MOYO v RUFARO MARKETING (PVT) LTD (422 of 2025) [2025] ZWHHC 422 (15 July 2025)

2 HH 422-25 HCH 3825/24 ILACK MOYO and JOHN MUSARA and TENDAYI MHEMBERE versus RUFARO MARKETING (PVT) LTD HIGH COURT OF ZIMBABWE TAKUVA J HARARE; 20 January & 15 July 2025 Court Application for a Declaratory Order and Consequential relief TE Gumbo, for the applicants J Bamu, for the respondent TAKUVA J: This is a court application for a declaratory order and consequential relief. The applicant in this matter seeks the following relief; The respondent’s revocation of the applicants’ sub-tenancy agreements with their sub-tenants with respect to all their respective leased premises be and is hereby declared unlawful.The respondent’s new leases with the applicants’ sub-tenants be and are hereby declared unlawful.The respondent be and is hereby interdicted from collecting rentals from the applicants’ sub-tenants for as long as their respective lease agreements have not been cancelled by order of court.Respondents to pay costs of suit on an attorney-client scale. BACKGROUND FACTS On 1 October 2012, the first applicant in this matter entered into lease agreement with a company, Rufaro Marketing (Pvt) Ltd that is the respondent. This agreement was in respect of an immovable property known as Zororo II Bar situated in Dzivarasekwa, Harare. The parties agreed to extend the lease agreement to last up to 31 December 2032. Some time in 2016. First applicant claims to have experienced cash flow problems. This prompted first applicant to make a request to the respondent to renovate the premises and sublet some of the space. First applicant alleges that this request was approved by the respondents Chief Executive Officer and he proceeded to let the premises to other individuals from 2016 to around 2023. However, the respondent appointed new management around 2023 which led to the removal of the former Chief Executive Officer of the respondent. Applicant claims that the new appointed management proceeded to direct the first applicant’s subtenants to cease paying rent to him but to the respondent’s offices directly. It is first applicant’s submission that since its subtenants were caused to pay their rentals directly to the first respondent, it affected his ability to fulfil his own rental obligations to the first respondent. Further, first applicant avers that similar events occurred between the second applicant and the same respondent in this matter. This is in regards to premises known as Mabvuku Bar situated in Mabvuku, Harare.Second respondent also renovated the premises with the approval of the former Chief Executive Officer before he was removed through the appointment of the new management. In similar fashion as the first applicant, second applicant also proceeded to sublet portions of the premises with the consent of the Chief Executive Officer. The new management also then directed these subtenants to pay their rentals directly to the respondent’s office. The third applicant in this matter also claims to have gone through the same events with respect to a premise known as Willowvale Bar in Highfield, Harare. Applicants allege that all of these events took place without the respondent cancelling the lease agreements. Consequently, all of the applicants in this matter claim to have faced a similar predicament at the instance of the first respondent. In order to resolve their grievances, the applicants made an application for declaratur under case HCH 2070/23. This matter was however, withdrawn due to a technicality. Respondent oppose this application stating that it cancelled its lease agreements with the applicants due to several breaches and the said cancellations only await confirmation. After the withdrawal of HCH 2070/23, the respondent initiated proceedings in the Magistrate’s court to confirm the said cancellations. It is from this view that the first respondent raised its point in limine on the day of hearing that of lis pendens. The court shall proceed to analyze this point and decide whether it is dispositive of this matter. POINT IN LIMINE AND ANALYSIS Counsel for the respondent raised lis pendens as a point in limine challenging this application. This point stems from the fact that the applicants brought this present application while there is a pending application before the Magistrates court that will likely resolve the parties’ problems once and for all. It is respondent’s view that there was no need for the applicants to make this application as the issues they seek this court to resolve are the same issues that the Magistrates court is set to deal with. The law on lis pendens is well settled in this jurisdiction. In Diocesan Trustees for Diocese of Harare v Church of the Province of Central Africa 2009 (2) ZLR 57 (H), it was held that for a plea of lis pendens to succeed it must be demonstrated that the matters are between the same parties or their successors in title concerning the same subjects matter and founded upon the same cause of action. See also Manyika v Leabridge Investments (Pvt) Ltd HH–305–22. The court has a discretion on whether or not to uphold the special plea of lis pendens. In the case of Mabhena v Sibanda and Associates and another (116 of 2024) 2024 ZWBHC 116 Siziba J held that; “In exercising such discretion, the court must consider whether the matter that is already pending will offer an efficacious