Makomborero Muza v Zimbabwe Posts (Pvt) Ltd t/a Zimpost and Zimpost Properties (Pvt) Ltd t/a Post Properties

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HH536/25
HCHC13/25
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MAKOMBORERO MUZA

versus

ZIMBABWE POSTS (PVT) LTD T/A ZIMPOST

And

ZIMPOST PROPERTIES (PVT) LTD T/A POST PROPERTIES

HIGH COURT OF ZIMBABWE

COMMERCIAL DIVISION

CHILIMBE & MUSHURE JJ

HARARE: 3 June & 10 September 2025

Commercial Appeal

L. Ziro, for the appellant

A. Makoni, for the respondents

MUSHURE J:

INTRODUCTION

This is an appeal against the whole judgment of the magistrates’ court handed down on 7 January 2025 granting the respondents’ claim for eviction, payment of arrear rentals and holding over damages.

The facts are that in 2019, the first respondent, through its subsidiary the second respondent, entered into a renewable two-year lease agreement with the appellant for a shop known as shop number B7 at Harare Main Post Office (‘the shop’). According to the respondents, the agreed rental was three-hundred United States dollars, exclusive of value added tax and operation costs. On 2 March 2023, the parties agreed to extend the lease agreement to 31 December 2023 and to that effect, they signed an addendum to the lease agreement. Contrary to the terms of the lease agreement, the appellant failed to pay the agreed monthly rentals, prompting the respondents to give the appellant notice to remedy the breach within 14 days from 14 November 2023. The appellant did not remedy the breach. Consequently, the respondents proceeded to cancel the lease agreement.

The respondents then sued summons out of the magistrates’ court, seeking the appellant’s eviction from the shop; payment of arrear rentals in the sum of US$4 416.25 or its equivalent in local currency at the prevailing bank rate; US$347,50 as holding over damages per month from 1 November 2023 to the date of payment in full; interest and costs of suit on a punitive scale.

The appellant defended the action, pleading that the parties never agreed on US$300 as monthly rentals. He contended that the parties had agreed on ZW$300. The appellant denied breaching the agreement, asserting that he had agreed with the respondents’ employees to set off the amounts owed for rentals against certain improvements the appellant had made on the shop, after he had been a victim of several burglaries. He accused the respondents on being coy and evasive in discussing and finalising this issue. The appellant argued that the respondents owed him US$9 000, being the amount he had expended on aesthetic and security improvements on the shop. Whilst acknowledging that a notice had been issued, the appellant contended that it was without legal premise. To his knowledge, the lease agreement had not been cancelled. The appellant questioned the computation and legal justification for holding over damages and the eviction claim. The appellant also counterclaimed US$9 000 for the improvements which, he said, he had done with the respondents’ consent. He claimed that the respondents had failed, refused or neglected to pay or reimburse the US$9 000 despite demand.

At the pre-trial conference stage, the matter was referred for trial on the following issues:

Whether or not the defendant owes the plaintiff outstanding rentals? If so, the quantum thereof?

Whether or not the defendant has a lawful right to remain in occupation of Shop No. B7 Harare Main Post Office?

Whether or not the defendant must pay holding-over damages.

Whether or not the plaintiff is liable to the defendant in the sum of USD 9,000.00 for the improvements effected to the shop?

Whether or not the plaintiff should pay costs? If so, the scale applicable thereof.

The court a quo found in favour of the respondents and ordered that: -

The defendant and all those claiming occupation through him from shop no. B7 Harare Main Post Office to vacate within 7 days of receipt of this order.

Defendant to pay USD 4 416.25 or the equivalent in local currency at the prevailing bank rate.

Payment of USD 1 347.00 being holding over damages per month from 1 November 2023 to date of final settlement.

Interest at the prescribed rate from the date of summons to the date of final settlement.

Costs of suit”

With regards the counterclaim, the court a quo found that the appellant had not discharged the onus to prove the improvements he had done on the shop.

