Judgment No. 179/13
Case No. HC 386/09
PHILEMON N. MABUZA
VERSUS
CHARLES NYATHI
IN THE HIGH COURT OF ZIMBABWE
MUTEMA J
BULAWAYO 12 & 13 SEPTEMBER & 19 DECEMBER 2013
T. Sibanda, for the plaintiff
R. Ndlovu, for the defendant
Civil Trial
MUTEMA J: Defendant is plaintiff’s nephew. Plaintiff claims via summons issued on
12 March 2009 that on 21 January, 2006 the parties concluded a written lease agreement
effective 8 May, 2006 wherein plaintiff as lessor, leased to defendant as lesse, a portion of
Kalanga Farm known as Usher Paddock. Defendant has breached the lease agreement by
failing to pay rent of two heifers per year as agreed and failing to maintain the fence leading to
his cattle straying into unauthorised grazing land. In the event, plaintiff prays for:
(i)
(ii)
(iii)
(iv)
an order confirming the cancellation of the agreement of the lease;
an order ejecting defendant from Usher Paddock, Kalanga Farm, Figtree within seven
days of such order;
payment of four heifers as unpaid rent and one heifer per three months of unlawful
occupation;
costs of suit.
Defendant’s contest is hinged on the averment that the purported lease agreement is a
sham for defendant purchased the land in dispute from the plaintiff for
Z$1 000 000 000 – 00 (one billion dollars) which amount was paid in full. He prays for dismissal
of plaintiff’s claims with costs on attorney – client scale.
Three issues were referred to trial at the pre-trial conference, viz:
1.
whether there is a lease agreement or an agreement of sale between the parties in
respect of Usher Paddock, Kalanga Farm, Figtree.
2.
whether, if there is a lease agreement, plaintiff is entitled to an order ejecting defendant
therefrom and payment of arrear rentals as claimed.
3.
whether, if there is an agreement of sale, defendant is entitled to be left in occupation
of the land aforementioned.
1
Judgment No. 179/13
Case No. HC 386/09
Plaintiff’s case rests on his sole evidence which is to the following effect:
Kalanga Farm used to have a total hectarage of 2694, 8673 hectares and was being run as a
company called Pampas Farms (Pvt) Ltd. He produced as proof to that effect a deed of transfer
(pages 2-3 of his bundle of documents). The shareholders/ directors were himself and Barrie
Mitchell (a white man). During the fast track land resettlement programme the farm was
gazetted for compulsory acquisition by the government in 1997. On 4 December, 1997 the
plaintiff objected to the proposed compulsory acquisition of the farm to the acquiring authority
– see letter on page 4 of his bundle of documents. After considering his representations
therein the acquiring authority withdrew the preliminary notice to compulsorily acquire the
farm, (pages 5 and 6 of plaintiff’s bundle of documents).
Eventually, of the 2694, 8673 Hactares of the farm, 1224, 5673 Hactares which belonged
to shareholder Barrie Mitchell was acquired by the government for resettlement while the
remainder of 1470 3 hactares belonging to plaintiff was left as his. Plaintiff was subsequently
offered that portion of land – see pages 7, 8 and 9 of his bundle of documents.
On a certain day defendant came to the farm carrying one bovine in a 7 tonne truck
requesting to leave the beast there. He left it and returned after two days carrying more cattle.
After a discussion he allowed defendant to leave the cattle there. The next day defendant
brought five bundles of barbed wire. They had not discussed the barbed wire but defendant
had noticed that plaintiff did not have such wire to mark the boundary over which he was
quarrelling with his neighbours.
Subsequent to that defendant and himself embarked upon a joint venture of buying,
fattening and reselling cattle. The cheque stubs defendant has cannot be proof of purchase of
the disputed portion of the farm, rather they relate to the joint venture business of buying
cattle, stockfeed for fattening them and dipping chemicals.
Later on the two concluded a lease agreement on 21 January, 2006 whose terms and
conditions are spelt out in the document on page 1 of his bundle of documents. The material
terms of the agreement were that the lease would commence on 8 May, 2006 when defendant
would take occupation of Usher Paddock, the previous lessee having vacated on 7 May 2006.
Defendant was to pay two heifers annually as rentals effective 1 January, 2007. Defendant
breached the lease agreement by failing to pay the agreed rent and despite several demands,
he never effected even a single payment. This prompted him to give defendant written notice
of six months on 3 September, 2008 of termination of the lease agreement effective 3 March,
2009 (page 10 of his bundle of documents).
He denied that he sold the land in question to defendant or that this suit was
engendered by a dispute over ownership of an Isuzu Motor vehicle the parties are embroiled in
in case number HC 1558/08.
He then closed his case.
2
Judgment No. 179/13
Case No. HC 386/09
Defendant gave the following evidence:
Plaintiff is his mother’s young brother. In 2003 the two of them began discussing sale of Usher
Paddock. He started paying for it in 2004. The purchase price was Z$1 billion. The agreement
was unwritten and the payment terms were that he was supposed to pay any amount till he
reached the Z$1 billion mark. There were no fixed instalments regarding the amount or the
date - he would pay whenever he got the money. After finishing paying the Z$1 billion they
drafted the ‘’lease’’ agreement in 2006. Plaintiff told him that his neighbours such as Khuphe
with whom he was having quarrels should not know that he had sold the paddock to him
otherwise he would lose the land because neighbours were alleging that the farm belonged to
the government. He agreed to the sham lease agreement although he knew that he had
purchased the land because he trusted the plaintiff as his uncle.
He denied being engaged in any project with plaintiff that necessitated him writing
plaintiff cheques or giving him money. All the cheques drawn in plaintiff’s favour were for
payment of the farm though there were other cheques he wrote when selling/buying cattle
but this was after having fully paid for the farm. One cheque was even written ‘’last payment’’.
