Law Portal
Zimbabwe

Welcome To Law Portal

Welcome, Guest!
[Help?]

Consensus Ad Idem re: Condition Precedent, Suspensive Conditions, Fictional Fulfilment & Exceptio Non Adimpleti Contractus

SC03-11 : BUBYE MINERALS (PVT) LIMITED vs MINISTER OF MINES AND MINING DEVELOPMENT AND MINERALS AND MARKETING CORPORATION OF ZIMBABWE AND MINING COMMISSIONER MASVINGO AND RIVER RANCH (PVT) LTD
Ruled By: MALABA DCJ, SANDURA JA and ZIYAMBI JA

In applying the principles of the law to the facts of the case, there is no question that none of the requirements of clause 14 of the Special Grant as read with section 282 of the Mines and Minerals Act [Chapter 21:05] were complied with. There was no cession within the meaning of clause 14 of ...
More

HH15-09 : GRISON MUWIDZI vs OPTIMACK INVESTMENTS (PVT) LTD and REGISTRAR OF DEEDS
Ruled By: UCHENA J

The applicant and the first respondent entered into an agreement of sale. In terms of that agreement, the applicant was to purchase Stand 58 Greystone Township 2 of Lot A of Borrowdale Estate measuring 4,730 square meters. The agreement was entered into on 18 February 2008. In terms of clause 2, which deals with the terms ...
More

HB23-09 : LARRY BEN MPOFU vs MIKA PARIRA MPOFU AND TWO OTHERS
Ruled By: NDOU J

Where the consent of a regulatory authority is required, the lack of such consent at the time of the signing of the agreement does not invalidate the agreement as such consent may still be obtained later.
More

HH90-09 : INTERFRESH LIMITED vs MEGAPAK ZIMBABWE (PRIVATE) LIMITED
Ruled By: PATEL J

According to Martin Makomva, the current cost of a bottle and cap is US23 cents. The money paid by the plaintiff, in November 2007, only covered the cost of what was actually supplied, and, therefore, the balance of the plaintiff's order cannot be met at current prices. The entire contract was premised on the continuation of ...
More

HH119-09 : ISAAC MANDI vs GRACE MCHICHWA (as Executrix Dative Estate Late Peter Kandeya) and RUWA LOCAL BOARD and MINISTRY OF LOCAL GOVERNMENT
Ruled By: GOWORA J

In Nkomo v Mujuru 1997 (1) ZLR 155, ROBINSON J found that an agreement of sale in respect of premises subject to an agreement of lease with the Government as lessor wherein the prior written consent of Government was required before rights therein could be alienated, whilst not being void ab initio, was, nevertheless, unenforceable against the Government at ...
More

HH122-09 : EMMANUEL NEMUSESO vs DOROTHY MASHITA and LOVEMORE KATAYI and PAULINE MANDINGO and PANGANAYI MASHITA and INNOCENT WOYO and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS NO
Ruled By: GUVAVA J

The dispute in this matter revolves around an estate belonging to the late Panganayi Elias Mashita who died, testate, in South Africa on 10 December 1983. He was survived by his wife, the first defendant, and two minor children being the third and fourth defendants. In terms of his Will, dated 27 June 1978, the first defendant ...
More

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 ...
More

HB02-09 : NDUMISO DUBE vs LEONARD DUBE
Ruled By: KAMOCHA J

Finally, the applicant sought to interdict the first respondent from carrying out construction work of any sort in Stand 16764, until the proceedings in case number HC 1276/06 are finalised, without a valid basis for doing so. A look at the original Agreement, between the applicant and the first respondent, shows that the first respondent, as ...
More

HH25-10 : MAXWELL MATSVIMBO SIBANDA vs GWYNNE ANNE STEVENSON
Ruled By: CHITAKUNYE J

The defendant made a counterclaim in which she prayed for an order that – (a) The sale of the property is void; (b) The plaintiff shall give the defendant, immediately, vacant possession of the property; (c) The plaintiff shall ensure the property's improvements against the risks specified in a standard home owner's insurance policy for their current replacement or ...
More