Clearly unhappy with the turn of events, the appellant has appealed against the judgment of the court a quo on the following grounds:

The court a quo misdirected itself and erred on a point of law and fact in ordering eviction of appellant without confirmation of cancellation of the alleged contract sought or granted.

The court a quo misdirected itself and erred on a point of law and fact in ordering payment of holding over damages and eviction of appellant on the ground of non-payment of rentals when it was clear from the evidence that parties had agreed to set off rentals with the amount from the improvements done by the appellant.

The court a quo misdirected itself and erred on a point of law and fact in ordering payment of holding over damages and eviction of appellant on the ground of non-payment of rentals when the alleged amount owed for rentals was not clear.

The court a quo misdirected itself and erred on a point of law and fact in dismissing appellant’s counter claim when it was clear from the evidence that the parties had agreed to set off rentals with the amount for the improvements done by the appellant, and the appellant had proved his claim.

SUBMISSIONS BEFORE THIS COURT

At the hearing of this appeal, Mr Ziro, for the appellant, argued that an order for eviction becomes incompetent without ordering confirmation of cancellation of the lease agreement. He asserted that contrary to the position of the law, the respondents did not even seek an order for confirmation of cancellation of the lease agreement. During discourse with the court, he could not pin point specific cases to support his averments. He then pointed out that the jurisprudence in this jurisdiction is inclined towards a party first seeking confirmation of the cancellation of the lease agreement before ordering eviction. He conceded that the issue of the respondent’s failure to firstly seek cancellation of the lease agreement was not specifically raised in the court a quo. He reasoned that this was because it had not been raised in summons. He argued that the court a quo should have made this an issue but it did not.

In respect of the order for payment of rentals and holding over damages granted by the court a quo, Mr Ziro argued that there was an agreement that rentals would be set off for the improvements made to the shop. He referred the court to e-mail correspondence between the appellant and one of the respondents’ employees, a Mr Nhema. He argued that the email referred to a verbal agreement between the parties regarding improvements for which the appellant ought to be compensated. He further submitted that in the court a quo, the respondents disputed the set off on the ground that, in terms of the lease agreement, improvements had to be approved in writing between the parties. Mr Ziro contended that there was no written approval for the improvements because they had been orally sanctioned in 2018 (the same year he had taken occupation of the shop), which was a period prior to the lease agreement entered into in 2019. It was his argument that these improvements were not only orally agreed upon but they were necessary. He argued that this issue was put to the court a quo as a counterclaim but the court a quo totally disregarded the counterclaim, yet there was no evidence to dispute the value which was in the pictures, quotations and receipts placed before the court. Mr Ziro conceded that the issue before the court a quo was not about the value of improvements but the authorisation to carry out the improvements.  At the invitation of the court to clarify why the appellant had continued to pay some of the rentals despite the set off agreement, Mr Ziro made the point that although there was an agreement, it was being contested to at some point so the appellant continued to pay the rentals as he was legally obliged to do under such circumstances.

Further, Mr Ziro questioned the computation of the rentals by the court a quo, stating that the court a quo simply ordered payment of outstanding rentals as claimed by the respondents without a clear formula as to how the rentals were arrived at.  It was his submission that at the time the lease agreement was initially entered into 2019, the rentals were in Zimbabwean dollars, then there was a gap from 2021when that lease agreement expired until 2023 when there was an addendum to the lease. It was his argument that it was only after the renewal of the lease agreement in 2023 that the rentals were pegged in United States dollars. With respect to the counterclaim, he argued that the appellant had shown that it ought to have been compensated for the improvements done on the shop. The appellant asserted that he did not breach the lease agreement and it did not default the payment of rentals.

Per contra, Mr Makoni for the respondents, refuted the appellant's submissions with regard the claim that cancellation should first be sought before eviction can be granted. He disputed that this was a position of the law. He submitted that when a tenant has not paid rentals, termination is automatic and there is no need to seek cancellation of the lease agreement.

