Parirenyatwa Group of Hospitals v Define Horizons (Private) Limited

The applicant (Parirenyatwa Group of Hospitals) leased premises to the respondent (Define Horizons) for operating a takeaway and superette on hospital premises. The initial lease commenced in August 2010 for three years and was renewed in 2013 on the same conditions. During the second term, the applicant attempted to cancel the lease prematurely (HC 2374/15), but failed. The second lease expired by effluxion of time in June 2016. In March 2017, following the court's observation that the applicant should flight a new tender, the applicant gave six months' notice of termination and invited tenders. The tender closed on June 23, 2017. The respondent participated but lost to Berringham Trading who offered US$4,500 per month versus respondent's US$2,600. In August 2017, the respondent claimed the notice was defective because the tender should have been advertised six months before the June 2016 expiry (i.e., in January 2016), not in 2017. The respondent refused to vacate the premises.

• Whether the lease had validly expired by effluxion of time
• Whether failure to advertise tenders within the timeframe specified in the lease agreement invalidated the subsequent tender process
• Whether a public institution's tender conducted under the Procurement Act was valid despite deviation from contractual timeframes
• Whether the respondent could remain in occupation after losing the tender bid
• Whether the matter involved disputes of fact requiring referral to trial

1. The Respondent and all those claiming occupation through it are evicted from the retail outlet and takeaway situated within Parirenyatwa Hospital, Mazowe Street, Harare. 2. Respondent to pay holding damages at the rate of US$150.00 per day from 9 September 2017 to the date of vacation. 3. Respondent to pay all arrear utilities and water to the Applicant or to the relevant authority as of the date of vacation. 4. Respondent to pay costs of suit on a legal practitioner scale.

Where a public institution leases property, the lease agreement is fundamentally underpinned by public procurement processes mandated by the Procurement Act and its regulations. Timeframes stipulated in a lease agreement for advertising tenders are for convenience rather than fundamental requirements, and failure to strictly adhere to them does not invalidate a subsequent tender process, particularly where delays are explained by exceptional circumstances such as ongoing litigation. A lease with a fixed term expires by effluxion of time at the end of that term. A party that voluntarily participates in a fair and transparent tender process conducted in accordance with statutory procurement procedures cannot subsequently challenge the process on the basis of deviation from contractual timeframes, especially after losing the bid. Public procurement procedures prescribed by statute must be followed to ensure fair and transparent selection based on quality and price.

The court observed approvingly the remarks of FOROMA J in HC 2374/15 that a party which has lost competition through the tender system should not be allowed to come through the back door and wrestle the contract from a successful bidder, as this defies the sine qua non of procurement procedures. The court expressed that the respondent's conduct in holding over after losing the bid was unfortunate and should not be countenanced. The court noted that it was impossible and undesirable to pretend there was no dispute between the parties that had led to the delays in the tender process.

This case establishes important principles regarding the interplay between contractual lease provisions and public procurement law in Zimbabwe. It clarifies that where public institutions are involved, statutory procurement procedures take precedence over contractual timeframes for tendering. The case reinforces that parties cannot circumvent tender results by invoking procedural technicalities where they have voluntarily participated in a fair and transparent tender process. It also emphasizes that leases with fixed terms expire by effluxion of time regardless of procedural delays in organizing subsequent tenders. The judgment supports the integrity of public procurement processes and discourages attempts to undermine successful bidders through backdoor legal challenges.