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Verbal or Oral Agreement, Undocumented Transactions and Unsigned Draft Agreements or Informal Contracts

Appealed
HH11-12 : BRENNAN'S DIESEL SERVICES (PRIVATE) LIMITED vs TENDA BUS SERVICE (PRIVATE) LIMITED
Ruled By: KUDYA J

This is a claim by the plaintiff against the defendant for ZAR17,353= for the repair, between 19 and 30 December 2008, of two fuel pumps. The plaintiff also seeks interest at the prescribed rate from 27 January 2010 to the date of payment in full. In the pleadings, the plaintiff sought costs on the ...
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HH02-10 : JOHN RODGER & OTHERS vs FRIK MULLER & OTHERS
Ruled By: PATEL J

The first and second applicants are directors of the third applicant, which operates safari activities in the Zambezi Valley Area.The first and second respondents are directors of the third respondent, which is also a safari operator.The fourth respondent is the National Parks and Wildlife Management Authority (the Authority) responsible for ...
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HH00-08 : AGRICULTURE BANK OF ZIMBABWE LTD T/A AGRIBANK vs DATANET TECHNOLOGY ZIMBABWE
Ruled By: MTSHIYA J

The cause of action in this case arises out of an alleged breach of contract by the defendant for the supply of 20 IBM A50 desktop computers (computers) to the plaintiff.The plaintiff is suing the defendant for specific performance or payment of damages in lieu thereof.At the commencement of the ...
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HH158-09 : WILTON RENSBURG vs MARKO MAVHURUME N.O. and THE REGISTRAR OF DEEDS N.O and THE DEPUTY SHERIFF
Ruled By: MTSHIYA J

This is an opposed application where the applicant seeks the following order: “1. That the first respondent be and hereby ordered to sign all the necessary documents prepared by the applicant's conveyancers to effect transfer of ownership in Stand 111 Ridgemont Township of Stand 16A Ridgemont Township to Wilton Rensburg. 2. That in the event that the first ...
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HH55-10 : JEREMY STANDER vs NELTRA INVESTMENTS t/a DOUGLAS CAR SALES
Ruled By: BERE J

It must be understood that the main reason why parties prefer written and signed agreements like Exhibit 1 is that the parties desire that they be bound by such agreements, particularly in the event of a dispute like what has happened in this case. Reference to such documents is easier as opposed to relying on verbal ...
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SC31-14 : BRENNAN'S DIESEL SERVICES (PVT) LTD vs TENDA BUS SERVICES (PVT) LTD
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

After hearing counsel in this matter we allowed the appeal with costs. We indicated that our reasons would follow. These are they.The facts of this matter are that on 16 February 2010, the appellant issued summons claiming:“1. Payment of the sum of ZAR17,353= being an amount due and owing by the Defendant ...
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HH158-10 : SIZE MAVUTO vs PAUL GOSTINO and PROMENADE REAL ESTATE and THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

The applicant relies on an oral agreement, and it is harder to establish agreed terms when relying on an oral agreement....,. Other conditions including vacant possession, transfer, and other requirements to the sale of an immovable property have not even been mentioned. If the parties concluded an oral agreement, as is averred by the applicant, ...
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HH197-10 : ABDULLAH ISMAIL KASSIM (in his capacity as Executor Dative of the Estate of Ralph Simon Lapin) vs MATTHEWS MUKWAWAYA
Ruled By: PATEL J

The defendant claims that the deceased, Ralph Simon Lapin, verbally granted him such right in respect of the property in question. However, his evidence in this regard was generally nebulous as to the precise terms of the alleged agreement with Ralph Simon Lapin. In my assessment, it was entirely unconvincing.
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HB23-10 : SANITA CONSTRUCTION (PVT) LTD vs OBERT MPOFU and DRASTIC CONSTRUCTION COMPANY (PVT) LTD
Ruled By: NDOU J

