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Dispute Resolution re: Approach, Governing Law, Penalty Stipulations and Contractual Consequences of Breach of Contract

HH165-12 : MINING INDUSTYRY PENSION FUND vs FARTINGALE DESIGN (PVT) LTD AND LETINA UNDENGE
Ruled By: KUDYA J

The second is that the tenant must raise the dispute and initiate a written declaration of such dispute. Thereafter the parties agree on the expert. In the present matter, the tenant raised a dispute. It did not initiate a written declaration of the dispute but pursued dialogue and negotiation. Even when the dialogue failed.it neither ...
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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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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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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

Section 8 of the Contractual Penalties Act [Chapter 8:04] provides: “(1) No seller under an installment sale of land may, on account of any breach of contract by the purchaser - (a) Enforce a penalty stipulation or a provision for the accelerated payment of the purchase price; or (b) Terminate the contract; or (c) Institute any proceedings for damages, unless he ...
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HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

The plaintiff in this matter has issued summons for payment of the sum of EUR6,640,295=94 together with interest and costs of suit.The claim arises pursuant to a default judgment of the Regional Court of Frankfurt entered in favour of Kreditanstalt fur Wiederaufbau (KFW) as against the defendant on 25 July ...
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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

It is clear that in terms of clauses 5 and 6 of the Deed of Settlement the applicants were obliged to pay rentals due and owing no later than 10 May 2010 failure of which the first respondent was entitled to evict in terms of the court order obtained on 19 February 2010 without ...
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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

Clauses 10 and 11 of the second Agreement provided for penalties and remedies in the event of breach as follows - “10. Should the tributor commit any breach of the conditions of this agreement, the grantor may make immediate demand upon the tributor to rectify any such breach within seven days from the date of the ...
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HH150-10 : STRAUSS LOGISTICS LIMITED (UK) vs BP & SHELL MARKETING SERVICES (PRIVATE) LIMITED and SHELL ZIMBABWE (PRIVATE) LIMITED and BP ZIMBABWE (PRIVATE) LIMITED
Ruled By: PATEL J

Background The background facts giving rise to this application, as set out in the founding papers, are generally not in dispute. In December 2007, the applicant and the first respondent entered into a Supply Agreement for the supply of refined petroleum products to the first respondent. This agreement was revised by an addendum in June ...
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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

Clause 30 of the Lease Agreement provides generally for the arbitration of any dispute between the parties as regards the interpretation or application of the Agreement or any matter relating to or arising from the Agreement. Clause 24(b) deals specifically with the arbitration of any dispute concerning the repair of defects notified by the tenant ...
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HH217-10 : HEIKO PETER HORSTMAN vs GARFIELD INVESTMENTS (PRIVATE LIMITED) and GODFREY MAKONI
Ruled By: GOWORA J

The respondents contend, further, that the lease did not continue beyond 31 August 2005 because there was no agreement between the parties on the rentals due thereafter. In terms of Clause 3 of the lease, the initial rent payable for September 2004 in February 2005 was Z$7, 500= per month. For the remaining six months ...
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HB35-10 : NATHAN MADZVANYA and KUDZANAI SIBANDA vs BERNADETTE MUJURU and REGISTRAR OF DEEDS N.O.
Ruled By: KAMOCHA J

During the month of September 2008, the second applicant, representing the first applicant, entered into a memorandum of an Agreement of Sale with the first respondent for the sale of a dwelling house known as number 29 Landau Drive or 13 Copley Crescent, Khumalo, Bulawayo. The purchase price was US$150,000= payable by the Purchaser directly to ...
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HH332-13 : NIGHERT SAVANIA and NORWICH TRADING (PVT) LIMITED vs NATHAN MNABA
Ruled By: MATHONSI J

The applicants seek, by court application, an order confirming the cancellation of a Sale Agreement involving shares entered into between the first applicant and the respondent on 11 October 2011 and the eviction of the respondent from Stand 750 Greystone Township of Greystone A, Harare as well as costs of suit on a legal ...
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HB42-11 : CASSIM SIBANDA (On behalf of Nathan Madzwanya and Kudzanai Madzwanya) vs BERNADETTE MUJURU
Ruled By: KAMOCHA J

The respondent had, during the month of September 2008, entered into an Agreement of Sale of House Number 29 Landau Drive or 13 Copley Crescent, Khumalo, Bulawayo with Nathan Madzwanya and Kudzanai Madzwanya. The purchase price was US$150,000= payable in installments. The purchasers were unable to meet their obligation as agreed. The parties ended up ...
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HH31-14 : RIOZIM LIMITED vs AFRICAN EXPORT-IMPORT BANK
Ruled By: CHIGUMBA J

