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Variation of Contracts re: Deed of Settlement, Compromise Agreement iro Assignment, Cession, Novation and Subrogation

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

The authorities emphasize the conception of a cession as a bilateral agreement to transfer rights from one person to another. It cannot be a unilateral act. In LTA Engineering Co. Ltd v Seacat Investments (Pty) Ltd 1974 (1) SA 747(A)…, JANSEN JA said:“A cession is now considered to be a bilateral juristic act (agreement) whereby the ...
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HH38-10 : LUCIA MUNYANYI vs LIMINARY INVESTMENTS AND ISRAEL GUMUNYU N.O.
Ruled By: MAKARAU JP

Counsel for the applicant has strenuously argued that the applicant was indulging the first respondent in allowing her to take occupation of the property prior to the date of transfer. He proceeded to submit that since this was an indulgence, it could be withdrawn at any time as the Agreement between the parties provided that ...
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HH20-12 : JANE PHIRI vs PATSON NAWASHA
Ruled By: MUTEMA J

The dispute in casu is steeped in the sale of a deceased immovable property whose purchase price was paid by the applicant but transfer of which the respondent failed to effect. The draft order the applicant seeks is couched in these words: “IT IS HEREBY ORDERED THAT: 1. The respondent is hereby ordered to deliver and register a four roomed house; ...
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HH112-12 : ASTRA STEEL & ENGINEERING SUPPLIES (PVT) LTD vs P M MANUFACTURING (PVT) LTD
Ruled By: MUTEMA J

In March 2008, the plaintiff and the defendant concluded an agreement in terms of which the plaintiff paid Z$2,750,000,000,000= (two trillion seven hundred and fifty billion dollars) for 2,200 x 195R14 brand new tyres which the defendant allegedly agreed to deliver by 2 March 2008. To date, the defendant has only delivered 200 tyres leaving ...
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HH05-10 : JACKSON MUGUTI vs UBOXIT WORLDWIDE (PVT) LTD AND TWO OTHERS
Ruled By: MAKARAU JP

On 31 July 2008, the defendants' contracted with a freight company, trading under the name Dunquist Freight (Private) Limited, to convey consignments from Harare and Mazoe to Lusaka. The parties agreed on a fee of US$6,500=. This was at a time when the official currency of trade in the country was the now defunct local currency. A deposit ...
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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

The first Agreement is dated 17 May 2005 and is valid for the duration of ten years extending from 23 May 2005 to 22 May 2015. On the other hand the second Agreement is dated the following day, 18 May 2005, and is for the duration of three years from 23 May 2005 to ...
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SC54-13 : MIDKWE MINERALS (PRIVATE) LIMITED vs KWEKWE CONSOLIDATED GOLD MINES PL and CARSLONE ENTERPRISES PL and DEPUTY SHERIFF, KWEKWE
Ruled By: CHIDYAUSIKU CJ, ZIYAMBI JA and MUTEMA AJA

After hearing submissions by counsel, the Court dismissed the appeal with costs on the higher scale of legal practitioner and client and indicated that the reasons for its judgment would follow. The following are the reasons.On 1 February 2006, and in terms of the Mines and Minerals Act [Chapter 21:05], the first ...
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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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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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HH45-11 : JACKSON MUGUTI vs WILSON SUNDUZA
Ruled By: MUSAKWA J

Even a look at the letter of cession leaves one doubting its authenticity. It is not signed on behalf of Cell Insurance since it is trite that a corporate entity has no physical attributes of a natural person. Even the diction used in drafting the document is so poor that it cannot be associated with ...
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HH52-14 : CREDIT INSURANCE OF ZIMBABWE vs TEXTBOOK SALES
Ruled By: TAKUVA J

The respondent's legal argument is flawed in that it is anchored on a misconception of law. The applicant's claim is not based on “subrogation” as put by the respondent in its opposition. It is based on cession of rights. There is a fundamental difference between the two. Subrogation relates to a situation where an insurer makes payment ...
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HH196-14 : EDWARD K. SHAMUTETE vs MYCROFT ENGINEERING (PRIVATE) LIMITED
Ruled By: MATANDA-MOYO J

The plaintiff issued summons against the defendant on 26 April 2012 for the payment of $94,465= for maize allegedly supplied at the instance of the defendant. In its declaration, the plaintiff alleged that the defendant and a Zambia company, by the name Linking Africa, entered into an agreement whereby Linking Africa would supply white maize ...
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SC57-15 : D. L. MAKGATHO vs OLD MUTUAL LIFE ASSURANCE (ZIMBABWE) LIMITED
Ruled By: GWAUNZA JA, GARWE JA and PATEL JA

The position may now be regarded as settled that the mere extension of time within which to fulfil a contractual obligation does not amount to a novation – National Development Bank Ors. In re: National Development Bank v Masunga Meat Market (Pty) Ltd Ors 2006 (2) BLR 240. There was ...
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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

A party that elects to ignore the terms of a contract that it entered into freely, to unilaterally substitute a third party for itself in that contract and to then seek to rely on such conduct to escape liability in terms of the contract is engaging in an exercise in futility This is particularly so where the ...
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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

As summarised in the case of Page Automation (Pvt) Ltd v Profusa Properties t/a Homenet OR Tambo and Others 2013 (4) SA 37 (GSJ)…, the elements of a cession are as follows: (a) An act of transfer; (b) The subject matter of the transfer is a right in movable incorporeal thing; (c) The transfer is effected by agreement between the cedent and the cessionary; and (d) The agreement consists of ...
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HH58-15 : WILBERG INVESTMENTS (PVT) LTD vs TWALUMBA HOLDINGS (PVT) LTD
Ruled By: MATHONSI J

A simple definition of novation can be found in R.H. CHRISTIE, Business Law in Zimbabwe, ed 2, Juta Co Ltd…, where the learned author states: “Novation means the replacing of an existing obligation by a new one, the existing obligation being thereby discharged….,. Because novation involves a waiver of existing rights, it follows that it ...
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HH711-15 : GOLDSEARCH TECHNICAL SERVICES (PRIVATE) LIMITED vs TAONGA MUKONOWESHURO and SHERRIFF OF ZIMBAWE
Ruled By: TSANGA J

With novation, it must be apparent that the parties intended to extinguish, as opposed to merely modifying, an original agreement.
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Appealed
SC21-19 : RONALD BAKARI vs TOTAL ZIMBABWE (PRIVATE) LIMITED
Ruled By: GARWE JA, GUVAVA JA and BHUNU JA

Novation was defined by ZIYAMBI JA in the case of Mupotola v Southern African Development Community SC07-06 where she stated as follows: “Novation means replacing an existing obligation by a new one, the existing obligation being thereby discharged. See, The Law of Contract in South Africa, Third Ed, by R.H Christie at p498. The above definition pre-supposes that both the ...
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Appealed
SC74-20 : SHAILLON CHISWA vs CAR RENTAL SERVICES PL t/a AVIS RENT A CAR and BERNARD CHISWA
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

This is an appeal against the whole judgment of the High Court handed down on 24 September 2018 wherein it granted the first respondent's claim against the appellant.BACKGROUND FACTSThe following facts are common cause;The second respondent, Bernard Chiswa (“Bernard”), entered into a car hire agreement with the first respondent, Car ...