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Variation of Contracts re: Approach and Resolution of Contractual Lacunas

HH38-10 : LUCIA MUNYANYI vs LIMINARY INVESTMENTS AND ISRAEL GUMUNYU N.O.
Ruled By: MAKARAU JP

While not disputing that the Agreement of Sale stipulated that occupation would be given upon transfer, the first respondent contended that this clause was never implemented as the applicant had waived her right to enforce this provision by granting the first respondent occupation on an earlier date, and before the full purchase price had been ...
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SC13-09 : CALISTO CHIRENJE vs VENDFIN INVESTMENTS (PRIVATE) LIMITED AND TWO OTHERS
Ruled By: CHIDYAUSIKU CJ, SANDURA JA and MALABA JA

The express language of the Agreement itself confers on the contracting parties the unfettered power to amend the Agreement in the manner prescribed or provided for in the Agreement. Amendments to the Agreement can only be impugned on the basis of lack of compliance with the terms of the Agreement. Amendments in accordance with ...
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HH27-09 : ZIMRE PROPERTY INVESTMENTS LI MITED vs JOANDRISA ANIMAL FEEDS (PVT) LTD
Ruled By: UCHENA J

Clause 40.2 provides as follows-; “40.2 This agreement constitutes the whole of the agreement between the parties and no variations or collateral agreements shall be of any force or effect unless and until recorded in writing in a document or series of letters signed by the parties.” This means any variation or alteration of the terms of the ...
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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 by ...
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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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HH117-09 : MICHAEL KATEKETA vs ONE WORLD GALLERIES (PVT) LTD and A MPOPOMA
Ruled By: MAKARAU JP

On 30 October 2008, the plaintiff issued summons against the defendants claiming delivery of certain specified railway sleeper furniture. In his declaration, the plaintiff alleged that he and the defendants entered into an agreement in December 2007, in terms of which the defendants agreed to manufacture for him certain specified items of furniture. He further alleged that ...
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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

I wish to comment briefly on the alleged oral agreement between the applicant and the first respondent as claimed by the first respondent; she alleged that the applicant effectively sold the property back to her for $15,000,000 but that he frustrated her efforts to pay him the said amount. The applicant disputes that such an agreement ...
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HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER)
Ruled By: PATEL J

Article 39 of the Vienna Convention on the Law of Treaties (1969) states the general rule regarding the amendment of treaties, as follows:“A treaty may be amended by agreement between the parties. The rules laid down in Part II apply to such an agreement except in so far as the ...
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HH55-10 : JEREMY STANDER vs NELTRA INVESTMENTS t/a DOUGLAS CAR SALES
Ruled By: BERE J

A brief resume of the broadly common facts in this case are as follows - The plaintiff is a citizen of Zimbabwe residing in this country, and was the registered owner of a Toyota Hiace bearing registration number AAZ 7054. The defendant is a company duly registered in accordance with the company laws of this country, ...
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HH106-10 : COLLIN DUBE AND 129 OTHERS vs TUNGPAL INVESTMENTS (PVT) LTD and THE MESSENGER OF COURT, HARARE
Ruled By: BHUNU J

On 11 May 2010, the respondent's then lawyers, Manase Manase, wrote to the applicants' lawyer accepting payment in the in the amounts proposed by the applicants and considerately extending the due date of payment by a day from 10 May to 11 May 2010. The letter reads - “Dear Sir COLLIN DUBE AND ...
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HH121-10 : POWER COACH EXPRESS (PVT) LIMITED vs MARTIN MILLERS AND ENGINEERS
Ruled By: BERE J

The defendant's representative sought to justify the non-compliance with the specifications, initially, on the basis that during manufacturing they had realised they had run out of 6mm steel plate in their stock. It was the defendant's evidence that having faced this challenge they approached Mr. Muzondiwa, an employee of Total Zimbabwe, who authorized them to ...
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HH160-10 : TONDERAI HAMANDISHE and GAMUCHIRAI SANGARE vs MAFFACK PROPERTIES (PVT) LTD
Ruled By: MTSHIYA J

This is an opposed application wherein the applicant seeks the following relief: “1. The purported cancellation of the agreement of sale dated 17th October 2006 between the applicants and the respondents be and is hereby set aside. 2. The respondent be and is hereby ordered to forthwith transfer the undivided share in a certain piece of land situate in ...
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HH132-10 : CABINET MACHINGAMBI and PATRICIA CHIMBALAMI and SIMBAI MANGENA and OTHERS vs DOUGLAS NYAUDE and D. MNETSI ENTERPRISES and REGISTRAR OF DEEDS
Ruled By: BHUNU J