On the argument that the appellant had made set off for the rentals through the improvements, Mr Makoni submitted that the nature of the second ground of appeal constituted an admission by the appellant that rentals were owed. He submitted, further, that in terms of the lease agreement, one could not make additions and alternations to the shop without written consent from the respondents.  In any event, he went on to state, the lease agreement specifically stated in clause 8.7. that such additions and alterations would be to the appellant’s account so in the circumstances, the appellant’s claim for compensation and set off was faulty.

Mr Makoni denied the existence of the verbal agreement. He further argued that clause 27 of the lease agreement provided that the agreement was the whole agreement and anything else to the contrary must be in writing and signed off by the parties. If ever there was any such oral agreement between the parties prior to 2019, clause 27 would have been worded differently to cater for that oral agreement because the lease agreement was substituting any other agreement the parties may have had in the past. Therefore, Mr Makoni contended, and the appellant ought to have insisted on clause 27 reading differently. Instead, the appellant signed off the agreement well knowing the existence of the alleged verbal agreement.

Mr Makoni further disputed the email correspondence relied on by the appellant to prove the existence of the verbal agreement, arguing that the email did not prove any authorisation to effect improvements. It was his submission that the email was simply an email to the respondents, which had not been responded to and that the recipient of the email, Mr Nhema, did not give evidence on the email in the court a quo and the appellant’s excuse was that Mr Nhema was indisposed. He asserted that the appellant did not even seek a postponement of the matter to enable the said Mr Nhema to come and testify.

On the order for holding over damages, Mr Makoni submitted that holding over damages literally follow the rentals. He submitted, further, that the appellant agreed that there was a lease agreement concluded on the 1st of March 2023 and effective from 1st of January 2023. In terms of that lease agreement, the rental was US$347.00.  He argued that that was the basis upon which holding over damages were calculated. They were calculated post termination of the lease agreement until such a time the appellant would vacate the shop. There was therefore no misdirection on the part of the court a quo in ordering holding over damages as it did. Mr Makoni referred the court to the computations done by the respondents. He submitted that notwithstanding the gap referred to by Mr Ziro, the computations would show that on the 5th of January 2022, the appellant paid US$347.50 and on 1,6 and 7 May 2022, the appellant had paid rentals in United States dollars. Mr Makoni submitted that the appellant subsequently defaulted for the remaining months of the year and attempts were made to pay rentals at the beginning of 2023.

There was a tacit acceptance of a rental increase through a letter dated 6 June 2022. Those rentals were pegged in United States dollars and even if the appellant did not respond to the email, he started paying rentals in United States dollars. He conceded that the initial lease agreement was in local currency but later on, the rentals were pegged in United States dollars. He submitted that the computation of the rentals was never challenged by the appellant in the court a quo. The only defence was on the claim for improvements.

ISSUES FOR DETERMINATION

It seems to me that the issues for determination fall squarely into three, namely-

Whether or not the court a quo erred in ordering the eviction of the appellant;

Whether the court a quo erred in making a finding that there was no set off and whether or not the court erred in disregarding the appellant's counterclaim; and

Whether the court a quo erred in granting the amounts to be paid as outstanding rentals and holding over damages.

I turn now to look at these issues ad seriatim.

WHETHER OR NOT THE COURT A QUO ERRED IN ORDERING THE EVICTION OF THE APPELLANT

An action for eviction is based on the principle of actio rei vindicatio: Musindo v Kereke & Anor HMA-32-22 at p7. The owner of a thing is entitled to claim possession of his property from whoever is in possession of it without his consent: Jakamoko Investments (Pvt) Ltd v De Bruyn HMA-67-22 at p6 and Aspire Investments v Westerhoff 2009 (2) ZLR 302 (H). The Supreme Court case of Chenga v Chikadaya S-7-13 holds that in a claim for actio rei vindicatio, one must prove two essential elements, namely; ownership of the property and possession of the property by the respondent.

Once an individual claiming actio rei vindicatio meets the above requirements, the onus shifts to the defendant/respondent to justify their possession of the claimant’s property. See Barzem Enterprises v Gonye HH-279-25 at p6.

