The Court of Appeal (CoA) has dismissed with costs a protracted legal battle brought by property mogul Sayed Jamal against the State demanding P136 million from the Department of Lands for alleged rental arrears.
Jamali claims his business suffered a loss following a breach of contract for occupation of a commercial building located at Plot 54 357 CBD in, Gaborone by the department.
Varsha Enterprises (Pty) Ltd, owned by Jamali, entered into a lease agreement with the Department of Lands on the 20th December 2020. The lease was to run for a period of five years with the rental paid quarterly from 1st October 2020.
Delivering judgement, a panel of three judges: Stephen Gaongalelwe, Singh Walia and Abednico Tafa ruled in favour of the State.
They collectively dismissed Sayed Jamal’s lawyer Gabriel Kanjabanga’s appeal to be granted a summary judgement. Jamali was claiming P32 516 385.00 representing arrear rentals and P103 619 625.17 as damages allegedly suffered as a result of breach of contract calculated at an interest of 10% per annum.
The judges said on the 3rd November 2016, Varsha Enterprises filed notice of application for a summary judgement. This was followed by a notice of opposition filed on behalf of the respondent on the 8th November 2016 accompanied by a plea and affidavit in terms of Order 25 rule 1(2)(a) of the Rules of the High Court.
In their findings the CoA Judges observed that, following the said letter Jamali and the respondent (attorney general) entered into a discussion which culminated in Jamali’s withdrawal from the lease a move that had been initiated by the state.
The judges said, although the plea and affidavit do not expressly mention waiver, they make it clear that the appellant, Jamali had undertaken to absorb all losses associated with the cancelled lease.
“It is true that the letter subject matter hereof does not reserve any of the appellant’s rights under the lease. The nature of the losses that the appellant undertook to absorb is not specified. As the letter was written by a lawyer, one would have expected it to specify if indeed there were losses for which the appellant reserved its rights to sue,” said the judges
Justices Walia, Gaongalelwe and Tafa said Jamali was or should have been aware at the time of the writing the said letter that there were rentals owing to him by the government. Had it been Jamali’s intention to reserve its right to sue for such arrear rentals and damages, this would have been stated in no uncertain terms they said.
The appeals court also said that the Permanent Secretary Thato Raphaka in his letter requesting withdrawal of the lease, had assured Jamali that government still needed the premises and that they wer regularizing the procurement process.
The judges said, It came as no surprise therefore that Jamali would elect to forego his right in favour of a long-term relationship with government.
“Without pre-empting the final outcome of the trial, we hold that the court a quo was correct to hold that the defence raised by the respondent was bona fide and if proven at the trial, would defeat the appellant claim.” said the judges
In dismissing the appeal with costs, the CoA found that Jamali’s claim could not be said to be unimpeachable.