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Consensus Ad Idem re: Fraud or Fraudum Legis, Duress, Undue Influence and Misrepresentation

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

The plaintiffs sold their property freely and voluntarily without any undue influence. The evidence led does not reveal that they were deceived, defrauded or acted on any misrepresentation...they were the ones who firmly drove the deal.
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HB12-12 : KENNEDY GWAMURE vs DINGANI TSHUMA
Ruled By: NDOU J

On the issue that the respondent was forced by his girlfriend and her father to sell the house.the respondent does not allege that the applicant in any manner forced him into the agreement or that the applicant acted in any manner that could cause the contract to be said to be void or voidable. ...
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HH08-09 : TARUVA TARUVA vs DEVEN ENGINEERING P/L and MOTEC HOLDINGS P/L and REGISTERING OFFICER, CENTRAL VEHICLE REGISTRY
Ruled By: MAKARAU JP

The plaintiff joined the first defendant on 1 July 2006. He was employed by the first defendant as its Financial Controller and Company Secretary. It was a specific term of his employment that the plaintiff would be entitled to the use of a motor vehicle and to participate in the Group motor vehicle scheme. In ...
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HH120-09 : EDSON MUDZIVO AND EMILY MUDZIVO vs NOREST NYAMAKOPE
Ruled By: MAKARAU JP

The facts of this application are common cause. I summarise them as follows. On 17 October, 2008, the parties concluded a written Agreement of Sale. In terms of the Agreement, the respondent sold to the applicants a piece of land called 414 Manresa Park, Harare. The land was sold for the sum of US$18,000=. The purchase ...
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HH123-09 : JOHN MANATSA vs ZONDAI CHIMBWANDA and GIVEMORE KARIMAZONDO and WILLARD DZOMBA and CITY OF HARARE
Ruled By: CHITAKUNYE J

The plaintiff's claim was for specific performance of an agreement of sale for the cession of personal rights and interests held jointly by the first defendant and second defendant in a property known as 5706 Muroro Crescent, Glen Norah B, Harare.The plaintiff asserted that he entered into the agreement with ...
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HH145-09 : TAKAVADA MAPFUMO vs PREMIER SERVICE MEDICAL INVESTMENTS (PVT) LTD AND DEPUTY SHERIFF AND RANGANAYI CHARLES MUBVUMBI
Ruled By: UCHENA J

The following facts are common cause. 1. That the applicant did not join the motor vehicle scheme when he took employment with the first respondent on 1 August 2005. 2. That he therefore did not make monthly contributions towards the purchase of a motor vehicle as required by the motor vehicle scheme. 3. That the agreement signed by the ...
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HH156-10 : STEPHEN HUDSON vs JOSEPH V. SITHOLE
Ruled By: MTSHIYA J

The applicant's declaration reveals that the claim is based on an acknowledgement of debt signed by the respondent on 9 September 2009. The acknowledgment of debt reads as follows:- “I, Joseph V Sithole, ID number 70-041987T13, of 66 McChlery Avenue, Eastlea, Harare, hereby acknowledge indebtedness of US$11,000= as capital to Steven Hudson of Skinners Autobody Repairs, Manchester Road ...
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HH213-10 : CEPRAT FARMING (PVT) LTD vs BRIGHTLAND FARMING (PVT) LTD
Ruled By: MTSHIYA J

The respondent also alleged that the Pledge Agreement was not signed freely and voluntarily. The Managing Director of the respondent, who signed the Agreement, states the following in the opposing affidavit - “i) While it is admitted that there was a document that was signed, I need to highlight that the document was not signed freely ...
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HH251-10 : STEPHEN PASIPANODYA (In his capacity as the executor in the estate of the late Edna Pasipanodya) vs TRACY RUWIZHI and THE DIRECTOR OF HOUSING MUNICPALITY OF CHITUNGWIZA
Ruled By: BHUNU J

In respect of the allegation of duress all what the first defendant could say was that the plaintiff kept on bothering her by constantly phoning and prodding her to agree to the settlement terms. I am certain that in the absence of illegitimate force or pressure that much cannot amount to duress.
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HB72-10 : ETTAH NCUBE and CAIN MOYO vs JOEL NCUBE and JULIUS SIBANDA and DEPUTY SHERIFF
Ruled By: NDOU J

