Ortid Hardware Suppliers (Pvt) Ltd t/a C & G Accounting Services v Adam Katsvere

In 2015, the applicant (through its deponent Givemore Manjengwa) allegedly approached the respondent to build a Mall in Karoi. The applicant claimed to have planned the structure, raised funds through advance tenant payments, and supplied goods worth $25,600.00 during construction. Upon completion, the applicant allegedly managed the Mall and collected rentals on behalf of the respondent. The applicant claimed that on 1 June 2015, it entered into a 10-year Lease Agreement with the respondent for Shop No. B6 and E5 at Chanetsa Complex, Stand 39 Harris Street, Karoi. On 30 April 2018, Manjengwa communicated his intention to terminate consultancy services including rent collection. In response, the respondent issued a notice to vacate, which was initially withdrawn after challenge, but a second Notice to Vacate dated 20 July 2018 was issued. The applicant sought a declaratory order that the notice was unlawful and defective.

• Whether the application procedure was appropriate given material disputes of fact
• Whether there was a valid written lease agreement between the applicant and respondent
• Whether the respondent's Notice to Vacate dated 20 July 2018 was lawful
• Whether there was contractual privity between the applicant company and the respondent or between Manjengwa personally and the respondent
• Whether disputes regarding the authenticity of signatures on documents could be resolved on motion proceedings

1. The point in limine was upheld. 2. The application for a declaratur was dismissed. 3. The applicant was ordered to pay costs.

Where material disputes of fact exist that cannot be resolved on affidavit evidence alone, particularly disputes regarding the authenticity of signatures (allegations of forgery), the existence and nature of contractual relationships, and conflicting versions about the terms of agreements, the application procedure is inappropriate and the matter must be brought by way of action to allow for oral evidence and testing of witnesses through cross-examination. A court cannot prefer one party's version over another on such fundamental factual disputes without viva voce evidence.

The court observed that the applicant's founding affidavit itself raised doubts about whether the contract was with the applicant company or with Manjengwa personally, as the deponent appeared to have been personally involved rather than acting in his capacity as representative of the company. The court also noted that both parties would need to produce evidence regarding the authenticity of the signature on the disputed lease agreement - it was not solely the respondent's burden to produce handwriting expert evidence, as the applicant bore an equal burden to prove the signature was genuine.

This case illustrates the important principle in Zimbabwean civil procedure regarding the appropriate use of application versus action proceedings. It reinforces that where there are material disputes of fact that cannot be resolved on the papers, particularly involving issues of forgery, contractual privity, and conflicting versions of agreements, the matter must be brought by way of action to allow for oral evidence and cross-examination. The case is instructive on when motion proceedings are inappropriate and demonstrates the court's vigilance in ensuring procedural propriety, especially in commercial lease disputes.