Shackie Nhamoinesu Museve (Zvavazumba Investments) v Banwax Enterprises (Pvt) Ltd and Donald Gwisai

The applicant was the registered owner of Stand 383 Limpopo Way, Willovale, Southerton, Harare, which he developed into four industrial bays. The respondents had been leasing Bay No. 1 for a long time under a lease agreement for US$700 per month payable at the prevailing Reserve Bank of Zimbabwe auction rate in Zimbabwean Dollars or US Dollars. From 1 January 2020, the respondents failed to pay the agreed rentals in full and accumulated arrears of US$3,467 as of 4 December 2020, and also owed RTGS$12,758 for electricity usage. Despite several demands, the respondents failed to pay. The second respondent, who was the director of the first respondent, claimed the rental had been reduced to US$400 due to COVID-19 effects and disputed the arrears, claiming they did not exceed US$1,500. He also claimed his building caught fire destroying all payment receipts, and that the applicant's bookkeeping was chaotic. The applicant issued summons and subsequently applied for summary judgment after the respondents entered an appearance to defend.

• Whether the respondents had a bona fide defence to the applicant's claim for arrear rentals and electricity bills
• Whether the applicant's claim was sufficiently clear to warrant summary judgment
• Whether non-payment of rentals constituted a fundamental breach of the lease agreement
• Whether the respondents should be ejected from the premises

Summary judgment was granted to the applicant. The respondents and all those claiming occupation of Bay No. 1, 383 Limpopo Way, Willovale, Southerton, Harare were ordered to vacate the premises within fourteen (14) days of service of the court order, failing which the Sheriff was authorized to eject them. The respondents were ordered to pay arrear rentals of US$3,467 (as of 4 December 2020) and arrear electricity bills of RTGS$12,758. The respondents were also ordered to pay holding over damages at USD$30 per day from 1 January 2021 to date of ejectment. Costs were awarded to the applicant on attorney and client scale.

In summary judgment applications, the onus is on the respondents/defendants to show or allege a defence that will entitle them to succeed, and the applicant's/plaintiff's claim must be clear. Non-payment of rentals constitutes a fundamental breach of a lease agreement that goes to the root of the contract, warranting summary judgment for ejectment and arrears. Where respondents concede being in arrears but merely dispute the quantum without providing credible evidence to support their position, and where the applicant produces documentary evidence supporting their claim, the respondents have failed to establish a bona fide defence and summary judgment will be granted.

The court noted that the applicant's claim for costs on the higher attorney-client scale was justified due to the fact that respondents deliberately opposed a clear claim for no apparent reasons, suggesting this was a dilatory tactic to continue occupying the property without payment. The court also observed that the respondent's various excuses (COVID-19 rent reduction agreement, chaotic bookkeeping, fire destroying documents) were insufficient to constitute a defence where the applicant provided documentary proof and the respondent conceded being in arrears.

This case reinforces the Zimbabwean courts' approach to summary judgment applications, particularly in landlord-tenant disputes. It confirms that non-payment of rentals constitutes a fundamental breach of a lease agreement going to the root of the contract, warranting ejectment and summary judgment. The case demonstrates that respondents must provide more than mere assertions or excuses (such as COVID-19 effects, destroyed documents, or chaotic bookkeeping allegations) to establish a bona fide defence. The judgment emphasizes the importance of documentary evidence in summary judgment applications and confirms that where the applicant's claim is clear and supported by evidence, and the respondent fails to advance a credible defence, summary judgment will be granted. The case also illustrates the court's willingness to award costs on an attorney-client scale where a party opposes a clear claim without apparent reason.