The respondent and appellant previously occupied premises at No.1 Winston House 109 Leopold Takawira Street Harare along with other sub-tenants when the main tenancy belonged to Fortulink Private Limited, which had been evicted. On 10 July 2019, the respondent entered into a new lease agreement with the owner for the whole shop. The appellant claimed she assisted the respondent in obtaining the lease, contributed money to clear a former tenant's debt, and that the respondent signed the lease on behalf of all remaining tenants. The appellant alleged she was paying rent through the respondent. The magistrate's court granted the respondent's claim for ejectment and holding over damages at ZW$2,500.00 per month. The appellant appealed the decision.
The appeal partially succeeded. The order of the magistrate's court was altered to: (a) The defendant and all those claiming occupation through her are ejected from No.1 Winston House, 109 Leopold Takawira Street, Harare; (b) Costs of suit are granted on an ordinary scale. The provision for holding over damages was removed. Each party was ordered to pay their own costs of appeal.
A person who is not a party to a lease agreement has no legal basis to resist eviction by the lessee who has a valid lease with the property owner. Statutory tenancy can only arise where there was a prior valid lease agreement between the occupant and the owner that has expired; it cannot arise in favor of a person who never had any lease agreement with the owner. A lessee with a valid lease agreement has the power to evict unauthorized occupants even without involving the property owner. Holding over damages cannot be awarded based on an alleged subletting arrangement where the lease agreement expressly forbids subletting and the damages have not been proven.
The court observed that the appeal appeared to be motivated by a desire to buy time and harass the respondent by remaining on the premises rather than by any genuine intention to test the correctness of the lower court's decision. The court noted inconsistencies in the appellant's arguments, stating that in the trial court she claimed to be part of the lease, while on appeal she distanced herself from it. The court commented that it would infringe justice for the appellant to continue occupying property to which she is not part of the lease agreement whilst paying nothing for those premises.
This case clarifies the application of landlord and tenant law principles in Zimbabwe, particularly regarding: (1) the doctrine of privity of contract in lease agreements - that only parties to a lease can enforce rights under it; (2) the requirements for establishing statutory tenancy - that there must first be a valid lease agreement with the owner that has expired; (3) the right of a lessee to evict unauthorized occupants from leased premises; and (4) the requirements for proving holding over damages. The case demonstrates judicial disapproval of appeals brought merely to delay enforcement rather than to genuinely test legal correctness.