The salient facts of this case are the following. On 19 October 2009, the applicant entered into a verbal contract with the first respondent (this is disputed) in terms of which the applicant undertook to construct a shopping mall for the first respondent. The first respondent's case is that the applicant entered into this agreement ...
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HB80-10 : NAISON CHAGARA GONOUYA vs SHADRECK HUKUIMWE and JUSTICE MUNYAMANA and BULAWAYO CITY COUNCIL
Ruled By: KAMOCHA J

In his plea, Justice Munyamana stated that the plaintiff did not have a marriage certificate and was not on the waiting list for a house in the Municipality of Bulawayo. He averred that after the plaintiff had purchased the house from Shadreck Hukuimwe, he was under pressure from Shadreck Hukuimwe who wanted to transfer the ...
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HH30-11 : PRIMAC ENTERPRISES (PRIVATE) LIMITED t/a PRIMAC TELECOMMS vs NATIONAL HANDICRAFT CENTRE (PRIVATE) LIMITED and VICE SECURITY COMPANY (PRIVATE) LIMITED
Ruled By: MTSHIYA J

Mr Alvin Dumisani Ncube maintained that the plaintiff and the first defendant had reached a verbal agreement on the issue of security as supported by the invoices produced in court. He said up until 18 April 2008 the first respondent had indeed provided security. It was his evidence that the first defendant had breached ...
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HB04-11 : PECHI INVESTMENTS (PVT) LTD vs MAURICE CHARLES MUTATSI NYAMUDA t/a EBUNANDINI RESTAURANT
Ruled By: CHEDA J

The second issue is whether or not there was a verbal agreement that the respondent should lease the property for a further fifteen (15) years. He, however, does not tell the court the terms and conditions of the lease, namely the duration of the lease and the rent among other conditions. This, therefore, does ...
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HB154-11 : NATIONAL BLANKETS LIMITED vs DAVID WHITEHEAD TEXTILES LIMITED
Ruled By: KAMOCHA J

It was argued, on behalf of the respondent, that the averments of Jeremy Musgrave do not disclose the nature of the alleged transaction. He produced no written proof of the alleged transaction when a transaction of such a magnitude was reasonably expected to have been reduced to writing despite the fact that there is no ...
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HB05-14 : CASPER SIBANDA vs BARNABAS SIGOLA
Ruled By: MOYO J

Under cross-examination, the defendant stated that the parties did not record the agreement and hence they had a verbal agreement. He said the terms of the verbal agreement were that after payment of “this” money he would then clear the balance in instalments until when he finished paying. As to the number of instalments, he ...
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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

There is no material dispute of facts as most facts giving rise to the legal disputes on appeal are by and large common cause. The undisputed facts are that Mathonsi Family Enterprises (Pvt) Ltd, who was the second respondent in the court a quo, is the registered owner of a certain immovable piece of ...
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SC41-17 : TELECONTRACT (PRIVATE) LIMITED t/a TELCO vs SPORROW HAULIER (PRIVATE) LIMITED t/a J & J TRANSPORT
Ruled By: PATEL JA, GUVAVA JA and UCHENA JA

This is an appeal against the decision of the High Court upholding the judgment of the Magistrates' Court.The case revolves around the difference between two computer terms “megabytes” and “megabits.”On 12 April 2012, the respondent sought fibre internet services for its two premises, being No.34 Martin Drive, Msasa, and No.19 Manyonga Close, Glen Lorne ...
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HH15-15 : HONEYCOMB HILL (PRIVATE) LIMITED vs HERENTALS COLLEGE (PRIVATE) LIMITED
Ruled By: NDEWERE J

The applicant, in the summons for eviction, holding over damages and costs, did not rely on the lease agreement which existed between the parties. He chose to found his cause of action on a non-existent sale agreement. This means the respondent has a bona fide defence against the claim since there is no valid ...
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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

The facts Sometime in 1979, the late Jeffery Dhliwayo acquired the right to purchase a vacant Stand known as Stand 5389 in Glenview ('the Glenview Stand') through a cession agreement with the City of Harare. It is not in dispute that the person who ended up building a seven-roomed house on this Stand was the first defendant, ...
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HH93-11 : ELIZABETH KAMANGA vs ESTATE LATE BUTE CHIKONDO (represented by Oswald Bute Chikondo as executor) and MERCY CHIKONDO and CITY OF HARARE and MASTER OF THE HIGH COURT
Ruled By: GUVAVA J

