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Consensus Ad Idem re: Approach iro Foundation, Sanctity, Privity, Retrospectivity & Judicial Variation of Contracts

SC26-12 : CHIKOMBA RURAL DISTRICT COUNCIL vs HERBERT PASIPANODYA
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

The submission that the appellant was entitled to use the National Employment Code of Conduct because the parties had agreed that the Code could be used is equally without merit. Clearly, any agreement entered into between the parties had to comply with the specific provisions of both the Labour Act ...
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HH41-08 : ZODELLA ENTERPRISES (PVT) LIMITED vs LUXMORE NDENDA
Ruled By: GOWORA J

The plaintiff is a duly registered company trading under the name Borrowdale Motor Sales. As the trade name suggests, it, the plaintiff, trades in motor vehicles. On 6 June 2006, the plaintiff entered into an agreement with the defendant, in terms of which the plaintiff agreed to purchase a vehicle owned by the defendant, to wit, a ...
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HH00-08 : AGRICULTURE BANK OF ZIMBABWE LTD T/A AGRIBANK vs DATANET TECHNOLOGY ZIMBABWE
Ruled By: MTSHIYA J

As was submitted by the plaintiff's legal practitioner, the issue of an agreement becoming impossible of performance is fully covered by R.H. CHRISTIE in his book 'The Law of Contract In South Africa 3ed…, where he writes:-“The Roman law principle that a contract is a nullity if, at the time ...
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HH24-12 : REDAN PETROLEUM (PRIVATE) LIMITED vs GERALD ASHLEY MUZVIDZWA
Ruled By: MTSHIYA J

...that true position is indeed confirmed by the defendant himself through his own actions.
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HH38-10 : LUCIA MUNYANYI vs LIMINARY INVESTMENTS AND ISRAEL GUMUNYU N.O.
Ruled By: MAKARAU JP

The applicant has sought to argue that she did not intend to part with possession before transfer but acted out of good faith, and in the belief that Dr. Mushonga would come through with the balance of the purchase price. In my view, it matters not that the applicant viewed her conduct in parting with possession ...
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HH14-08 : MOUNT LOTHIAN ESTATE (PVT) LTD vs COLONEL GODFREY MUTEMACHANI & 2 OTHERS
Ruled By: BHUNU J

It is pertinent to note that in the Heads of Agreement, the plaintiff..., unequivocally acknowledged that Government had acquired the farm in question. He further acknowledged that the defendant had been given authority to occupy the farm. On a proper reading of the agreement, one gets the unmistakable impression that the plaintiff had no quarrel ...
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HH103-09 : U-TOW TRAILERS (PRIVATE) LTD vs CITY OF HARARE and SUPERLUX (PRIVATE) LIMITED
Ruled By: MAKARAU JP

The brief background facts to this matter are largely common cause. I set them out as follows:In 1994, the applicant entered into a lease agreement with the first respondent in respect of certain premises situate at Number 9 Market Street, Eastlea, Harare (“the premises”).The lease agreement was constantly renewed over ...
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HH117-09 : MICHAEL KATEKETA vs ONE WORLD GALLERIES (PVT) LTD and A MPOPOMA
Ruled By: MAKARAU JP

The foundation of any contact is agreement between the parties. To establish this agreement, one looks for an offer and the acceptance of that offer.
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HH133-09 : EZERA MUSHANDIKWA vs NATIONAL RAILWAYS OF ZIMBABWE AND THE DISTRICT CIVIL ENGINEER N.O. FOR NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: MTSHIYA J

The absence of an agreement of sale does not help the applicant's case at all. That fact alone clearly demonstrates the absence of agreement between the parties.
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HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER)
Ruled By: PATEL J

Article 39 of the Vienna Convention on the Law of Treaties (1969) states the general rule regarding the amendment of treaties, as follows:“A treaty may be amended by agreement between the parties. The rules laid down in Part II apply to such an agreement except in so far as the ...
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HB25-09 : MEKIYA NYATHI vs JOYCE MUVEZWA and B. TADERERA and SENDRA MUVEZWA and THE REGISTRAR OF DEEDS (BULAWAYO)
Ruled By: CHEDA J

