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Unauthorized Lease Transfer

National Railways of Zimbabwe Pension Fund v Ekutulene Investments (HB 95-16)

Case Summary

CourtHigh Court of Zimbabwe
JudgeMathonsi J
PartiesNational Railways of Zimbabwe Contributory Pension Fund vs Ekutulene Investments & Wayne Allan Jones
TypeCivil Trial (Lease Dispute)
Core IssueEnforcement of lease agreement and eviction
OutcomeLease cancellation confirmed, eviction ordered, damages awarded
  • Initial lease agreement signed March 7-8, 1999
  • Property: Business premises at Bulawayo Centre (844.9 square metres)
  • Lease terms:
    • Initial 5-year period from September 1, 1999
    • Option for 5-year renewal
    • Second defendant signed as surety
  • Key Events:
    • Tenant attempted to transfer business to Gersham Gara in 2011
    • Property worth approximately $600,000
    • Landlord rejected transfer request
    • Tenant failed to pay agreed rentals
    • Last rental payment of $700 made April 15, 2015
    • Fair monthly rental determined at $4,858

Legal Principles & Considerations

Sanctity of contracts doctrine

Privity of contract

Non-variation clause enforcement

Lease agreement provisions:

  • Prohibition on cession/assignment
  • Rent payment obligations
  • Requirements for variation

Related legal concepts:

  • Tacit relocation
  • Express relocation
  • Prescription rules

Court's Analysis & Reasoning

The High Court found:

  • Written lease agreement remained valid and binding
  • Unilateral transfer to third party violated lease terms
  • Tenant breached agreement by:
    • Failing to pay stipulated rent
    • Transferring possession without consent
    • Disregarding non-variation clause
  • Rejected defenses:
    • Argument of lease expiration
    • Claims of tacit relocation
    • Prescription defense
    • Third-party transfer justification

Final Orders & Implications

The court ordered:

  1. Confirmation of lease cancellation
  2. Eviction of first defendant and associated occupants
  3. Payment of $333,209.47 for arrear rent plus 15% interest
  4. Holding over damages of $4,858 monthly from August 2014
  5. VAT and operating costs from August 2014
  6. Legal costs on attorney-client scale

Key Implications:

  • Reinforces sanctity of contracts
  • Confirms requirement for landlord consent in lease transfers
  • Establishes consequences of unauthorized occupation
  • Sets precedent for handling similar lease disputes

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