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Contract of Sale re: Approach, Essential Elements, Contract for Merx Not Yet in Existence and Validity of Contract

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

The three essential elements of a contract of sale are a meeting of the minds, the merx and the pretium. The existence of an agreement of sale is not dependent on delivery or payment.
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HH00-08 : AGRICULTURE BANK OF ZIMBABWE LTD T/A AGRIBANK vs DATANET TECHNOLOGY ZIMBABWE
Ruled By: MTSHIYA J

As was submitted by the plaintiff's legal practitioner, the issue of an agreement becoming impossible of performance is fully covered by R.H. CHRISTIE in his book 'The Law of Contract In South Africa 3ed…, where he writes:-“The Roman law principle that a contract is a nullity if, at the time ...
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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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HH93-09 : HAVEN CHIKUMBU vs BRYDEN TECHINICAL SERVICES (PRIVATE) LIMITED AND THE REGISTRAR OF DEEDS AND THE DEPUTY SHERIFF FOR HARARE
Ruled By: CHITAKUNYE J

The first respondent owns an immovable property known as Stand 237 Redcliff Township of Redcliff Estate Situate in the district of Kwekwe..., also known as Number 5 McNab Road, Redcliff. On 30 April 2007, the Board of Directors of the first respondent passed a resolution to dispose of that property with a view to buying another ...
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HH105-09 : CAFCA LIMITED vs HIGH PEAK MARKETING (PVT) LIMITED
Ruled By: MTSHIYA J

It is also common cause that in a separate agreement, the parties had agreed that, depending on an agreement on a purchase price, the respondent would buy the premises. As revealed in the papers before the court, the parties were never able to agree on a purchase price for the premises. The premises, therefore, remained the ...
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HH111-09 : ELLEN SIMON vs FUNDA SAIMON
Ruled By: KUDYA J

The plaintiff sues for the eviction of the defendant from her plot while the defendant counter-sues for the transfer of title, rights and interest in a portion of the same plot. The plaintiff testified and called the evidence of two other witnesses who were her daughter, Eneresi Simon, and an employee of the Epworth Local Board, Cagewell ...
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HH124-09 : MAXWELL TAWODZERA AND MARGARET TAWODZERA vs DANNY MASUKUMA
Ruled By: MAKARAU JP

On 8 October 2008, the parties attended upon the defendant's legal practitioners where they were presented with a draft Agreement to sign. The Agreement reflected that the purchase price of the two properties sold was the sum of $265,000= and that a deposit of $85,000= was to be paid upon the signing of the Sale ...
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HH133-09 : EZERA MUSHANDIKWA vs NATIONAL RAILWAYS OF ZIMBABWE AND THE DISTRICT CIVIL ENGINEER N.O. FOR NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: MTSHIYA J

Counsel for the applicant said, in terms of clause 2.2.3 of Special Notice 2313, a market price for the property would have been easily established by Messrs. Richard Ellis and the applicant would have been prepared to accept such a price.
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HB46-09 : HERBERT SIKHOSANA vs ESTATE LATE A MTSANA and SHOWLAST NCUBE and NAPFUTALI SIBANDA and ZANELE NCUBE and NOKUTHULA MTHETHWA and ORS
Ruled By: NDOU J

The applicant is seeking an order in a draft in the following terms: “It is ordered that: (1) Upon tendering of the balance of the purchase price by the applicant, first to fifth respondents be and are hereby directed to take all reasonable steps necessary to effect transfer of Stand 3553 Emganwini, Bulawayo, into applicant's name. (2) In the event ...
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HB90-09 : FIOS NCUBE vs TICHAONA GOMBA and ZIM-AUSTRALIA (PVT) LIMITED and CITY OF BULAWAYO
Ruled By: KAMOCHA J

The plaintiff, who is employed as a painter in South Africa, told the court that, during the year 2000, he approached a company known as Zimbabwe-Australia (Pvt) Ltd..., seeking to buy a Stand. Some official there told him that he had to pay what was termed “construction money” in the sum of $280,000= in ...
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HH64-10 : STATIONERY BOX (PVT) LTD vs NATCON (PVT) LTD and FARAI NDEMERA
Ruled By: MAKARAU JP

The general rule is that once the parties are in agreement over the merx and the payment of the purchase price payable for the merx, a valid contract of sale comes into being between the parties. The contract them casts upon the seller the obligation to deliver the merx sold and upon the purchaser, the obligation to ...
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HH277-10 : BENCHILL INVESTMENTS (PVT) LTD vs BATTERY WORLD (PVT) LTD
Ruled By: KUDYA J