The respondents..., argued that there was no such agreement, and if there was, the parties were not in ad idem.
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HB46-09 : HERBERT SIKHOSANA vs ESTATE LATE A MTSANA and SHOWLAST NCUBE and NAPFUTALI SIBANDA and ZANELE NCUBE and NOKUTHULA MTHETHWA and ORS
Ruled By: NDOU J

It is trite that parties to a contract have the freedom to contract on any terms of their choice provided that the contract is not tainted with illegality.
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HH25-10 : MAXWELL MATSVIMBO SIBANDA vs GWYNNE ANNE STEVENSON
Ruled By: CHITAKUNYE J

In the alternative, the defendant concluded that there was no consensus ad idem between the parties with regard to the purchase price, and, if the defendant had known that it was the plaintiff's intention (which is denied) that the purchase price was to be paid in Zimbabwean dollars equivalent of GBP180,000=, the defendant would ...
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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

While this court upholds the principle of the sanctity of contracts, it will also not grant specific performance of a contract where to do so will result in an apparent injustice.
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HH87-10 : VENETIAN BLINDS SPECIALISTS LIMITED vs APEX HOLDINGS (PRIVATE) LIMITED
Ruled By: PATEL J

In the absence of contractual agreement between the parties, or acquiescence by the creditor, a tender in a local currency does not constitute sufficient discharge of an obligation sounding in foreign currency. See Zimbabwe Development Bank v Zambezi Safari Lodges (Pvt) Ltd Others HH95-06...,. In the instant case, the parties agreed to transact their ...
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HH90-10 : LOCAL AUTHORITIES PENSION FUND vs F & R TRAVEL TOURS AND CAR SALES (PVT) LTD and FREEJOY CHIGWIDA and RAPHAEL MAKWARA
Ruled By: MAKARAU JP

The applicant and the first respondent are landlord and tenant respectively. Their relationship commenced when they concluded a written agreement in respect of certain commercial premises situate at Throgmorton House, Samora Machel Avenue, in Harare. The agreement was for a period of one year, commencing on 1 July 2006 and ...
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SC29-13 : BETTY KANYUCHI vs DRAWING SERVICES (PVT) LTD
Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

This is an appeal from a judgment of the High Court in which it granted an application for an eviction order against the appellant on the basis that the respondent was the owner of the property known as Stand number 3182 of Subdivision A of 159 of Prospect, Harare. The appellant was found not to ...
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HH155-10 : BLESSMORE CHANAKIRA vs TAWANDA MAPFUMO and W.R. GABRAITH
Ruled By: CHIWESHE JP

In Sasfin (Pty) Ltd v Beukes SA 1989 (1) the court had occasion to deal with the nature and extent of the elusive concept of “public policy”. In deciding whether an agreement is contrary to public policy the interests of the community or the public are of utmost importance. Agreements which are contrary to law or morality are ...
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SC40-15 : INDIUM INVESTMENTS (PVT) LTD vs KINGSHAVEN (PVT) LTD and DANIEL SHUMBA and LINDA SHUMBA
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GOWORA JA, HLATSHWAYO JA and MAVANGIRA AJA

On 28 February 2008, under case no. HC1239/08, the appellant caused summons to be issued against the respondents seeking an order for the cancellation of a lease, and, consequent thereto, the eviction of the respondents from the leased premises.On 10 December 2008, a second summons was issued by the appellant ...
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HH19-09 : RACHEL T DUBE vs RHODA MUCHETWA and THE REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

It further appears to me that to allow the words that the parties used in the document to override their common intention to include the sale by Everisto Marenga to the respondent as part of the equation is, in my view, to enforce what was not agreed upon. This is not the basis upon ...
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HH102-11 : KAREN TUMAZOS vs TRAVEL CONECTIONS (PRIVATE) LIMITED and STEWART CRANSWICK
Ruled By: MTSHIYA J

This is an opposed application. The background to this application is the following.The applicant was employed by the first respondent as a General Manager. She left the employ of the first respondent on 30 September 2007. There are still issues yet to be resolved by the Labour Court relating to the circumstances under which she ...
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HB61-10 : LUXION TACHIONA and NONTOKOZO DUBE vs NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: NDOU J

