Timothy Nhamo Nyamweda v Innocent Benza and Others

The applicant (Timothy Nhamo Nyamweda) was the lessor of premises at No. 174 Munondo Street, Ruwa Industrial Park, Harare, which he leased to the first and second respondents (Innocent Benza and Patience Benza). The third respondent (Herentals Group of Schools) operated from the premises, with the first respondent as its Managing Director. The lease agreement stipulated monthly rentals of US$1,200.00 payable in advance on the 7th day of each month, to be delivered in cash at such place in Harare as the lessor may direct in writing. The respondents allegedly breached the agreement by failing to pay rentals in full for 10 months, accruing rental shortfalls of US$4,000.00 from December 2016 to August 2017, and arrear rentals of US$2,400.00 for September and October 2017. They also failed to pay water and rates bills of US$5,756.74 and electricity bills of US$2,365.35. The applicant issued summons on 30 October 2017, and the respondents entered appearance to defend on 13 November 2017. The applicant then applied for summary judgment.

• Whether the third respondent was properly cited as a party to the proceedings
• Whether the respondents were in arrears as alleged by the applicant
• Whether there was a valid novation of the lease agreement
• Whether the applicant met the requirements for summary judgment to be granted under Order 10 r 64(1) of the High Court Rules 1971

Summary judgment was entered for the applicant with orders for: (a) confirmation of cancellation of the lease agreement; (b) ejectment of the respondents and all those in occupation through them from No. 174 Munondo Street, Ruwa Industrial Park, Harare; (c) payment of arrear rentals of US$5,600.00; (d) payment of arrear electricity bills from 1 May 2016 to date of ejectment; (e) payment of arrear water and rates levies from 1 May 2016 to date of ejectment; (f) holding over damages of US$40.00 per day from 1 November 2017 to day of ejectment; and (g) costs of suit on legal practitioner and client scale.

The binding legal principles established are: (1) For summary judgment to be granted, the defendant must fail to show the existence of a triable issue based on a bona fide dispute, and must be unable to disclose a defence which is sound in law and based on apparently bona fide proportions of fact (applying Mercantile Bank Ltd v Star Pomer CC); (2) Parties are bound by the express terms of their written lease agreements, particularly regarding the mode and place of payment; (3) Where a lease agreement stipulates that rentals are to be delivered in cash at such place as the lessor may direct in writing, the lessee cannot unilaterally insist on bank transfers or claim inability to pay due to lack of bank details when cash payment was the agreed method; (4) A claim of novation must be substantiated and requires an old agreement to fall back on; oral assertions of modification are insufficient to defeat summary judgment where material breach is established.

The court observed that holding over damages of US$40.00 per day were "very conservative and reasonable" given that the monthly rental was US$1,200.00 and a month has at least 30 days. This suggests that the court would have been prepared to award a higher daily rate had it been claimed. The court also commented that the respondents entered appearance to defend "for the purposes of postponing the inevitable while they continued to occupy the applicant's premises without paying rentals or bills and rates," indicating judicial disapproval of defensive tactics designed merely to delay enforcement rather than to raise genuine defences.

This case illustrates the application of summary judgment procedure in Zimbabwe (which follows similar principles to South African law) in lease disputes. It demonstrates that where a defendant cannot show a bona fide triable issue, summary judgment will be granted without requiring the plaintiff to incur the expense and inconvenience of a full trial. The case reinforces the principle that parties are bound by the terms of their written agreements, and claims of oral novation or modification must be substantiated. It also confirms that when lessees materially breach lease agreements by failing to pay rentals and utility bills, landlords are entitled to cancellation, ejectment, arrears, and holding over damages.