The respondent averred that a proper reading of the Promissory Note will show that its terms are clear and that the applicant agreed that it would submit to any jurisdiction selected by the respondent in the event of a dispute. The respondent averred, further, that, having chosen the jurisdiction of the Zimbabwean courts, after presenting ...
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HB107-11 : JOYLEN INVESTMENTS (PVT) L TD vs SNAPPY SPORTS BAR and INNOCENT WINSTON BABBAGE
Ruled By: CHEDA J

The plaintiff is the landlord and owns Shops 3, 5 and 6 Norvaal House, at corner Fife Street and 6th Avenue. The first defendant is a business concern which leased the above property from the plaintiff while the second defendant bound himself as surety and co-principal debtor in the lease agreement entered into by ...
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HH191-14 : OLD MUTUAL INVESTMENT GROUP vs M AND S DRIVING SCHOOL and MARKO CHINGOMA
Ruled By: MAKONI J

The applicant, in its papers, also raised a point regarding the Arbitration Clause in the lease agreement which the respondents did not respond to. I take it that they agree with the applicant's position. The Arbitration Clause provides:- “41.6 The decision of the Arbitrator shall be final and binding on the parties to the dispute and may be ...
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HH331-14 : DR. JANE MUTASA vs TELECEL INTERNATIONAL and TELECEL ZIMBABWE (PRIVATE) LIMITED
Ruled By: MATHONSI J

Coming back to the Shareholders Agreement of the parties, it is the one which governs the conduct of meetings held by the Board of Directors. It has been argued on behalf of the applicant that she has a right to remain as Chairperson and as a Director of the second respondent and that the ...
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Appealed
SC29-16 : EL ELION INVESTMENTS (PRIVATE) LIMITED vs AUCTION CITY (PRIVATE) LIMITED
Ruled By: MALABA DCJ, GUVAVA JA and UCHENA JA

Clause 9 of the Notes and Conditions of SaleClause 9 of the Notes and Conditions of Sale reads as follows;“The balance of the total amount of the invoice must be paid to Auction City within 7 days of notification of the outcome of the tender. Should this condition not be met in its entirety, ...
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HH138-15 : GOLD DRIVEN INVESTMENTS vs WILLEMSE FARMING ENTERPRISES (PVT) LTD and FREDRICK CHRISTIAN MULLER
Ruled By: MATHONSI J

This application has been brought in terms of Article 34 of the Unicitral Model Law contained in the Arbitration Act [Chapter 7:15] - it had to because the applicant, having contracted out of all other rights it may have had by the inclusion of clause 11 in the agreement, binding the parties to the decision of ...
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HH136-15 : LEWIS NDHLOVU and CHIPO NDHLOVU vs SUSAN HARUPERI
Ruled By: MATHONSI J

The applicant claims a sum of $1,300= as a penalty for late payment of rent because the respondent, by her own admission, did not pay rent during the period extending from January 2014 up to the time the summons was issued in April 2014 - a period of four (4) months. It would be noted that ...
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SC18-18 : SHORAI NZARA and AAROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN vs CECILIA KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

The court a quo ordered that should Dzingai Kashumba's estate fail to pay the balance in terms of its order the payments Dzingai Kashumba made to Shorai Nzara would be kept by her as rouwkoop. Cecilia Kashumba did not cross-appeal against that order. In my view, that order is fair and just as Dzingai Kashumba, and subsequently his estate, occupied the property in dispute ...
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HH183-15 : ZB BANK LIMITED vs ERIC ROSEN (PVT) LTD and ERIC ANTHONY ROSEN and ELIZABETH ROSEN
Ruled By: MAFUSIRE J

The preamble to the Contractual Penalties Act [Chapter 8:04] says, inter alia, it is an Act to provide for the enforcement of penalty clauses in contracts. A “penalty” is defined to include any money which a person is liable to pay, or any money which a person is liable to forfeit under a penalty stipulation. A “penalty stipulation” is defined to ...
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HH315-15 : AUCTION CITY (PVT) LTD vs EL ELION INVESTMENTS (PVT) LTD
Ruled By: CHITAKUNYE J and TSANGA J

This is an appeal against the judgment of the Magistrate Court sitting at Harare in terms of which the appellant was ordered to pay to the respondent a sum of US$8,277 plus interest.The appellant is an auctioneer. The appellant, acting on behalf of Conte Shoes (Pvt) Ltd in Liquidation (represented ...
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HH227-15 : ZIMBABWE TOBACCO GROWING COMPANY (PVT) LTD t/a NORTHERN TOBACCO vs GEORGE MANIWA
Ruled By: CHITAKUNYE J

On 4 February 2011, the plaintiff sued the defendant for the payment of a sum of $41,466=59 being a sum owing by the defendant to the plaintiff in terms of a written acknowledgment of debt dated 26 June 2010.The defendant, in his plea, admitted the main claim and raised a ...
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HH440-19 : INTRATREK ZIMBABWE (PVT) LTD vs ZIMBABWE POWER COMPANY (PVT) LTD
Ruled By: CHITAPI J