The single issue which falls for decision is whether, on the facts, the cession of the Stand known as Number 30161, Entumbane, Bulawayo by the first plaintiff into the names of the first defendant was done of the first plaintiff's free will and volition. The plaintiff testified that she is 78 years old. She said that at the ...
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HB145-10 : JANE NYIKA vs THEMBANI MOYO and ALPHEUS NCUBE and REGISTRAR OF DEEDS and CITY OF BULAWAYO
Ruled By: MATHONSI J

The plaintiff instituted proceedings against the four defendants seeking an order, inter alia, nullifying the transfer from herself to the first defendant of Stand 6638 Nketa 9 Bulawayo. In her declaration, filed with the summons, the plaintiff averred that sometime in 2007, the second defendant had called a meeting of widows in the township of Nketa ...
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HH36-11 : GENESIS VENTURES (PRIVATE) LIMITED vs ROLMAY TRADING (PRIVATE) LIMITED and LARDFAIR TRADING (PRIVATE) LIMITED
Ruled By: BERE J

The position taken by Mr Mahuni, on behalf of the first defendant, cannot be looked at in isolation. The witness's evidence must be put under scrutiny in the light of the evidence of the other witnesses to see if indeed he signed the settlement under duress….,. It is this same man, Mr Mahuni, who has ...
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HH113-11 : ALSHAMS BUILDING MATERIAL t/a LLC (a company incorporated in the United Arab Emirates) vs TAPERA NYEMBA and CHRISTOPHER GOROMONZI and JOSPHAT SACHIKONYE
Ruled By: KUDYA J

Josphat Sachikonye disputed knowingly signing the Deed of Suretyship. He averred that he was tricked by Christopher Goromonzi to sign the document on 22 December 2003 at a time when he was rushing for a Board meeting. His story that he was tricked does not make sense. He admitted that before he signed the document ...
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HB06-13 : PATSON MAKHIWA vs MINISTER OF EDUCATION, SPORT & CULTURE and BULAWAYO ADVENTIST SECONDARY SCHOOL and THE HEADMASTER, MR MARANDURE N.O.
Ruled By: CHEDA AJ

In Boudtich v Peel and Magill 1921 AD 561 (a case originating from the High Court of Southern Rhodesia) it was held that a person who has been induced to contract by material and fraudulent misrepresentation of the other part may either stand by the contract or claim rescission. See also Glaston House (Pvt) Ltd v Inag ...
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HB48-11 : FORT GROUP ENTERPRISES (PVT) LTD vs BRIGHT INVESTMENTS (PVT) LTD
Ruled By: CHEDA J

The facts and background of this matter are that both parties are registered companies in terms of the laws of Zimbabwe. On the 1st of September 2009, the plaintiff leased out its property, being No.44 Lobengula Street to the defendant for the payment of R11,000= being rent per month. The defendant's defence was that the ...
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SC68-14 : DANIEL MUDENDA vs LION MATCH LIMITED
Ruled By: MALABA DCJ

In Broodryk v Smuts 1942 TPD 47…, the elements necessary to set aside a contract on the grounds of duress were expressed as follows: “(1) Actual violence or reasonable fear. (2) The fear must be caused by the threat of some considerable evil to the party or his family. (3) It must be the threat of an imminent or ...
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HH711-15 : GOLDSEARCH TECHNICAL SERVICES (PRIVATE) LIMITED vs TAONGA MUKONOWESHURO and SHERRIFF OF ZIMBAWE
Ruled By: TSANGA J

The first respondent also argues that a party wishing to rely on duress must prove a threat of considerable evil to the person concerned or his family; that the fear was reasonable; that the threat was imminent of inevitable evil; that the threat or intimidation was unlawful or contra bonos mores; and that the contract was concluded ...
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HB147-16 : SAWA SECURITY (PVT) LTD t/a MALIGREEN MINE vs RESOURCES AND INVESTMENT (PVT) LTD
Ruled By: BERE J

I find the issue of duress being raised by the respondent in this case to be unsustainable for the following reasons. The contract which the respondent says it signed under duress was signed on 19th December 2013. It is inconceivable, in my view, that if there was any duress, the deponent to the respondent would have signed ...
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HB236-16 : MERCY MAZVITA NYAMANHINDI vs GIFT CHIVHURAWA
Ruled By: BERE J and MATHONSI J