HH45-10 : CHRISTMAS MUSONI vs NABOTH JOKONOKO and SHURUGWI TOWN COUNCIL
Ruled By: CHITAKUNYE J

The plaintiff sued the two defendants claiming basically for his restoration as the registered buyer of House Number 360 Makusha Township, Shurugwi.In his summons and declaration, the plaintiff alleged, that, on 20 August 1981 he entered into a written agreement of sale with Dickson Katerere (“D. Katerere”) in respect of ...
More

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 ...
More

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 ...
More

SC13-15 : DOWOOD SERVICES (PRIVATE) LIMITED t/a BRADFIELD MOTORS vs RAILINGS ENTERPRISES (PRIVATE) LIMITED t/a PAROAN TRUCKING
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

This is an appeal against the judgment of the High Court in which summary judgment was granted against the appellant. After hearing argument by the appellant's legal practitioner we did not consider it necessary to hear counsel for the respondent. We dismissed the appeal in its entirety with costs on the scale of attorney ...
More

HH176-10 : JOYCE CHAGADURA vs SHELLY ANTONIO and REGIS MUVEREGI and DIRECTOR OF HOUSING CITY OF HARARE and SHERIFF OF THE HIGH COURT
Ruled By: GUVAVA J

The second defendant stated that when he signed the Agreement of Sale his attention was drawn to clause 6.1 which stated that the sale was subject to a resolution of a dispute on the property. It was explained to him that the clause meant that there were people staying in the property and he could ...
More

HH19-09 : RACHEL T DUBE vs RHODA MUCHETWA and THE REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

Regarding the merits of the matter, the first respondent averred that it was understood between her and the applicant that the sale of the Chegutu property would only be on condition that the first respondent was able to purchase a property in Harare. She heard about the property being offered by Everisto Marenga and informed the ...
More

HH206-10 : STANBIC BANK ZIMBABWE LIMITED vs FLAIR FURNITURE COMPANY (SUCCESSORS) LIMITED
Ruled By: MTSHIYA J

Mr Weston Munashe Makwara said the facility enjoyed the authority of the Reserve Bank of Zimbabwe as confirmed by its letter of 9 February 2010.Mr Neil James Bruce said he had seen the letter from the Reserve Bank of Zimbabwe dated 9 February 2010. His view was that the letter referred to a blanket ...
More

HH231-10 : AGRICULTURAL BANK OF ZIMBABWE LTD t/a AGRIBANK vs NICKSTATE INVESTMENTS (PVT) LTD and RICHARD MAKWARA and PLAXEDES MAKWARA
Ruled By: GOWORA J

The first issue for trial was whether the Agreement made and entered into by and between the parties was conditional upon the first defendant obtaining foreign currency from the Reserve Bank of Zimbabwe. It is pertinent, therefore, in resolving this issue, to examine the contract documents and other documents have a bearing on the relationship between ...
More

HH276-10 : DAVID CHIGODORA and NELIA CHIGODORA vs THOMAS C. T RODRIGUES and THOMAS C.T. RODRIGUES (N.O.) and THE REGISTRAR OF DEED and THE MASTER OF THE HIGH COURT and THE DEPUTY SHERIFF
Ruled By: MTSHIYA J

I believe that the crucial issue in this application is to determine whether or not the condition precedent (i.e obtaining the consent of the Master of the High Court) was ever fulfilled. It is only upon a finding on that aspect of this matter that an order for specific performance may then be granted ...
More

HB12-10 : BETTY GASELA vs LEONARD MALINGA and BULAWAYO CITY COUNCIL and THE REGISTRAR OF DEEDS
Ruled By: KAMOCHA J

The Stand was vacant at the time Leonard Malinga purchased it and he was expected to develop it within a certain period in accordance with the municipality Building Conditions. Apart from constructing a durawall around the property, Leonard Malinga did not develop it in any way for a period in excess of ten (10) ...
More