It will remain a mystery that a party to a written contract, properly advised, spurns a window for engagement with the other contracting party especially so where the court, in ordering engagement with the other contracting party, has taken into account that the contract it declared valid not only ...
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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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HH755-15 : CHIKUDZA MANGWENDE vs LIBERTY MACHODO
Ruled By: UCHENA J and MWAYERA J

At the conclusion of the trial of this matter, the court a quo dismissed the claim for payment of the outstanding lobola.The court found that there was material breach of the very tenants of lobola.The court concluded that the appellant was not entitled to payment of the balance of lobola ...
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HH18-12 : PIONEER TRANSPORT (PVT) LTD vs DELTA CORPORATION LTD and DAVID LESLIE CRUTTEDEN
Ruled By: GOWORA J

On 1 January 2003, the applicant and the first respondent executed an agreement for the “supply of primary beverage transport services.”In terms of clause 8 of the agreement, the first respondent, Delta, appointed the services of the applicant, Pioneer, to distribute and deliver products on its behalf to various destinations.In ...
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Appealed
HB59-09 : DINESH MANILAL NARAN vs RONNAH MAFURIRANO and THE REGISTRAR OF DEEDS
Ruled By: KAMOCHA J

The plaintiff in this matter seeks:-“1. An order to declare that the sale agreement executed between him and first defendant on the 30th of September 2001 on Stand 378, Gorebridge Road, Killarney, Bulawayo is still binding and effectual as between the parties;2. An order to compel the first defendant to ...
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HH88-12 : BLUMO TRADING (PRIVATE) LIMITED t/a COLCOM COMMODITIES vs MORGAN MUDUVURI
Ruled By: MATHONSI J

It remains for me to deal with the penalty stipulation of 10% monthly interest.I do not agree with counsel for the applicant that it does not violate the provisions of the Contractual Penalties Act [Chapter 8:04].To me, 10% interest a month is excessive.In terms of section 4(2) as read with ...
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HH147-16 : TATENDA MANDUNA vs ALLIANCE INSURANCE (PVT) LTD
Ruled By: MUSHORE J

The facts of this matter are these:On 1 February 2013, the plaintiff insured his vehicle against the risk of fire, accident, and loss, through the defendant company, by way of a comprehensive insurance policy.In terms of the insurance policy, the plaintiff was to receive full cover for his vehicle, a ...
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HH965-15 : CONPLANT TECHNOLOGY (PVT) LTD vs WENTSPRING INVESTMENTS (PVT) LTD
Ruled By: MAFUSIRE J

The trial in this matter was held up by a preliminary argument on a special plea. The central question was whether or not the trial should be stayed and the matter referred to arbitration in terms of an arbitration clause in the contract between the parties upon which the plaintiff ...
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HH224-22 : MUTSA DENHERE and DEMMUSK ENTERPRISES (PVT) LTD vs FAENSA FRISCO LIMITED
Ruled By: CHIRAWU-MUGOMBA J

The genesis of this matter lies in proceedings held under case number HC8844/12. In that matter, the respondent in casu obtained an order against the applicants as follows:1. Judgement be and is hereby entered in favour of the plaintiff against defendants jointly and severally the one paying the other to ...
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HH601-14 : SHI JINWU vs BIG VALLEY MASTERS (PRIVATE) LIMITED and PHILLIMON MUBATA
Ruled By: CHIGUMBA J

Zimbabwe adopted a policy that was dubbed “look east” as a way of combating economic sanctions that were imposed on it by the international community. The “look east” policy encourages a forging of closer business and trade ties with countries in the east as opposed to the west, the traditional ...
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Appealed
SC98-21 : M COMPANY (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: HLATSHWAYO JA, GUVAVA JA and GOWORA JA

This is an appeal against the whole judgment of the Fiscal Appeal Court handed down on 1 November 2016 under judgment number HH661-16 of case number FA08/14, in terms of which the court handed down judgment in favour of the respondent.The appellant seeks relief in the following terms:“WHEREFORE Appellant prays ...
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HMA02-19 : JETINOS ZIVANOMOYO vs HELLEN DINGANI
Ruled By: MAWADZE J and MAFUSIRE J

This was an appeal from a decision of the Magistrate's Court. We dismissed it soon after argument and gave reasons ex tempore. The appellant has now sought written reasons.In the court a quo, the respondent, hereafter referred to as “the purchaser” where appropriate, sued for specific performance in respect of ...
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HH54-16 : AIR DUCT FABRICATORS (PVT) LTD vs A.M. MACHADO & SONS (PVT) LTD
Ruled By: CHIGUMBA J

This is an opposed matter in which the applicant (defendant in the main matter) filed a special plea, that the respondent's (plaintiff in the main matters) action be stayed, pending the final determination of the dispute by the arbitrator in terms of the parties agreement.Both parties are companies which are ...
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