Hazel Magumise v Solomon Muzenda

The applicant sought to evict the respondent from Flat number 14, 109 Baines Avenue, Harare. The respondent had been her tenant at the flat since 2014 under a written lease agreement that was renewable annually and terminable on two months' written notice. The applicant served the respondent with a written notice on 29 January 2019, requesting him to vacate the flat by 30 April 2019 as she required it for her own use. During the three-month notice period, the applicant concluded a lease for her Mount Pleasant home where she was living, with the new tenant taking occupation on 1 May 2019. The respondent only responded on the last day of the notice period (29 April 2019) through his legal practitioners, seeking an extension of the lease. The applicant managed the flat on behalf of Roshumba Family Trust, which owned the property. The respondent claimed he never received the notice, alleged the lease was oral and terminable on 31 July 2019, and raised multiple preliminary objections to resist eviction.

• Whether the application was urgent
• Whether the applicant had locus standi to sue the respondent
• Whether the applicant introduced inadmissible new evidence in her answering affidavit
• Whether there were material disputes of fact that could not be resolved on the papers
• Whether the respondent received the notice to vacate dated 29 January 2019
• Whether the lease agreement was written or oral and its terms of termination
• Whether the applicant was entitled to evict the respondent

The application was granted as prayed in the amended draft order. The respondent and all those claiming title through him were ordered to vacate Flat No. 14, 109 Baines Avenue, Harare within 48 hours of service. The Sheriff was authorized to immediately evict the respondent if he failed to vacate within 48 hours. The respondent was ordered to pay costs on an attorney and own client scale.

In motion proceedings involving eviction, a respondent who relies on material disputes of fact must do more than make bare denials of the applicant's averments. The respondent's affidavits must disclose material issues in which there is a bona fide dispute of fact capable of being properly decided after viva voce evidence. Courts must take a robust and common sense approach to distinguish real from illusory disputes of fact, and should not dismiss applications on the mere say-so of the respondent. Evidence attached to answering affidavits that rebuts matters raised in opposition papers is not inadmissible new evidence. What has not been denied in affidavits is taken as having been admitted. A lessor or authorized agent who granted occupation rights under a lease agreement terminable on notice has the right to evict a tenant who refuses to vacate after proper notice has been given.

The court observed that the respondent's strenuous efforts to resist eviction, including raising multiple preliminary objections and creating confusion in an otherwise straightforward case, justified the granting of an amended draft order that was more stringent. The court noted that the respondent's conduct put the applicant on guard and caused her actual prejudice by rendering her homeless from 1 May 2019. The court commented that no lease - oral or written - could be valid with only one term as the respondent suggested, particularly when it left out basic requirements such as duration, renewal period, rent adjustments, and breach provisions. The court observed that the respondent's sudden resort to legal counsel for the 2019 renewal, after successfully negotiating renewals himself in 2015, 2016, 2017, and 2018, suggested he had received the notice and was deliberately resisting eviction.

This case demonstrates the Zimbabwean courts' application of principles regarding material disputes of fact in motion proceedings, particularly in landlord-tenant eviction matters. It illustrates that courts will take a robust and common sense approach to distinguish genuine disputes of fact from illusory ones created to resist eviction. The case confirms that bare denials are insufficient to create material disputes of fact, and respondents must disclose bona fide disputes capable of resolution through viva voce evidence. It also addresses the admissibility of rebuttal evidence in answering affidavits and reinforces the principle that what is not denied in affidavits is deemed admitted. The judgment emphasizes that lessors (or their authorized agents) who grant occupation rights can terminate those rights in accordance with lease terms.