Tafara Chatora and Others v The Chairperson, Western Region Rent Board and Another

The four applicants were tenants at Bertha Court flats in Bulawayo owned by the second respondent. After their lease agreements expired, they continued as statutory tenants under Rent Regulating Statutory Instrument 32/2007. A rent dispute was referred to the Western Region Rent Board which fixed rent at US$70 per month. The applicants disputed recurrent expenses of US$73.63 per month for rates, electricity, caretaker's wages and insurance. They refused to pay recurrent expenses, and the second respondent alleged they also failed to pay rent. In May 2010, the Rent Board issued eviction certificates against all four applicants. The second respondent instituted eviction proceedings in the magistrates' court. While matters were pending in the magistrates' court (for the first, second and fourth applicants) and on appeal to the High Court (for the third applicant, under case number HCA 130/10), all four applicants filed this application on 18 October 2010 seeking declarations that the recurrent expenses order and eviction certificates were invalid. The third applicant had already been evicted on 25 November 2010 after summary judgment was granted against him.

• Whether the application was properly constituted as a declaratory order or was in fact a disguised review application filed out of time
• Whether it was appropriate to bring this application while proceedings on the same issues were pending in the magistrates' court and on appeal to the High Court
• Whether the Rent Board made a standalone order for recurrent expenses that could be challenged
• Whether the eviction certificates issued by the Rent Board were invalid
• Whether the court should admit a supplementary affidavit filed without leave after the answering affidavit had been filed
• Whether costs on an attorney and client scale were justified

The application was dismissed with costs on an attorney and client scale against the applicants.

The binding legal principles established are: (1) Supplementary affidavits cannot be filed after an answering affidavit has been filed without first obtaining leave of court as required by Order 32 Rule 235 of the High Court Rules, 1971; (2) An applicant cannot seek a declaratory order to set aside a decision that was never actually made by the tribunal in question; (3) Where validity of a statutory decision is already being challenged in pending proceedings before lower courts or on appeal, it constitutes forum-shopping and abuse of process to bring a parallel application in the High Court seeking the same relief; (4) Parties challenging decisions of quasi-judicial statutory bodies must use the proper statutory remedies (appeal or review) within the prescribed time limits and cannot circumvent these requirements by framing their challenge as an application for a declaratory order; (5) Where a party has unnecessarily put another party to expense through an improper application, costs on an attorney and client scale are appropriate.

The court made obiter observations about the nature of the Rent Board as a statutory body with quasi-judicial authority empowered to make rent orders and issue eviction certificates. The court also noted that in the eviction proceedings in the magistrates' court, the second respondent had relied on an alleged agreement for recurrent expenses between the parties rather than on an order from the Rent Board, though this was not central to the decision. The court referenced its earlier decision in Ndlovu v PDS Investments (Pvt) Ltd and Another HB 2/11 regarding submissions about nullity of the eviction order, though this was not fully elaborated in the current judgment.

This case is significant in Zimbabwean landlord and tenant law and civil procedure for establishing important principles regarding: (1) the strict adherence to procedural rules, particularly the requirement to obtain leave before filing supplementary affidavits after an answering affidavit has been filed; (2) the prohibition against forum-shopping and abuse of process by bringing applications in the High Court while the same issues are pending before lower courts or on appeal; (3) the proper channels for challenging decisions of statutory bodies with quasi-judicial functions like the Rent Board (through statutory appeal or review proceedings); and (4) the principle that applicants cannot seek declaratory orders to nullify decisions that were never actually made. The case reinforces the court's intolerance of procedural irregularities and parallel proceedings on the same issues.