Abdullah Ismail Kassim (in his capacity as Executor Dative of the Estate of Ralph Simon Lapin) v Matthews Mukwawaya

The plaintiff, as executor dative of the estate of Ralph Simon Lapin, sought to eject the defendant from 120 Harare Drive, Marlborough, Harare. The defendant had been a tenant since 1999 under a one-year lease agreement that expired on 31 August 2000, after which he became a statutory tenant. Monthly rental was agreed at US$200 from March 2009. The deceased's distribution account was approved in July 2009, with the property to devolve to a trust for the deceased's daughter, Annette Usher, who was critically ill and residing in a nursing home. The trust had not been established, necessitating the sale of the property to fund her care. From September 2009, the defendant stopped paying rent, claiming he had effected repairs costing US$5,490.50 and was owed reimbursement. He also claimed a verbal right of first refusal granted by the deceased in 2004 and refused to allow prospective buyers to view the property. The plaintiff's lawyers cancelled the lease in January 2010 for non-payment of rent and offered the defendant the opportunity to purchase the property for US$100,000, which he rejected.

• Whether the plaintiff had locus standi to institute the action as executor dative after the distribution account had been approved
• Whether the defendant had a right of first refusal in the event of the property being sold
• Whether the plaintiff was entitled to an order for eviction of the defendant from the property
• Whether the defendant was entitled to withhold rental payments to recover costs of repairs he had effected
• Whether the defendant breached the lease agreement by non-payment of rentals and refusing access to prospective buyers

Judgment granted in favour of the plaintiff: (1) Cancellation of the lease confirmed; (2) Defendant and all persons claiming through him ordered to vacate 120 Harare Drive, Marlborough, Harare by 31 October 2010, failing which the Deputy Sheriff was authorized to evict; (3) Defendant ordered to pay: (a) US$1,440 in arrear rentals; (b) holding over damages of US$200 per month from 1 March 2010 until vacant possession given; (c) interest a tempore morae at the prescribed rate; and (d) costs of suit on a legal practitioner and client scale.

The binding legal principles established are: (1) An executor dative retains full locus standi in judicio to institute legal proceedings relating to estate property until the estate has been finally and completely liquidated to the satisfaction of the Master, notwithstanding approval of the distribution account (section 52 of the Administration of Estates Act). (2) A right of first refusal (pre-emption) in a lease does not compel the grantor to sell, does not entitle the grantee to dictate the sale price or terms, does not prevent sale to third parties after the grantee rejects an offer, and does not excuse the grantee from fulfilling lease obligations during the tenancy. (3) A statutory tenant remains bound by the terms and conditions of the original contractual lease, including the obligation to pay rent monthly in advance without any deduction whatsoever, even where the tenant claims to be owed money for repairs (sections 30(2) and 31 of the Rent Regulations 2007). (4) Where a lease agreement requires written notice of defects and provides for arbitration of disputes, a tenant cannot unilaterally withhold rent to recover repair costs without following the prescribed procedures. (5) The onus of proving special defences to an ejectment claim rests on the defendant on a balance of probabilities.

The court noted with some concern that Exhibit 3, produced as the Master's consent to sell, related to a different property (122 rather than 120 Harare Drive) but observed this anomaly did not affect the plaintiff's continuing capacity as executor. The court also observed that the defendant had been given 10 years of occupation and should therefore be given some time to vacate the property, hence allowing until 31 October 2010 for vacation. The court commented that it seemed "very unlikely" and "highly improbable" that the defendant would have expended such substantial sums on repairs without seeking recompense until much later and without written assurance of reimbursement, suggesting the court had serious doubts about the credibility of the defendant's entire version of events.

This case clarifies important principles in Zimbabwean law regarding: (1) the continuing capacity and locus standi of an executor dative after approval of a distribution account where the estate has not been finally liquidated; (2) the nature and limits of a right of first refusal (right of pre-emption) in lease agreements, confirming it does not compel sale at the grantee's price or excuse breach of lease terms; (3) the strict obligations of statutory tenants to pay rent without deduction, even where they claim to have effected repairs; and (4) the continuation of contractual lease terms into statutory tenancies under the Rent Regulations. The case demonstrates the court's application of sections 30(2) and 31 of the Rent Regulations 2007 and section 52 of the Administration of Estates Act.