Mudyiwa Elisha Ndewere v Debra Kunyeda and Brian Sedze

The plaintiff owned house number 10 Capri Road, Highlands, Harare, which he let to the first defendant under a written lease agreement signed on 15 October 2008 through Vercham Real Estate. The lease expired on 30 September 2009. The first defendant was married to the second defendant and they both lived at the premises. After the lease expired, the first defendant vacated the premises, leaving the second defendant in occupation with his new wife. The plaintiff claimed that since the introduction of multi-currency in March 2009, and specifically since September 2011, the defendants failed to pay the agreed monthly rental of US$450. The plaintiff alleged rent arrears of US$4,500 and sought eviction. The defendants claimed they had been paying rent to Verocy Real Estate (the successor agency to Vercham Real Estate). Evidence showed only two bank deposits totaling US$1,800 were made to Verocy Kids Corner (Pvt) Ltd account in September and November 2011. The first defendant defaulted and did not appear at trial.

• Whether the defendants had paid rent as claimed and were up to date with rental payments
• Whether the defendants enjoyed statutory tenancy after the expiry of the lease agreement
• Whether the defendants could be evicted for non-payment of rent
• Whether the second defendant, who was not the lease holder, had any basis to remain in occupation of the premises

1. The first and second defendants together with those claiming occupation through them to be ejected from number 10 Capri Road, Highlands, Harare. 2. The first and second defendants to pay the plaintiff arrear rentals of US$4,500.00. 3. Costs of suit on an ordinary scale.

A tenant who fails to pay rent timeously loses the benefit of statutory tenancy and may be evicted. A person claiming occupation through a lease holder has no independent basis to remain in occupation when the lease holder has vacated the premises and the lease has expired. Default by a defendant at trial entitles the plaintiff to judgment. Claims of payment must be supported by documentary evidence; mere assertions without proof are insufficient to discharge the onus of proving payment.

The court noted that the second defendant attempted to mislead by producing computer receipts and bank deposit slips as if they were four different deposits when they actually represented only two deposits totaling US$1,800. The court observed that the second defendant was not a good witness and concerned himself with extraneous issues including a separate lease in Mount Pleasant and attempts to sell his motor vehicle. The court also noted that the second defendant pleaded for time to relocate, effectively admitting he had no legal basis to remain in occupation.

This case illustrates the principles governing statutory tenancy in Zimbabwe, specifically that failure to pay rent timeously results in loss of statutory tenancy protection. It also demonstrates that a party claiming occupation through a lease holder has no independent right to remain in occupation when the lease holder has vacated and defaulted on rent payments. The case emphasizes the importance of documentary proof in establishing payment of rent and the consequences of default in defending an action.