Jesman Garments (Pvt) Ltd v Tumble Plastics (Pvt) Ltd (also known as Flexiplastics)

The parties entered into a verbal lease agreement in 2003 whereby the defendant leased a factory at stand 17018 Graniteside, Harare from the plaintiff until May 2014. The plaintiff claimed the defendant breached the lease by failing to pay rentals on time and settle electricity bills in full. The plaintiff cancelled the lease and gave the defendant six months' notice to vacate. The defendant vacated on 15 May 2014, before the six months elapsed, paying $700 for half the month. The plaintiff claimed the defendant left the premises locked, dirty with paint and grease stains on floors and walls, and with large boulders outside, making the premises inhabitable and preventing the plaintiff from leasing them to new tenants. The premises were shared with five other tenants who also consumed electricity. The plaintiff claimed $800 in outstanding rentals, $10,500 in holding over damages from June 2014 to September 2016, and $9,207.15 in electricity bills.

• Whether the defendant was liable for the entire electricity bill of $9,207.15 when multiple tenants shared the premises and consumed electricity
• Whether the defendant owed arrear rentals of $800.00
• Whether the defendant was liable for holding over damages of $10,500 for failure to give vacant possession and leaving the premises inhabitable

1. The plaintiff's claims for the electricity bill of $9,207.15 and arrear rentals of $800.00 were dismissed. 2. The defendant was ordered to pay the plaintiff holding over damages of $1,500.00 per month from June 2014 to October 2014 (total $7,500.00). 3. The defendant was ordered to pay the plaintiff's costs.

1. Where utility bills are attributable to multiple consumers sharing premises, it is not legally tenable to hold one party liable for the entire bill in the absence of proof of that party's specific consumption or a clear agreement on apportionment. Utility bills must be proved by proof of consumption, and where multiple parties consume utilities, each person's consumption must be measured or agreed upon, with each bearing responsibility only for their own usage. 2. A landlord claiming arrear rentals must prove the claim with proper records and evidence; confused, unsupported testimony without schedules of payments is insufficient to discharge the burden of proof on a balance of probabilities. 3. A landlord claiming holding over damages must prove that the premises were actually inaccessible or inhabitable for the specific period claimed. Where a new tenant takes occupation of premises (even for limited purposes such as storage), this demonstrates the premises were habitable from that point, terminating the period for which holding over damages can be claimed.

The court observed that even if a tenant is made responsible for collecting utility payments from other tenants and paying bills, failure to collect does not make that tenant solely liable for the entire bill. The court also noted that negotiations conducted on a without prejudice basis at pretrial conferences cannot form the basis for claims where the matter proceeds to trial, unless clear admissions are made. The court commented that the plaintiff's lack of seriousness was demonstrated by the failure to maintain proper records of rental payments and to call the daughter who actually collected rentals to testify. The court also observed that the probabilities favored the defendant's version that the premises had no takers because they were too expensive, rather than because they were inhabitable.

This case establishes important principles in Zimbabwean law regarding landlord-tenant disputes, particularly concerning: (1) the apportionment of utility bills where multiple tenants share premises - establishing that a landlord cannot attribute an entire bill to one tenant without proving that tenant's specific consumption; (2) the burden of proof on landlords claiming arrear rentals - requiring proper records and clear evidence of how arrears arose; (3) the requirements for claiming holding over damages - requiring proof that premises were actually inhabitable or inaccessible for the period claimed; and (4) that a landlord's inability to lease premises may be due to other factors (such as high rent) rather than the condition left by a departing tenant. The case reinforces the importance of proper record-keeping in commercial lease relationships and the need for clear agreements regarding shared utility costs.