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Intent or Animus Contrahendi re: Trade or Past Practices, Parol Evidence Rule, Integration Rule, Rectification & Retraction

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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SC15-12 : K.M. AUCTIONS (PVT) LTD vs ADENASH SAMUEL and REGISTRAR OF DEEDS, HARARE
Ruled By: GOWORA AJA

The court a quo, correctly in my view, found that, in interpreting the contract, it was duty bound to give effect to the intention of the parties at the time of concluding the contract. The learned Judge in the court a quo found that from the facts, the parties were agreed from the onset that ...
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HH71-09 : AGRO CHEM DEALERS (PVT) LTD vs STANLEY GOMO and CITY OF HARARE and RONALD AJARA and THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

I have been invited to look at the conditions of the agreement by Gomo, which conditions he contends were not performed by Agro Chem. It was contended, further, that the court in casu could not ignore the Agreement of Sale as it recorded the intention of the parties vis-à-vis the transfer….,. I also find that the suggestion that ...
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HH135-09 : SIMBARASHE ANTONIO and KINGSTONE MUJATI and ASHANTI GOLDFIELDS ZIMBABWE LIMITED vs ASHANTI GOLDFIELDS ZIMBABWE LIMITED and REGISTRAR OF DEEDS and KWADZANAYI BONDE
Ruled By: MAKARAU JP

In any event, I have…, expressed my reservations about accepting the views of Agasi Wala as representing the intention of the defendant when it concluded the lease agreements with the first and third plaintiffs….,. The major defect of the defendant's defence is that no one appropriately placed in the corporate governance structures of the defendant came ...
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HH84-12 : CHRISTOPHER BARNSLEY vs HARAMBE HOLDINGS (PVT) LTD AND ANOTHER
Ruled By: MATHONSI J

The applicant was employed as Group Engineering Director by the first respondent, which represented itself as a holding company comprising several subsidies with the second respondent as its Chief Executive Officer.The letter of his appointment containing the terms of employment, dated 7 May 2009, was signed by the second respondent ...
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Appealed
HH58-10 : DRAWING SERVICES (PVT) LTD vs BETTY KANYUCHI
Ruled By: BERE J

In cross examination, John Chagaresango was directed to specific clauses of the agreement which were apparently not complied with by the defendant, and all John Chagaresango could do was to repeat that this agreement was not based on what the defendant and himself and others (as witnesses) had signed for but on other verbal assurances ...
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HH15-08 : HOMEPLUS INVESTMENTS (PVT) LTD vs KANTHARIA INSURANCE BROKERS (PVT) LTD and GLOBAL INSURANCE COMPANY
Ruled By: CHITAKUNYE J

On 26 August 2004, the plaintiff instituted proceedings in the High Court wherein it sued for $60,000,000= being the sum assured in terms of a motor vehicle comprehensive policy it held with the second defendant. The first defendants were the insurance brokers who facilitated the policy. On 21 December 2006, and before the pre-trial conference, the plaintiff amended ...
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Appealed
HH92-07 : PHAROAH B. MUSKWE vs DOUGLAS NYAJINA and MUNHUWEI G.T. and MINISTER OF LOCAL GOVERNMENT, NATIONAL HOUSING AND URBAN DEVELOPMENT N.O.
Ruled By: KUDYA J

The plaintiff sought to rely on deductive reasoning rather than hard facts of the lived traditions as practiced by his clan.The first defendant was able to link these lived and practiced traditions to the disputes at hand than did the plaintiff and his witnesses who seemed to rely on platitudes....,.The ...
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HH111-08 : RAILWAY ARTISANS UNION and RAILWAY ASSOCIATION OF YARD OPERATING STAFF and ANOR vs RAILMED and NATIONAL RAILWAYS OF ZIMBABWE and RAILWAYS EMPLOYMENT COUNCIL
Ruled By: GOWORA J

This matter was initially placed before me under a certificate of urgency. As the final and interim relief sought on the provisional order were the same, I wrote an endorsement on the face of the application querying the manner in which the relief had been framed.The letter of explanation was ...
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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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HH124-09 : MAXWELL TAWODZERA AND MARGARET TAWODZERA vs DANNY MASUKUMA
Ruled By: MAKARAU JP

To support their case that it was the first Agreement, denominated in foreign currency, that the parties concluded and deemed binding, the plaintiffs led evidence. On the material issue, the first plaintiff's evidence was as follows.When he and the second plaintiff advertised their properties for sale in the print media, they did not indicate an ...
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HH124-09 : MAXWELL TAWODZERA AND MARGARET TAWODZERA vs DANNY MASUKUMA
Ruled By: MAKARAU JP