In terms of section 2 of the Consumer Contract Act [Chapter 8:03], a consumer contract means a contract for sale or supply of goods or services, or both, in which the seller or supplier is dealing in the course of business. There is little doubt that the defendant is in the business of provision of ...
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HB13-13 : ZIMBABWE NATIONAL WATER AUTHORITY vs KADOMA MUNICIPALITY
Ruled By: NDOU J

This is an application for summary judgment which is opposed by the respondent.The background facts are the following.On 6 May 2004, the parties entered into a written agreement for the purchase and sale of rate water for a period of ten years. It was a term of the agreement that ...
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HH331-14 : DR. JANE MUTASA vs TELECEL INTERNATIONAL and TELECEL ZIMBABWE (PRIVATE) LIMITED
Ruled By: MATHONSI J

This court is not in the habit of making contracts for the parties who shall forever remain free to contract as they please. It is a celebrated principle of the concept of sanctity of contract that when the parties have so contracted, the contracts made freely and voluntarily shall be held sacred and enforced by ...
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SC24-14 : KUNDAI MAGODORA AND OTHERS vs CARE INTERNATIONAL ZIMBABWE
Ruled By: MALABA DCJ, PATEL JA and GUVAVA JA

In principle, it is not open to the courts to re-write a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive. This is so as a matter of ...
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HB100-14 : LEMMAN MUNENEKWA vs ELIAS MUZAMBA and FANISILE NKOMO and PHILANI WEZA and NKOSILATHI NGWENYA and MINISTER OF LANDS & RURAL RESETTLEMENT
Ruled By: KAMOCHA J

I pause…, to observe that Mr Munenekwa had hired and deployed workers to Wild Horizon Camp in April 2011 to do some work there when his Agreement of Lease for five years was only entered into and signed by both parties on 15 June 2011. The A1 farmers cannot be faulted for holding that ...
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CC06-17 : GLENS REMOVAL AND STORAGE ZIMBABWE (PRIVATE) LIMITED vs PATRICIA MANDALA
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

The courts should respect the parties' freedom to contract and not seek to rewrite contracts for the parties.
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SC14-16 : DAVID RICHARD KEMPEN vs CARROL KEMPEN
Ruled By: MALABA DCJ, GUVAVA JA and BHUNU JA

In any case, the appellant agreed to pay maintenance for his child on agreed terms and conditions from which he now wants to resile. Generally speaking, lawful agreements freely concluded by persons of competent capacity are sacrosanct and therefore enforceable at law without let or hindrance by courts of law and tribunals.
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Appealed
SC55-16 : GOLDEN REEF MINING (PRIVATE) LIMITED and FERBITT INVESTMENTS (PRIVATE) LIMITED vs MNJIYA CONSULTING ENGINEERS (PTY) LIMITED
Ruled By: MALABA DCJ, GOWORA JA and BHUNU JA

In their heads of argument, the appellants sought to invoke Rule 39(1)(d) of the High Court Rules which provides for service of process on corporate bodies. The appellants cannot invoke Rules of Court where they expressly provided for an address for service in the Joint Venture Agreement. It is trite that the courts will uphold ...
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SC02-17 : GUOXING GONG vs MAYOR LOGISTICS (PRIVATE) LIMITED and THE REGISTRAR OF DEEDS
Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

It is trite that in the absence of any prohibition or agreement to the contrary, a verbal agreement is lawful and binding. This explains why by far the majority of contractual agreements are verbal. There is no legal requirement in our jurisdiction that every contractual agreement be reduced to writing.
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SC30-17 : ALLIANCE INSURANCE vs IMPERIAL PLASTICS (PRIVATE) LIMITED and THE HONOURABLE JUDGE L.G. SMITH (RTD) N.O.
Ruled By: MALABA DCJ, MAVANGIRA JA and UCHENA JA

In Book v Davidson 1988 (1) ZLR 365 (S), the sanctity of contracts was discussed as follows at 378G-379C: “'There is, however, another tenet of public policy, more venerable than any thus engrafted onto it under recent pressures, which is likewise in conflict with the ideal of freedom of trade. It is the sanctity of contracts.' ...
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SC54-17 : NDABEZINHLE MAZIBUKO vs THE BOARD OF GOVERNORS, CHRISTIAN BROTHERS COLLEGE and THE NATIONAL INCOMES AND PRICING COMMISSION and THE SECRETARY, MINISTRY OF EDUCATION
Ruled By: GARWE JA, GOWORA JA and HLATSHWAYO JA

