the
owner to get an unlawful occupant out where the tenant has disappeared. On p 718B-C he
said that a person with a real right in the property is dominus. As dominus he has the right of
possession and occupation of it against all the world save and so far he has parted with his
right to such possession and occupation.
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In casu the defendant’s argument that the plaintiff has no valid cause of action against
it has no merit. In para 11 of the special case the parties said that they wanted the matter to
proceed on the basis of a special case because there were no disputes of facts. They said
neither party could lead evidence to counter factual allegations made by the other party since
neither of them was party to or privy to the agreements each party entered into with Solta.
Moreover the plaintiff attached the sub-lease agreement it entered into with Solta as annexure
B. The defendant cannot therefore at this stage turn around and say that the averment that
there was a sub-lease agreement with Solta and a breach thereof remain as mere allegations
as long as Solta is not party to the proceedings as a co-defendant. If these averments were
disputed then the defendant should not have agreed to have the matter dealt with as a special
case. Instead it should have proceeded as a full trial. It is clear from the plaintiff’s
supplementary summary of evidence that it was going to call Solta’s director to testify at trial
that the plaintiff had long lease which will expire in 2024. That director was further going to
say that in subletting the premises Solta had not obtained approval from the plaintiff in
accordance with the sub-lease agreement between Solta and the plaintiff.
In view of the foregoing I therefore consider it as a fact that Solta entered into a sub-
lease agreement with the plaintiff and in breach of that contract it in turn sublet the premises
to the defendant without the plaintiff’s approval.
The above cited authorities make it clear that if a tenant sublets without the consent of
the lessor when in terms of the lease agreement he is required to seek the lessor’s consent, the
lessor is entitled to eject the sub-tenant and the lessor sues in delict not contract. It matters not
that the tenant has not been sued as a co-defendant as long as the lessor can show that he has
a real right in the property and that he did not give the sub-tenant the right of occupation.
While it is wiser to join the tenant as a co-defendant, but as has been demonstrated by the
above cited cases, it is not fatal for the lessor to omit to join the tenant as a co-defendant. It is
therefore not mandatory that the tenant be sued as a co-defendant. In fact R.H Christie in
Business Law in Zimbabwe supra at p 287 says the tenant may also be sued if there is a
forfeiture clause in the agreement and the landlord wants the tenant evicted as well. So suing
the tenant as a co-defendant will depend on the circumstances of each case and the remedy
that the lessor wants to obtain from the court.
So under the circumstances the plaintiff has a valid cause of action against the
defendant and the cause of action is delictual not contractual.
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(c) Whether or not Solta was still bound by the sublease agreement of 2006 at the time
of its agreement with the defendant

It is a fact that when the sublease agreement between Solta and the plaintiff expired
on 31 December 2006 it was not renewed. At the same time Solta remained in occupation and
in terms of s 22 (2) (a) and (b) of the Commercial Premises (Rent) Regulations 1983, SI
673/1983 it became a statutory tenant. A statutory tenant is entitled to remain in occupation
indefinitely unless he or she fails to pay rent due within 7 days of due date under the lease
and he fails to perform any other conditions of the lease. The section reads,
“(2) No order for the recovery of possession of commercial premises or for the ejectment of a
lessee therefrom which is based on the fact of the lease having expired, either by the effluxion
of time or in consequence of notice duly given by the lessor, shall be made by a court, so long
as the lessee—
(a) continues to pay the rent due, within seven days of due date; and
(b) performs the other conditions of the lease;
unless the court is satisfied that the lessor has good and sufficient grounds for requiring
such order other than that—
(i) the lessee has declined to agree to an increase in rent; or
(ii) the lessor wishes to lease the premises to some other person.”

S 23 thereof sets out the rights and obligations of a statutory tenant. It says,
“23. Rights and duties of statutory tenant
A lessee who, by virtue of section 22, retains possession of any commercial premises shall, so
long as he retains possession, observe and be entitled to the benefit of all the terms and
conditions of the original contract of lease, so far as the same are consistent with the
provisions of these regulations, and shall be entitled to give up possession of the premises
only on giving such notice as would have been required under the contract of lease or, if no
notice would have been so required, on giving reasonable notice:”

As correctly contended by the plaintiff, a statutory tenant must observe all terms and
conditions of the expired lease to the extent that those terms and conditions are not
inconsistent with the regulations. In Total Zimbabwe (Pvt) Ltd v Appreciative Investments
(Pvt) Ltd HH268/10 KUDYA J said that the effect of s 22(2) as read with s 23 is that on
acquiring statutory tenancy status the original lease is renewed to the extent it is consistent
with the regulations.
In casu therefore, despite the non-renewal of the sub-lease agreement of 1996, Solta
has a duty to observe all the duties imposed upon it by that agreement including the clause
that bars it from subletting without the approval of the plaintiff. By subletting the premises to
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the defendant Solta breached the contract. Consequently, the plaintiff is entitled to sue the
defendant for eviction.

Conclusion

There are instances when a person is legally capable of leasing his or her own
property from their own tenant. As such the sublease agreement of 2006 between Solta and
the plaintiff is legally valid. That sub-lease agreement having expired 0n 31 December 2006
Solta became a statutory tenant, but it remained bound by the clause in the expired lease
agreement which prohibited it from subletting the premises without the consent of the
plaintiff. By subletting the premises to the defendant without prior consent by the Plaintiff,
Solta breached the sub-lease agreement. As a result, the sublease is valueless and confers no
rights on the defendant. The plaintiff is entitled to sue the defendant for its ejectment from the
premises. There being no contract between the parties, the plaintiff’s cause of action against
the defendant is delictual. It is not fatal that the plaintiff has not sued Solta as a co-defendant.
Accordingly it be and is hereby ordered that:

1. The defendant and all those claiming occupation through it are hereby evicted from
stand number 10232 Highfield Township, Harare (also known as Machipisa Service
Station, Corner 112th and Main Streets, Machipisa, Harare).
2. The defendant pays cost of suit.

Scanlen & Holderness, plaintiff’s legal practitioners