Chimbetete v Maramwidze and Another (494 of 2023) [2023] ZWHHC 379 (14 June 2023)

1 HH 494- 23 CIV “A” 190/22 GIBSON CHIMBETETE versus JAMES MASEKA MARAMWIDZE and NOMUHLE SIBANDA HIGH COURT OF ZIMBABWE ZHOU & DEME JJ HARARE, 14 June 2023 Civil Appeal Ms L Mangachena, for the applicant Ms L Nyamukachi, for the respondents ZHOU J: This is an appeal against the judgment of the Magistrates Court in terms of which that court dismissed the appellant’s claim for an order confirming cancellation of the lease agreement between appellant and the respondents and for the ejectment of the respondent and all persons claiming occupation through them from the property described in the papers as Kalahari Breeze Stores, Bob’s Shopping Centre, Zhombe Road, Kwekwe. The appeal is opposed by the second respondent. The appellant’s case in the court a quo was that on 28 April 2010 he concluded a lease agreement with the respondents. In terms of that lease agreement the respondents took occupation of the property described herein before. Appellant further alleged that the respondents breached the lease agreement by failing to pay the agreed rentals thereby accumulating arrears which caused him to cancel the agreement. The respondent’s defence was that the second defendant was in occupation of the premises not as a lessee but because she purchased the property and paid the full purchase price for it. In support of their case, the respondents produced a document dated 29 April 2012. The document makes reference to a meeting pursuant to which it was agreed that some payments previously made by the second defendant would be treated as a deposit of $15 000, subject to the fulfilment of three conditions stated in the document. These conditions are that: HH 494- 23 CIV “A” 190/22 (1) Monthly rentals of US$500 were to be paid every first day of the month; (2) an amount of US$5 000 was to be paid within one year calculated from 1st April 2012; and (3) that all the outstanding bills to ZESA, the Rural District Council, and in respect of the Liquor Licence were to be settled and brought up to date. The court a quo dismissed the appellant’s claim on the basis that the appellant had failed to prove the lease agreement relied upon as having been breached. The learned Magistrate found that instead, the parties had concluded a lease-to-buy agreement, and that the respondents occupied the property in terms of that lease to buy agreement. The court a quo found further that the second respondent had paid the full purchase price (or rent to buy) in terms of the lease-to-buy agreement. The appellant challenged the judgment of the court a quo on essentially three grounds which can be gleaned from grounds 1, 2 and 3 in the notice of appeal. The contention pertaining to prescription, though contained in ground 4, was not argued before this court. The three issues raised are that the court a quo erred and misdirected itself by finding that there was a valid agreement of sale by which is meant the finding that there was a lease to buy agreement, that the respondents had performed their obligations in terms of the lease-to- buy agreement, and in not finding that the respondents had breached the lease agreement. It appears from the record that the first respondent effectively disappeared from the scene once the parties accepted that the second respondent is actually the one who is in occupation of the premises. It is, indeed, common cause, that she was the one who actively participated in the negotiations in terms of which she ended up occupying the premises. The dispute on her precise relationship with the first defendant is not material for the purposes of disposing of the dispute between the parties. It is common cause that when the second respondent took occupation of the property in 2010 her occupation was in terms of a lease agreement. It is also common cause that in 2012 the parties discussed the issue of a rent to buy agreement. The purchase price is not stated in the document of 29 April 2012. Appellant submits that the agreement of lease-to- buy was invalid on that account, and further states that the purchase price would only be agreed upon once the property had been valued. This, according to the appellant, rendered the lease-to-buy agreement void for vagueness. The second respondent states that the purchase price agreed was US$24 000. If the learned Magistrate accepted the respondents’ version. There is clearly a misdirection in that respect. The written document produced to HH 494- 23 CIV “A” 190/22 support the existence of a lease-to-buy agreement contains no purchase price. Even the figures stated therein of US$15 000 deposit and a sum of US$5 000 to be paid on a subsequent day do not add up to the figure of US$24 000 which was presented by the second respondent as the purchase price. In her evidence in court the respondent suggested that the figure of $24 000 was agreed upon subsequent to the signing of the document of 29 April 2012. But in her plea, para 4 thereof, she states that the agreement of sale was reached on 29 April 2012. If there was no agreement on the purchase price on that date then clearly, the agreement of sale would be non-existent, because agreement on the pretium is a prerequisite for the validity of a sale. Further, the figure of $4 000 to make up for the total purchase price suggested by the respondent finds no support on the evidence led. What further obfuscates the respondent’s case is the reference to a monthly rental of US$500 in the document of 29 April 2012 as a condition of the agreement. Clearly, the parties intended that notwithstanding the intended lease-to-buy which never came into existence, the second respondent would remain in occupation as a tenant, paying the rent of US$500 per month. The other difficulty that the second respondent has is that she failed to produce proof of payment of the balance of US$9 000 which remained after the deposit of US$15 000 was paid. Indeed, she failed to provide proof of payment even of the US$5 000 which is explicitly mentioned in the written document as a condition. The documents produced pertain largely to payments made before 29 April 2012. Those payments made after 29 April 2012 came nowhere near the figure of US$5 000. The finding that the second respondent performed her obligations in terms of even her alleged terms of the contract was therefore groundless. It is not supported by evidence. The US$500 which the second respondent was enjoined to pay by the document of 29 April 2012 as rental was not paid. This was the monthly rent. Erratic payment of different figures shows breach of the terms of her occupation. The learned Magistrate did not deal with this critical aspect, hence the misdirection. It seems that the respondent only paid the varying sums of money as and when she could afford to pay. Clearly, the second respondent breached her terms of occupation of the property. She failed to pay rent for it. Even if it was to be found, and there is no evidence for such a finding, that she had a lease-to-buy agreement, she also breached that. She did not pay the US$9 000 which would be due on her own version or the US$5 000 which was due on the basis of the document of 29 April 2012. HH 494- 23 CIV “A” 190/22 She therefore has no defence to the claim for the cancellation of the lease agreement and her eviction from the premises. In the summons, the appellant had also claimed arrear rentals and holding over damages. No evidence was led to prove the figures claimed. Miss Mangachena conceded, correctly in our view, that these claims could not be persisted with. In the result, IT IS ORDERED THAT: 1. The appeal is allowed. 2. The judgment of the court a quo in case number 56/200 is set aside and the following is substituted: “1. 2. Plaintiff’s claim succeeds. Judgment is given in favour of the plaintiff against the defendants for: (a) confirmation of cancellation of the lease agreement between the plaintiff and the defendants. ejectment of the defendants from Kalahari Breeze Premises, Zhombe. payment of costs of suit by the defendants jointly and severally the one paying the other to be absolved.” (b) (c) 3. The second respondent shall pay the costs in this appeal. DEME J, agrees: ……………………… Mangachena Attorneys, appellant’s legal practitioners Mawadze & Mujaya, second respondents’ legal practitioners