Brenda Carol Leeper N.O and John Jones v Raymond Nyambiya and Petronila Rufaro Nyambiya

The second applicant and respondents entered into a lease agreement for Stand 279 Woodlands, Uplands, Waterfalls, Harare, commencing 1 July 2010. The lease was initially for $500 per month and renewed in 2012 for $700 per month, payable monthly in advance. From January 2013, respondents stopped paying rent. On 23 April 2013, respondents' lawyers claimed they were holding rentals pending proof of entitlement, but later denied holding such rentals. Respondents alleged they discovered human remains (ashes) in the main bedroom and claimed a novated agreement whereby applicants would pay them $1,500 per month for safekeeping the ashes, offset against the $700 rent, resulting in net payment to respondents of $800 per month. Applicants sought cancellation of the lease, eviction, arrear rentals of $28,700, and holding over damages of $700 per month.

• Whether non-payment of rent entitled the landlord to cancel the lease agreement and evict the tenant
• Whether the respondents established a valid novation agreement that extinguished the original lease obligations
• Whether notice was required before seeking eviction for non-payment of rent
• What remedies were available to the landlord for breach of the lease agreement

The court ordered: (1) Respondents and all claiming through them to vacate within 7 days of service; (2) Respondents to pay arrear rentals of $28,700; (3) Respondents to pay holding over damages of $700 per month from 1 June 2016 to date of vacation; (4) Respondents to pay all arrears for water, electricity, telephone, rates, municipal taxes, refuse charges and other services; (5) If respondents fail to vacate, the Deputy Sheriff shall eject them; (6) Respondents to pay costs of suit.

Where a lease agreement provides that non-payment of rentals constitutes a breach entitling the landlord to cancel the lease, the landlord has a right to evict a tenant who fails to pay rentals without requiring prior notice. A party alleging novation of a contract bears the onus of proving: (1) the existence of a new obligation relationship, (2) compliance with all legal requirements for a valid contract, and (3) intention to replace the previous agreement. Mere assertions without proof are insufficient to establish novation.

The court observed that the respondents' defence appeared to be an afterthought designed to avoid paying rentals, particularly given the inconsistent positions taken by their lawyers. The court noted that if the alleged psychological trauma from discovering ashes were genuine, the respondents would have vacated the premises long before. The court declined to address other issues raised by respondents, viewing them as attempts to delay the inevitable outcome.

This case reinforces established Zimbabwean landlord and tenant law principles regarding remedies for non-payment of rent. It clarifies that landlords are entitled to cancel lease agreements and evict tenants for non-payment without prior notice where the lease agreement so provides. The case also provides guidance on the requirements for establishing novation of a contract, emphasizing that parties alleging novation bear the onus of proving the existence of the new agreement and intention to replace the original contract. The judgment demonstrates the courts' reluctance to accept fabricated defences designed to avoid contractual obligations.