The defences available to a claim of actio rei vindicatio as aptly captured in January v Maferefu S-14-20 at p. 7 are that the applicant is not the owner of the property in question; that the property in question no longer exists and can no longer be identified; that the respondent’s possession of such property is lawful and that the respondent is no longer in physical control of the property.

That the respondents are the owners of the shop is not in dispute. This dispenses with the first legally laid down requirement. The next enquiry is whether the appellant was in possession of the shop when the respondents instituted summons for eviction in the court a quo. Again, this is not in dispute and this satisfies the second requirement.

If I understood Mr Ziro’s argument correctly, then the appellant’s basis for resisting the claim for eviction is that firstly, the respondent did not seek confirmation of the cancellation of the lease agreement and secondly, the appellant is not in breach of the lease agreement because there was a set off.

Supline Investments (Pvt) Ltd v Forestry Co of Zimbabwe 2007 (2) ZLR 280 (H) is authority for the proposition that a tenant has an undisputed obligation to pay rentals for property that it leases and that failure to do so entitles the landlord to eject the tenant. In the circumstances, once a claim for eviction is based on non-payment of rentals, the court is at large to grant eviction.

The case of Rolen Trading (Private) Limited v Parkside Holdings (Private) Limited S-106-22, cited by the appellant to support his argument does not in any way assist him moreso when, as already alluded to earlier on in this judgment, Mr Ziro failed to pin point exactly where in that judgment the court adverted to the requirement to seek confirmation of cancellation of a lease agreement as a pre-requisite to an order for eviction. This is simply because the judgment does not support his argument.

The appellant’s question has already been settled by this court in the case of National Railways of Zimbabwe Contributory Pension Fund v Verigy Enterprises (Pvt) Ltd t/a Piccola Roma and Others HB-13-17 at p5, wherein Mathonsi J (as he then was) remarked that: -

“In any event, the summons for eviction was issued on 17 December 2015 at a time when the applicant alleges that rental even for the months of November and December 2015 had not been paid. Such non-payment entitled the landlord to litigate at the time that it did. In addition, I am not in the least persuaded that before seeking eviction the landlord was required to first cancel the agreement. It is trite that an eviction summons is sufficient notice of a cancellation. The first respondent was in breach by failing pay rent adequately and was therefore not a statutory tenant.” [Emphasis mine]

On the basis of this authority, that the respondents did not seek cancellation of the lease agreement before claiming eviction is neither here nor there. The very fact that one has filed summons to evict suffices as a sufficient warning of intention to cancel the lease agreement.

I therefore find no misdirection or error in the court a quo granting eviction without ordering cancellation of the lease agreement.

WHETHER THE COURT A QUO ERRED IN MAKING A FINDING THAT THERE WAS NO SET OFF AND WHETHER OR NOT THE COURT ERRED IN DISREGARDING THE APPELLANT'S COUNTERCLAIM

I have co-joined these two issues for expediency since they speak to the same issue. The appellant claims that rental arrears ought to have been set off by the improvements made to the shop. Set off is available when parties are equally indebted to each other, that is, the parties have a reciprocal debt. See National Society Security Authority v Alec Royals and Skotril (Private) Limited and Anor HH-236-10 at p6.

To evaluate whether the appellant was entitled to set off, one needs to look at the basis upon which compensation for improvements made on the shop is being sought. In this regard, the appellant states that improvements were done pursuant to a verbal agreement between him and Mr Nhema. The proof of that verbal agreement is an email exchanged between the appellant and Mr Nhema in which the appellant was following up on a verbal agreement concerning the respondents’ welder. The appellant noted that it appeared the welder would never come to secure the shop close to the roof top where people were urinating and the urine was seeping into the shop. The appellant further stated that he had purchased seven locksets to secure the gates in the basement as he was waiting for the welder to come and weld after which he would be in a position to advise Mr Nhema of the full cost. He further complained that whenever he met the welder, the welder would give him funny excuses and he could not wait forever because the shop needed to be secured. He indicated that he would give Mr Nhema a quotation he had obtained from his private welder who was coming to do the job.

