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Termination of Contracts and Notice of Cancellation re: Approach, Repudiation, Debtors Mora and Effect of Breach of Contract

HH14-09 : TENDAI MUZA vs CHRISTINA MUWIRIMI and FATIMA MURWISI and MUNICIPALITY OF CHITUNGWIZA
Ruled By: MTSHIYA J

On 17 April 2007 the plaintiff issued summons against the defendants claiming the following: “(a) An order that the plaintiff be declared the owner of Stand Number 14826 Unit 'O', Seke, Chitungwiza; (b) An order that the third defendant be ordered to cede rights, title and interests in House Number 14826 Unit 'O', Seke, Chitungwiza to the plaintiff; and (c) Costs ...
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HH71-09 : AGRO CHEM DEALERS (PVT) LTD vs STANLEY GOMO and CITY OF HARARE and RONALD AJARA and THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

It is trite that where cancellation is lawful and justified on account of breach it takes effect from the time that the innocent party communicates the breach to the defaulting party. For this proposition, see Bako Anor v Bulawayo City Council 1996 (1) ZLR 232…, wherein GUBBAY CJ stated the following dicta: “Thus, it is those ...
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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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SC21-09 : ZIMBABWE EXPRESS SERVICES (PRIVATE) LIMITED vs NUANETSI RANCH (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GWAUNZA JA and GARWE JA

This is an appeal against the decision of the High Court dismissing with costs the appellant's claim for delivery of two hundred heifers and two hundred steers. The background to this matter is as follows; At the relevant time, Nuanetsi Ranch (Pvt) Ltd (“the respondent”) was one of the largest cattle breeders in the country. During 2003, the respondent ...
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HH165-12 : MINING INDUSTYRY PENSION FUND vs FARTINGALE DESIGN (PVT) LTD AND LETINA UNDENGE
Ruled By: KUDYA J

The non-timeous payment of rent was a fundamental breach of the lease entitling the plaintiff cancellation of the lease agreement.
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HB12-12 : KENNEDY GWAMURE vs DINGANI TSHUMA
Ruled By: NDOU J

On the notice of cancellation, it is trite that it must be clear and unequivocal and takes effect from the time it is communicated to the other party.
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HB12-12 : KENNEDY GWAMURE vs DINGANI TSHUMA
Ruled By: NDOU J

A notice of intention to cancel must be such that the other party is or ought to be aware of its nature, but it is not necessary to use the word "cancellation." The intention to cancel may be made sufficiently clear in other ways.
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HB12-12 : KENNEDY GWAMURE vs DINGANI TSHUMA
Ruled By: NDOU J

The fundamental flaw in the notice of cancellation in this case is that it was not communicated to the applicant. Instead, the respondent communicated it to his own agent who apparently did not communicate it to the applicant. In any event, the termination of mandate given to the agent was not communicated to the ...
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HH03-09 : RACHEL MEYERS-MBIDZO N.O vs JOHN MARK CHIPUNZA AND REGISTRAR OF DEEDS
Ruled By: MTSHIYA J

Poor business decisions and greed cannot be allowed to interfere with the sanctity of contracts. The courts cannot, and should not, allow the sanctity of contracts to be destroyed by any factor that does not establish a breach of the terms of the contract.
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HH03-09 : RACHEL MEYERS-MBIDZO N.O vs JOHN MARK CHIPUNZA AND REGISTRAR OF DEEDS
Ruled By: MTSHIYA J

It has become common, in our economic environment, for greedy parties in commercial/business transactions to manufacture imaginary breaches of contracts when trying to address sudden effects of inflation. That..., cannot be allowed. Parties are, in general, always aware of the conditions under which they are contracting and should therefore spell out necessary protections within their ...
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HH40-08 : DHLIWAYO RODGERS vs SHAUN MANDAA KUDINGA
Ruled By: MTSHIYA J

This is an opposed application wherein the applicant seeks the following order:“1. The notice to terminate the lease agreement entered into between the applicant and the respondent on 28 August 2003 in respect of Number 5 Jacaranda Close, Hatfield, Harare be and is hereby declared null and void.2. The applicant ...
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SC17-09 : ELIZABETH MUTIZHE vs LOVENESS GANDA and THE REGISTRAR OF DEEDS and FANNIE MUTIZHE
Ruled By: MALABA DCJ

