Vadac Properties [Private] Limited v Cure Chem Overseas [Private] Limited

The plaintiff landlord leased industrial premises to the defendant tenant, an agro-industrial chemical wholesaler and distributor, for close to ten years. The lease agreement provided that the premises would be used for storage and distribution of chemicals and allied products, and that upon termination the defendant would return the premises in good order "fair wear and tear excepted." The defendant was also obligated to maintain the premises in a clean and sanitary condition, repair interior plumbing, redecorate internal walls when necessary, and replace damaged fittings, fixtures, window panes, door locks and keys. After the defendant vacated the premises, the plaintiff claimed that the defendant had caused considerable damage including: chemical spillage damage to floors (particularly in the "red/pink" and "purple" rooms), damage to electrical power trunking, lights, switches and sockets, damage to plumbing in toilets, broken window panes, damaged locks and keys, and a pungent smell from industrial chemicals. The plaintiff claimed damages totaling US$52,150.78, comprising consultation fees for engineers (US$5,198.05), actual cost of repairs (US$19,145.73), electrical repairs (US$1,043.00), plumbing (US$1,248.00), glass repairs (US$296.00), locks and keys (US$220.00), and lost rental income for five months at US$5,000 per month (US$25,000.00). The defendant denied liability, arguing the damage was normal fair wear and tear given the years of occupation and the nature of products stored, which the lease had expressly acknowledged.

• Whether the damage to the leased premises constituted 'fair wear and tear' and thus fell within the exception in the lease agreement absolving the tenant from liability
• Whether the defendant tenant was liable for the cost of repairing damage to the premises caused during its occupation
• Whether the repair work carried out by the plaintiff was reasonable and necessary
• Whether the plaintiff was entitled to claim consequential damages in the form of lost rental income for the period the premises were being repaired
• Whether the plaintiff was entitled to interest on unliquidated damages and from what date

The defendant was ordered to pay the plaintiff US$52,150.78 together with interest at 5% per annum from 3 February 2016 (date of judgment) to date of payment, plus costs of suit on the ordinary scale.

1. Fair wear and tear is dilapidation or depreciation due to normal use, the ravages of time, exposure and natural elements; whether particular damage constitutes fair wear and tear is a question of fact. 2. A tenant cannot rely on the fair wear and tear exception if they let time run on unduly without doing anything towards the upkeep and keeping in order of the premises. 3. Replacing a floor damaged beyond fair wear and tear is not a structural alteration prohibited by a lease agreement, and may fall within the tenant's repair obligations depending on the wording of the agreement. 4. When damage to leased premises is caused by the tenant's use (such as chemical spillage and corrosion), the tenant is liable for the reasonable cost of repairs necessary to restore the premises to their original lettable condition. 5. A landlord's claim for lost rental income during the period required to repair premises left uninhabitable by a departing tenant constitutes consequential loss that flows naturally from the tenant's breach where the tenant knew the premises existed for hire. 6. Interest on unliquidated damages should run from the date of judgment, not from the date of demand for payment.

The court commended both counsel for their cross-examination skills in dealing with qualified expert witnesses with vast experience. The court observed that credibility of witnesses was a relatively minor aspect in determining the case, as the matter turned on the story in or behind the relevant documents. The court noted that no self-respecting engineer would do patch work, and that practical realities of repair work may reveal further damage beyond initial visual inspections or sample drilling. The court also noted that consultation with the tenant on remedial works, while potentially desirable, is not a legal prerequisite where the lease agreement places repair obligations on the tenant and the landlord reasonably engages qualified experts to assess and remedy damage.

This case is significant in Zimbabwean (and by extension South African) landlord and tenant law for clarifying the scope of the 'fair wear and tear' exception in lease agreements. It establishes important principles regarding: (1) the distinction between normal wear and tear versus damage requiring repair by the tenant; (2) the tenant's liability for chemical damage to premises even when the lease contemplates storage of such chemicals; (3) the reasonableness of repair costs and the landlord's entitlement to engage experts to assess and remedy damage; (4) the tenant's liability for consequential damages in the form of lost rental income when premises are left in an unlettable state; and (5) the principle that replacing floors damaged beyond fair wear and tear does not constitute 'structural alterations' prohibited without landlord consent, but falls within repair obligations. The case reinforces that tenants cannot avoid repair obligations by allowing damage to accumulate over time and then claiming it as fair wear and tear. It also demonstrates the court's willingness to accept expert engineering evidence on the extent and cost of necessary repairs.