In 1994, the applicant entered into a lease agreement with the first respondent (City of Harare) for premises at 9 Market Street, Eastlea, Harare. The lease was renewed multiple times, with the last renewal in June 2007 for three years (expiring March 2010). The lease specifically prohibited subletting without written consent. In 2008, the applicant reached an understanding with the second respondent (Superlux) regarding a joint venture, and the second respondent took occupation of part of the premises. In January 2009, the first respondent summarily terminated the lease agreement, alleging the applicant was subletting to the second respondent without consent, in breach of clause 21 of the lease. The first respondent rejected the applicant's rental payment for February 2009. The applicant approached the court seeking to hold the first respondent to the lease agreement and to evict the second respondent from the premises.
1. The decision by the first respondent to summarily cancel the applicant's lease agreement is set aside. 2. The second respondent and all those occupying through it are to vacate the premises at 9 Market Street within 7 days, failing which the deputy sheriff is authorized to evict them. 3. The second respondent shall bear the applicant's costs of suit. No costs were awarded against the first respondent.
1. The Administrative Justice Act [Chapter 10.28] applies to decisions made by administrative authorities even when exercising powers derived from contracts or agreements. 2. The definition of 'administrative action' in Zimbabwe's Act is wider than the South African equivalent and specifically includes actions taken under agreements, not just exercises of public power. 3. An administrative authority with power to take action that may adversely affect rights must act reasonably and fairly, including providing adequate notice and a reasonable opportunity to make representations (embodying the audi alteram partem rule). 4. A decision by a local authority to summarily cancel a lease agreement without affording the tenant a hearing violates the Administrative Justice Act and must be set aside. 5. Even where a lease agreement grants express power to summarily terminate for breach, this power is subject to the requirements of fairness under the Administrative Justice Act. 6. It is unnecessary for an applicant to specifically invoke the Administrative Justice Act in pleadings if the necessary averments are made to sustain a cause of action under the Act.
The court observed that even at common law (prior to the Act), there was growing acceptance that rules of natural justice should be observed before administrative decisions affecting individual rights are taken, citing Grundling v Beyers and Machaya v BP Shell Marketing. The court emphasized that 'the court is not a slave to the form of the law. It is always a slave to justice whom it must always serve.' The court noted that even if the first respondent genuinely believed it had a case and the lease permitted its actions, the legal duty to act fairly meant its decision had to be set aside. The court also observed that a lessor's right to summary termination, however clearly worded, does not oust the court's jurisdiction to grant eviction orders - the lessor must always approach court for confirmation and cannot exercise self-help (citing Livingstone v Solomon, Joubert v Bester, Towers v Chipata, and Bater v Muchengeti).
This is a landmark case in Zimbabwean administrative law establishing the broad application of the Administrative Justice Act to contractual decisions by public authorities. The judgment significantly expanded administrative law protections beyond purely public law matters to include contractual relationships where one party is an administrative authority. The case represents a 'seismic shift' in administrative law by codifying natural justice principles and requiring fairness in all administrative decisions, including those based on contract. It marked a departure from the more restrictive South African approach under PAJA, which excludes purely contractual decisions from administrative law review. The case establishes that local authorities cannot rely on contractual clauses allowing summary action without first complying with procedural fairness requirements under the Administrative Justice Act.