As the trial progressed, it became apparent that the first issue that I have to determine in this matter is which Agreement between the parties is binding.The plaintiffs contend that it is the first one, while the defendant contends to the contrary.It is common cause that the parties negotiated the terms of the first agreement and ...
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HH154-09 : PETHIAS CHITSUNGO vs D. MASUKU and RUWA LOCAL BOARD
Ruled By: MTSHIYA J

This is an opposed application where the applicant seeks the following relief:- “1. Applicant shall deposit $10,000,000,000= into the Registrar of High Court's temporary deposit account the outstanding balance towards the purchase price of Stand No.3519, Dzivaguru Crescent, Ruwa, for first respondent. 2. Thereafter, first respondent shall proceed to cede his rights, interests and title in Stand No.3519, Dzivaguru Crescent, ...
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HH164-09 : ZIMRE PROPERTY INVESTMENT (PVT) LTD vs CITY CALVARY CHURCH
Ruled By: GOWORA J

As regards the merits of the application, it is obvious that when the Deed of Settlement was negotiated, and agreed to by the parties, it was in the contemplation of the parties, whatever their appellation, that there was need for the building to be renovated. Although inelegantly worded, the theme running through the Deed of ...
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Appealed
HB59-09 : DINESH MANILAL NARAN vs RONNAH MAFURIRANO and THE REGISTRAR OF DEEDS
Ruled By: KAMOCHA J

The plaintiff in this matter seeks:-“1. An order to declare that the sale agreement executed between him and first defendant on the 30th of September 2001 on Stand 378, Gorebridge Road, Killarney, Bulawayo is still binding and effectual as between the parties;2. An order to compel the first defendant to ...
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HH115-10 : NASSAH MUKOMBERANWA vs VIVIAN MOKOMBERANWA
Ruled By: MUSAKWA J

Although the defendant claimed that the Norton stand belongs to her brother, the probabilities that she used her brother as a front are very high. In the first place, the brother unaccountably failed to attend court to testify as the defendant's witness on the issue. There was also evidence to ...
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HH121-10 : POWER COACH EXPRESS (PVT) LIMITED vs MARTIN MILLERS AND ENGINEERS
Ruled By: BERE J

Blazio Nyariri referred the court to the quotation of 31 May 2006. It is noted that although the quotation did not specifically state that the underground storage tanks were to be manufactured using 6mm mild steel plate thickness, both the defendant and the plaintiff were agreed that such material was to be used. This is confirmed ...
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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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SC34-15 : BANKING EMPLOYERS ASSOCIATION OF ZIMBABWE vs ZIMBABWE BANK AND ALLIED WORKERS UNION
Ruled By: ZIYAMBI JA, GARWE JA and GUVAVA JA

It never ceases to amaze how parties to an agreement happily append their signatures to an agreement then a few months later fail to agree on the interpretation of their written word and require some other person, in this instance the court, which was not part of the negotiations, to tell them what ...
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HH19-09 : RACHEL T DUBE vs RHODA MUCHETWA and THE REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

At the hearing of the matter counsel for the applicant invited me to take a robust approach and find, on the basis of the papers filed of record, that the Agreement between Everisto Marenga and the first respondent had no bearing on the Agreement between the applicant and the first respondent. He further invited ...
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HH145-10 : TENDAI MUCHENJE vs G. AND M. PANEL BEATERS t/a SUPREME PANEL BEATERS & SPRAY PAINTERS
Ruled By: CHITAKUNYE J

According to Harrison Shumbamhini it is a practice in the panel beating business for clients to be asked to sign documents showing their satisfaction with the repairs done. In this case, the plaintiff never signed any such document.
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HH225-10 : SOUTHEND CARGO AIRLINES (PVT) LTD and STEPHEN CHITUKU and PATIENCE CHITUKU vs INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE and THE SHERIFF OF ZIMBABWE and THE DEPUTY SHERIFF
Ruled By: MTSHIYA J

It is my view that all the issues raised in the founding affidavit were dealt with in MAKARAU J's judgment (HH123-04). That judgment remains extant. It will therefore be unnecessary to revisit the same issues in this judgment. That judgment, in part, reads as follows - “In or about June 1997, the applicants intended to ...
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HH236-10 : NATIONAL SOCIAL SECURITY AUTHORITY vs ALEC RYALS AND SKOTRIL (PRIVATE) LIMITED and ALEC KAGURU
Ruled By: MUTEMA J

