Yvonne Chisese v Alluvial Exploration Services (Private) Limited

The applicant, Yvonne Chisese, was the owner of a property known as 46 Van Praagh Avenue, Milton Park, Harare (stand 4343 Salisbury Township). The respondent, Alluvial Exploration Services (Private) Limited, was the lessee under a lease agreement for this property. The lease agreement provided in clause 2 that rent was payable monthly in advance. From 2008, the respondent began making lump sum payments for rentals without the applicant's consent and made payments late. The applicant wrote to the respondent on 21 December 2009 informing them of breach of contract and that she would take possession of the property on 29 January 2010. The respondent had paid arrear rentals for September 2009 to August 2010 only in August 2010 after legal proceedings were instituted. The applicant filed this application on 8 November 2010 seeking ejectment of the respondent. Previously, a similar application had been filed in the Magistrates Court but was withdrawn on 4 November 2010.

• Whether the applicant had properly cancelled the lease agreement
• Whether the deponent to the founding affidavit had proper authority to swear the affidavit
• Whether the withdrawal of the Magistrates Court application was fatal to the High Court application
• Whether the applicant frustrated the respondent's tender of rental payments
• Whether there were material disputes of fact requiring resolution by way of action rather than application
• Whether the applicant waived her right to cancel the lease by continuing to accept rental payments

The court granted the application. The respondent and all those claiming through him were ordered to vacate the property known as 46 Van Praagh Avenue, Milton Park, Harare within 7 days of service of the order. The respondent was ordered to pay the applicant's costs of suit.

A lessor's election to cancel a lease agreement may be inferred from conduct inconsistent with the continuation of the lease, such as issuing summons for ejectment or giving written notice of intention to take possession. A legal practitioner with a mandate to institute proceedings has authority by operation of law to depose to affidavits in relation to matters within their knowledge and necessary for the performance of their mandate, in accordance with Rule 227(4) of the High Court Rules. The continued acceptance of rental payments by a lessor after cancelling a lease does not constitute waiver of the right to rely on the lessee's breach that gave rise to the cancellation. Unilateral alteration of payment terms under a lease agreement (such as making lump sum payments instead of monthly payments as agreed) constitutes a breach entitling the lessor to cancel the agreement.

The court observed that it would defy logic for an applicant to deliberately frustrate timeous payment of rentals to her own prejudice, thereby depriving herself of rentals for a lengthy period. The court also noted that it is not all disputes of fact that matter in determination of applications, but only material disputes of fact that would require an applicant to proceed by way of action rather than application. The court implicitly approved the principle that where a party claims to have faced difficulties in performance, they bear the onus of proving communication of such difficulties to the other party.

This case is significant in Zimbabwean landlord and tenant law as it clarifies several important principles: (1) the manner in which a lessor can elect to cancel a lease agreement (through written notice and/or conduct inconsistent with continuation of the lease such as instituting ejectment proceedings); (2) that acceptance of rental payments after cancellation does not necessarily constitute waiver of the right to cancel based on prior breaches; (3) the application of Rule 227(4) of the High Court Rules regarding who may depose to affidavits in court applications, particularly legal practitioners acting within their mandate; and (4) that withdrawal of proceedings in the Magistrates Court does not bar subsequent proceedings on the same matter in the High Court.