Ilack Moyo and Others v Rufaro Marketing (Pvt) Ltd

The applicants (three tenants) entered into lease agreements with the respondent, Rufaro Marketing (Pvt) Ltd, for various bar properties in Harare between 2012 and subsequently. With the approval of the respondent's former Chief Executive Officer, the applicants renovated the premises and sublet portions to sub-tenants. Around 2023, the respondent appointed new management which directed the applicants' sub-tenants to pay rentals directly to the respondent rather than to the applicants. The applicants alleged this affected their ability to fulfill their own rental obligations. The applicants had previously brought an application for declaratory relief (HCH 2070/23) but withdrew it due to a technicality. Following the withdrawal, the respondent initiated proceedings in the Magistrates Court to confirm cancellations of the lease agreements for alleged breaches. The applicants then filed this fresh application seeking declaratory orders that the respondent's revocation of sub-tenancy agreements and new leases with sub-tenants were unlawful, and an interdict preventing the respondent from collecting rentals from the sub-tenants.

• Whether the doctrine of lis pendens applies to bar the current application given pending Magistrates Court proceedings between the same parties
• Whether the court should exercise its discretion to uphold the special plea of lis pendens
• Whether the applicants could pursue a fresh application after voluntarily withdrawing their previous application while the respondent had initiated separate proceedings

The matter was struck off the roll pending determination of the Magistrates Court proceedings. The applicants were ordered to pay costs on an ordinary scale.

The binding legal principles established are: (1) For lis pendens to succeed, it must be demonstrated that the matters are between the same parties or their successors in title, concerning the same subject matter, and founded upon the same cause of action. (2) The court has discretion in upholding the special plea of lis pendens and must consider whether the pending matter will offer an efficacious remedy, whether the end result will be similar, and the possibility of contradictory judgments. (3) Where derivative rights (such as sub-tenancy agreements) depend on the validity of primary agreements (main lease agreements) that are subject to determination in another court, the court should not intervene to avoid contradictory judgments. (4) A party's voluntary withdrawal of proceedings is a personal decision that does not prevent the opposing party from initiating or pursuing their own separate proceedings.

The court observed that the applicants were "clearly misdirected" in their view that they could file a fresh application two years after withdrawing their previous matter while expecting the respondent to have refrained from initiating their own proceedings. The court noted that the factors to be considered in exercising discretion on lis pendens "are endless depending on the nature of the case" (quoting Mabhena v Sibanda and Associates). The court also observed that once the Magistrate determines whether to confirm the cancellations of the lease agreements, that decision "will be able to guide the parties as to how to proceed from there onwards," suggesting that the Magistrates Court proceedings would provide a comprehensive resolution to the parties' dispute.

This case is significant in Zimbabwean civil procedure for clarifying the application of the doctrine of lis pendens where related proceedings are pending in different courts. It emphasizes the court's discretion in upholding lis pendens and the factors to be considered, including the efficacy of alternative remedies, similarity of outcomes, and the risk of contradictory judgments. The case also reinforces the principle that a party's voluntary withdrawal of proceedings does not prevent the opposing party from initiating or continuing their own separate proceedings. It demonstrates the court's reluctance to interfere where a lower court is already seized with matters that could comprehensively resolve the underlying dispute, particularly where derivative rights (sub-tenancies) depend on the determination of primary rights (main lease agreements).