Mere verbal allegations by the respondents regarding the variation of terms of the written lease agreement are clearly ousted by this clause in tandem with the parole evidence rule, not to mention the caveat subscriptor rule.
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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

Though the written document was not signed by both parties, it is common cause that it accurately reflects the verbal agreement between the parties.
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HH261-10 : ZENUS BANDA vs EUNICE TAYLOR, (substituted by) PAMELA LYNETTE YOUNG (EXECUTRIX of her Estate) and GABRIEL REAL ESTATES and REGISTRAR OF DEEDS and MRS V MATEKO
Ruled By: UCHENA J

The offer form…, confirms that the offer was not accepted. It was only signed by the Buyer while the Seller's part remained uncompleted.
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HH277-10 : BENCHILL INVESTMENTS (PVT) LTD vs BATTERY WORLD (PVT) LTD
Ruled By: KUDYA J

In response to the first issue, Godwin Dingwiza maintained that the “rough scrap of paper”, as it was termed by Mr Morgan, was a quotation. Godwin Dingwiza had dealt with the city office branch of the defendant in question in his capacity as the Managing Director of the plaintiff and its sister company, Selfex Investments, and ...
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HH73-13 : SIBONGILE KAZIBONI vs CHAMPION CONSTRUCTION (PRIVATE) LIMITED
Ruled By: MATHONSI J

The evidence led shows that the parties did indeed enter into a written Agreement of Sale in respect of the property whose provisions were generally not enforced by the parties and on the whole they allowed the Agreement to exist on paper when they continued negotiating every step of the way. This explains why ...
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HB40-13 : GARIYA SAFARIS (PVT) LTD vs TSHOLOTSHO RURAL DISTRICT COUNCIL
Ruled By: NDOU J

On 30 March 2006, the parties entered into a written contract. The respondent, under the contract, gave the applicant the right to conduct hunting safaris for elephants and other species on land under control of the respondent. The dispute between the parties relates to prices for elephant trophies and not for any other species. The ...
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HB64-13 : GARIYA SAFARIS (PVT) LTD vs TSHOLOTSHO RURAL DISTRICT COUNCIL and THEMBA MOYO
Ruled By: CHEDA AJ

The founding affidavit of the application was deposed to by Collette Andrew Rajah who claims to be a Director of the applicant. He said the applicant has an agreement with the first respondent for conducting elephant hunts in Tsholotsho South. He referred to an agreement signed by the parties on 30th March 2006. He said ...
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HB158-13 : KERRIES ENGINEERING (PVT) LTD vs MAKOMO RESOURCES (PVT) LTD
Ruled By: MAKONESE J

3. Whether the defendant entered into a contract with Hwange Colliery Company on Wednesday 25th January 2012 for hire of another crane in order to mitigate the damages The facts show that when the plaintiff's crane driver arrived at Hwange the alternative crane had not commenced work. The Hwange Colliery Company crane only commenced work on the ...
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HH305-14 : FAIRDROP (PVT) LTD vs CAPITAL BANK CORPORATION LTD and JOURNET TRADING PL and ELSPENCE INVESTMENTS PL and OTHERS
Ruled By: MATHONSI J

At the request of the parties to these two (2) applications, I agreed to hear both of them simultaneously given that the matters are related and arise from the same issue. In the first application, namely, HC3020/13, the applicant seeks to join the 15th respondent, the Eastern and Southern African Trade and Development (PTA) Bank (“the ...
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Appealed
SC08-15 : TENDAI SAVANHU vs HWANGE COLLIERY COMPANY
Ruled By: ZIYAMBI JA, GOWORA JA and MAVANGIRA AJA

Notwithstanding the sole ground of appeal (as raised in the grounds of appeal) being the issue of the existence of a custom entitling the appellant to retain the vehicle, counsel for the appellant, in his submissions before us, contended that the appellant was entitled to hold on to the vehicle because of exceptions ...
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SC49-17 : PHILLIP ELLSE vs MICHAEL JOHNSON
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

Whether the court a quo misdirected itself in applying the parole evidence rule? The appellant signed the two promissory notes as the borrower. The loan amount was deposited into his personal account in Mauritius. His attempt to bring in evidence of the subsequent involvement of third parties is against the parole evidence rule. Subject to the ...
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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

TRADE USAGE In respect of terms implied by trade usage, the case of Golden Cape Fruits (Pty) Ltd v Fotoplate (Pty) Ltd 1973 (2) SA (C) 642, is authority for the proposition that the parties to a contract would be bound by, and the contract in question would be subject to, an alleged trade ...
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SC60-17 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED vs JAFATI MDALA
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and GUVAVA JA

