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Unjust Enrichment re: Illegal Contracts, Ex Turpi Causa and In Pari Delicto Rules, Criminal Liability & Just Cause Conduct

HH38-12 : PAUL CHIONISO MAWACHA AND CECILIA MAWACHA vs STERBY NHAMO AND INNOCENT NHAMO AN ANOTHER
Ruled By: KUDYA J

The contract was not illegal as it was concluded with a pretium in local currency...what was unlawful was the payment in foreign currency. There are two rules which are of general application: The first is that an illegal agreement which has not yet been performed, either in whole or in part, will never be enforced. This ...
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HH38-12 : PAUL CHIONISO MAWACHA AND CECILIA MAWACHA vs STERBY NHAMO AND INNOCENT NHAMO AN ANOTHER
Ruled By: KUDYA J

In the present matter, the illegal agreement has been performed. The plaintiffs' delivered the property to the second defendant authorising...to pass cession to him on...The ex turpi causa maxim does not apply...Rather, the in pari delicto rule applies...The property was delivered in pursuant to an illegal payment agreement. The parties are equally in the wrong. ...
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HH165-12 : MINING INDUSTYRY PENSION FUND vs FARTINGALE DESIGN (PVT) LTD AND LETINA UNDENGE
Ruled By: KUDYA J

That the conclusion of a lease agreement for the use of premises contrary to municipal zoning regulations is illegal was set out in. where it was stated that:- "In this case (where a dwelling was used as commercial premises in contravention of both the Commercial Premises (Rent) Regulations SI 676/83 and the Rent Regulations SI ...
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HH165-12 : MINING INDUSTYRY PENSION FUND vs FARTINGALE DESIGN (PVT) LTD AND LETINA UNDENGE
Ruled By: KUDYA J

The definition of and the jurispudential justification for relaxing the in pari delicto maxim is set out as follows: "It is not open to the parties to negotiate terms which are clearly illegal and then to turn around and invite the court to recognize or enforce their illegal activity. I would, therefore, hold that if the ...
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HH165-12 : MINING INDUSTYRY PENSION FUND vs FARTINGALE DESIGN (PVT) LTD AND LETINA UNDENGE
Ruled By: KUDYA J

I do not find the illegality of the lease exempted the first defendant from paying rent and operating costs once it decided to remain in situ after discovering the illegality.It chose to remain in occupation and benefit from such occupation and use of associated services.
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HH17-09 : TARISAYI ZVOMA vs WATERSHED COLLEGE (represented by Joseph Goromonzi, Chairman of the Board of Governors)
Ruled By: HUNGWE J

She agreed to be bound by such decisions as the college authorities may make on her behalf. In any event, she contracted herself to abide by the rules and regulations of the college. This is reflected in the manner in which she, up until this dispute, had been conducting herself. She is party to ...
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HH56-10 : BEKI SIBANDA vs ELISHA K MUSHAPAIDZE
Ruled By: MAKARAU JP

Assuming that I have erred in refusing to hold the letter as a liquid document, I still would have declined provisional sentence in this matter on another basis. From the correspondence that the parties attached to the pleadings in this matter, it is common cause that the transaction giving rise to the dispute between the parties was ...
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HH120-09 : EDSON MUDZIVO AND EMILY MUDZIVO vs NOREST NYAMAKOPE
Ruled By: MAKARAU JP

At the hearing of the application, the issue that took centre stage was the illegality of the contract, and whether the applicants could seek refund of the purchase price of the property, a judgment that will sound in foreign currency. The law that applies to illegal contracts appears to me to be quite clear. Two rules are ...
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HH124-09 : MAXWELL TAWODZERA AND MARGARET TAWODZERA vs DANNY MASUKUMA
Ruled By: MAKARAU JP

Two rules are of general application to illegal agreements. They are the ex turpi causa non oritur actio and the in pari delicto potir est conditio possidentis rules. Where the contract has not been performed, the courts will not compel performance by either party to the contract. This rule is absolute and admits of no exceptions. Where the ...
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HB94-09 : NOMALANGA SIBANDA vs GIVEN NYATHI and SEHLISO NYATHI and THE REGISTRAR OF DEEDS, BULAWAYO and BEN BARON AND PARTNERS
Ruled By: KAMOCHA J

It is now settled law that “an illegal agreement which has not yet been performed, either in whole or in part, will never be enforced” by the courts. Per GUBBAY JA..., in Dube v Khumalo 1986 (2) ZLR 103..., in terms of the maxim ex turpi non aritur actio – a rule which is ...
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HH05-10 : JACKSON MUGUTI vs UBOXIT WORLDWIDE (PVT) LTD AND TWO OTHERS
Ruled By: MAKARAU JP