remedy to the applicant or plaintiff, as the case may be, whether the end result will be similar in both matters and most importantly the possibility of contradicting judgments if both matters are to be dealt with by different judges. The factors to be considered are endless depending on the nature of the case.” In this present matter the court is faced with applicants seeking a declaratur and consequential relief in regards to their subtenants. To resolve this dispute, there is need to consider the fact that these sub-tenancy agreements are borne from the main lease agreements that the applicants entered into with the respondent. These said agreements are the ones that are facing potential cancellations before the Magistrates court. It then follows that if the Magistrate in that matter decides to confirm the cancellations, the application before this court automatically falls away. I am therefore inclined to agree with counsel for the respondent in that this court cannot intervene in the proceedings in the Magistrates Court lest it risks the possibility of conflicting judgements. Whatever decision that the Magistrate reaches will be able to guide the parties as to how to proceed from there onwards. The applicant’s point that there were the ones to approach this court under case HCH 2070/23 and their withdrawal led to this present application as a continuation of the first matter is non-meritorious. When a party decides to withdraw its matter, it cannot therefore stay the other parties from proceeding to pursue their own application to court. In Muza v Saruchera N.O. & Ors (CCZ 5 of 2019; Constitutional Application CCZ 32 of 2018) [2019] ZWCC 5, MALABA CJ held that, “...The decision to withdraw a matter from a court’s roll is a personal one…”. Surely the respondents could not be barred from initiating proceedings awaiting the applicants’ decision to file another fresh application after their own personal withdrawal of the matter. The fact that the application in the Magistrates Court was filed before this current matter automatically means that that matter should be determined first considering the factors surrounding this case. This application has been made 2 years after the withdrawal was made. The applicants are clearly misdirected in their view and therefore I uphold the point limine raised by the first respondent. DISPOSITION Following these considerations, it is ordered that; The matter be and is hereby struck off the roll pending the determination of the Magistrates Court proceedings.The applicants to pay costs on an ordinary scale. TAKUVA J………………………………………………………… Chinawa Law Chambers, applicant’s legal practitioners Tsunga Law International, respondents’ legal practitioners 2 HH 422-25 HCH 3825/24 2 HH 422-25 HCH 3825/24 ILACK MOYO and JOHN MUSARA and TENDAYI MHEMBERE versus RUFARO MARKETING (PVT) LTD HIGH COURT OF ZIMBABWE TAKUVA J HARARE; 20 January & 15 July 2025 Court Application for a Declaratory Order and Consequential relief TE Gumbo, for the applicants J Bamu, for the respondent TAKUVA J: This is a court application for a declaratory order and consequential relief. The applicant in this matter seeks the following relief; The respondent’s revocation of the applicants’ sub-tenancy agreements with their sub-tenants with respect to all their respective leased premises be and is hereby declared unlawful. The respondent’s new leases with the applicants’ sub-tenants be and are hereby declared unlawful. The respondent be and is hereby interdicted from collecting rentals from the applicants’ sub-tenants for as long as their respective lease agreements have not been cancelled by order of court. Respondents to pay costs of suit on an attorney-client scale. BACKGROUND FACTS On 1 October 2012, the first applicant in this matter entered into lease agreement with a company, Rufaro Marketing (Pvt) Ltd that is the respondent. This agreement was in respect of an immovable property known as Zororo II Bar situated in Dzivarasekwa, Harare. The parties agreed to extend the lease agreement to last up to 31 December 2032. Some time in 2016. First applicant claims to have experienced cash flow problems. This prompted first applicant to make a request to the respondent to renovate the premises and sublet some of the space. First applicant alleges that this request was approved by the respondents Chief Executive Officer and he proceeded to let the premises to other individuals from 2016 to around 2023. However, the respondent appointed new management around 2023 which led to the removal of the former Chief Executive Officer of the respondent. Applicant claims that the new appointed management proceeded to direct the first applicant’s subtenants to cease paying rent to him but to the respondent’s offices directly. It is first applicant’s submission that since its subtenants were caused to pay their rentals directly to the first respondent, it affected his ability to fulfil his own rental obligations to the first respondent. Further, first applicant avers that similar events occurred between the second applicant and the same respondent in this matter. This is in regards to premises known as Mabvuku Bar situated in Mabvuku, Harare.Second respondent also renovated the premises with the approval of the former Chief Executive Officer before he was removed through the appointment of the new management. In similar fashion as