Birria Investments (Private) Limited v Art Deal (Private) Limited and Hanif Khan

On 26 January 2010, Richard Jie, representing the plaintiff Birria Investments, paid US$75,800 to the second defendant (Hanif Khan) as a tenancy deposit/goodwill for Shop 2 Cameron Street, Harare. On 28 January 2010, Jie paid an additional US$13,500 as rentals for February, March and April. A lease agreement was concluded between the first defendant (Art Deal) as lessor and the plaintiff as lessee for "certain No. 2 Cameron Street, Harare" for retail purposes, commencing 1 February 2010 for three years at US$4,500 per month. The plaintiff alleged it was never given vacant possession, discovered other tenants were already occupying the premises, and the keys provided did not work. The plaintiff contended the second defendant had no authority to lease the premises and demanded a refund. The second defendant claimed the correct premises were shown but the address on the lease was incorrect, that the premises included existing tenants in a butchery section, and raised an unliquidated counter-claim totaling US$98,000 for various alleged damages arising from harassment by the plaintiff's representative.

• Whether a valid lease agreement came into existence given the mistake as to the identity and description of the leased premises
• Whether the defendants raised a bona fide defence to resist the application for summary judgment
• Whether the defendants' unliquidated counter-claim constituted a valid defence to the summary judgment application
• Whether there was consensus ad idem between the parties regarding the subject matter of the lease

Summary judgment was granted in favor of the plaintiff against both defendants jointly and severally, the one paying the other to be absolved, together with costs of suit. The lease agreement was declared null and void, and the defendants were ordered to pay US$75,000 with interest from 27 January 2010 and US$13,500 with interest from 29 January 2010, both at the prescribed rate to date of payment.

1. In a contract of lease, the property being leased must be described with sufficient clarity to enable identification; the description must not be so vague as to lead to the conclusion that no contract was concluded. 2. Where there is a fundamental mistake as to the description of the leased premises and divergent views between lessor and lessee as to what is being leased, this manifests a lack of consensus ad idem such that no valid contract comes into being. 3. A defendant resisting summary judgment must allege material facts which, if proved at trial, would entitle him to succeed in his defence. 4. An unliquidated counter-claim raised as a defence to summary judgment must establish its quantum with sufficient particularity and disclose a bona fide cause of action; a counter-claim that is vague, unsubstantiated, and where the quantum has not been established does not disclose a bona fide defence for purposes of resisting summary judgment.

The court noted that it was not necessary to decide whether the mistake was unilateral or common to both parties, as the lack of consensus was sufficient to vitiate the contract. The court also observed that various heads of the counter-claim appeared to have been included merely "to beef up the sums to constitute a counter-claim for purposes of evading the claim for summary judgment." The court commented that if the second defendant had been suspended from employment with the first defendant, it defied logic that he would be deposing to an affidavit on behalf of the first defendant. Regarding the defamation claim arising from a newspaper article, the court noted that the Herald newspaper was not under the control of the plaintiff and any cause of action would properly lie against the newspaper, not the plaintiff.

This case is significant in Zimbabwean contract law (applicable to South African jurisprudence given the shared Roman-Dutch law tradition) for its application of principles relating to consensus in contract formation, particularly in lease agreements. It emphasizes that the subject matter of a lease must be described with sufficient clarity to enable identification without depending solely on oral evidence from the parties. The case also provides important guidance on the requirements for resisting summary judgment applications, particularly regarding unliquidated counter-claims, reaffirming that such counter-claims must disclose a cause of action and establish quantum with sufficient particularity to constitute a bona fide defence.