Levison Yohane was present when the sale took place…,. From the evidence, it was apparent that the plaintiff is the one who approached the seller and paid the purchase price in the presence of a number of witnesses.
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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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HH88-15 : MC PLUMBING (PRIVATE) LIMITED vs HUALONG CONSTRUCTION (PRIVATE) LIMITED
Ruled By: CHIGUMBA J

The issue that rose for determination at the close of the plaintiff's case was whether the plaintiff had adduced enough evidence of the terms of the contract between the parties to enable a determination to be made as to what the plaintiff was entitled to be paid by the defendant. The plaintiff filed summons on 8 January ...
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HH485-13 : LOVENESS KUDZANGA vs GODFREY KUDZANGA and THE REGISTRAR OF DEEDS and DEPUTY SHERIFF HARARE
Ruled By: MAWADZE J

Even assuming, as the plaintiff alleges, that the donation for the immovable property was orally made, there is no sufficient evidence to support this position.
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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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Appealed
SC04-20 : NICKOLAS VAN HOOGSTRATEN vs TAPIWA NELOMWE
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

This is an appeal against the whole judgment of the High Court handed down on 18 July 2018 in which it ordered the appellant to deliver to the respondent 167,275 Old Mutual Public Limited Company shares within 10 days of the date of the order. Alternatively, it ordered the appellant ...
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HH444-18 : TAPIWA NALOMWE vs NICHOLAS VAN HOOGSTRATEN
Ruled By: ZHOU J

The plaintiff instituted the summons in casu claiming the following relief against the defendant:“1. An order compelling the defendant to transfer 167,275 Old Mutual Public Limited Company shares to the plaintiff within ten (10) days of the date of the order; being shares which the plaintiff transferred to the defendant ...
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HH454-18 : YAKUB MAHOMED vs JOHN BREDENKAMP
Ruled By: CHIKOWERO J

This is an opposed summary judgment application.The law on the relief of summary judgment is settled.In sum, it is to enable a plaintiff with a clear case to obtain quick judgment against a defendant who has no real defence against the claim.The plaintiff's claim must be unanswerable both on the ...
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HH09-09 : SKF ZIMBABWE P/L vs PARIS OLYMPIOUS
Ruled By: MAKARAU JP

Some day in or around October 2003, a businessman, who still believes in customer care, moved down the fuel queue that had formed at his forecourt to ensure that no one was jumping the queue. He would stop and chat with this or the other customer. He came across a ...
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HB02-12 : MUNICIPALITY OF VICTORIA FALLS vs LOIDA NYATHI and 11 OTHERS
Ruled By: NDOU J

These are twelve cases, which were consolidated into two matters, which were heard at the same time.For easy reference, the one matter involved what may be called the ZimSun houses (five (5) defendants under HC2224/08). The five defendants being Alice Ndlovu, Sivumo Ndlovu, Kambarachi Zex Raura, Freda Khumalo and Simolita ...
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HH92-09 : SUPA PLANT INVESTMENTS (PVT) LTD vs EDGAR CHIDAVAENZI
Ruled By: MAKARAU JP

The facts giving rise to this application are largely common cause. They are as follows:The applicant is in the farming business, operating a farm in Chakari. In October 2006, it set out to acquire a centre pivot irrigation system for its farm. Its Managing Director, duly authorized to act on ...
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SC03-21 : AFRITRADE INTERNATIONAL LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: PATEL JA, BHUNU JA and BERE JA

This is an appeal against the judgment of the Fiscal Appeal Court dismissing an appeal against the determination of the respondent requiring the appellant to pay value added tax (VAT) on the importation of certain goods into Zimbabwe.BackgroundThe appellant is a foreign company incorporated in the British Virgin Islands and ...
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HH424-13 : HONEY AND BLANCKENBERG vs LOURENCE ERASMUS VERMAAK and OTHERS
Ruled By: TSANGA J

