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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 ...
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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 ...
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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.
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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 ...
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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 ...
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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 ...
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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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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 ...
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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 ...
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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 ...
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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 ...
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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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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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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) ...
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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 ...
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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 ...
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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, ...
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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 ...
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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 ...
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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 ...
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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 ...
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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 ...
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HH224-22 : MUTSA DENHERE and DEMMUSK ENTERPRISES (PVT) LTD vs FAENSA FRISCO LIMITED
Ruled By: CHIRAWU-MUGOMBA J

The genesis of this matter lies in proceedings held under case number HC8844/12. In that matter, the respondent in casu obtained an order against the applicants as follows:1. Judgement be and is hereby entered in favour of the plaintiff against defendants jointly and severally the one paying the other to ...
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Appealed
SC24-21 : BIG VALLEY MASTERS (PRIVATE) LIMITED vs SHI JINWU
Ruled By: GWAUNZA DCJ, GUVAVA JA and MAVANGIRA JA

INTRODUCTIONThis appeal arises from the judgment of the High Court in which the court a quo ordered the appellant to pay the respondent the sum of US$89,000 with interest at the prescribed rate calculated from 11 December 2012 to the date of full payment.The appellant is a gold mining company. ...
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HH601-14 : SHI JINWU vs BIG VALLEY MASTERS (PRIVATE) LIMITED and PHILLIMON MUBATA
Ruled By: CHIGUMBA J

Zimbabwe adopted a policy that was dubbed “look east” as a way of combating economic sanctions that were imposed on it by the international community. The “look east” policy encourages a forging of closer business and trade ties with countries in the east as opposed to the west, the traditional ...
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SC116-21 : ALFRED MWAZHA and OTHERS vs ERNEST MHAMBARE
Ruled By: MAVANGIRA JA, UCHENA JA and CHIWESHE JA

This is an appeal against the whole judgment of the High Court sitting at Harare granting a declaratur in favour of the respondent.The judgment appealed against set aside the nomination of the first appellant (Alfred Mwazha) as successor to the Archbishop Ernest Paul Mamvura Mwazha, the head of the tenth ...
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SC127-21 : MIDLANDS STATE UNIVERSITY vs GALAXY ENGINEERING DESIGN CONSULTANTS (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, BHUNU JA and MATHONSI JA

This is an appeal against the judgment of the High Court (the court a quo) rendered in favour of the respondent on 24 July 2019 following a full trial. The judgment directed the appellant to pay to the respondent interest on the sum of $84,827=17 at the rate of 19.5% ...
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HB33-15 : MASIWA HWARA vs EUBERTINNAH MUDIMU (as Executrix of Estate Late Felix Mudimu) and ADDITIONAL ASSISTANT MASTER OF THE HIGH COURT N.O.
Ruled By: MUTEMA J

The applicant herein seeks an order that the second respondent re-open the estate of the late Felix Mudimu so that she may lodge her claim for the transfer of a property known as House Number 5747 Nketa 9, Bulawayo.The application is opposed by the first respondent who is the widow ...
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HMA21-19 : MR MBOZVI vs CHENGETAI SIDHUNA
Ruled By: MAWADZE J and MAFUSIRE J

The dispute between the parties centred on a property described as Stand 238 Phase 1 Checheche (“the property”). It is one of those council-owned township properties that local authorities sell on a rent-to-buy basis. It is under the Chipinge Rural District Council.In the court a quo, the respondent (“Chengetai”) sued ...
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HH420-15 : BRIGHTON MBERI vs SAVIOUS MBEWE and NORTON TOWN COUNCIL
Ruled By: MAFUSIRE J

In his application, the applicant said his claim was for “specific performance” against the second respondent. This was in respect of an immovable property, a house in one of the high density suburbs administered by the second respondent.At the end of the hearing I dismissed the application with costs and ...
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HH128-06 : DOBROCK HOLDINGS (PVT) LTD and TURNER AND SONS (PVT) LTD vs TURNER AND SONS (PVT) LTD and ANTHONY TURNER and MARTIN KING and ZAMBEZI PADDLE STEAMER (PVT) LTD and DOBROCK (PVT) LTD
Ruled By: KUDYA J

An order for the consolidation of these two matters was granted by UCHENA J, by consent, with no order as to costs, on 2 June 2006, for hearing before me on 7 June 2006 in Case Number 3157/06.The first application, Case No. HC5186/05, concerns an order for specific performance while ...
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HH250-17 : CLEOGOZ INVESTMENTS (PRIVATE) LIMITED vs PATRICIA COX (HOUGAARD) and REGISTRAR OF DEEDS N.O.
Ruled By: CHAREWA J

This is an application to compel transfer consequent upon an agreement of sale of “proposed subdivision B of Lot 369 Highlands Estate of Welmoed measuring approximately 2033 square metres” entered into between the applicant and the first respondent in January 2015.The FactsIt is not in dispute, that, the parties entered ...
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HH535-15 : BLESSMORE CHANAKIRA vs SHEPHERD MALCOM N.O. and REGISTRAR OF DEEDS and PHIL RUSCH
Ruled By: NDEWERE J

The background facts are that the plaintiff expressed interest in Stand 5233 Salisbury Township Lands measuring 3,309 square metres which is the property in dispute.The property belongs to the estate of the late Robert Eric Rae.An agreement of sale was concluded, on 22 October 2009, between the plaintiff and the ...
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