Altem Enterprises (Pvt) Ltd t/a Ruwa Furnishers v John Sisk & Son (Pvt) Ltd

The respondent (landlord) and appellant (tenant) entered into a lease agreement in 1998 for premises known as Lot 2, Manresa, Acturus Road, Harare. The initial lease was for three years from 1 June 1998, with a further seven years until 31 May 2008. After the lease expired, the appellant remained in occupation as a statutory tenant. The respondent issued summons on 26 March 2010 seeking eviction and holding over damages, alleging the appellant had breached the lease by: (1) failing to pay rentals since July 2007; (2) erecting a permanent structure without authority; (3) subletting without consent; and (4) failing to maintain the premises. The appellant disputed the breaches, claiming it had attempted to pay rentals by cheque on three occasions, but the respondent refused to accept the cheques. The last cheque was for ZW$1 issued on 6 August 2008 with the inscription "Rent payment for 24 months" following the revaluation of the Zimbabwe Dollar that removed several zeros from the currency. The previous rental had been Z$6 million per month.

• What constitutes 'rent due' under section 30 of the Rent Regulations S.I. 32/07 where parties have not agreed on a new rental amount and the currency has been revalued?
• Whether the tender of ZW$1 constituted valid payment of rent due in the context of currency revaluation and hyperinflation
• What is the obligation of a tenant to pay 'fair rent' when the quantum of rent is disputed and there is no agreement or Rent Board order fixing the rent?
• Whether a notice of appeal can be directed to the court's findings and reasoning rather than only to the substantive order (in relation to the cross-appeal)?
• Whether the appellant lost its right to protection as a statutory tenant by failing to pay fair rental

The appeal was dismissed with costs. The High Court's order for eviction of the appellant and payment of holding over damages in the sum of US$800.00 per month from 1 March 2009 to 31 August 2010 and US$1,575 per month from 1 September 2010 to the date of vacant possession was upheld.

Where parties to a lease have not agreed on the quantum of rent and there is no Rent Board order fixing the rent, the tenant's obligation under common law is to pay a reasonable amount for use and occupation of the premises, assessed by reference to the rental value of the property in the open market. A tenant seeking protection as a statutory tenant must endeavor to pay objectively fair rent that is defensible by commercial criteria and commensurate with the rentable market value of the premises. A tenant cannot relieve himself of the obligation to pay fair rent by tendering an arbitrary and paltry sum entirely incommensurate with market value. The failure to pay fair rental results in loss of protection as a statutory tenant and entitles the landlord to cancel the lease and obtain eviction.

GARWE JA expressed personal doubts about whether the principle in Chidyausiku v Nyakabambo (1987(2) ZLR 119(S)) - that a notice of appeal must be directed to the whole or part of the order made and not to the court's reasons - represents a hard and fast rule in all cases. He observed that in cases involving multiple causes of action, slavish adherence to this principle could cause prejudice and result in absurdity. He suggested the issue should come up for consideration by a full court to revisit whether the principle still makes good law. The court also observed that the finding in Parkside Holdings Private Limited v Londoner Sports Bar (HH-66-00) that a tenant must continue paying the last agreed rental when there is no new agreement would be correct in a normal economic environment but not applicable in situations involving currency revaluation and hyperinflation.

This case establishes important principles regarding statutory tenancy in Zimbabwe during periods of economic instability and currency revaluation. It clarifies that tenants cannot exploit currency devaluation to avoid paying meaningful rent and must continue to pay objectively fair rental based on market value when the quantum of rent is disputed. The case affirms that the protection afforded to statutory tenants is conditional upon payment of fair rent, not merely nominal amounts. It also provides guidance on interpreting 'rent due' under the Rent Regulations where there is no agreement or Rent Board order. The judgment contains significant obiter dicta questioning established appellate procedure regarding whether appeals can challenge findings rather than only orders, suggesting this principle may need revisitation in cases involving multiple causes of action.