The position of the law when it comes to verbal agreements is clear. In Goodwood Hotels (Private) Limited t/a Cutty Sark Hotel v Hunzvi and Another S-44-24 at p8, the court stated:

“As stated by Dube J (as she then was) in the case of Delta Beverages (Private) Limited v Private Investments (Private) Limited HH 135/18 at p 4:

“The oral contract, sometimes referred to as the invisible contract, is one of the most difficult to prove. What makes this so is the lack of hard evidence of the existence of the contract. The essentials of a verbal contract are the same as those of a written contract. There must be an offer and an acceptance of the contract, existence of consideration, the parties must have the capacity to enter into the contract, and the parties must intend to enter into the contract and create a binding relationship. The courts will not endorse an oral contract where any of the essential elements of a valid contract have not been proved. The terms of the oral contract must be proved and there must be agreement and understanding of the terms of the contract by the parties. An oral contract that meets all the requirements of a contract is binding on the parties and gives rise to a legally enforceable relationship. There must be a meeting of the minds or a reasonable belief by the parties that there is consensus. A party who alleges the existence of an oral agreement has the onus to prove the existence of the agreement on a balance of probabilities.”

In casu, this is the test to be satisfied by the appellant for the purported verbal agreement to be held as valid. The email being the exclusive proof which was presented before the court a quo, the appellant was obliged to prove the existence of the verbal agreement on a balance of probabilities. In my judgment, the email is bereft of several requirements of a valid contract. It does not show that there was an offer and acceptance. It does not in any way prove that the parties intended to enter into a binding agreement. In any event, the email is a one-way correspondence from the appellant and has no response from the respondents or Mr Nhema. Further, there is no proof that Mr Nhema had agreed or knew of what was being talked about in the email. The appellant’s challenge was compounded by the fact that Mr Nhema did not give evidence in the court a quo, because he was reportedly indisposed and could not be called as a witness. Further, by the appellant’s own submissions, the respondents were being ‘coy and evasive in discussing and finalising the issue’. In light circumstances surrounding the purported verbal agreement, the appellant cannot insist on there being a binding verbal agreement entered into between the parties.

The court a quo took issue with the fact that this email was not responded to and determined that the appellant should have pushed for a written consent explicitly allowing him to make the improvements. The court a quo found, further, that the email did not dictate the extent of the improvements that the appellant was permitted, if any, to make on the shop and that the improvements made in relation to the ceiling and anything else outside the locks could as well have been the appellant going on a frolic of his own. The court a quo also found that the email did not dictate that the appellant would indeed be reimbursed for his efforts in the property and that the appellant would be allowed to make the improvements himself since there was talk that there was an actual welder to instal the locks.

Further, the court a quo reasoned  that the improvements had been done prior to the enactment of Statutory Instrument 33/2019 (also known as the Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Real Time Gross Settlement Electronic Dollars (RTGS Dollars)) Regulations, 2019), on the basis of which contractual obligations valued in United States dollars immediately before 22 February 2019, were to be paid in RTGS dollars at parity or at a one-to-one rate. It found that the receipts did not show that payments were made in United States dollars and determined that the appellant could not be reimbursed. The court a quo concluded that it could be that the appellant’s impatience got the better of him and he proceeded to make improvements without the respondents’ express authority.