Cancellation of a contract is lawful when it is in accordance with the terms and conditions of the contract between the parties. It is also lawful where there has been a repudiation of the contract which is accepted by the innocent party as a breach relieving him from future performance ...
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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

It is also apparent that the reason for the cancellation is the change in price of the property the first respondent intended to buy after disposing of 5 McNab Street, Redcliff.
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HH144-09 : NEGOWAC SERVICES (PRIVATE) LIMITED vs 3D HOLDINGS (PRIVATE) LIMITED AND GIFTCARE ELECTRICAL (PVT) LTD t/a REG ELECTRICAL WHOLESALERS
Ruled By: MTSHIYA J

The record shows that with effect from 1 February 2004, the plaintiff leased to the first defendant offices 5,7,8,9, and A1, Strathaven Shopping Centre, 17 Browning Drive, Strathaven, Harare. The lease was, subject to the agreed terms, renewable, and, indeed, the lease agreement remained in force until 8 April 2009 when the plaintiff, through its ...
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HH145-09 : TAKAVADA MAPFUMO vs PREMIER SERVICE MEDICAL INVESTMENTS (PVT) LTD AND DEPUTY SHERIFF AND RANGANAYI CHARLES MUBVUMBI
Ruled By: UCHENA J

The question to be answered is; would the first respondent have entered into the agreement if the applicant had not misrepresented the facts. In my view, it would not, because in terms of the agreement..., the agreement was premised on 50% of the price having been paid through deductions. No such deductions were made. The price ...
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HH154-09 : PETHIAS CHITSUNGO vs D. MASUKU and RUWA LOCAL BOARD
Ruled By: MTSHIYA J

This is an opposed application where the applicant seeks the following relief:- “1. Applicant shall deposit $10,000,000,000= into the Registrar of High Court's temporary deposit account the outstanding balance towards the purchase price of Stand No.3519, Dzivaguru Crescent, Ruwa, for first respondent. 2. Thereafter, first respondent shall proceed to cede his rights, interests and title in Stand No.3519, Dzivaguru Crescent, ...
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HB37-09 : MARGRET CAROL COLER vs MAXWEL SHUMBA
Ruled By: KAMOCHA J

At the trial, the parties agreed that there was only one issue for determination of the court, which was whether or not the cancellation of the agreement was in terms of the Contractual Penalties Act [Chapter 8:04]. In brief, the facts giving rise to this dispute were these. The plaintiff in this matter has emigrated to ...
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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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HB94-09 : NOMALANGA SIBANDA vs GIVEN NYATHI and SEHLISO NYATHI and THE REGISTRAR OF DEEDS, BULAWAYO and BEN BARON AND PARTNERS
Ruled By: KAMOCHA J

Not only does the purported cancellation fall foul of the provisions of the Contractual Penalties Act [Chapter 8:04] but it was also contrary to clause 8 of the Memorandum of Agreement, which provides that – “Should any party fail to remedy any serious breach of this agreement within fourteen days of demand to that effect, the ...
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HH11-10 : NABANE ROY TSHUMA vs TONGAI MUSEMBURI and TENDAI MUSEMBURI and MACKSON TOTSHANE NCUBE and THE REGISTRAR OF DEEDS
Ruled By: KARWI J

Tendai Musemburi said the third defendant, who had been out of the country, returned on 13 April 1985. He said the third defendant gave them an extension of two months – up to 13 June 1985. They failed to pay in terms of the Agreement from the month of July to October 1984. This was because ...
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HH25-10 : MAXWELL MATSVIMBO SIBANDA vs GWYNNE ANNE STEVENSON
Ruled By: CHITAKUNYE J