The suggestion, in cross examination, that overpayment betrayed the absence of a fixed price was demonstrably wrong. It was accepted by Graham Pierce Mommsen, the Managing Director of the defendant that at the time prices of batteries were controlled by the National Incomes and Pricing Commission.
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HB23-13 : FOOTBALL CLUB WINDERMERE vs ASSOCIACAO DOS PORTUGUESE and THE CITY OF BULAWAYO
Ruled By: KAMOCHA J

On 30 May 2007, one A P Da Silva, a representative of the Portuguese Club, addressed a letter to Football Club Windermere in the following terms:- “Dear Sir, Re: Purchase of Portuguese Club I refer to your letter dated 1st March 2007 and we have not had any further communication from you as to your meeting with Mr Magagula, ...
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SC07-09 : ASHANTI GOLDFIELDS ZIMBABWE LTD vs CLEMENTS KOVI
Ruled By: SANDURA JA, CHEDA JA and ZIYAMBI JA

In his own heads of argument before the court a quo, the respondent correctly states the legal position to the effect that: "A sale in Roman-Dutch law has been defined as a contract in which one person promises to deliver a thing to another, who, on his part, promises to pay a certain price." In this, ...
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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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HH06-09 : MARIA KATSIGA vs HILDA CHARLIE and NYASHA MACHAKAIRE and MASTER OF HIGH COURT and REGISTRAR OF DEEDS
Ruled By: KUDYA J

On the face of it, exhibit 5 would satisfy the basic tenets of an Agreement of Sale. The thing to be sold is identified and the price is indicated. The intention to sell and buy is pre-supposed. In addition, the signatures of the seller, buyer and witnesses are appended in the agreement.
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HH637-15 : RICHARD MUDHANDA vs JENNIFER BROOKER and REGISTRAR OF DEEDS
Ruled By: MUREMBA J

An Agreement of Sale is not an agreement to transfer ownership. MACKEURTAN: Sale of Goods in South Africa…, states that there are three (3) essential elements of a contract of sale. They are; (i) The agreement (consensus ad idem); (ii) The thing sold (merx); and (iii) The price (pretium). The parties enter into a contract with a view to exchange the thing for a price. ...
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HH06-18 : SIMBARASHE PASIPAMIRE vs GLOBAL PROPERTY ADVISORY & TECHNICAL SERVICES
Ruled By: MANGOTA J

Four elements constitute the contract of purchase and sale. These are: (a) The seller who wants to sell; (b) The buyer who wants to buy; (c) The thing or the subject–matter of the contract; and (d) The price. See NORMAN's Purchase and Sale in South Africa 4th ed…,: MACKENRTAIN's Sale of Goods in South Africa, 4ed…,. Where one of the elements is missing, the contract is not one of sale.
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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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HH309-13 : WILLIAM BAIN & COMPANY HOLDINGS (PRIVATE) LIMITED vs AMON NYAMUKUNDA
Ruled By: MATHONSI J

The applicant and the respondent enjoyed an employer-employee relationship for a period of 16 years; the respondent having been taken in initially as a low level employee, but, to his credit, rising through the ranks to the position of Branch Manager for Marondera. At some stage during the period of employment, the respondent was issued with the employer's ...
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HH139-18 : MARIA SITHOLE vs MATHIAS SITHOLE and CECK ENTERPRISES PL and B.R.M HOVE and PETER DZIMBA and MANNERS JARAVAZA and PARDON CHAKANYUKA and REGISTRAR OF DEEDS
Ruled By: DUBE J

This case concerns a sale and transfer of property carried out contrary to a court order.It is trite law that a thing done contrary to the direct prohibition of a court order is void and is of no legal effect. Such a thing is regarded as never having been done. ...
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HH39-09 : WARREN PARK TRUST vs ANTHONY PAHWARINGIRA and NTOMBIZODWA PAHWARINGIRA and DAVY MUTINGWENDE and CHIPO MUTINGWENDE and SALTANA ENTERPRISES PL
Ruled By: BHUNU J

The applicant is a Trust duly registered in terms of the laws of this country whereas the fifth respondent is a limited liability company registered in terms of the laws of this country. The first to fourth respondents are sole shareholders and directors in the fifth respondent, Saltana Enterprises (Pvt) ...
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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
SC09-21 : ANDERSON MANJA and 98 OTHERS vs SHERIFF OF ZIMBABWE and GURTA MINING AG
Ruled By: MAVANGIRA JA, UCHENA JA and MATHONSI JA

