Fort Group Enterprises (Pvt) Ltd v Bright Investments (Pvt) Ltd

The plaintiff (Fort Group Enterprises) leased property at 44 Lobengula Street, Bulawayo to the defendant (Bright Investments) on 1 September 2009 for monthly rent of R11,000. The defendant paid the first month's rent in full in September 2009, but thereafter made erratic payments. The property had previously been leased to Tip-Top Fish & Chips, operated by the defendant's chief executive officer's mother, which had also defaulted on rent payments. The plaintiff claimed that the defendant breached the lease agreement by failing to pay rent regularly, and sought cancellation of the lease, eviction, payment of arrears totaling ZAR75,000 as at 28 February 2010, and holdover damages. The defendant claimed the agreement was invalid, arguing it was signed under undue influence and was a ploy to unlawfully increase rent. The defendant's CEO testified she signed the agreement intending to use it as evidence before the Rent Board of illegal rent increases, and that plaintiff had insisted on signing a new agreement as a precondition to opening the premises.

• Whether the lease agreement was validly concluded or whether it was entered into under undue influence
• Whether the essential elements for a valid lease agreement were present (agreement on purpose, identity of property, and rent)
• Whether the defendant's failure to pay rent constituted a breach of the lease agreement
• Whether the defendant qualified as a statutory tenant under Statutory Instrument 676/1983 Commercial Premises (Rent) Regulations, 1983
• Whether a tenant who disputes rent is obliged to pay minimum rentals they view as fair

The court granted the following order: (a) The lease agreement between the parties is cancelled; (b) Defendant and all those claiming through it must vacate 44 Lobengula Street, Bulawayo within 48 hours of service of the order; (c) If the defendant does not vacate within 48 hours, the Deputy Sheriff of Bulawayo is authorized to evict the defendant and all those claiming through it; (d) Defendant must pay ZAR75,000 being rental arrears as at 28 February 2010; (e) Defendant must pay holdover damages at ZAR11,000 per month or ZAR366.60 per day from 1 March 2010 to date of eviction; (f) Defendant must pay costs of suit on an attorney-client scale.

A lease agreement is valid when the essential elements are present: (1) agreement on the purpose of the contract, (2) identification of the property, and (3) agreement on rent. Agreement on rent may be express or implied; it is implied where a lessee, after being informed of the rent amount, occupies the property and pays rent accordingly. Payment of rent in accordance with agreed terms demonstrates consensus ad idem and validates the agreement. A party cannot invalidate an agreement on grounds of undue influence where they deliberately misled the other party and cannot benefit from their own deceit. To qualify for statutory tenant protection under commercial rent regulations, a tenant must be paying rent; even where rent is disputed, the lessee is obliged to pay minimum rentals viewed as fair. Failure to pay rent as agreed constitutes a breach of the lease agreement justifying cancellation.

The court made observations about the credibility of the defendant's CEO as a witness, noting she was evasive, changed her testimony, and admitted to deliberately misleading the plaintiff. The court remarked that she was 'a stranger to the truth and the kind of person whose tongue the truth sits with a lot of discomfort.' The court also noted that it would be improper to allow a party to benefit from their own deceit. While not necessary to the decision, the court referenced the principle from Surpline Investment D/L v Forestry Company of Zimbabwe regarding the obligation to pay minimum rentals even when rent is disputed, though this appears to form part of the ratio as well.

This case establishes important principles in Zimbabwean landlord and tenant law regarding the essential elements of valid lease agreements, the doctrine of consensus ad idem as evidenced by conduct (payment of rent), and the obligations of tenants who dispute rent amounts. It reinforces that parties cannot benefit from their own fraudulent or deceitful conduct in contractual relations. The case also clarifies that statutory tenant protection is contingent upon fulfilling rental payment obligations, and that even where rent is disputed, minimum payments viewed as fair must be made. The judgment demonstrates the court's approach to assessing credibility of witnesses and rejecting evidence from witnesses who change their testimony or admit to deliberate deception.