On 27 April 2007 the defendant purported to cancel the Deed of Sale as the plaintiff had not paid the first instalment.The plaintiff challenged the cancellation of the Deed of Sale.In terms of clause 4 of the Deed of Sale, the first instalment was supposed to have been paid on or before 31 March 2007 ...
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HH67-10 : JAMES MUTETWA vs BARRIE DIXON and MARKO MAVHURUNE N.O. (as Executor Estate Late Samuel Mushaninga) and KENIAS MUTYASIRA N.O. (as Executor Estate Late Salome Chisvo) and REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

Assuming that I have erred in holding that the written agreement was concluded without the necessary animus and is thus not binding between the parties, I still would have refused the applicant an order of specific performance on the same. By his own confession, the applicant is in breach of the agreement. It was a specific term ...
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HH107-10 : CHIROSWA MINERALS (PRIVATE) LIMITED and BASE MINERALS (PRIVATE) LIMITED vs MINISTER OF MINES and MORIS TENDAI NYAKUDYA and VAMBO MILLS (PRIVATE) LIMITED
Ruled By: BHUNU J

On..., August 2006, the parties concluded another agreement nullifying the principal agreement and concluding a fresh Agreement of Sale the terms of which provided as follows - “The principal agreement was signed and witnessed on the 8th day of August 2005. Whereas it is agreed that:- 1.0 The principal Agreement became null and void on 30 June 2006 ...
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SC36-13 : DINESH MANIAL NARAN vs RONNAH MAFURIRANO and THE REGISTRAR OF DEEDS
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JA and MAKONESE AJA

The appellant issued summons in the High Court, Bulawayo, seeking an order declaring the sale agreement concluded between him and the first respondent to be valid and binding on the parties as well as an order compelling the first respondent to transfer, to the appellant, her rights title and interest in Stand Number 378 ...
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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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HH161-10 : NEVER BVOCHORA vs DOUGLAS TOGARASEI MWONZORA (In his capacity as The executor Dative of the Estate Late I.V. Rukatya)
Ruled By: HUNGWE J

The defendant, in his evidence, states that the parties entered into one Agreement, exhibit 1. The plaintiff paid Z$350 million in 2006. He failed to pay the balance and the defendant cancelled the Agreement. The defendant, therefore, disputes that the plaintiff is entitled to specific performance as he is in default of the Agreement.
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HB12-10 : BETTY GASELA vs LEONARD MALINGA and BULAWAYO CITY COUNCIL and THE REGISTRAR OF DEEDS
Ruled By: KAMOCHA J

Leonard Malinga's allegation that the cancellation of the contract between him and the City of Bulawayo was due to the applicant's dilatoriness in applying for a Development Permit is without foundation. The more likely reason why the contract was being cancelled was that he had not effected any development on the property in a period ...
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HB63-10 : SALLY MAPLANKA vs B. A. NCUBE HOLDINGS
Ruled By: NDOU J

The next question for consideration is whether or not the plaintiff validly cancelled the lease agreement. The written lease agreement does not contain any clause stating the method of cancellation or notification of the cancellation. As a general rule cancellation must be communicated to the other party – Swart v Vosloo 1965 (1) SA 100 (A)…, and Phone-a-Worldwide ...
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HH11-13 : FLORENCE SIGUDU vs MINISTER OF LANDS AND RURAL RESETTLEMENT N.O. and PHINEAS CHIHOTA
Ruled By: PATEL J

Whether Offer Letter Withdrawn or Cancelled In terms of paragraph 3 of the conditions attaching to the applicant's offer letter, the offer may be cancelled or withdrawn for breach of any of the conditions set out in the letter. In view of my earlier finding that the applicant did comply with the requisite conditions, there does ...
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HH147-11 : FANUEL MWAYERA vs MOLLY CHIVIZHE and STANLEY CHIVIZHE and THE REGISTRAR OF DEEDS and GILBERT JONGA
Ruled By: CHITAKUNYE J

It may also be noted that the applicant did not state that he ever put the fourth respondent in mora before purporting to cancel the Agreement of Sale. The fourth respondent was not put in mora and so the purported cancelling could, on that ground, not stand.
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Appealed
HH158-11 : TRUSTCO MOBILE (PTY) LIMITED and TRUSTCO GROUP INTERNATIONAL (PTY) LIMITED vs ECONET WIRELESS (PRIVATE) LIMITED and FIRST MUTUAL LIFE ASSURANCE COMPANY (PRIVATE) LIMITED
Ruled By: MUTEMA J