the first applicant, second applicant also proceeded to sublet portions of the premises with the consent of the Chief Executive Officer. The new management also then directed these subtenants to pay their rentals directly to the respondent’s office. The third applicant in this matter also claims to have gone through the same events with respect to a premise known as Willowvale Bar in Highfield, Harare. Applicants allege that all of these events took place without the respondent cancelling the lease agreements. Consequently, all of the applicants in this matter claim to have faced a similar predicament at the instance of the first respondent. In order to resolve their grievances, the applicants made an application for declaratur under case HCH 2070/23. This matter was however, withdrawn due to a technicality. Respondent oppose this application stating that it cancelled its lease agreements with the applicants due to several breaches and the said cancellations only await confirmation. After the withdrawal of HCH 2070/23, the respondent initiated proceedings in the Magistrate’s court to confirm the said cancellations. It is from this view that the first respondent raised its point in limine on the day of hearing that of lis pendens. The court shall proceed to analyze this point and decide whether it is dispositive of this matter. POINT IN LIMINE AND ANALYSIS Counsel for the respondent raised lis pendens as a point in limine challenging this application. This point stems from the fact that the applicants brought this present application while there is a pending application before the Magistrates court that will likely resolve the parties’ problems once and for all. It is respondent’s view that there was no need for the applicants to make this application as the issues they seek this court to resolve are the same issues that the Magistrates court is set to deal with. The law on lis pendens is well settled in this jurisdiction. In Diocesan Trustees for Diocese of Harare v Church of the Province of Central Africa 2009 (2) ZLR 57 (H), it was held that for a plea of lis pendens to succeed it must be demonstrated that the matters are between the same parties or their successors in title concerning the same subjects matter and founded upon the same cause of action. See also Manyika v Leabridge Investments (Pvt) Ltd HH–305–22. The court has a discretion on whether or not to uphold the special plea of lis pendens. In the case of Mabhena v Sibanda and Associates and another (116 of 2024) 2024 ZWBHC 116 Siziba J held that; “In exercising such discretion, the court must consider whether the matter that is already pending will offer an efficacious remedy to the applicant or plaintiff, as the case may be, whether the end result will be similar in both matters and most importantly the possibility of contradicting judgments if both matters are to be dealt with by different judges. The factors to be considered are endless depending on the nature of the case.” In this present matter the court is faced with applicants seeking a declaratur and consequential relief in regards to their subtenants. To resolve this dispute, there is need to consider the fact that these sub-tenancy agreements are borne from the main lease agreements that the applicants entered into with the respondent. These said agreements are the ones that are facing potential cancellations before the Magistrates court. It then follows that if the Magistrate in that matter decides to confirm the cancellations, the application before this court automatically falls away. I am therefore inclined to agree with counsel for the respondent in that this court cannot intervene in the proceedings in the Magistrates Court lest it risks the possibility of conflicting judgements. Whatever decision that the Magistrate reaches will be able to guide the parties as to how to proceed from there onwards. The applicant’s point that there were the ones to approach this court under case HCH 2070/23 and their withdrawal led to this present application as a continuation of the first matter is non-meritorious. When a party decides to withdraw its matter, it cannot therefore stay the other parties from proceeding to pursue their own application to court. In Muza v Saruchera N.O. & Ors (CCZ 5 of 2019; Constitutional Application CCZ 32 of 2018) [2019] ZWCC 5, MALABA CJ held that, “...The decision to withdraw a matter from a court’s roll is a personal one…”. Surely the respondents could not be barred from initiating proceedings awaiting the applicants’ decision to file another fresh application after their own personal withdrawal of the matter. The fact that the application in the Magistrates Court was filed before this current matter automatically means that that matter should be determined first considering the factors surrounding this case. This application has been made 2 years after the withdrawal was made. The applicants are clearly misdirected in their view and therefore I uphold the point limine raised by the first respondent. DISPOSITION Following these considerations, it is ordered that; The matter be and is hereby struck off the roll pending the determination of the Magistrates Court proceedings. The applicants to pay costs on an ordinary scale. TAKUVA J………………………………………………………… Chinawa Law Chambers, applicant’s legal practitioners Tsunga Law International, respondents’ legal practitioners