FREEDOM OF CONTRACT MUST BE RESPECTED The principle is now well established that the courts should not interfere in private contractual relationships except in a few circumscribed situations. In this case, the contract made it clear that parents would be required to provide other requirements as may be stipulated by the school from time to time. In ...
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SC60-17 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED vs JAFATI MDALA
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and GUVAVA JA

THE LAW It is an accepted principle of our law that courts are not at liberty to create contracts on behalf of parties, neither can they purport to extend or create obligations, whether mandatory or prohibitory, from contracts that come before them. The role of the court is to interpret the contracts and uphold the ...
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SC64-17 : THOKOZILE ZINONDO vs CAFCA LIMITED
Ruled By: GWAUNZA JA

In Barkhuizen v Napier 2007 (5) SA 323 (CC)…, the Constitutional Court of South Africa, explaining the freedom of contract principle, stated thus: “Self-autonomy, or the ability to regulate one's own affairs, even to one's own detriment, is the very essence of freedom and a vital part of dignity. The extent to which the contract ...
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HB95-16 : NATIONAL RAILWAYS OF ZIMBABWE CONTRIBUTORY PENSION FUND vs EKUTULENE INVESTMENTS t/a WALKERS PUB AND RESTAURANT and WAYNE ALLAN JONES
Ruled By: MATHONSI J

This matter involves eviction and related claims where a businessman, who was frustrated out of business by the debilitating costs of running the business, is guilty of making all the wrong business decisions including handing over his business to an employee gratis, as Shakespeare would say, and failing to surrender the rented premises for five years ...
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SC13-18 : TBIC INVESTMENTS PL and PAUL CHIDAWANYIKA vs KENNEDY MANGENJE and MINISTER OF LANDS and RURAL DEVELOPMENT and REGISTRAR OF DEEDS and ATTORNEY GENERAL and COMMISSIONER OF POLICE
Ruled By: GWAUNZA JA, GOWORA JA and BHUNU JA

That doctrine of privity of contract restricts the enforcement of contractual rights and remedies to the contracting parties - to the exclusion of third parties. The learned author, INNOCENT MAJA, in his book The Law of Contract in Zimbabwe…, graphically explains the doctrine as follows: “The doctrine of privity of contract provides that contractual remedies are enforceable only by ...
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SC32-18 : ZESA HOLDINGS (PRIVATE) LIMITED vs ITAYI UTAH
Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

The agreement was entered into between two consenting parties and was signed freely and voluntarily. It was a contract like any other contract, and can, therefore, not be said to be unlawful, as the respondent now seeks to argue.
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Appealed
SC41-18 : MARIAN CHOMBO vs IGNATIOUS CHOMBO
Ruled By: MALABA CJ, HLATSHWAYO JA and UCHENA JA

The courts cannot create a contract for the parties.
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HH103-15 : RICHARD MATTHEWS vs THE HONOURABLE MR JUSTICE A. EBRAHIM and UMESHKUMAR DWARKADAS KOTECHA and DHIRUBHAI MAGANLAL DESAI
Ruled By: ZHOU J

The agreement was signed on 25 September 2008 but its commencement date was 1 September 2008.
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SC06-15 : BALLANTYNE BUTCHERY (PRIVATE) LIMITED t/a DANMEATS vs EDMORE CHISVINGA & OTHERS
Ruled By: GWAUNZA JA, GARWE JA and PATEL JA

As is appositely cautioned by CHRISTIE: The Law of Contract in South Africa (5 ed.)…,:“The fundamental rule that the court may not make a contract for the parties is a salutary one, the principle of which has probably never been seriously questioned. It is unthinkable that the courts should not ...
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HH136-15 : LEWIS NDHLOVU and CHIPO NDHLOVU vs SUSAN HARUPERI
Ruled By: MATHONSI J

I fully subscribe to the views of JESSEL M.R. in Printing Registering Co v Sampson 19 Eq 462…, that: “If there is one thing which more than any other public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, ...
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HH137-15 : OLIVER CHIDAWU and DANOCT INV and DANNOV INV and BROADWAY INV vs JAYESH SHAH and TN ASSET MANAGEMENT and PELHAMS LTD and ORS
Ruled By: MATHONSI J

