Cherima Marketing Services v Voedsel Enterprises (Pvt) Ltd

The parties entered into a lease agreement on 18 January 2020 whereby the plaintiff (lessor) leased immovable property at No. 52 Detroit Crescent, Marondera to the defendant (lessee) for a period of 3 years at US$1,500.00 per month rent payable in advance by the 5th day of each month. The defendant paid a security deposit of US$1,500.00. Despite signing the lease agreement, the defendant never took occupation of the leased property and failed to pay any monthly rentals. The plaintiff claimed arrear rentals of US$9,000.00 and holding over damages from September 2020. The defendant alleged the plaintiff breached the agreement by failing to provide vacant possession of the premises and counterclaimed for cancellation of the lease and refund of US$3,000.00 (though the counterclaim was later withdrawn).

• Whether the plaintiff breached the lease contract by not delivering vacant possession of the property to the defendant
• Whether the defendant is liable to pay rentals to the plaintiff and if so, for what period and quantum
• Whether the defendant is entitled to a refund of amounts paid to the plaintiff

1. The defendant shall pay to the plaintiff arrear rentals in the sum of US$9,000.00 or its equivalent in ZWL$ at the prevailing interbank rate on the date of payment plus 5% interest per annum calculated from the date of summons to the date of payment in full. 2. The defendant shall pay costs of suit.

Where parties have entered into a valid lease agreement but the lessee fails to take occupation, the lessor has a duty to mitigate its loss and cannot claim rentals indefinitely without attempting to re-let the property. The liability for rent continues until such time as it becomes clear the lessee will not take occupation and the lessor takes steps to enforce its rights (such as issuing summons). Where a lease agreement specifies the manner of termination (such as written notice), verbal termination is ineffective and does not comply with the contractual requirements. A party claiming to have made payment bears the burden of proving such payment with credible evidence, and mere assertions without documentary proof or corroborating details will be rejected.

The court expressed displeasure at the defendant's counsel's failure to file heads of argument as undertook, noting this at the preliminary stage of the judgment. The court commented that it has become "fashionable for litigants to claim costs on a punitive scale, presumably on the advice of their lawyers, in circumstances where it is not justified like the present case," suggesting such claims should only be made in appropriate circumstances. The court also observed that the plaintiff treated the defendant as "a potential tenant with a seasonal financial base, it being in the tobacco auctioning business, with the capacity to pay even arrear rentals," suggesting this informed the plaintiff's decision not to immediately seek another tenant.

This case is significant in Zimbabwean contract and lease law as it addresses the obligations of parties to a lease agreement where the lessee never takes occupation despite a valid agreement being concluded. It emphasizes the importance of the duty to mitigate loss in breach of contract cases, particularly in commercial lease agreements. The judgment also reinforces formal requirements for contract termination where agreements specify the manner of termination (in this case, written notice as required by Clause 1:2). The case demonstrates the court's approach to assessing witness credibility and the evidentiary burden on parties making payment claims without documentary proof.