Jassat, Mahomed and Essof (Pvt) Ltd v Oakview Investments (Pvt) Ltd

The respondent occupied premises at Number 61 Leopold Takawira Street, Harare pursuant to a lease agreement with the applicant. In April 2010, the applicant instituted eviction proceedings (HC 2634/10). At a pre-trial conference, the parties entered into a deed of settlement on 30 July 2010 whereby the respondent undertook to vacate the premises by 31 July 2012, with rent to be reviewed every six months during that period. On 8 June 2012, the applicant's legal practitioners reminded the respondent of the agreement to vacate by 31 July 2012. On 19 July 2012, the respondent refused to vacate, alleging that the deed of settlement had been superseded by several subsequent oral agreements. The respondent claimed these agreements included: payment of rent above market rates to continue the lease beyond 31 July 2012, partition of the property into three premises with the respondent having a right of first refusal to occupy one shop, and the respondent's payment of outstanding municipal rates. The applicant denied any such subsequent agreements and instituted fresh eviction proceedings on 5 September 2012.

• Whether a deed of settlement executed by parties had been abandoned and substituted by subsequent oral agreements
• Whether a dispute of fact raised in motion proceedings could be resolved on the papers without viva voce evidence
• Whether the applicant was entitled to ejectment of the respondent based on the deed of settlement
• Whether the respondent was liable for holding over damages

1. Respondent and all persons claiming occupation through it were ejected from the premises at No. 61 Leopold Takawira Street, Harare. 2. In the event of failure to vacate after service of the order, the Sheriff or Deputy shall take all necessary steps to eject them and give vacant possession to the applicant. 3. The respondent was ordered to pay holding over damages of US$166.66 per day from 01 August 2012 to the date of ejectment. 4. The respondent was ordered to pay the costs of the application.

Where parties have entered into a formal written deed of settlement, a party alleging that the deed was abandoned and substituted by subsequent oral agreements bears the burden of proving such agreements with credible evidence. Bald assertions unsupported by documentary proof, particularly where the alleged variation would reasonably be expected to be in writing, will not discharge this burden. Courts may and should resolve disputes of fact in motion proceedings on the papers where one party's version is inherently improbable or unsupported by evidence, applying a robust common sense approach rather than requiring viva voce evidence in every case where facts are disputed. A tenant who remains in occupation after the agreed date of vacation is liable for holding over damages calculated on the basis of the rent previously paid.

The court noted that the objection in limine regarding the requirement to obtain a certificate from the Rent Board had no merit and was properly abandoned, as the procedure of obtaining such a certificate applies only to leases for residential premises, not commercial premises. Zhou J also made an observation about compliance with procedural rules, noting that while the court was prepared to overlook the respondent's non-compliance with Form 29A requirements (failure to state the date of service in the notice of opposition), the court would insist on strict compliance with the Rules in future, citing Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101(H). The court also noted that the respondent's assertion that the applicant was evicting it to lease to Chinese business people was unsupported by evidence and irrelevant, as the genuineness of the applicant's need for the premises had been accepted when the deed of settlement was executed.

This case demonstrates the Zimbabwean courts' willingness to adopt a robust common sense approach to resolving factual disputes in motion proceedings without requiring viva voce evidence, particularly where one party makes bald assertions unsupported by documentary evidence. It reinforces the principle that parties cannot avoid obligations under formal written agreements (such as deeds of settlement) by making unsubstantiated claims of subsequent oral agreements, especially where the alleged variation would be expected to be in writing given the formality of the original agreement. The case also illustrates the enforcement of settlement agreements reached during litigation and the consequences (including holding over damages) for failure to comply with such agreements.