Judith Banda v Tendai Mafundikwa

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                                                              HH 64-2011
                                                             HC 1173/09
JUDITH BANDA
versus
TENDAI MAFUNDIKWA

HIGH COURT OF ZIMBABWE
PATEL J

Civil Trial

HARARE, 28 September 2010 and 11 January 2011

The plaintiff in person
S. A. Taona, for the defendant


      PATEL J:     The plaintiff initially claimed payment of US$350
and US$250 respectively for unpaid rentals and malicious damage to
her property. She also sought damages for pain and suffering in the
sum of US$2500 for unlawful arrest on a charge of extortion
instigated by the defendant. The defendant used to be the plaintiff’s
tenant in certain cottages owned by the plaintiff at a property in
Greendale, Harare.
      During the course of the trial, after the defendant had testified,
the plaintiff formally withdrew her claim for damages, having
conceded that the evidence adduced did not provide any basis for the
alleged unlawful arrest. The trial then proceeded solely in respect of
her claims for unpaid rentals and damage to property, totalling
US$600.


Evidence for the Plaintiff
      The plaintiff’s evidence was as follows. The defendant occupied
three separate cottages at different times in terms of a lease
agreement concluded in February 2006 [Exhibit 2]. She paid a deposit
of ZW$2 million which was never refunded because it had become
valueless. After the defendant vacated the first and second cottages,
there was some damage which the plaintiff rectified at her own
expense. She obtained three quotations at the end of April and in
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early May 2009 [Exhibit 1] and opted for the lowest amount of US$250
which she defrayed. However, she did not produce any receipt in proof
of such payment.
      According to the plaintiff, the defendant still owes rentals
amounting to US$350, being US$250 for February 2009 and US$100
for part of March 2009. Immediately before the defendant vacated the
premises, the plaintiff detained some of her belongings as security for
arrear rentals. This was not done unilaterally but by agreement, as
reflected in a note by the defendant [Exhibit 3] and a letter from the
plaintiff [Exhibit 4].
      Under     cross-examination,   the   plaintiff   accepted    that   the
defendant moved into the second cottage after it had been vacated by
another tenant who undertook to fix certain defects by the 7 th of
November 2007 [Exhibit 6]. She also conceded that she attempted to
evict the defendant in the middle of March 2009 without a court
order. She explained that she did not realise this was a criminal
offence under the Rent Regulations.


Evidence for the Defendant
      The defendant testified as follows. She moved into the second
cottage in November 2007, immediately after the previous tenant had
vacated, and had to clean up the cottage with the help of her friends.
She reported certain major defects to the plaintiff who asked the
defendant to have them rectified. She did so and also placed new tiles
in the bathroom and a lawn around the house, with the plaintiff’s
agreement. She did not retain the receipts for these repairs and
improvements      because   she   did   not    anticipate   any     dispute.
Throughout the tenancy, the plaintiff never provided any receipts for
the rentals and deposits that were paid by the defendant.
      In September 2008, the plaintiff asked for rentals in foreign
currency. The defendant initially paid US$350 as rent and a further
US$350 over a period of three months as security deposit. In February
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2009, she could no longer afford the rent fixed and only paid US$100.
The plaintiff then agreed to allow her to occupy the third cottage at a
lower rent of US$200 and to accept the deposit as rental. The
defendant moved into that cottage at the beginning of March and
remained in occupation until the middle of the month. The deposit of
US$350 together with the US$100 that she had paid in February
amounted to US$450. This covered the full February rent for the
second cottage and half the March rent for the third cottage.
      On the 11th of March, the defendant went to see the plaintiff for
time to pay a fresh deposit amount. The plaintiff, in the company of
her son, went to the defendant’s cottage and removed some of her
belongings to the main house. She then emerged with a letter [Exhibit
4] which the defendant refused to sign. Consequently, the plaintiff
became violently aggressive and the defendant’s boyfriend signed a
note [Exhibit 3] in order to placate her.
      On the 13th of March, the defendant reported the matter to the
police in Highlands. Following their mediation, the plaintiff restored
the defendant’s belongings. However, she then switched off the
defendant’s electricity supply, secured the water taps and blocked her
bathroom and toilet. The defendant found new premises on the 14 th of
March and moved out of the cottage on the 15 th of March, with police
assistance.
      The defendant’s mother (Martha Paul) also testified, generally
corroborating the defendant’s evidence. She lives in Gweru and,
together with her son, she helps out with the defendant’s living
expenses. She has covered the defendant’s rental and security deposit
payments throughout the tenancy in casu. She also supplied the
bathroom tiles and the money for their installation in the second
cottage. In September or October 2008, she drove to Harare and met
with the plaintiff to negotiate the payment of rentals and the deposit
in foreign currency. The plaintiff agreed to the payment arrangement
that was explained by the defendant in court. When the rent fell in
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arrears in February 2009, she advised the defendant to tell the
plaintiff that she would settle the arrears within two weeks.


Findings
      In assessing the evidence adduced at the trial, I find that the
plaintiff was an extremely poor witness and that her demeanour was
evasive and entirely unconvincing. In general, her evidence was
incoherent and riddled with distortions and contradictions. In my
view, her version of events was so inconsistent and implausible as to
be nothing more than pure fabrication.
      In marked contrast, the defendant and her witness gave their
evidence very clearly and consistently. Moreover, they were not
shaken in their testimony under cross-examination and when
questioned by the Court. All in all, I find that they were very credible
witnesses and am fully persuaded by their version of what transpired.
      As regards the claim for arrear rentals, the plaintiff failed to
challenge key aspects of the defendant’s evidence, to wit, that she paid
a security deposit of US$350 and that this was then converted to
rentals by agreement between the parties. As for the claim for damage
to property, the plaintiff did not dispute the defendant’s evidence that
the cottages in question were damaged before the defendant took
occupation. Equally significantly, the plaintiff’s so-called evidence of
having effected repairs to the cottages is wholly untenable. The
quotations produced by the plaintiff do not indicate which cottage
they relate to and her alleged payment of US$250 towards repairs is
not substantiated by any receipt whatsoever.


Disposition
      It is trite that the party alleging any fact bears the burden of
proving that fact on a balance of probabilities. In the instant case, the
plaintiff has dismally failed to discharge that onus in respect of both
of her remaining claims. In the result, the plaintiff’s claims are
dismissed with costs.
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Muza & Nyapadi, defendant’s legal practitioners