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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 ...