The appellant is relying upon duress in order to impugn an acknowledgment of debt that she signed. As stated by the learned author R. H. CHRISTE, Business Law in Zimbabwe, 2nd edition, Juta Co Ltd…,: “The threat must be of an imminent or inevitable evil, meaning that it cannot be averted otherwise than by agreeing to the contract.” Unfortunately, that ...
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HH394-13 : SAMUEL MUGANO vs FINTRAC and ZFC LIMITED and ROYAL BANK OF ZIMBABWE
Ruled By: TSANGA J

In our context, NGOs and charitable Trusts, such as the first respondent, have come to play various types of developmental roles in their work with rural communities. The facts alleged by the applicant, in my view, can be said to exemplify difficulties that arise when such developmental initiatives and projects are seen by the recipient communities as ...
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Appealed
SC17-19 : ECONET WIRELESS (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY and COMMISSIONER GENERAL
Ruled By: MALABA DCJ, GOWORA JA and MAVANGIRA JA

For the appellant to succeed in proving estoppel, it has to prove, and the authority for this proposition is the case of Andrew Phillips (Pvt) Ltd v GDR Pneumatics (Pvt) Ltd 1986 (2) ZLR 65 (SC) 67, that the respondents or their officers made a representation in word or deed which might have reasonably misled the appellant; ...
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HH964-15 : ECONET WIRELESS (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY and COMMISSIONER GENERAL and STEWARD BANK LTD and CBZ BANK LTD and NMB BANK LTD and STANBIC BANK LTD
Ruled By: MUSAKWA J

The defence of estoppel was explained by McNALLY JA in Mashave v Standard Bank of SA Ltd 1998 (1) ZLR 436 (SC)…, as follows: “The Roman-Dutch law protects the right of an owner to vindicate his property, and, as a matter of policy, favours him as against an innocent purchaser. See for instance Chetty v Naidoo 1974 (3) SA 13 ...
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HH654-14 : JAMES GUMBI vs MANDY MARGARET MAJONI
Ruled By: CHIGUMBA J

The defendant avers…, that she refused to sign the acknowledgment of debt on the basis that the lender was the Zimbabwe Rural District Council Workers' Union (ZRDCWU), not the plaintiff, but changed her mind when her friend, Collin Maworerea, threatened to commit suicide by taking poison if she refused to sign the document. The defendant did ...
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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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HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND
Ruled By: CHIGUMBA J

One morning, in February 2009, Zimbabweans woke up and found themselves subjected to a 'multi-currency system'. The Zimbabwean dollar was no longer accepted as legal tender. A basket of other currencies, such as the United States dollar and the South African Rand, were introduced into our society. The truth of the matter is that these currencies had ...
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HH217-15 : GODFREY GURIRA and ESTATE LATE OBERT NDAWI and HILTON CHIKUYA and LAZARUS NEMBAWARE vs ZIMBABWE COUNCIL FOR HIGHER EDUCATION (ZIMCHE) and ROSELINE NHAMO and MASTER OF THE HIGH COURT
Ruled By: ZHOU J

This is an application for the setting aside of an arbitral award rendered by the second respondent in a contractual dispute between the applicants and the first respondent. The application is being made in terms of Article 34(2)(b)(ii) of the Schedule to the Arbitration Act [Chapter 7:15].The application is opposed ...
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HH352-18 : N.R BARBER (PRIVATE) LIMITED vs ZAMBEZI GAS ZIMBABWE (PRIVATE) LIMITED
Ruled By: MUZENDA J

The defendant voluntarily wrote to the plaintiff confirming its indebtedness, and, in terms of exhibit 2, the defendant outlines the estimated period of settlement of the debt until the whole sum is liquidated.
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SSC59-19 : PROSECUTOR-GENERAL OF ZIMBABWE vs INTRATREK ZIMBABWE PL and WICKNELL CHIVAYO and L. NCUBE N.O.
Ruled By: PATEL JA

The crime of fraud is defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23) (the Code) in the following terms:“Any person who makes a misrepresentation –(a) Intending to deceive another person or realising that there is a real risk or possibility of deceiving another person; ...
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HH563-18 : CAR RENTAL SERVICES (PVT) LTD T/A AVIS RENT A CAR vs BERNARD CHISWA and SHAILLON CHISWA
Ruled By: MUZOFA J

