The Forestry Commission v Varden Safaris (Private) Limited

The respondent (Varden Safaris) sued the appellant (Forestry Commission) for damages alleging breach of a lease agreement dated 9 April 2010. The respondent claimed it had been leased a 1000 hectare portion of Sikumi Forest known as Site 6, including the Nkonkoni pan and borehole, for conducting game viewing, wildlife photographic expeditions and accommodation camp activities for a 10-year period commencing 1 April 2010. The respondent alleged the appellant breached the agreement by indicating it intended to hunt in the photographic area, unilaterally moving the agreed site from area 1 to area 2, and preventing the respondent from accessing the premises by posting armed guards. The respondent claimed US$160,000 in setup costs and US$2,579,179 in expected net income. The appellant admitted signing the lease agreement but denied it related to the property claimed, arguing the agreement did not properly identify the leased property as the map (Annexure A) referred to in the agreement was never attached. The respondent had tendered for "Sikumi Area 2 - Kennedy" (1000 hectares) and was awarded that tender, but later claimed to have occupied a different portion of the forest including the Nkonkoni pan based on alleged telephonic directions from a forestry officer.

• Whether the lease agreement was void for non-compliance with section 17 of the Forest Act [Chapter 19:05] which vests leasing power in the Minister rather than the Commission
• Whether a point of law can be raised for the first time in heads of argument before judgment is delivered
• Whether the lease agreement was void for failure to adequately identify the property leased
• Whether extrinsic evidence could be admitted to identify the leased property despite the parol evidence rule
• Whether there was consensus ad idem between the parties as to the property leased
• Whether the High Court erred in determining damages when the parties had agreed only liability would be determined

1. The appeal is allowed with costs. 2. The cross appeal is dismissed with costs. 3. The judgment of the court a quo is set aside and substituted with: "The plaintiff's claim is dismissed with costs."

A lease agreement that fails to adequately identify the property leased is void for vagueness. It is an essential requirement for a valid lease that the property leased must be identified or be identifiable from the agreement itself. Where a lease agreement refers to a map to identify the leased property but the map is not attached and the property cannot otherwise be identified from the terms of the agreement, the lease is void ab initio and cannot form the basis for any claim for damages for breach. A court of first instance should exercise discretion to allow a new point of law to be raised before judgment is delivered, even if not pleaded, where it goes to fundamental validity of the contract and the parties can be given opportunity to address it, as the aim is to do justice between the parties.

The court made observations about the powers of the Forestry Commission under sections 15 and 16 of the Forest Act, noting that section 16(b) empowers the Commission to exercise rights of ownership (other than alienation) in respect of demarcated forests, which would include the power to lease portions of such forests. The court also commented on the availability of remedies, noting that the respondent did not apply for rectification of the lease to include proper description of the property but instead opted to cancel the agreement and claim damages. The court observed that the evidence revealed not only that the property was not identified but also that there was no consensus ad idem between the parties as to which property was actually leased, with the respondent occupying property different from what it had tendered for and been awarded.

This case establishes important principles in Zimbabwean contract law regarding the essential requirements for valid lease agreements. It confirms that adequate identification of the leased property is an essential element of a valid lease agreement and that failure to properly identify the property renders the lease void for vagueness, not merely voidable. The case also provides guidance on when courts should allow new points of law to be raised late in proceedings, holding that courts of first instance should exercise discretion favorably where the point can be addressed before judgment without prejudice, particularly where it concerns fundamental validity of contracts. The judgment reinforces the principle that parties cannot rely on extrinsic evidence to cure fundamental defects in essential terms of written agreements. It demonstrates the strict approach courts take to certainty in property transactions and the requirement for proper identification of immovable property in lease agreements.