National Railways of Zimbabwe Contributory Pension Fund v Art & Beautie Hair Salon and Bruno Antonio Carsolla

The plaintiff and defendants entered into a lease agreement in January 2009 for shop 1 Africa House, Fife Street/10th Avenue, Bulawayo, with rental of US$450.00 per month exclusive of VAT. The defendants failed to pay the full rental amount, arguing it was inclusive of VAT. The Rent Board issued an order in January 2010 setting rent at US$570.00 excluding VAT per month. In January 2013, parties agreed on US$600.00 per month. Despite these agreements, defendants consistently defaulted on rental payments. As at 5 April 2011, defendants owed US$8,117.51 in arrears. The 2nd defendant carried out repairs to the property costing US$10,475.44 to comply with City of Bulawayo by-laws and filed a counterclaim for refund of this amount, seeking to offset it against rent. The 2nd defendant engaged in delaying tactics during trial, producing various medical certificates and repeatedly seeking postponements. Between November 2016 and July 2017, the matter was postponed three times at the 2nd defendant's instance.

• Whether defendants were entitled to offset rentals with costs of repairs effected
• Whether there was a breach of the lease agreement
• Whether the plaintiff was entitled to cancellation of the lease agreement due to the breach
• Whether costs on a legal practitioner and client scale were justified

1. The lease agreement entered into between plaintiff and defendants on 30 April 2010 and subsequent addendums was cancelled. 2. The defendants and all those claiming title through them were evicted from shop number 1 Africa House, Fife Street/10th Avenue Bulawayo. 3. The defendants were ordered to pay the plaintiff US$46,147.46 being arrear rentals. 4. The defendants were ordered to pay plaintiff's costs of suit on an attorney and client scale. The 2nd defendant's counterclaim was dismissed.

The binding legal principles established are: (1) Where a lease agreement contains express provisions dealing with repairs and maintenance, parties cannot rely on implied terms contrary to those express provisions; (2) Tenants are not entitled to unilaterally offset repair costs against rent where the lease agreement expressly requires written consent from the landlord for such works and places the repair obligation on the tenant; (3) Breach of a lease agreement through persistent non-payment of rent entitles the landlord to cancellation where the lease agreement expressly provides for such remedy; (4) Clauses in lease agreements prohibiting withholding or deferring payment of rent for any reason (such as defects in premises) will be enforced according to their terms; (5) Attorney and client costs are justified where a party's defence is frivolous, vexatious, and conducted solely to delay proceedings, constituting blameworthy and reprehensible conduct.

The Court made several non-binding observations: (1) The Court noted that the 2nd defendant was "a difficult client to deal with" who would engage several lawyers at different times but refuse to sign agreements, even accusing his lawyer of not representing his interests when a deed of settlement was prepared; (2) The Court commented that the defendants' preoccupation appeared to be "the physical occupation of the shop and make money for themselves using the plaintiff's property" rather than complying with lease obligations; (3) The Court observed that the 2nd defendant "used every trick in the book in order to stall the progress" of the trial; (4) The Court expressed skepticism about the medical evidence produced by the 2nd defendant, characterizing it as "just but one of 2nd defendant's discredited ploys to buy more time in the shop"; (5) The Court noted that costs awards are a matter within the judicial discretion of the court, but such discretion must be exercised on grounds upon which a reasonable person could have come to the same conclusion.

This case is significant in Zimbabwean landlord and tenant law for several reasons: (1) It reinforces the binding nature of express contractual terms in lease agreements, particularly clauses dealing with repairs and maintenance obligations; (2) It clarifies that tenants cannot unilaterally offset repair costs against rent without express written consent from the landlord as required by the lease agreement; (3) It demonstrates the court's willingness to award attorney and client costs where a defendant engages in dilatory tactics and frivolous defenses designed to delay proceedings; (4) It illustrates the principle that parties with legal representation are expected to comply with clear contractual terms and cannot claim ignorance or make unfounded assumptions about their rights and obligations; (5) It provides guidance on when special costs orders are appropriate in landlord-tenant disputes, particularly where conduct is blameworthy and vexatious.