In Chidawu Ors v Shah Ors SC13-12 CHIDYAUSIKU CJ said: “The first applicant delivered the Pelhams Limited shares to the first respondent in negotiable form as security for the loan he received. The inescapable inference to be drawn from this is that the first applicant freely consented to the shares being sold or negotiated in the ...
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Appealed
HH151-16 : SHORAI NZARA and ARROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN and vs CECILIAH KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: MAFUSIRE J

Courts do not make contracts for the parties. They interpret and enforce them.
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HH157-14 : CAG FARMS (PVT) LIMITED vs CRISPEN HATIVAGONI and AUDREY HATIVAGONE and DBT PROPERTIES and REGISTRAR OF DEEDS
Ruled By: DUBE J

In the Australian case of R D Construction Group Ltd v Hallam Land Management Ltd [2009] CSO H 128, the parties entered into an agreement to agree in the future. The case involved an option to purchase land. The agreement comprised an offer and acceptance which was subject to an agreement on the purchase price ...
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HH273-16 : KINGDOM BANK LIMITED vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS
Ruled By: CHAREWA J

CHRISTIE: The Law of Contract in South Africa (5ed)…, has this to say on the powers of a court to amend contracts between parties: “The fundamental rule that the court may not make a contract for the parties is a salutary one, the principle of which has probably never been seriously questioned. It is unthinkable that ...
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HH183-15 : ZB BANK LIMITED vs ERIC ROSEN (PVT) LTD and ERIC ANTHONY ROSEN and ELIZABETH ROSEN
Ruled By: MAFUSIRE J

By its preamble, the purpose of the Consumer Contracts Act [Chapter 8:03] is to provide relief to parties to consumer contracts which are unfair or contain unfair provisions. In terms of section 2, a “consumer contract” is defined to mean a contract for the sale or supply of goods or services or both….,. In terms of section 4 of ...
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HH06-18 : SIMBARASHE PASIPAMIRE vs GLOBAL PROPERTY ADVISORY & TECHNICAL SERVICES
Ruled By: MANGOTA J

The bottom line is that the court cannot, legally speaking, compel the respondent to enter into this new contract with him….,. I, in this regard, associate myself with the dictum of INNES CJ, who, in Ambrose Aitken v Johnson Fletcher 1917 AD 327…, eloquently enunciated the principle that it is not for the court to ...
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HB02-12 : MUNICIPALITY OF VICTORIA FALLS vs LOIDA NYATHI and 11 OTHERS
Ruled By: NDOU J

It is trite that agreement by consent is the foundation of contract – Salisbury Municipality Employees Association v Salisbury City Council 1957 (2) SA (SR) 557; Cinema City (Pty) Ltd v Margenstern Family Estates (Pty) Ltd 1980 (1) SA 796 (A)…, and The Law of Contract in South Africa, R ...
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HH381-17 : MAZVITA BANGA (Represented by her guardian CHARLES BANGA) and TANAKA BANGA (Represented by her guardian CHARLES BANGA) and CHARLES BANGA and TSUNGIRAI BANGA vs AIR ZIMBABWE (PVT) LTD
Ruled By: MATANDA-MOYO J

The plaintiffs issued summons against the defendant for damages for psychological trauma, pain and suffering allegedly caused to the first and second plaintiffs arising from Air Carriage. The allegations are that the first and second plaintiffs, who are minors, travelled on the defendant's airline to South Africa on 30 March 2016. The third and fourth plaintiffs, who ...
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HH392-16 : EUNICE DZANGARE and WISH PROPERTIES (PVT) LTD vs CHAMPION CONSTRUCTIONS (PVT) LTD and ELIZABETH CHIDAVAENZI and REGISTRAR OF DEEDS
Ruled By: TSANGA J

In the case of Absa Bank v Zalvest Twenty (Pty) Limited Anor 2014 (2) SA 119 (WCC) it was accepted that secondary evidence can be produced of the existence of a contract where the contract had been destroyed or lost. This was explained as follows…,.: “In regard to the substantive law of evidence, the original signed contract is the ...
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