Zimbabwe United Passenger Company v Gift Investments (Private) Limited and Jayesh Shah

ZUPCO (applicant) was the legal owner of premises at No. 9 Hood Road, Southerton, Harare, which it had leased to the respondents. After the lease expired, the second respondent (Jayesh Shah), who was Managing Director of the first respondent company (Gift Investments), paid a bribe of USD 20,000 to corrupt officials of ZUPCO to facilitate an illegal renewal of the lease agreement. ZUPCO issued summons in 2006 (HC 5501/06) for eviction of the respondents. On 12 April 2017, the court granted judgment for eviction (HH 238/17). The respondents filed appeals (SC 289/17) in May 2017. ZUPCO then applied for leave to execute the eviction judgment pending the determination of the appeals. The respondents had occupied the property for over 13 years, with legal proceedings spanning 11 years. During this time, they paid minimal rent (at one point USD 1.00), while ZUPCO's fleet had increased and it was forced to rent premises elsewhere in Chitungwiza. The second respondent was barred for failing to file heads of argument.

• Whether leave to execute judgment pending appeal should be granted
• Whether the lease agreement renewal obtained through bribery was valid and enforceable
• What factors should be considered in determining an application for leave to execute pending appeal
• Whether the owner's right to property under section 71(2) of the Constitution was being violated
• Whether the appeals filed by the respondents were frivolous and vexatious

1. Leave granted for applicant to execute the judgment in HC 5501/06 (HH 238/17) pending determination of appeals in SC 289/17. 2. Leave granted for applicant to issue writ of execution for ejectment of respondents or any persons claiming occupation through them from No. 9 Hood Road, Southerton, Harare. 3. Respondents to pay costs jointly and severally on attorney and client scale.

A lease agreement renewal obtained through bribery and corruption is illegal and void, and cannot form the basis of a valid or enforceable contract. An owner of property is entitled to possession and cannot be deprived of their property against their will (rei vindication principle). When determining applications for leave to execute pending appeal, the court must consider: (1) potential irreparable harm to appellant if leave granted; (2) potential irreparable harm to applicant if leave refused; (3) prospects of success on appeal; and (4) the balance of hardship. Where an agreement is procured corruptly, the prospects of success on appeal are minimal, and this factor weighs heavily in favor of granting leave to execute. A tenant who remains in occupation without valid agreement must pay reasonable rent equivalent to market rental value.

The court observed that corruption is a cancer that is difficult to eradicate in society, emphasizing the importance of courts not upholding corrupt practices. The court noted that during the 11 years of legal proceedings, the respondents paid unconscionable rent, at one point as low as USD 1.00. The court characterized the respondents' appeals as frivolous and vexatious, suggesting they were filed to gain time or harass the applicant rather than with bona fide intention to reverse the judgment. The court also noted procedural confusion where the first respondent mixed up the names in its notice of opposition, causing the second respondent (rather than first) to appear not to have filed heads of argument.

This case is significant in Zimbabwe (not South African) jurisprudence as it reinforces the principle that agreements procured through corruption and bribery are illegal, void, and unenforceable. It affirms the owner's constitutional right to property under section 71(2) of the Zimbabwe Constitution and the principle of rei vindication - that an owner cannot be deprived of property against their will. The case demonstrates the court's willingness to grant leave to execute pending appeal where the underlying agreement is tainted by corruption, sending a strong message against corrupt practices. It also clarifies the application of the South Cape Corporation test in Zimbabwe's courts when considering applications for leave to execute pending appeal.