Destination Timber (Pvt) Ltd and John Gadzikwa v Guest and Tanner Real Estate (Pvt) Ltd

The respondent (Guest and Tanner Real Estate) sued the appellants (Destination Timber and its Managing Director John Gadzikwa) for arrear rentals totaling US$8,800.00 for No 18 Harrow Road Masasa, Harare, ZW$297,000.00 for late payment penalties, and ZW$163,200.00 for arrear rentals for Bay 3, 18 Harrow Road Masasa. The respondent also sought cancellation of the lease agreement and eviction. On 18 October 2021, John Gadzikwa as Managing Director of Destination Timber signed an acknowledgment of debt for these amounts. After the appellants entered an appearance to defend, the respondent applied for summary judgment. The appellants opposed on various grounds including that the lease agreement was not attached, that they denied owing US$800.00 per month for 18 Harrow Road, and that they could not pay due to COVID-19 lockdowns (supervening impossibility). The magistrate's court granted summary judgment, finding the acknowledgment of debt made the claim unassailable and that there were no triable issues.

• Whether the respondent had capacity to sue
• Whether the summons sufficiently identified the leased property and rental amounts
• Whether the court properly distinguished between the first appellant (juristic person) and the second appellant (natural person) who signed the acknowledgment of debt
• Whether there was a material discrepancy between the acknowledgment of debt (stating 2020) and the summons (stating 2021) that created a triable issue
• Whether an acknowledgment of debt signed by a director binds the company
• Whether the defence of supervening impossibility due to COVID-19 lockdowns constituted a triable issue precluding summary judgment
• Whether costs on a higher scale were warranted

The appeal was dismissed with costs on the higher scale. The magistrate's court order granting summary judgment was upheld.

An acknowledgment of debt signed by a director in their official capacity as managing director binds the company and constitutes an unassailable basis for summary judgment where there is no evidence of payment or other genuine triable defence. Points in limine must go to the root of the matter and cannot be raised merely to deflect from addressing the real issues before the court. Minor discrepancies in dates between an acknowledgment of debt and summons do not create triable issues where the debt remains unpaid. The defence of supervening impossibility must be properly substantiated with evidence and does not apply to commercial premises in the context of COVID-19 rent moratoria which were intended for residential tenants. Costs on a higher scale may be awarded where litigation is pursued frivolously and vexatiously through technical avoidance tactics despite clear liability.

The court observed that costs on a higher scale should be sparingly awarded unless there is evidence of proceedings being frivolous and vexatious, dishonest, reckless or malicious, or resulting from a deplorable attitude towards the court. However, the court noted that issues relating to appeals for failure to pay rent, especially where there is an acknowledgment of debt, clearly fall within the category of litigation that is often pursued frivolously and vexatiously, particularly where a litigant is fully aware that rentals are owed and that they signed the acknowledgment of debt. The court expressed that while courts are often reluctant to award such costs, this was an instance where the respondent had been put through unnecessary expense through attempts at technical avoidance, warranting the higher costs award.

This case reinforces important principles regarding summary judgment applications in Zimbabwean law, particularly: (1) the binding nature of acknowledgments of debt signed by company directors in their official capacity; (2) the requirement that defences must constitute genuine triable issues rather than mere denials or technical objections to avoid summary judgment; (3) the principle of caveat subscriptor - parties are bound by documents they voluntarily sign; (4) the limited scope of supervening impossibility as a defence, particularly in commercial contexts, and the need for proper evidence to substantiate such claims; (5) the circumstances warranting costs on a higher scale where litigation is pursued frivolously and vexatiously through technical avoidance tactics. The case also illustrates the court's approach to points in limine that are raised as a matter of fashion to deflect from the real issues rather than addressing matters that go to the root of the case.