Rumashes Enterprises (Pvt) Ltd and Bekezela Maplanka v Dr Gordon & Sons (Pvt) Ltd and The Sheriff of Zimbabwe N.O

The applicants and first respondent entered into a written lease agreement on 17 January 2013 for premises at Shop 3, 104 Fife Street, Bulawayo. The applicants failed to pay rent timeously and by 4 December 2014, arrears had accumulated to US$16,568.30. The second applicant had signed a surety binding herself as co-principal debtor. The first respondent issued summons for recovery of arrear rentals and cancellation of the lease. The matter was set down for trial on 27 September 2016 but the applicants did not attend court, resulting in a default judgment being granted. The applicants became aware of the judgment on 28 September 2016 and on 3 October 2016, the second applicant wrote to the respondent's legal practitioners acknowledging the debt and offering to pay it at US$100 per month. On 17 October 2016, the applicants filed an urgent application for stay of execution pending determination of an application for rescission of judgment. The applicants had previously acknowledged owing the arrear rentals in a letter dated 14 October 2014, where they admitted owing US$15,597.14 and pleaded not to be evicted.

• Whether the provisional order was defective in that the interim relief sought was identical to the final relief
• Whether the matter qualified as urgent given the 20-day delay between becoming aware of the default judgment and filing the urgent application
• Whether the applicants established the requirements for a temporary interdict (clear right, actual or reasonably apprehended injury, and no other remedy)
• Whether the application for rescission of judgment carried prospects of success
• Whether the applicants were in willful default

The application was dismissed with costs on the legal practitioner and client scale against the applicants.

The binding legal principles established are: (1) In urgent applications, interim relief must not be identical to final relief sought, as this would grant substantive relief without proving the case, which is incompetent; (2) Urgency must be assessed by whether the matter was brought to court when the need to act arose - delays without credible explanation disqualify a matter from urgent treatment; (3) For temporary interdicts, applicants must establish: (a) a clear right, (b) actual or reasonably apprehended injury, and (c) no other adequate remedy - mere bold averments of irreparable harm are insufficient; (4) Where a tenant has acknowledged liability for arrear rentals in writing, defenses such as arbitration clauses, referral to Rent Board, or alleged misrepresentations in the lease cannot be raised to avoid payment of admitted debts; (5) Willful default cannot form the basis for rescission of judgment, particularly where the party has acknowledged the debt after judgment.

Makonese J made observations that the applicants were "taking this court for a ride" and that the application was "ill-conceived and not bona fide." The court observed that the applicants "sought to mislead the court" and were "acting out of desperation" and "clutching at straws." The court referenced the principle from Supline Investments v Forestry Commission of Zimbabwe that a tenant has an undisputed obligation to pay rentals as a sine qua non for continued occupation, and that even when disputing the rental amount, the tenant must pay at minimum what they contend represents fair rentals. The court noted that if the lease agreement were truly a nullity due to misrepresentation as claimed, the applicants should not have continued to occupy the premises on that basis. The court also commented that costs on an attorney and client scale are appropriate where a party has unnecessarily put the other party out of pocket through abuse of process.

This case is significant for establishing important principles regarding urgent applications and landlord-tenant law in Zimbabwe. It reinforces that: (1) provisional orders in urgent applications must not grant substantive final relief at the interim stage; (2) applicants must treat matters with the urgency they purport to have and provide credible explanations for delays; (3) mere assertions of irreparable harm without detailed information are insufficient for interdictory relief; (4) tenants cannot avoid paying rent by raising technical defenses when they have acknowledged the debt in writing; and (5) courts will impose punitive costs where there is abuse of process and attempts to mislead the court. The judgment also reinforces the principle from Supline Investments that tenants disputing rental amounts must at minimum pay what they contend is the fair rental to avoid ejection.