Section 74 of the Constitution of Zimbabwe (Amendment number 20) Act 2013 provides that;- ‘No person may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances’
No one can take the law into their own hands and evict a person who has possession of their property without a court order even if they own the given property.
Eviction from residential property
An owner of a residential property (herein referred to as the “Landlord”) has to be cognizant of the requirements of section 30 of the Rent Regulations S.I. 32/07 and the Agreement of Lease, if any, when considering evicting a tenant.
Where a tenant is in arrears with their rentals, the Landlord cannot arbitrarily evict such a tenant. The landlord can demand payment of the arrears rentals with a specified time frame for payment failing which the Landlord can terminate the lease agreement and sue the tenant for eviction, payment of arrears rentals and holding over damages.
Where a landlord requires the property for their own use, the Landlord must give the Tenant three months written notice to vacate the premises unless the Agreement of lease provides otherwise. The notice should be in writing for it to be valid. In the event that the Tenant refuses to vacate the property and the Landlord institutes eviction proceedings the Landlord will have to produce evidence of the cancellation of the lease agreement.
Eviction from commercial property
In order for a landlord to evict a commercial tenant the landlord has to prove that he/she reasonably requires the use of the leased premises for his/her own use. A commercial tenant can only be evicted by the court if there are good and sufficient grounds for an eviction order.
It will not be enough for a landlord to simply say “the property belongs to me and I now desire to use them for my own purposes”. That would not constitute good and sufficient grounds. The court would want to know the precise use to which the landlord wants intended to put the premises. If that use is found to be illegal or frivolous or, having regard to the owner’s circumstances, unreasonable, the eviction of the ‘tenant will be refused.
Our courts have held that the landlord need do no more than assert his reasons in good faith and then to bring some small measure of evidence to demonstrate the genuineness of his assertion. Thereafter the onus will be upon the Tenant who resists ejectment to bring forward circumstances casting doubt on the genuineness of the lessor’s claim.
In other words the duty lies on the tenant to prove that the Landlord is lying about using the property for his/her own use but wants to put in another tenant instead. (See Kingstons Ltd. v L D Ineson (Pvt) Ltd. SC 8 /06)
- Eviction by employer after termination of contact of employment
The action rei vindicatio is available to an employer who is an owner of a property occupied by a former employee. It is based on the principle that an owner cannot be deprived of his property against his will. The owner is entitled at law to recover the property in question from anyone in possession of it without his/her consent.
If at the time of employment the employee or former employee was allowed to occupy a property owned by the employer the employer must show that the contract has ended. The claim can be defeated by an employee or former employee who proves that they have a right of retention or some contractual right to retain the property.
The fact that the employee is challenging the dismissal or termination of contract is immaterial because an owner is entitled to vindicate his or her property. The Supreme Court has confirmed a position long held by this court in respect of such matters.
(See Zimbabwe Broadcasting Holdings v Gono 2010(1) ZLR 8(H) 9G, 10 A-C; Medical Investments Ltd v Pedzisayi 2010(1) ZLR 111(H) 114C; DHL International Ltd v Madzikanda 2010(1) ZLR 201(H) 204 B-D; Moyo v Gwindingwi N.O & Anor 2011(2) ZLR 368(H) 374A; PG Industries (Zimbabwe) Ltd v Machawira 2012(1) ZLR 552(H) 556B)
Therefore it is within an employer’s right to seek the eviction of a former employee from the employer’s premises.
- Eviction by new owner of property where there is a tenant in the property when property is sold
The concept of huur gaat voor koop is found under Roman Dutch law and simply means that hire takes precedence over sale. The doctrine was defined in Genna-Wae Properties (Pty) Ltd v MedioTromics (Natal) (Pty) 1994 (1) SA 106 as follows,
“I hold that in terms of our law the alternation of leased property consisting of land or buildings, in pursuance of a contract of sale does not bring the lease to an end. The purchaser (now owner) is substituted ex lege for the original lesser and the latter falls out of the picture. On being so substituted the new owner acquires by operation of law all the rights of the original lesser under the lease. At the same time the new owner is obliged to recognise the lessee and to permit him to continue to occupy the leased premises in terms of the lease provided that he (the lessee) continues to pay the rent and otherwise to observe the obligations under the lease. The lessee in turn is also bound by the lease and provided the new owner recognizes his rights, does not have any option, a right of election, to resile from the contract.”
The concept in short means that where the seller entered in a lease agreement prior to the sale the tenant is protected from eviction where the property is sold to a third party. The tenant is entitled to remain in occupation of the property until his/her lease expires. The tenant and new landlord must abide by the terms of the lease agreement. It is a requirement that the tenant should abide by all the terms of the contact and continue to pay his rentals to the new owner failing to do so amounts to a breach. Where the tenant fails to pay rentals agreed to with the previous owner, he commits a breach and he is liable to the new owner. The new owner only has an obligation to adhere to the lease agreement if the tenant is willing to pay rentals and does pay the rentals.
A tenant wishing to rely on the concept should show that he/she entered into the lease agreement with the previous owner before the sale. For a tenant to benefit from the lease, the lease should not have been fraudulently entered into or entered into in bad faith. He/she must also show that the new owner was aware of the lease agreement and bought the property with the knowledge of the lease agreement.
BY: Roselyn MhlangaNext Step