The thirteen applicants are members of Printers Housing Co-operative Limited. It is common cause that sometime around 2005 they concluded individual standard contracts of sale with the first respondent, Douglas Nyaude, a registered Estate Agent practicing under the style of Graham and Douglas Real Estate Agent. The contracts were in respect of the sale of ...
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HH227-10 : MIKE MAKOPE vs GEOFFREY DZUMBUNU and REGISTRAR OF DEEDS N.O. and MINISTER OF LOCAL GOVERNMENT
Ruled By: MAVANGIRA J

The only written agreement between the parties is exhibit 2..., which states in clause 1: “1. THE PURCHASE PRICE AND TERMS OF PAYMENT The property is sold by the Seller to the Purchaser for the sum of $6,500,000= (six million five hundred thousand dollars) to be paid as follows: (a) The purchaser pays cash in the sum of $6,500,000= (six ...
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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

Although accepting that the written contract was never varied in writing, it is suggested by the defendants that the parties communicated through correspondence which clearly established that there was an understanding between the parties that the defendants needed to source funds through the Reserve Bank of Zimbabwe in order to import the vehicles to be ...
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HH236-10 : NATIONAL SOCIAL SECURITY AUTHORITY vs ALEC RYALS AND SKOTRIL (PRIVATE) LIMITED and ALEC KAGURU
Ruled By: MUTEMA J

It is idle for the respondents to dig in the ashes by claiming that Darlington Mujati verbally authorised the renovations by the respondents to be reimbursed later, or that McDonald Chinyoka verbally promised to rectify the issue of set off that had been omitted to be incorporated in the lease agreement when the same ...
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HB95-16 : NATIONAL RAILWAYS OF ZIMBABWE CONTRIBUTORY PENSION FUND vs EKUTULENE INVESTMENTS t/a WALKERS PUB AND RESTAURANT and WAYNE ALLAN JONES
Ruled By: MATHONSI J

Where the parties have elected to restrict their own power to vary or discharge their contract by subsequent conduct by a non-variation clause providing that no variation of any of the terms of the contract shall be valid unless it is in writing, the terms of the contract shall bind the parties unless varied in ...
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HH797-15 : PETER KAZINGIZI and THERESA MUCHABAIWA KAZINGIZI vs EQUITY PROPERTIES (PVT) LTD
Ruled By: MATHONSI J

The plaintiffs did not agree to purchase the property but now the defendant wanted to impose new conditions not contained in the initial undertaking - and unilaterally for that matter. It could not lawfully do that.
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Appealed
SC41-18 : MARIAN CHOMBO vs IGNATIOUS CHOMBO
Ruled By: MALABA CJ, HLATSHWAYO JA and UCHENA JA

In terms of paragraph 29 of the Lease Agreement: “No variation or amendment of it is valid unless it is put in writing and signed by both parties.” This means any variation…, must be in writing and signed by the acquiring authority and the respondent.
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HB157-16 : NRZ CONTRIBUTORY PENSION FUND vs JOSRO ENTERPRISES (PVT) LTD t/a ASCOT PUB & GRILL
Ruled By: TAKUVA J

Waiver of the right to cancel was the fifth ground raised by the respondent. The argument is that by accepting the payment of overdue rentals outside the stipulated time, the applicant waived its right to rely on the failure to pay rentals on time as a ground for termination of the lease….,. Sub-clause 40.1 of the lease agreement ...
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HH169-15 : ZIMBABWE PLATINUM MINES (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY and STANBIC BANK and MNISTERS OF MINES AND MINING DEVELOPMENT and MINERALS MARKETING CORPORATION OF ZIMBABWE
Ruled By: MAKONI J

The Mining Agreement contains a non-variation clause and a non-waiver clause…,. What is the combined effect of such clauses in a contract? The headnote in Agricultural Finance Corporation v Pocock 1986 (2) ZLR 229 SC sums it all. “A non-variation clause in a contract entrenches the requirement that any variation has to be in writing but does not prevent ...
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HH06-18 : SIMBARASHE PASIPAMIRE vs GLOBAL PROPERTY ADVISORY & TECHNICAL SERVICES
Ruled By: MANGOTA J

An application in which the applicant moves the court to declare him the sole owner of the property which he and another person jointly purchased from the seller is misplaced. A fortiori when the application excludes his co-purchaser whose views remain unknown to the court. On 12 February 2004, the applicant and his former wife, one Virginia Pasipamire, purchased ...
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SC29-13 : BETTY KANYUCHI vs DRAWING SERVICES (PVT) LTD
Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

This is an appeal from a judgment of the High Court in which it granted an application for an eviction order against the appellant on the basis that the respondent was the owner of the property known as Stand number 3182 of Subdivision A of 159 of Prospect, Harare. The appellant was found not to ...