The BackgroundThe applicant, Honey and Blanckenberg, instituted interpleader, in terms of Rule 30 of the High Court Rules, for the court to declare to whom it should pay an amount of $70,000 currently held in trust as rentals for certain companies.According to the applicant's affidavit, the companies in question are ...
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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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HH351-20 : THE SHERIFF OF ZIMBABWE and GURTA AG vs ANDERSON MANJA and 98 OTHERS
Ruled By: CHIKOWERO J

JUSTIFICATIONThe HOLY BIBLE, CONCORDANCE AUTHORIZED KING JAMES VERSION, 2013 p1078 reads, in Ecclesiastes 4:09-12:“9. Two are better than one; because they have a good reward for their labour.10. For, if they fall, the one will lift up his fellow: but woe to him who is alone when he falls; for ...
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SC18-21 : A. ADAM AND COMPANY (PVT) LTD and SGI PROPERTIES (PVT) LTD and GARABGA NCUBE AND PARTNERS vs GOODLIVING REAL ESTATE (PVT) LTD
Ruled By: GUVAVA JA, MAVANGIRA JA and BHUNU JA

This is an appeal against the whole judgment of the High Court sitting at Harare, dated 10 July 2019, in favour of the respondent. The court a quo in this case granted an interdict against the first and second appellants ordering them to share the money collected between 2014 and ...
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HH100-17 : UPSET INVESTMENTS (PRIVATE) LIMITED vs CHITUNGWIZA MUNICIPALITY
Ruled By: MUREMBA J

The plaintiff issued summons claiming the following:“(i) Payment of the sum of US$119,300 being the remaining balance of the agreed purchase price for one x 20 Tonne Hyundai Excavator, sold and delivered by the plaintiff to the defendant, at its specific instance and request.(ii) Interest at the prescribed rate calculated ...
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HB32-15 : ANDREW NDLOVU and CHIHWA TOURS vs THEMBINKOSI SIBINDI
Ruled By: MUTEMA J and MOYO J

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.We allowed the appeal in terms of the consent and indicated that ...
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SC138-21 : DIVVYLAND INVESTMENTS (PRIVATE) LIMITED vs DAVID CHIWEZA
Ruled By: PATEL JA, GUVAVA JA and BHUNU JA

This is an appeal against the whole judgment of the High Court which was handed down on 10 April 2019. The gripe of the appellant is that the court a quo dismissed its claim and granted an order in favour of the respondent's counter-claim.BACKGROUND FACTSThe facts of the matter which ...
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HB53-15 : ZB BUILDING SOCIETY vs TAKESURE MASANZU
Ruled By: MOYO J

The plaintiff issued summons in this matter seeking an order as follows:(a) Eviction of the defendant and all those claiming right of occupation through him from a property known as House Number 5 Cypress Avenue, Masasa, Kwekwe.(b) Payment of $3,478 being arrear rentals for the period extending January 2013 to ...
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HH823-15 : AT INTERNATIONAL LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

The answer sought in this appeal is whether, the appellant, a foreign registered company is liable to pay value added tax in Zimbabwe.The appellant disputed liability for value added tax (VAT) arising from the purported importation of goods into and the carrying on of trade in Zimbabwe and appealed against ...
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HH109-08 : LLOYD GAMBIZA vs PIKIRAI TAZIVA
Ruled By: GOWORA J

On 1 March 2007, the plaintiff issued summons out of this court for an order as follows:“(a) An order declaring the agreement, Annexure A to the particulars of the claim, dated 18 December 2006, to have been validly cancelled and incapable of performance.(b) An order for the return to the ...
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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

In Adleu v Elliot 1988 (2) ZLR 283 (S) GUBBAY JA…, recognised, that, in oral contracts, the court had the power to determine whether the terms of that contract required exact performance or the performance of some equivalent act. He stated thus:“The application of this broad principle [that it is ...
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