Gulsons (Private) Limited v Mr Wayire

In 2006, the defendant took occupation of the plaintiff's commercial property (Shop 4 Stand 67, Cnr. Kings Avenue/Nelson Mandela, Kwekwe) pursuant to a lease agreement that was renewed annually. The monthly rental was US$1,000 plus US$25 for rates and refuse collection. The defendant paid rent regularly until May 2011. In May 2011, a meeting was held with the Affirmative Action Group (AAG) representing tenants, including the defendant, demanding reduced rentals and making threats against the plaintiff. On 31 May 2011, the AAG wrote to tenants instructing them to withhold rent pending discussions with the landlord about reduced rentals. Following this, the defendant stopped paying rent from June 2011. The plaintiff sent a reminder on 24 June 2011 warning of cancellation. The defendant did not pay, and the plaintiff cancelled the lease by letter dated 21 July 2011. The defendant claimed he deposited reduced amounts (US$650 per month) into his legal practitioners' trust account and alleged the plaintiff had agreed to reduce rent.

• Was the lease agreement validly cancelled by the plaintiff?
• Did the plaintiff agree to a reduction of rentals and if so, to what amount?
• Is the defendant indebted to the plaintiff in respect of arrear rentals and damages for unlawful holding over?

1. The cancellation of the lease agreement was confirmed. 2. The defendant and all persons claiming occupation through him were ejected from the premises. 3. The defendant was ordered to pay US$2,000 in arrear rentals for June and July 2011, plus interest a tempore morae at the prescribed rate. 4. The defendant was ordered to pay holding over damages of US$32 per day from 1 August 2011 to the date of ejection. 5. The defendant was ordered to pay costs of suit on the ordinary scale.

Non-payment of rent constitutes a material breach of a lease agreement that entitles the landlord to cancel the lease. A tenant cannot unilaterally reduce rental payments based on unproven allegations of agreement to reduce rent. Payment of reduced amounts into a tenant's own legal practitioners' trust account does not constitute valid payment of rent under a lease agreement. The party alleging variation of contractual terms (here, reduction of rent) bears the burden of proving such agreement. Conflicting and unsupported evidence of alleged rent reduction will not discharge this burden.

The court observed that the letters purporting to invite the plaintiff to collect reduced rental amounts from the defendant's legal practitioners were not genuine, as evidenced by the plaintiff's unsuccessful attempt to collect funds. The court also noted that even based on the defendant's own claimed reduced rental amount, the funds allegedly held by the legal practitioners would only cover two months' rent, contradicting the defendant's claims of having deposited money for June to December 2011. While the plaintiff was entitled to costs on a higher scale based on the defendant's conduct, the court declined to award such costs because they were not properly claimed in the declaration or closing submissions, emphasizing the importance of proper pleading.

This case reaffirms important principles in Zimbabwean landlord and tenant law regarding the validity of lease cancellation for non-payment of rent. It establishes that: (1) landlords are entitled to cancel lease agreements for breach due to non-payment of rent; (2) tenants cannot unilaterally vary rental amounts without the landlord's agreement; (3) payment of reduced amounts to a tenant's own agents does not constitute proper payment under a lease agreement; (4) the burden is on the defendant to prove any alleged agreement to reduce rent. The case also demonstrates the courts' approach to tenant organizations attempting to pressure landlords into rent reductions through collective action and withholding of payments.