HH11-13 : FLORENCE SIGUDU vs MINISTER OF LANDS AND RURAL RESETTLEMENT N.O. and PHINEAS CHIHOTA
Ruled By: PATEL J

Compliance with Conditions The conditions applying to the applicant's offer letter required her to take up personal and permanent residence on the holding upon acceptance of the offer which was to be communicated to the first respondent within thirty (30) days of receipt. The applicant avers that she took occupation of the farm soon after it was allotted to ...
More

HH116-13 : FORESTRY COMMISSION vs CELL INSURANCE COMPANY (PRIVATE) LIMITED and PREMIER INSURANCE BROKERS (PRIVATE) LIMITED
Ruled By: PATEL J

The fact that the endorsement renews the policy for the entire period of insurance does not assist the plaintiff's case. As was recognised in Malaba v Takangovada 1991 (1) ZLR 1 (H)…, a contract of sale subject to a condition precedent that has not been fulfilled cannot be regarded as a sale; no sale exists ...
More

Appealed
SC42-15 : CRISPEN HATIVAGONE and AUDREY HATIVAGONE vs CAG FARMS (PRIVATE) LIMITED and DBT PROPERTIES and REGISTRAR OF DEEDS
Ruled By: GARWE JA, GOWORA JA and PATEL JA

Turning to the common law, it is an established principle of the law governing contracts that an Agreement of Sale that is subject to the fulfilment of a condition precedent that has not been fulfilled is not a valid sale. The aforesaid principle was referred to in Sithole v Khumalo Ors HB28-08, ...
More

HH06-18 : SIMBARASHE PASIPAMIRE vs GLOBAL PROPERTY ADVISORY & TECHNICAL SERVICES
Ruled By: MANGOTA J

Paragraph 11 of the consent order…, reads: “II. TRANSFER OF PROPERTY CONDITIONAL UPON PAYMENT OF LUMP SUM (a) The Petitioner shall transfer to the Respondent, upon payment of the lump sum referred to in paragraph 10 above, all his legal estate and beneficial interest with full title guarantee in the freehold property 16 Southfield Close, Leicester LE 29 ...
More

HH160-09 : SMART GONONDO vs ALICE MUTEPFA and PORTIA NYAMAROPA and CITY OF MUTARE (DIRECTOR OF HOUSING)
Ruled By: MAVANGIRA J

On 15 November 1996 the applicant and the first respondent entered into an Agreement of Sale in terms of which the applicant purchased from the first respondent an immovable property known as Stand No.6670 Chikanga 3, Mutare. The purchase price was agreed at $18,000=. Of this amount, $10,000= was paid on the date of the ...
More

SC01-15 : FIRSTEL CELLULAR (PRIVATE) LIMITED vs NETONE CELLULAR (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA & PATEL JA

This is an appeal against the decision of the High Court granting summary judgment against the appellant in the sum of US$8,330,470=52 together with interest at 2.5% per annum above the prime overdraft Bank rate and costs of suit.The claim against the appellant arose from a Service Provider Agreement concluded ...
More

View Appeal
HH186-10 : CAFCA LIMITED vs RESERVE BANK OF ZIMBABWE
Ruled By: MTSHIYA J

On 29 July 2008, the plaintiff issued summons against the defendant for the following relief:-“(a) Payment of the sum of US$750,000.(b) Interest a tempore morae at the London Interbank rate for United States dollars, 3.5% per annum, from 1 September 2005 to date of payment.(c) Costs of suit.”The background to ...
More

Appealed
SC36-12 : RESERVE BANK OF ZIMBABWE vs CAFCA LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

This is an appeal against the judgment of the High Court granting with costs a claim by the respondent for:(i) Payment of the sum of US$750,000.(ii) Interest tempore morae at the London Interbank rate for United States dollars, at 3.5% per annum, from 1 September 2005 to the date of ...