This is an appeal against the whole judgment of the High Court handed down on 3 June 2020 which upheld the second respondent's claim to immovable property and/or mining claims located in Mashonaland West placed under judicial attachment by the first respondent for sale in execution of a judgment.The judgment ...
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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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HH746-19 : SHERIFF FOR ZIMBABWE (APPLICANT) vs WELLI-WILL INDUSTRIES (PVT) LTD (CLAIMANT) and MALVERN IMBAYAGO (JUDGMENT CREDITOR)
Ruled By: DUBE-BANDA J

This is an interpleader application and the Sheriff of Zimbabwe is the applicant.The facts of this case are interwoven and intricate. It is therefore important that I give a detailed background of the facts preceding this application.For ease of reference, and where the context allows, I will refer to the ...
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SC61-21 : COSMA CHIANGWA vs DAVID KATERERE and ROBERT CAMPBELL LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE AJA

This is an appeal against the whole judgment of the High Court (“the court a quo”) handed down on 15 June 2011 wherein the court a quo granted an application for a declaratur that the sale and transfer of Stand 382 Good Hope Township to the appellant was null and ...
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Appealed
HH122-11 : DAVID KATERERE vs COSMA CHIANGWA and ROBERT CAMPBELL-LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT
Ruled By: MAVANGIRA J

In 1999, the applicant herein entered into an agreement of sale in terms of which he purchased an immovable property from the estate of the late Johanna Maria Fransisca Logan as represented by the executrix testamentary of the estate.The immovable property, described as Stand 382 Good Hope Township of Subdivision ...
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SC89-21 : KENNEDY NGIRAZI and NAN JIANG MINE (PVT) LTD vs EMMANUEL RENSBURG and MEGAMANIA AUCTIONEERS and SHERIFF OF THE HIGH COURT N.O.
Ruled By: BHUNU JA, MATHONSI JA and CHIWESHE JA

This is an appeal against the whole judgment of the High Court handed down on 23 July 2020 which declared the first respondent the rightful owner of a Cat Caterpillar Dump Truck 769C. The Caterpillar was purchased by the first respondent at a judicial auction conducted by the Sheriff on ...
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Appealed
SC110-21 : UPSET INVESTMENTS (PRIVATE) LIMITED vs CHITUNGWIZA MUNICIPALITY
Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

This is an appeal against the judgment of the High Court dismissing the appellant's claim for US$119,300 being the balance of the purchase price for a 20-tonne Hyundai Excavator sold and delivered by the appellant to the respondent.In dismissing the appellant's claim, the court a quo upheld the respondent's counterclaim ...
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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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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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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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HH99-18 : C F (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

As was clearly pronounced in Commissioner for Inland Revenue v Conhage (Pty) Ltd (formerly Tycon (Pty) Ltd 1999 (4) SA 1149 (SCA)…,; 61 SATC 391 (SCA)…, the passing of ownership is not an essential element to a sale.
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HH103-12 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED T/A FREDA REBECCA MINE vs TATENDA TAKAVADA
Ruled By: MUTEMA J

This is an application for summary judgment whose draft order reads:“1. The respondent be and are (sic) hereby ordered to vacate the plaintiff's premises to wit House No. 1117 Haka Way, Chipadze Township, within seven (7) days of this order.2. The respondent pays costs of suit.”This is one of several ...
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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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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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HH271-13 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDDA REBECCA MINE vs NYASHA MUTENGWA
Ruled By: MAWADZE J

This is an application for summary judgment wherein the applicant seeks the eviction of the respondent and all those claiming occupation through him from House Number 1131, Chipadze Township, Bindura and costs of suit.The facts of this matter are largely common cause:The respondent was employed by the applicant. With the ...
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HH385-13 : WEBSTER RUSHESHA (as legal guardian of Panashe Rushesha and Tivonge Rushesha) and RASAR INVESTMENTS (PVT) LTD vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INVESTMENTS (PVT) LTD and MATTHEW BOKA and REGISTRAR OF DEEDS
Ruled By: ZHOU J

This is an action instituted by the plaintiff claiming the following relief which is set out in the summons:“1. An order declaring that:(i) The purported sale between first and second defendants for the sale of 100% shareholding in second plaintiff, on or about 12th February 2009, and all actions flowing ...
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