On 17 August 2010, the first applicant and the respondents concluded a tripartite agreement in terms of which the first applicant undertook to provide the first respondent with certain software and support services to facilitate provision of free life insurance cover to Zimbabwean cellular phone users and customers of the first respondent against the purchase ...
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HB65-13 : ANATOTH MINING (PVT) LTD vs BRIGHTON NYAMUCHO and GARLOREM RESOURCES (PVT) LTD t/a KIMS INVESTMENTS
Ruled By: KAMOCHA J

On 30 July 2012, the first respondent wrote a letter to the applicant purportedly to cancel the Tribute Agreement with the applicant. The purported cancellation was, however, contrary to the provisions of clause 10 of the Tribute Agreement between the parties which provides:- “(1) Should the Tributor commit any breach of the conditions of this agreement ...
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HB158-13 : KERRIES ENGINEERING (PVT) LTD vs MAKOMO RESOURCES (PVT) LTD
Ruled By: MAKONESE J

2. Was the arrival of the plaintiff's crane at the defendant's mine on Thursday, 26th January 2012, a breach of the contract? The position is now settled in our law that: ''Notice of cancellation must be clear and unequivocal and takes effect from the time it is communicated to the other party.'' See R H CHRISTIE, The ...
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HH338-14 : MAFIRAMBUDZI FAMILY TRUST vs LIBERTY MADZINGIRA and PANNAH NHIWATIWA and THE REGISTRAR OF DEEDS N.O. and THE SHERIFF
Ruled By: TAKUVA J

The first and second respondents also submitted, in their heads of argument that the applicant was in breach of the Agreement of Sale in that it failed to pay the purchase price in full. As regards this alleged breach of the Agreement, the first and second respondents raised this issue in both the notice of opposition ...
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SC43-13 : ECONET WIRELESS (PVT) LTD vs TRUSTCO MOBILE (PROPRIETARY) LTD and TRUSTCO GROUP INTERNATIONAL (PROPRIETARY) LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and GARWE JA

WHO BETWEEN THE PARTIES REPUDIATED THE AGREEMENT AND WHETHER THE APPELLANT LAWFULLY TERMINATED IT As correctly found by the court a quo, this is the axis of the matter between the two parties. In his submission, counsel for the appellant contended that on a proper reading of the letters of 31 May 2011 and 3 June ...
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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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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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HH797-15 : PETER KAZINGIZI and THERESA MUCHABAIWA KAZINGIZI vs EQUITY PROPERTIES (PVT) LTD
Ruled By: MATHONSI J

How would one seek to cancel a non-existent agreement?
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HB149-16 : MUNATSI SHOKO vs OLD MUTUAL ZIMBABWE LIMITED
Ruled By: MOYO J

It is trite law that once a contract has been entered into it can either be cancelled on notice as per the provisions of the agreement, or mutually by the parties, or through an order of the court - where mutual agreement cannot be reached.
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HH114-15 : THEMPSON MUZVAGWANDOGA and DZOKAI MUZVAGWANDOGA vs MAI-KAI REAL ESTATE DEVELOPMENT TRUST and BERNARD MUTANGA and MOLLY DINGANI and THE REGISTRAR OF DEEDS
Ruled By: MAFUSIRE J

This case was a double sale situation. At this stage, I use the phrase “double sale” in a non-legal sense, simply to denote that the immovable property in question was sold twice by the same person to two different parties. Whether or not there was a double sale in the legal sense is one of the ...
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HB157-16 : NRZ CONTRIBUTORY PENSION FUND vs JOSRO ENTERPRISES (PVT) LTD t/a ASCOT PUB & GRILL
Ruled By: TAKUVA J

The applicant's contention is that the respondent's refusal to sign a written lease agreement renewing the lease entered into on 20th October 2004, which expired on 30th November 2013, constitutes repudiation by the respondent of the landlord-and-tenant relationship between the parties. The basis of the applicant's contention is that from July 2013 it changed its real estate agents ...
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Appealed
HH151-16 : SHORAI NZARA and ARROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN and vs CECILIAH KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: MAFUSIRE J

