Yuzass Investments (Private) Limited v Barep Automotive Innovations (Private) Limited

On 1 September 2019, the respondent entered into a lease agreement with Kay Trust (the applicant's predecessor in title) for premises at Stand 1435A Salisbury Township, Harare (12 Park Street), comprising a fuel service station and ancillary workshop. This superseded a previous lease (the "Bousanis Lease") the respondent had with the Executor of the late Katherine Venturas, which ran from 1 June 2018 to 31 May 2023 at USD 10,000 monthly rental. The new Kay Trust lease ran for 5 years from 1 September 2019 to 31 August 2024, with revised rent at the Zimbabwean dollar equivalent of USD 4,000. Crucially, the Kay Trust lease contained clause 17.2, allowing either party to terminate the lease on 3 months' notice. The respondent's Managing Director, Stout Mbano, executed a Lease Surety Agreement on 5 September 2019. On 29 July 2021, the applicant gave 3 months' notice to vacate under clause 17.2, stating it required the premises for its own use in the fuel industry. When the respondent refused to vacate, the applicant issued summons. The respondent entered appearance to defend and filed a plea alleging the Kay Trust lease was fraudulent and claiming it only signed the Bousanis lease without clause 17.2. The applicant then applied for summary judgment.

• Whether the respondent had a bona fide defence to the applicant's claim for eviction
• Whether the Kay Trust lease agreement containing clause 17.2 was validly established
• Whether the applicant was entitled to terminate the lease on 3 months' notice under clause 17.2
• Whether summary judgment was an appropriate remedy in the circumstances
• Whether the respondent's denial of the Kay Trust lease raised an arguable defence

1. The application for summary judgment was granted. 2. Summary judgment in case HC 6038/21 was entered for the applicant. 3. The termination of the lease agreement between the parties for Stand 1435A Salisbury Township Harare (12 Park Street) was confirmed. 4. An order evicting the respondent and all those claiming occupation through it from the premises was granted. 5. The respondent was ordered to pay holding over damages at the rate of USD 133.33 per day at the CBZ Bank Limited USD purchasing rate from 1 November 2021 to the date of vacation or eviction. 6. The respondent was ordered to pay costs of the application and wasted costs in the main case at the legal practitioner and client scale.

In summary judgment applications, a defendant must allege facts which, if established at trial, would entitle the defendant to succeed in its defence. The facts alleged must lead to and establish a defence that meets the claim squarely. If the facts alleged do not amount to a defence at law, the defendant has not discharged the onus and summary judgment must be granted. Bald and unsubstantiated assertions or flimsy explanations are insufficient to resist summary judgment - the defendant must allege material facts upon which the defence is based with sufficient clarity and completeness to enable the court to decide whether the opposing affidavit discloses a bona fide defence. Where a lease agreement is well-established on pleadings and supported by clear documentary evidence including executed sureties and corroborating affidavits from legal practitioners involved in the transaction, mere denial of the agreement's existence without credible supporting evidence does not constitute a bona fide defence.

The court made strong observations about the respondent's allegation that the legal practitioner Mr Machingura, an officer of the court, deposed to an affidavit he did not author, characterizing this as "astounding, if not downright scandalous." This reflects the court's view that serious allegations of professional misconduct against legal practitioners should not be made lightly or without substantial foundation. The court also observed that summary judgment is conceived to deny mala fide defendants the benefit of the fundamental principle of audi alteram partem, and is such an "extraordinary invasion of a basic tenet of natural justice" that it will not be lightly resorted to. The court noted that in many summary judgment cases, the defendant's resistance is intended merely to gain temporary and unfair advantage, such as prolonged occupation of premises to which the defendant is clearly no longer entitled.

This case demonstrates the Zimbabwean courts' approach to summary judgment applications in landlord-tenant disputes. It reinforces that summary judgment will be granted where a defendant's defence consists merely of bald denials unsupported by credible evidence, particularly where the plaintiff's case is supported by clear documentary evidence. The judgment emphasizes the high threshold required for defendants to resist summary judgment - they must allege material facts with sufficient clarity and completeness that, if proven, would constitute a valid defence in law. The case also illustrates the court's willingness to reject allegations of fraud or document tampering when made against officers of the court without substantial supporting evidence. It confirms that lease termination clauses allowing termination on notice for the landlord's own use are enforceable under Zimbabwean law when properly incorporated into agreements.