The issue that raised my concern in the above matter is the legality of the original contract of services. It is not in dispute that the parties agreed to transact using “foreign currency”, then, as a medium of exchange. The plaintiff accepts that this was illegal. He, however, pleads with me to relax the rule against ...
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HH43-10 : KUDAKWASHE MAVINDIDZE and NYARADZO MAVINDIDZE vs MURISI MUKONOWESHURO
Ruled By: PATEL J

Finally, counsel for the plaintiff contends that even if the original transaction between the parties is found to be contrary to statute the court has a discretion to enforce the Agreement despite its illegality in order to avoid the unjust enrichment of one party at the expense of the other. As I have recently held in ...
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HH55-10 : JEREMY STANDER vs NELTRA INVESTMENTS t/a DOUGLAS CAR SALES
Ruled By: BERE J

The Legal Position The issue before me is not a novel one as this court has had occasion to deal with similar situations in the past. See the following cases for guidance: Wycliff Matsika v Jumvea Zimbabwe Limited and Sydney Mpofu HH09-03; and Lloyd Gambiza v Pikirai Taziva HH109-08. In the Wycliff Matsika v Jumvea Zimbabwe Limited ...
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HH67-10 : JAMES MUTETWA vs BARRIE DIXON and MARKO MAVHURUNE N.O. (as Executor Estate Late Samuel Mushaninga) and KENIAS MUTYASIRA N.O. (as Executor Estate Late Salome Chisvo) and REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

In or about January 2006, the applicant and the first respondent entered into an Agreement of Sale in respect of certain immovable property called Stand Number 584 Greystone Park Township of Greystone. In terms of the written agreement, the purchase price for the property was the sum of $400,000,000= and this was to be paid in ...
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HH155-10 : BLESSMORE CHANAKIRA vs TAWANDA MAPFUMO and W.R. GABRAITH
Ruled By: CHIWESHE JP

On 29 October 2008 the applicant and the first respondent entered into a written agreement in terms of which the applicant advanced to the first respondent the sum of one hundred thousand United States dollars (the equivalent then of two hundred Old Mutual Ordinary Shares listed on the Stock Exchange). As a return on this ...
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HH164-10 : KENNETH PATRICK McCOSH vs PIONEER CORPORATION AFRICA LIMITED
Ruled By: KUDYA J

The plaintiff, a former financial director of the defendant company, filed summons on 8 July 2009 seeking payment of the capital sum of US$72,334 and interest at the rate of 10% per annum from the date when the amount fell due to the date of the issue of summons in ...
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HH167-10 : TUSILAGO (PRIVATE) LIMITED vs HOMELINK (PRIVATE) LIMITED
Ruled By: MAKONI J

Counsel for the plaintiff submitted that in the event that the court finds that the Agreement violated the Exchange Control Regulations, S.I.109 of 1996, the court has a discretion to relax the effect of the maxim in pari delicto est conditio possedenis and not deny judicial assistance to a party who parts with money ...
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SC04-15 : AGSON MAFUTA CHIOZA vs SMOKING WILLIAMS SIZIBA
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

During the week ending 29 December 2006, the Herald newspaper carried an advertisement inserted by Murenga Estate Agents (“Murenga”) wherein Stand No.1759 of 323 Midlands, Waterfalls, was being advertised for sale at a purchase price of twenty five million dollars. The respondent was interested in the property and visited Murenga Estate Agents's offices where he ...
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HH274-10 : FARAI CHITSINDE and NYASHA CHITSINDE vs STANNY MUSA and THE REGISTRAR OF DEEDS and THE DEPUTY SHERIFF
Ruled By: MTSHIYA J

In this application, the relief sought is as follows: “It is ordered that: 1. Number 57 Borrowdale Township 6 of Lot 7b of Borrowdale, also known as Number 9 Hunt Road Borrowdale within five (5) days of granting of this order. 2. The first respondent shall make transfer of Stand Number 57 Borrowdale Township 6 of Lot 7b of ...
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HH22-11 : SHEPHERD MASAWI vs MARGRET MASAWI
Ruled By: GUVAVA J

The plaintiff in this matter issued summons out of this court claiming a decree of divorce, custody of the minor children of the marriage, and other ancillary relief.Four issues were referred to trial in terms of a joint pre-trial conference minute filed by the parties on 27 November 2008. The ...
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HH60-13 : IMMACULATE BLESSING MABIZA vs IVON NGWIRA
Ruled By: MATHONSI J

I also take judicial notice of the fact that the defendant refunded the part payment of the purchase price thereby disentitling herself from reliance on the illegality argument.
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HB95-11 : MADINDA NDLOVU vs HIGHLANDERS FOOTBALL CLUB
Ruled By: CHEDA J

The second point deals with illegality. It is their argument that the transaction which involved the agreement to pay the applicant in the United States dollars was illegal. Sections (4) and (10) of the Exchange Control Statutory Instrument 109 of 1996 make it clear that such transaction is illegal unless authorised by the Exchange Control Authority. ...