The applicant, a property owning company, leased premises to the respondent under a written lease agreement that had been varied from time to time. A dispute arose concerning payment of rentals, leading the applicant to cancel the lease on 24 January 2007, alleging arrears of $5,810,000.00. The applicant alleged that rentals for September to December 2006 were underpaid and January 2007 was unpaid. The respondent conceded that January 2007 rentals were not paid on time. On 11 April 2007, the applicant again alleged non-payment for December 2006, March 2007, and April 2007. A further dispute existed regarding the correct amount of quarterly rentals and the role of CB Richard Ellis (appointed to determine quarterly rentals). On 24 April 2007, the applicant applied for eviction. The lease agreement provided that rent was payable on presentation of invoice and that failure to pay within 7 days entitled the lessor to cancel. The January 2007 invoice was presented on 14 January 2007, and rent remained unpaid on 24 January 2007 when the cancellation letter was sent. After cancellation, the applicant continued to accept payments characterized as damages for holding over, without prejudice to its rights.
1. The respondent shall give vacant possession of no. 49 Coventry Road to the applicant within 10 days of service of this order, failing which the Deputy Sheriff is authorized to evict the respondent and all those occupying through it and hand over vacant possession to the applicant. 2. The respondent shall pay the applicant's costs of this application.
Where a tenant disputes the amount of rent payable, such dispute does not absolve the tenant from paying any rent at all. The minimum the tenant must pay is the amount it contends represents fair rent to avoid eviction for non-payment. A tenant who fails to pay rent within the time stipulated in the lease agreement commits a material breach entitling the landlord to cancel where the contract so provides. Acceptance of payments after cancellation does not constitute waiver of the right to rely on the breach where the landlord makes clear the payments are accepted without prejudice as damages for holding over rather than as rent under a continuing lease. The plea of lis alibi pendens is discretionary and should be sparingly exercised, particularly where the alternative forum cannot grant the same relief sought.
The court observed that CB Richard Ellis, appointed by the parties to determine quarterly rentals, acted as their joint but independent point of reference, making the dispute over whose agent it was immaterial. The court noted that Zimbabwean law and procedures provide adequate protection to applicants where an appeal without merit is noted, declining to make the order executable notwithstanding appeal. The court referenced the principle from Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech that courts should be robust in dealing with factual disputes and endorsed the view from Zikiti v United Bottlers that courts should only close their doors to litigants in exceptional circumstances when considering lis alibi pendens.
This case clarifies important principles in Zimbabwean landlord and tenant law regarding: (1) the obligation of tenants to pay at least the amount they contend is correct rent even when disputing quantum; (2) the application of the robust approach to factual disputes in eviction applications; (3) the limited scope of the lis alibi pendens plea where parallel proceedings in another forum (like a Rent Board) cannot grant the same relief; and (4) the requirements for establishing waiver of contractual rights, particularly that acceptance of post-cancellation payments characterized as damages for holding over does not constitute condonation of the original breach.