In terms of the Contractual Penalties Act [Chapter 8:04], no cancellation of an instalment sale of land on account of breach where the purchase price is paid over three or more instalments, or by way of a deposit and two or more instalments, is valid unless the purchaser is given not less than 30 days' notice, ...
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HH63-13 : BLESSMORE Z. MABVURAMITI vs ALTFIN INSURANCE COMPANY
Ruled By: MAFUSIRE J

The plaintiff's argument, in the letter from his legal practitioners, seems to be confusing the issues of interpellatio and mora ex persona. Even though he accepts that he did not pay the last premium, the plaintiff insists on the contract being treated as having remained alive because, according to paragraph ...
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Appealed
HH86-13 : GOLDEN MILLION ENGINEERING (PVT) LTD vs METTALON GOLD ZIMBABWE (PVT) LTD
Ruled By: KUDYA J

The third issue that was referred to trial was whether proper demand was made for payment before the issue of summons.It is clear to me that the letter of 21 November 2011 did not constitute a letter of demand. It did not set out the amount of indebtedness. It did ...
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Appealed
SC05-18 : JENNIFER BROOKER and ADRIENNE PIERCE vs RICHARD MUDHANDA and THE REGISTRAR OF DEEDS
Ruled By: GOWORA JA, HLATSHWAYO JA and BHUNU JA

In Smart v Rhodesian Machine Tools Ltd 1950 (1) SA 735 (SR), TREDGOLD J…, accepted the general rule that where a contract fixes no time for performance, the debtor is not in mora until a reasonable time for performance has elapsed and the creditor has demanded performance. This principle, as stated above, was also highlighted in Asharia ...
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HH637-15 : RICHARD MUDHANDA vs JENNIFER BROOKER and REGISTRAR OF DEEDS
Ruled By: MUREMBA J

In Asharia v Patel Others 1991 (2) ZLR 276 (SC)…, GUBBAY CJ said: “The general applicable rule is that where time for performance has not been agreed upon by the parties, performance is due immediately on conclusion of their contract or as soon thereafter as is reasonably possible in the circumstances. But the debtor does ...
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Appealed
SC58-20 : YUSUF GAIBIE and MILLY GAIBIE N.O. vs ALEXANDER CASTANHEIRA and RACHEL CASTANHEIRA
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

This is an appeal against the whole judgment of the High Court sitting at Bulawayo in which it granted absolution from the instance against the appellants' claim.FACTUAL BACKGROUNDThis is a contractual dispute. The appellants and the respondents entered into an Agreement of Sale in respect of a certain piece of ...
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HB179-18 : YUSUF GAIBIE and MAHMOUD GAIBIE vs ALEXANDER CASTANHEIRA and RACHEL CASTANHEIRA
Ruled By: MAKONESE J

The defendants have made an application for absolution from the instance at the close of the plaintiffs case.The defendants contend that the plaintiffs had failed to lead evidence upon which a court might find in favour of their claims. The application is made on the basis that an essential of ...
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SC107-20 : COLCOM FOODS LIMITED vs TARUVA TARUVA
Ruled By: GWAUNZA DCJ, GUVAVA JA and MATHONSI JA

This is an appeal against the whole judgment of the Labour Court handed down on 1 June 2018 dismissing, with costs, an appeal made by the appellant against an arbitral award made by an arbitrator on 18 July 2017.FACTUAL BACKGROUNDThe appellant is a holding company with subsidiaries which include Ballantyne ...
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HH39-11 : BLUMO TRADING (PVT) LTD vs NELMAH MILLING COMPANY (PVT) LTD and NELSON MAHUPETE
Ruled By: PATEL J

The plaintiff in this matter claims the sum of US$24,100 as special damages, being loss of profits arising from an alleged breach of contract by the defendants.It also claims restitution of US$10,000 paid as a deposit to the first defendant under the same contract.The defendants deny any breach on their ...
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