The plaintiff issued summons against the defendants claiming payment of US$13,868=90 for car rental charges due to the plaintiff and interest thereon at the rate of 3.5% from 1 April 2016 to date of full payment.The undisputed facts are that the first defendant entered into a car hire agreement with ...
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HH688-15 : MOSLEY MASHINGAIDZE vs PRECIOUS CHIPUNZA and LALAPANZI PROPERTIES PL and FRANK BUYANGA and REGISTRAR OF DEEDS N.O. and GILDASTONE HOLDINGS PL
Ruled By: CHITAKUNYE J

Fraud generally consists in knowingly making a false representation of fact with the intention to defraud the party to whom it is made, and such false representation actually causes prejudice or is potentially prejudicial to another.
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SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS
Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

This is an appeal against a judgment of the Labour Court which set aside an arbitral award made in favour of the appellant.The background facts may be tabulated conveniently as follows:1. The appellant (“Vimbai”) was employed by the respondent (“the Hotel”) as a supervisor.2. On 18 January 2005 the Hotel ...
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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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HH16-08 : CAVIN CHIFAMBA vs NORBERT MUTASA and GUARANTEE TRUST (PVT) LTD and M V CHIZODZA
Ruled By: MAKARAU JP

The plaintiff is resident in the United Kingdom.Sometime in 2003, he telephoned one Simbarashe Sagonda and Thomas Makwangudze, relatives of his, to proceed to view a property that was being offered for sale through the agency of the second defendant.The property, whose description and location in Ruwa was known to ...
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HH78-02 : CONSTANCE PANGETI vs THE GRAIN MARKETING BOARD
Ruled By: MAKARAU J

This is an application for review brought in terms of Order 33 of the High Court Rules. The facts of the matter are not in dispute. They are as follows:The applicant joined the respondent in 1990 as a typist. This appears to have been on a temporal basis, for, in ...
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HHH106-12 : THE STATE vs LOVEMORE KUROTWI and DOMINIC MUBAIWA
Ruled By: BHUNU J

Both accused persons are charged with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 09:23]. They are alleged to have, on various occasions, during the period extending from 29 March 2009 to 14 August 2009, defrauded the Government of Zimbabwe of two billion ...
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HH557-17 : ZVIDZAI MARANGE vs BERNARD MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION and PRESERVATION OF NATIONAL CULTURE and HERITAGE and PRESIDENT OF ZIMBABWE
Ruled By: MANGOTA J

Chikwavadombo Mastick Marange [“Chikwavadombo”] died on 8 September 2005. He was the substantive Chief Marange. Two persons acted in his place and stead, each in turn, after his death. These were one Ringisai Noah Marange and one Gilbert Marange.The first respondent eventually succeeded him as Chief Marange.The process of selecting ...
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HH443-15 : MHANGURA COPPER MINES LIMITED vs TAYENGWA MUSKWE
Ruled By: HUNGWE J

This matter was initiated as a court application by the present plaintiff. Upon hearing argument, the court ordered that the papers filed in the court application stand as pleadings and the matter proceed to discovery in the normal way.The papers show that, at the pre-trial conference stage, four issues were ...
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SC12-21 : TOBACCO PROCESSORS ZIMBABWE (PRIVATE) LIMITED vs TONGOONA MUTASA and OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and CHATUKUTA AJA

This is an appeal against the whole judgment of the Labour Court upholding the National Employment Council - Tobacco Grievance and Disciplinary Committee's (NEC GDC Committee) finding that the appellant tacitly renewed the respondents' contracts of employment.FACTUAL BACKGROUNDThe following facts are common cause. The respondents were employed by the appellant ...
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HB09-15 : LEAST SUPPLIES (PVT) LTD t/a L.S. CELLULAR and L.S. CAPITAL vs T.I.B. INSURANCE BROKERS and HERITAGE INSURANCE COMPANY
Ruled By: TAKUVA J

It was also submitted by the applicant, quoting MFB REINECRE and SWJ Van Der MERWE, General Principles of Insurance…, that:“An agent who is guilty of a misrepresentation is personally liable for the damage caused by him.”
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HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

This matter was placed before me as an urgent chamber application having been filed on the 23rd of February 2021. Upon receipt, I gave directions for the filing of notices of opposition and opposing affidavits as well as heads of argument.The second respondent did not file a notice of opposition, ...
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HHMA56-19 : THE STATE vs WONDERFUL MANJORO
Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and MUSHUKU

Generally, undue influence entails anything repugnant to fairness...,.; and each case depends on its own facts.
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