In Hoffmann Carvalho v Minister of Agriculture 1947 (2) SA 855 (J)…, PRICE J stated that; “Where parties intend to conclude a contract, think they have concluded a contract, and proceed to act as if the contract were binding and complete, I think the court ought rather to try to help the parties ...
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HH48-15 : SITHOKOZILE MUNYIKA (as Executrix Dative in Estate Late Jeffrey Dhliwayo) vs MARSHALL DHLIWAYO and MASTER OF THE HIGH COURT and DIRECTOR OF HOUSING CHITUNGWIZA CITY COUNCIL
Ruled By: TSANGA J

It is my finding there was never intended to be a swop of the properties.
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SC32-18 : ZESA HOLDINGS (PRIVATE) LIMITED vs ITAYI UTAH
Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

That this was the parties' clear intention is borne out by their subsequent conduct.
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HH130-16 : YAKUB MAHOMED vs JOHN ARNOLD BREDENKAMP
Ruled By: CHIGUMBA J

The court was referred to the case of Sullivan v Constable 48 T.L.R. 267, where it was held that: “It seems to me that the defendant, by his conduct and that of his agent, has so acted that the plaintiff was reasonably entitled to believe that the defendant was assenting to the position which he so plainly asserted in ...
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HH407-17 : MISHECK MUZA vs REGGIE SARUCHERA (as liquidator of J W JAGGERS WHOLESALERS PL) and PRICE TRUST and MASTER OF HIGH COURT and REGISTRAR OF DEEDS
Ruled By: MATANDA-MOYO J

In CGEE Alshthom Equipments et Enterprises South African Division v GNK Sankey (Pvt) Ltd 1987 (1) SA 81 (A)…, COOBELT JA said; “Whether in a particular case the initial agreement acquires contractual force or not depends upon the intention of the parties, which is to be gathered from their conduct, the terms of the agreement, and ...
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HB257-16 : VILLAGE PROPERTIES (PVT) LTD vs REGGIE SARUCHERA (as Liquidator of 2nd respondent) and JW JAGGERS WHOLESALERS (PVT) LTD (in liquidation)
Ruled By: MAKONESE J

In its founding affidavit, the applicant has laid bare claims of right in the fixtures and fittings. There is no documentary proof in the applicant's papers asserting a clear right. The mere production of a list of fixtures and fitting does not in any way prove any right of ownership in the property in question. The lease agreement ...
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HH161-15 : MCR VENGESAYI and AGNES VENGESAYI T/A VENGESAYI ARHITECTS vs BELVEDERE NURSING HOME (PRIVATE) LIMITED
Ruled By: DUBE J

Where there are business relations between the parties after a disputed contract has been concluded, stemming from it, it is incumbent upon the court to have regard to the conduct of the parties after the contract was entered into in order to determine the state of mind of the parties. In Levy v Banket Holdings (Pvt) Ltd R N 98, ...
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HH107-13 : POWERSPEED ELECTRICAL LTD vs ENFIELD ZIMBABWE
Ruled By: DUBE J

The next question is whether a binding contract was entered into. The final demand that the plaintiff relies on is not the ordinary contract where both parties append their signatures to an agreement. It is signed and agreed to by the defendant and is not signed by a representative of the plaintiff. It originates from the ...
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SC11-19 : MEDECINS SANS FRONTIERS (MSF) BELGIUM vs VENGAI NHOPI and OTHERS
Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

In Magodora v Care International 2014 (1) ZLR 397 (S) and UZ-UCSF Collaborative Research Programme in Women's Health v Shamuyarira 2010 (1) ZLR 127 (S), the point is made that the terms of a contract are relevant in the determination of whether non-renewal of a fixed term contract constitutes a dismissal. That is so because the contract itself indicates ...
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Appealed
SC21-19 : RONALD BAKARI vs TOTAL ZIMBABWE (PRIVATE) LIMITED
Ruled By: GARWE JA, GUVAVA JA and BHUNU JA

It seems to me that the appellant could only have escaped liability if, having realized that he had signed a document on behalf of someone he had not intended, he had sought to rectify the surety document. The remedy for persons who find themselves in a position that the appellant purports to have been, that ...
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HH222-16 : TOTAL ZIMBABWE (PVT) LTD vs RONALD BAKARI
Ruled By: DUBE J

It is common cause that the defendant signed and made all endorsements on the Deed of Suretyship except for the date and the portion where Mr Mawire signed. There is a marketing licence agreement signed between SM Tyres (Pvt) Ltd and Mr Mawire of SM Tyres trading as Nyamapanda Service Station. The issue for determination is for ...
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