Moira Makwangala v Lydia Tembo and The City of Bulawayo

The plaintiff (landlord) and first defendant (tenant) were in a landlord-tenant agreement from June 2013 to February 2015 (21 months). During the tenancy, a water leak occurred on the premises resulting in an astronomical water bill of $13,484.32 (after a rebate from the second defendant, the City of Bulawayo). The plaintiff claimed payment of $10,691.59 being water charges. The first defendant had paid $500 towards the bill. The parties disagreed on when the leak was reported - the plaintiff's property manager claimed it was reported late in October 2014, while the first defendant claimed she reported it in July 2013 when the bill was only $700. The first defendant argued she could not have consumed water at such levels, as average monthly water bills in the area were $20-$30 per household. She contended the property managers delayed in repairing the leak and failed to repair it effectively. The lease agreement made the tenant responsible for water bills and the landlord/property managers responsible for repairs including water leaks.

• Whether the first defendant (tenant) was liable for the astronomical water bill resulting from a water leak on the leased premises
• Whether the first defendant was negligent in failing to report the water leak timeously
• What quantum of water charges the first defendant was liable for given the disputed facts regarding when the leak was reported and repaired
• Whether the plaintiff had discharged the onus of proving the first defendant's liability on a balance of probabilities

1. The first defendant was ordered to pay $130.00 to the plaintiff's water account held with the second defendant, being the balance due on average monthly water charges for the period of occupation. 2. Each party was ordered to bear its own costs.

Where a plaintiff's evidence is at par with a defendant's evidence and neither party has been discredited, the plaintiff has failed to discharge the onus of proving the case on a balance of probabilities. A plaintiff can only discharge the onus of proof if the plaintiff's case is evidentially weightier than the defendant's case. In landlord-tenant disputes concerning liability for water charges arising from leaks, the landlord bears the onus of proving that the tenant was negligent in failing to report the leak timeously. Where such proof is not established, the tenant is only liable for reasonable water charges based on average consumption rates for the area and period of occupation.

The court made strong observations about the professional duties of property managers, noting that proper office administration requires all documentation relating to reports of leaks and other property problems be properly documented to facilitate resolution of disputes. Property managers, knowing they act on behalf of parties likely to be plaintiffs in litigation, should practice proper record-keeping to enable the property owner to discharge the onus of proof. The court further observed that property managers should arrange for water bills to be directly attached to tenants' names, which would render such litigation unnecessary as the tenant would bear the burden of extraordinary bills directly. The court's comments suggest that had the property managers maintained proper records and documentation systems, the plaintiff may have been able to prove the case.

This case is significant in Zimbabwean landlord-tenant law for establishing the importance of proper record-keeping by property managers in disputes between landlords and tenants. It clarifies that where a landlord seeks to hold a tenant liable for extraordinary expenses (such as astronomical water bills from leaks), the landlord bears the onus of proving the tenant's negligence or liability on a balance of probabilities. The case demonstrates that where evidence is evenly balanced between parties, the plaintiff fails to discharge the required onus. It also emphasizes the landlord's/property manager's duty to maintain proper administrative procedures and documentation for tenant complaints and property repairs, and highlights the practical solution of having utility bills directly registered in tenants' names to avoid such disputes.