In my view, in light of the position of the law regarding verbal agreements, I find no fault in the findings made and conclusions reached by the court a quo that the appellant failed to discharge the onus to prove the issue of improvements. I also find there is merit in Mr Makoni’s argument that per clause 27 of the lease agreement, the lease agreement constituted the whole agreement between the parties and had there been a set off arrangement between the parties, the appellant should have insisted on clause 27 being worded accordingly especially considering that clause 8.7 of the same agreement provided that any improvements done on the shop would be by written consent and on the appellant’s account. In my view, there is no merit in the appellant’s argument that the lease agreement was futuristic in nature as justification for the non-inclusion of such a critical prior agreement between the parties. As long as the appellant failed to prove the essential elements of a valid verbal agreement vis a vis clause 27 of the written lease agreement, there can be no basis to argue that the court a quo erred in finding that there was no set off. Additionally, I did not hear the appellant to impugn the court a quo’s findings on the insufficiency of the evidence placed before it to prove the counterclaim. In the ultimate, I find that there was no misdirection or error in the court a quo’s disregard of the counterclaim.

WHETHER THE COURT A QUO ERRED IN GRANTING THE AMOUNTS TO BE PAID AS OUTSTANDING RENTALS AND HOLDING OVER DAMAGES

The appellant argues that the court a quo erred in ordering payment of holding over damages and his eviction on the ground of non-payment of rentals when the alleged amount owed for rentals was not clear.

Holding over damages mirror the rental the claimant is receiving from a lawful tenant. See Rotazom Investments (Pvt) Ltd v BYCO (Pvt) Ltd and Another HH-249-22 at p7. As such, to calculate holing over damages, one will simply look at the rentals the respondents would have received from a lawful tenant. The respondents claim for holding over damages was for USD 347.50 per month. This is the latest monthly rental per clause 1.2. of the addendum to the lease agreement signed by the parties on 1 March 2023. This figure is not in dispute.

With regards to outstanding rentals, contrary to Mr Ziro’s argument that there was a gap between 2021 and 2023, before the court a quo was a letter dated 6 July 2022 from the respondents’ representative addressed to the appellant in which the appellant was notified of a rental review to US$346. 25 with effect from 1 August 2022. On 6 December 2022, the appellant was served with a letter of demand for arrear rentals in the sum of US$1 731.25. This amount was also used as the basis for giving the appellant notice of termination of the lease agreement on 16 December 2022. On 16 January 2023, another notice, this time a rental review notice, was issued, culminating in the addendum signed on 1 March 2023.

On record are two documents computing the rentals for the period 2022 to 2023. The first computation shows that on 1 May 2022 the appellant paid US$347, 50 as rentals. He paid a similar figure on 1 June 2022 and on 1 July 2022, he paid US$353.75. He then did not pay any rentals for the remainder of the 2022 until the outstanding rentals figure, which started accumulating on 1 August 2022, reached US$1 731.25. This is the figure that was carried over to 1 January 2023. The second document shows that the appellant only made payments of US$50, US$80, US$70 and US$50 on 1 January 2023, 1 February 2023, 1 March 2023 and 1 April 2023 respectively until the cumulative figure stood at US$4 416.25 on 1 October 2023.

What is critical to note from the evidence placed before the court a quo and submissions made in this court is that respondents accept that initially, the rentals were pegged in local currency. The evidence before the court a quo shows that the amount outstanding in United States dollars commenced to run on 1 January 2022. There was nothing placed before the court a quo to suggest that the respondents had claimed rentals in United States dollars for the period the agreed rentals were pegged in local currency. The evidence before the court a quo also shows that on 6 July 2022, there was a rental review. The rental was pegged in United States dollars. The evidence shows that before then, the appellant was already paying rentals in United States dollars. He has not explained why, if his version of events is true, he was paying rentals in foreign currency at a time when the rentals were pegged in local currency. The evidence placed before the court a quo to prove the rental computations was clear and I find no basis for impugning the court a quo’s decision. On the basis of the foregoing, the appellant’s fourth ground of appeal must also fail.

DISPOSITION

In view of the position I have taken in this matter, I find that the appeal is without merit in its entirety.

ORDER

In the result, it is ordered that:

The appeal is hereby refused.

The appellants shall pay the respondents' costs at an ordinary scale.

Chilimbe J: ................................................................. agrees

Takaindisa Law Chambers, appellant’s legal practitioners

Mbidzo, Muchadehama & Makoni, respondents’ legal practitioners