Honeycomb Hill (Private) Limited v Herentals College (Private) Limited

In January 2012, the applicant entered into discussions with the respondent to sell immovable property at No. 7 Cowie Road, Tynwald for $180,000. A draft sale agreement was prepared but never signed. Instead, on 12 January 2014, the parties entered into a two-year lease agreement for the same property, with an option to renew for four years upon written notice. Before the lease expired, a dispute arose about whether the agreement was a lease or a sale. The respondent insisted it was a lease, noting that no subdivision permit had been issued as required by the Regional Town and Country Planning Act. The applicant issued summons on 14 June 2012 based on the sale discussions. On 15 May 2013, the applicant gave notice that the lease would not be renewed when it expired in December 2013. The respondent refused to vacate unless paid for improvements made under Clause 8 of the lease and demanded repayment of a $140,000 loan advance. On 27 March 2014, the applicant applied for summary judgment seeking eviction, holding over damages of $10,000, and costs.

• Whether the applicant was entitled to summary judgment based on a non-existent sale agreement
• Whether the applicant properly founded its cause of action in the summons and declaration
• Whether new matters could be raised in an answering affidavit that were not in the founding affidavit
• Whether the respondent had a bona fide defence to the claim
• Whether damages claimed required proof
• Whether summary judgment was appropriate where the applicant owed the respondent money and improvements had not been evaluated

The application for summary judgment was dismissed with costs.

An application for summary judgment must be based on the founding affidavit, which must fully set out the cause of action. An applicant cannot rely on a non-existent agreement as the basis for its claim and ignore a valid existing agreement. Summary judgment will be refused where: (1) the respondent has a bona fide defence; (2) damages claimed are not proved; (3) the applicant attempts to introduce new matters in an answering affidavit rather than the founding affidavit; (4) there are triable issues requiring evidence to be ventilated at trial; and (5) granting summary judgment would result in injustice. A purported sale agreement of immovable property that is merely verbal and where a draft written agreement was never signed does not constitute a valid agreement of sale.

The court observed that it is difficult for a landlord to succeed in evicting a tenant through summary judgment when the landlord owes the tenant substantial money ($120,000 in this case), as such a remedy may lead to injustice. The court also noted that both parties conceded improvements had not been evaluated, indicating there was still considerable work to be done before the applicant's claim could be finalized. The court commented that the parties should go to trial to properly resolve all matters in dispute rather than seeking the expedited remedy of summary judgment.

This case is significant in Zimbabwean civil procedure for reinforcing fundamental principles applicable in South African law: (1) applications stand or fall on the founding affidavit and new matters cannot be introduced in answering affidavits; (2) parties are bound by their pleadings and cannot shift the basis of their claim during proceedings; (3) summary judgment is inappropriate where there are genuine triable issues and the respondent has a bona fide defence; (4) damages must always be proved even in unopposed matters, and more so in opposed applications; (5) courts will not grant summary judgment where it may lead to injustice, such as evicting a tenant to whom the landlord owes substantial money; and (6) agreements for the sale of immovable property must comply with formal requirements (be in writing).