Judith Banda v Tendai Mafundikwa

The plaintiff (landlord) sued the defendant (tenant) for US$350 in unpaid rentals, US$250 for malicious damage to property, and US$2500 for damages for pain and suffering arising from unlawful arrest on a charge of extortion instigated by the defendant. The defendant had occupied three separate cottages owned by the plaintiff at a property in Greendale, Harare, at different times pursuant to a lease agreement concluded in February 2006. The defendant paid a deposit of ZW$2 million which became valueless. In September 2008, the plaintiff requested rentals in foreign currency and the defendant paid US$350 as rent and a further US$350 as security deposit over three months. In February 2009, the defendant could only pay US$100 and moved to a third cottage at a lower rent of US$200, with the plaintiff agreeing to accept the deposit as rental. On 11 March 2009, the plaintiff attempted to evict the defendant and detained some of her belongings as security for arrear rentals. The defendant reported the matter to police, and following mediation, her belongings were returned, but the plaintiff cut off utilities. The defendant vacated on 15 March 2009. During trial, the plaintiff withdrew her claim for damages for unlawful arrest.

• Whether the defendant owed arrear rentals amounting to US$350 for February 2009 and part of March 2009
• Whether the defendant caused malicious damage to the plaintiff's property amounting to US$250
• Whether the plaintiff discharged the burden of proof on a balance of probabilities in respect of her claims

The plaintiff's claims were dismissed with costs.

The binding legal principle established is that in civil proceedings, the party alleging any fact bears the burden of proving that fact on a balance of probabilities. Where a plaintiff fails to discharge this onus in respect of her claims, particularly where the plaintiff's evidence is incoherent, contradictory, and implausible, while the defendant's evidence is credible, consistent and unshaken under cross-examination, the claims must be dismissed. Additionally, claims for payment must be substantiated by proper documentation and evidence; mere allegations without supporting receipts or properly identified quotations are insufficient to discharge the burden of proof.

The court noted, without making a final determination on the point, that the plaintiff had conceded during cross-examination that she attempted to evict the defendant in the middle of March 2009 without a court order, and that she explained she did not realise this was a criminal offence under the Rent Regulations. This observation highlights the legal requirement for landlords to obtain court orders before evicting tenants and the potential criminal liability for unlawful eviction under the Rent Regulations, though this was not directly in issue in the case after the plaintiff withdrew her claim for unlawful arrest.

This case reinforces the fundamental principle in civil litigation that the party alleging any fact bears the burden of proving that fact on a balance of probabilities. It demonstrates the importance of credible witness testimony and the court's assessment of demeanour and consistency in evidence. The case also highlights the requirement for landlords to properly substantiate claims for arrear rentals and damage to property with appropriate documentation, such as receipts and properly identified quotations. It serves as a cautionary example of how unsubstantiated claims and poor witness credibility can lead to dismissal of a case with costs.