The applicant was the owner of property known as No. 74 Douglas Road, Workington, Harare. On 1 June 2009, the applicant and first respondent entered into a one-year lease agreement for the property at a monthly rental of US$645.00. Prior to this lease, the first respondent had been a statutory tenant paying US$1,125.00. The second respondent bound himself as surety and co-principal debtor for rent payments. On 20 October 2009, the applicant cancelled the lease agreement citing rental arrears of US$4,418.00, though most of these arrears (US$3,431.20) had accumulated prior to 1 June 2009 when the first respondent was a statutory tenant. The applicant's agent gave the first respondent until 23 October 2009 to pay the arrears. The first respondent made payment on 27 October 2009 (appearing to be meant as 2009 based on context). The application was filed on 8 January 2010 seeking confirmation of cancellation, eviction, payment of arrears, and holding over damages.
The application was dismissed with costs.
Rental arrears that accumulated during a previous tenancy arrangement (when the tenant was a statutory tenant) cannot form the basis for cancellation of a subsequent, separate lease agreement. A landlord must establish that the tenant is actually in default under the current lease agreement at the time of instituting legal proceedings. Where payments have been made and the tenant is up to date with rental obligations under the current lease at the time of filing an application, there is no cause of action for cancellation, eviction, or damages based on alleged arrears from a previous tenancy period.
The court noted that counsel for the respondents did not make reference to a point in limine raised in the Heads of Argument during oral submissions, and assumed this point had been abandoned. The court also observed that the lease agreement clause 19(a)(1) regarding rent being in arrear appeared to be incomplete, and accordingly nothing turned on it. The court further noted that if payment had been effected on 23 October 2009 (the deadline given by the applicant), the applicant would have had a different view, though this observation did not affect the outcome as the core issue was that the arrears relied upon pre-dated the current lease agreement.
This case is significant in Zimbabwean landlord and tenant law as it establishes that a landlord cannot rely on rental arrears accumulated under a previous tenancy arrangement (statutory tenancy) to cancel a subsequent formal lease agreement. It reinforces the principle that each lease agreement must be treated as a separate contractual relationship, and claims for breach must be based on obligations and defaults arising under the specific agreement in question. The case also emphasizes the importance of establishing a valid cause of action and actual breach at the time legal proceedings are instituted.