Derick Manuel Dube v Robert Kwenyunga Kwesiga and Hilda Sande Kwesiga and Registrar of Deeds & Companies

The plaintiff (Dube) leased residential property from the first and second defendants (the Kwesigas) at Stand 259 Vainona, Harare, commencing 1 October 2017 at a monthly rent of US$750. The parties acted through an estate agent. The plaintiff claimed the property was uninhabitable due to various defects (no water, flooded septic tank, doors without locks). He alleged the defendants failed to rectify these issues for almost two years, causing him to effect repairs at his own expense totaling US$9,124. He also claimed US$26,400 for security services, US$2,760 for water delivery, US$8,000 for insufficient notice to vacate, US$12,000 for failure to give right of first refusal, US$70,000 for mental anguish/hypertension/MSA-P, and US$30,000 for medical expenses. The plaintiff initially obtained a default judgment which was subsequently rescinded. The defendants denied all claims, stating the plaintiff never notified them of defects as required by the lease, never obtained written consent for improvements, and had no right of first refusal. A Deed of Settlement was signed in a Magistrates Court matter for rental arrears, wherein improvements made by the plaintiff were set off against arrear rentals as at 30 June 2020. At trial, the plaintiff appeared in person and failed to substantiate his claims with proper evidence.

• Whether the plaintiff established a prima facie case warranting the defendants be put on their defence
• Whether the plaintiff proved he was entitled to reimbursement for repairs effected to the leased property
• Whether the plaintiff proved the defendants were contractually liable for security services and water delivery costs
• Whether the plaintiff established damages for insufficient notice to vacate
• Whether the plaintiff proved entitlement to damages for breach of a right of first refusal
• Whether the plaintiff established liability for non-patrimonial damages (mental anguish, hypertension, MSA-P) arising from breach of contract or delict
• Whether the plaintiff proved entitlement to current and future medical expenses
• Whether costs on a legal practitioner and client scale were warranted

The application for absolution from the instance was granted with costs on a legal practitioner and client scale against the plaintiff.

For a plaintiff to resist absolution from instance, evidence (not mere pleadings) must establish all essential elements of the claim upon which a reasonable court could or might find in the plaintiff's favour. A party is bound by its pleadings and cannot prove a different case at trial. Under Zimbabwean common law (following South African jurisprudence in Administrator, Natal v Edouard 1990 (3) SA 581 (A)), non-patrimonial damages such as mental anguish, distress, discomfort, inconvenience or sentimental loss cannot be recovered on the basis of breach of contract - only patrimonial loss is recoverable for contractual breach. Claims for non-patrimonial loss must be founded in delict, requiring proof of fault and causation. A right of first refusal can only be created by express agreement between parties and requires that the grantor be prepared to sell to a third party at a given price before the grantee's right is triggered. Where a plaintiff's evidence is manifestly unreliable, contradictory, unsupported by documentation, and fails to establish essential elements of liability and quantum, absolution from instance must be granted.

The court made several observations: (1) Self-acting litigants have a constitutional right to appear in person, creating a special duty on courts to accommodate procedural shortcomings without creating perception of descending into the arena (citing Crnkovic v Mpofu CCZ 01-24); (2) A witness giving oral testimony should testify from memory and not read from prepared notes, though memory may be refreshed from contemporaneous documents compiled or verified by the witness when facts were fresh; (3) It would be absurd on common business sense to imply a term requiring a landlord to provide security costing US$1,050 per month when the tenant was paying only US$750 monthly rent and was in arrears; (4) Litigants must take court proceedings seriously and desist from abusing the court process - frivolous and vexatious litigation wastes judicial resources that could be used for worthy causes; (5) The court described the plaintiff's claim as 'preposterous', 'indubitably vexatious', 'buffoonery', and a 'complete waste of the court's time and judicial resources'; (6) The South African Appellate Division's refusal in Administrator, Natal v Edouard to extend the law to permit recovery of non-patrimonial loss for breach of contract (declining to follow English cases like Jarvis v Swan's Tours) reflects Zimbabwean common law, and such extension can only be effected by the legislature.

This case reinforces fundamental principles of Zimbabwean civil procedure and contract law: (1) the test for absolution from instance requires a plaintiff to adduce evidence proving all essential elements of the claim, not merely plead them; (2) parties are bound by their pleadings and cannot advance a different case at trial without amendment; (3) litigants must establish both liability and quantum with proper evidence; (4) under common law, non-patrimonial damages (mental anguish, distress, discomfort) cannot be recovered for breach of contract - only patrimonial loss is recoverable; such claims must be founded in delict; (5) a right of first refusal must be created by agreement and cannot be implied; (6) self-acting litigants must still meet procedural and evidentiary requirements, though courts should accommodate reasonable shortcomings without entering the arena; (7) costs on a legal practitioner and client scale are warranted where claims are frivolous, vexatious or constitute an abuse of process. The judgment demonstrates the court's willingness to protect defendants from meritless litigation while maintaining fairness to unrepresented litigants.