Zhax Suppliers (Pvt) Ltd and Patrick Zharare v M. Mutshina and Monte Carlo (Pvt) Limited

The appellants (Zhax Suppliers and Patrick Zharare) entered into a lease agreement with the respondents to occupy shop number 21 Monte Carlo Centre, Fife Street, Bulawayo. The rental was pegged at US$300 per month, payable monthly in advance on or before the first day of every month. The respondents alleged that the appellants failed to pay rentals and operational costs. The appellants defended the claim arguing they did not owe any amounts, that the second appellant was wrongly cited as he was not a surety or guarantor, and that the same matter was pending in another case. The appellants' main argument was that they did not recognize the authority of Mr Ilan Wiesenbacher, who was appointed by the property owners as an agent to collect rentals. The appellants claimed they were paying electricity, water and service bills which should offset rent arrears, effectively seeking to occupy the premises rent-free. The magistrate's court found in favor of the respondents on 13 June 2014, and the appellants appealed to the High Court.

• Whether the appellants were in breach of the lease agreement by non-payment of rent
• Whether payment of utility bills (electricity, water and service bills) could be set off against rental obligations
• Whether the appellants' refusal to recognize the landlord's appointed agent was a valid defence to non-payment of rent
• Whether the appeal was filed in good faith or merely to frustrate eviction proceedings

The appeal was dismissed with costs on an attorney and client scale (punitive costs).

A tenant has no right to occupy property save in return for payment of rent. Utility bills (electricity, water and service costs) are not rentals and are costs a tenant is expected to bear over and above rental payments. Where a tenant disputes the amount of rental chargeable, that challenge does not absolve the tenant from paying any rentals at all - at minimum, the tenant must pay the amount it contends represents fair rental to avoid eviction. A tenant's refusal to recognize the authority of a landlord's appointed agent does not constitute a valid defence to non-payment of rent. Where a tenant becomes unreasonable or refuses to pay rent and has breached the lease agreement, the landlord is entitled to cancel the lease agreement and evict the tenant from the premises.

The court observed that the appeal was filed in bad faith and for the specific purpose of delaying and frustrating eviction proceedings. The court noted that a tenant who seeks protection of statutory tenancy must endeavor to pay fair rent, which must be objectively and not subjectively assessed. The court also commented that where tenants do not deny their liability to pay rentals yet do not state they are paying the required rent, and advance no recognizable legal defence, their position is untenable and frivolous appeals warrant punitive costs.

This case reinforces fundamental principles of landlord and tenant law in Zimbabwean jurisprudence, particularly: (1) the absolute obligation of a tenant to pay rent as a sine qua non for continued occupation; (2) that utility bills cannot be set off against rental obligations unless specifically agreed; (3) that refusal to recognize a landlord's appointed agent does not provide a valid defence to non-payment of rent; (4) that even where rental amounts are disputed, tenants must pay at least what they contend is fair rental to avoid eviction; and (5) that courts will impose punitive costs where appeals are brought in bad faith merely to frustrate legitimate eviction proceedings. The case serves as a warning against frivolous appeals designed to delay enforcement of landlord's rights.