Prior to the motor vehicle dispute plaintiff never demanded rentals from him and he never paid
anything in pursuance to the lease agreement. He produced his bundle of documents to
buttress his evidence showing four cheque stubs with various dates and amounts paid to P.N.
Mabuza averring that they constitute some of the proof of the payment for the purchase price
of the farm as well as two bank statements. He then closed his case.
I will deal with the three issues referred to trial seriatim.
(1)
WHETHER THERE IS A LEASE AGREEMENT OR AN AGREEMENT OF SALE BETWEEN THE
PARTIES IN RESPECT OF USHER PADDOCK
The onus on this issue is on both parties with each proving what he avers. Section 7 of
the Contractual Penalties Act, [Chapter 8:04] provides that every instalment sale of land shall
be reduced to writing otherwise the onus is on the party alleging the verbal agreement to prove
its existence.
In the instant case defendant has the onus of proving the existence of the alleged verbal
contract of the instalment sale of the land. He has dismally failed to do so. He says he bought
the land for Z$1 billion which he has since fully paid by way of instalments. The cheque stubs
which were not discovered, which he produced only amount to a total sum of
Z$358 892 311. 00. He has not alleged that some payments were in cash or from a different
account. The bank statements he produced show that the cheques were drawn on the same
account. It is therefore improbable that he would get some and not the other proof of
payment from the same account. It is not difficult to infer that the other cheques do not exist.
No receipts for the alleged payments were ever issued. According to him, despite having been
warned by plaintiff that the sale had the potential of being fraught with problems, defendant
3
Judgment No. 179/13
Case No. HC 386/09
took no steps to protect his interests, for instance by insisting on written proof of the sale or
having witnesses to the agreement. No one except defendant knows about the alleged sale.
He said the instalments were neither quantified nor stated as to when they were payable. The
date of transfer of the land to him was never stated and even as we speak he has not
demanded the transfer. In the pleadings he even did not file a counter-claim for such transfer.
His explanation for the foregoing loopholes is simply that he trusted his maternal uncle. Not
only is the explanation lame but talls for short of discharging the onus that rests on him to
prove the existence of the alleged instalment sale of the land.
Plaintiff sought further particulars to defendant’s plea asking if as alleged owner,
defendant was paying rates and taxes for the land. His answer was in the affirmative but in the
trial he failed to produce such proof. Plaintiff’s explanation for the cheques drawn in his name
as payee is that the cheques were for payments for their joint enterprise of buying, fattening,
dipping and selling cattle. Such explanation is found plausible and is accepted. He averred that
the agreement between the parties is one of a lease. He buttressed this by producing the
written memorandum to that effect dated 21 January, 2006 duly signed by both of them
stipulating the terms and conditions of the lease. Defendant’s averment that that document is
a sham meant to disguise the sale can only be dismissed as mere sophistry. This is so in view of
the court’s findings supra regarding the alleged sale.
(2)
WHETHER, IF THERE IS A LEASE AGREEMENT, PLAINTIFF IS ENTITLED TO AN ORDER
EJECTING DEFENDANT FROM USHER PADDOCK, KALANGA FARM, FIGTREE AND
PAYMENT OF ARREAR RENTALS AS CLAIMED
Having found that the agreement is one of lease the court is behoved to determine
whether defendant has breached that agreement thereby entitling plaintiff to an order for
ejectment and payment of the claimed arrear rentals. It is a term of the lease agreement that
defendant was to pay two heifers annually as rent with effect from 1 January, 2007. It is
common cause that defendant has not paid any rentals let alone as agreed upon. This conduct
– non payment of rent-amounts to a material breach of any lease agreement entitling the
lessor not only to cancellation of the lease but also to ejectment of the errant defendant from
the rented premises. On 3 September, 2008 plaintiff gave defendant six months notice of
termination of the lease agreement on account of various breaches including non payment of
rentals and to vacate the premises on 3 March, 2009. To date defendant is still in situ. Clearly
plaintiff is entitled to defendant’s eviction from the farm. Plaintiff is as well entitled to
aggregate arrear rentals of four heifers for 1 January, 2007 and 1 January, 2008. As holding
over damages plaintiff claims one heifer for every three months of unlawful occupation viz from
3 September, 2008. Plaintiff, however, did not ventilate neither in the pleadings nor in the trial
the justification of such hold - over damages. The norm regarding holdover damages is that
they are always equivalent to the periodic rent payable as per the lease. After payment of two
heifers on 1 January, 2008 the next rent of two heifers was due on 1 January, 2009 and 1
January, 2010, then 1 January, 2011 then 1 January, 2012 and 1 January, 2013. This translates
into ten heifers in holdover damages for the five years of unlawful occupation. In the event
4
Judgment No. 179/13
Case No. HC 386/09
that 1 January, 2014 arrives with defendant still in situ an additional two heifers in holdover
damages will also be payable.
Having found as I have done in regard to the foregoing two issues referred to trial, there
is no need to deal with the third issue that was also referred to trial as it has been overtaken by
those findings.
In the result I order as follows:
(i)
the cancellation of the agreement of lease between the parties in respect of Usher
Paddock, Kalanga Farm, Figtree be and is hereby confirmed;
(ii)
the plaintiff is granted leave to eject defendant from Usher Paddock, Kalanga Farm
Figtree within seven days of this order;
(iii)
defendant shall pay plaintiff four heifers as arrear rentals and two heifers annually as
holdover damages with effect from 1 January, 2009 to date of vacation of the paddock;
(iv)
defendant shall pay plaintiff’s costs of suit.
Messrs James, Moyo – Majwabu and Nyoni, plaintiff’s legal practitioners
R. Ndlovu and Company, defendant’s legal practitioners
5