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Guarantees, Warranties, Representations, Undertakings, Latent Defects, Patent Defects and Defective Performance

HH47-10 : MUNYARADZI CHIKUMBU vs VIOLET NHAMO
Ruled By: BERE J

On 18 December 2001, the plaintiff bought a Mazda motor vehicle, bearing registration numbers 538-982Z, from the defendant. The defendant filed an affidavit to confirm the transaction. The affidavit in question was tendered as Exhibit 1 in these proceedings. Subsequent to the conclusion of the sale of the motor vehicle the plaintiff and the defendant went ...
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HH84-12 : CHRISTOPHER BARNSLEY vs HARAMBE HOLDINGS (PVT) LTD AND ANOTHER
Ruled By: MATHONSI J

The applicant was employed as Group Engineering Director by the first respondent, which represented itself as a holding company comprising several subsidies with the second respondent as its Chief Executive Officer.The letter of his appointment containing the terms of employment, dated 7 May 2009, was signed by the second respondent ...
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HH00-08 : AGRICULTURE BANK OF ZIMBABWE LTD T/A AGRIBANK vs DATANET TECHNOLOGY ZIMBABWE
Ruled By: MTSHIYA J

The cause of action in this case arises out of an alleged breach of contract by the defendant for the supply of 20 IBM A50 desktop computers (computers) to the plaintiff.The plaintiff is suing the defendant for specific performance or payment of damages in lieu thereof.At the commencement of the ...
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HH112-09 : DR. J L MAVURUDZA AND MRS MAVURUDZA vs MEIDLER POOLS AND CONSTRUCTION (PRIVATE) LIMITED
Ruled By: BHUNU J

The written quotation provided for a guarantee in the following terms: “GUARANTEES The swimming pool tiles are guaranteed for 2 (two) years from the completion date against latent defect in its construction. Should a defect in the work become evident during the period, it will be repaired free of charge. In order to keep the structured guarantee ...
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HH112-09 : DR. J L MAVURUDZA AND MRS MAVURUDZA vs MEIDLER POOLS AND CONSTRUCTION (PRIVATE) LIMITED
Ruled By: BHUNU J

That the pool developed a leaching problem soon after refurbishment is not in dispute. What is in dispute is the cause of the leaching problem.The plaintiffs allege that the leaching problem was due to poor workmanship by the defendant's employees, whereas the defendant alleges that it was due to incorrect maintenance of the pool pH ...
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HH112-09 : DR. J L MAVURUDZA AND MRS MAVURUDZA vs MEIDLER POOLS AND CONSTRUCTION (PRIVATE) LIMITED
Ruled By: BHUNU J

It is common cause that the defendant initially attributed the leaching problem to its failure to apply pool plaster hardener, whereupon it attempted to rectify the problem, in consultation with the manufacturers. It is also an established fact that when all the attempts to rectify the problem had dismally failed, the defendant made an about-turn, ...
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HH112-09 : DR. J L MAVURUDZA AND MRS MAVURUDZA vs MEIDLER POOLS AND CONSTRUCTION (PRIVATE) LIMITED
Ruled By: BHUNU J

Looked at from a different angle, even if I were to accept for one moment that the leaching problem was due to poor maintenance by the plaintiffs, as alleged by the defendant, I would still find it liable. Mr. Muyeza gave uncontroverted evidence to the effect that it is standard practice after construction of the pool, ...
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HH121-10 : POWER COACH EXPRESS (PVT) LIMITED vs MARTIN MILLERS AND ENGINEERS
Ruled By: BERE J

By its letter of 25 September 2006, the defendant advised the plaintiff that it had completed the manufacture of the tanks as per the agreed specifications. The tanks were to be manufactured to the Standards Association of Zimbabwe size 341 with steps, dipsticks and charts using 6mm material.
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HH121-10 : POWER COACH EXPRESS (PVT) LIMITED vs MARTIN MILLERS AND ENGINEERS
Ruled By: BERE J

Upon being inspected by Total Zimbabwe, and for whom the plaintiff was purchasing the tanks, it turned out that, contrary to the assurances by the defendant, the tanks had not been manufactured per required specifications, especially where a 4,5mm plate was used instead of the 6mm plate. The plaintiff, naturally, refused to accept the manufactured tanks ...
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HH149-10 : FOOLPROOF ENTERPRISES (PRIVATE) LIMITED vs SURFACE INVESTMENTS (PRIVATE) LIMITED
Ruled By: KUDYA J

In its plea filed on 10 November 2009 the defendant averred that the plaintiff delivered the tonnage in question of substandard coal, which it referred to as rubble. It was revealed in evidence that rubble is the residue which remains after coal has been burnt. This coal was not in accordance with the agreed ...
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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
SC36-12 : RESERVE BANK OF ZIMBABWE vs CAFCA LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

This is an appeal against the judgment of the High Court granting with costs a claim by the respondent for:(i) Payment of the sum of US$750,000.(ii) Interest tempore morae at the London Interbank rate for United States dollars, at 3.5% per annum, from 1 September 2005 to the date of ...
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HH145-10 : TENDAI MUCHENJE vs G. AND M. PANEL BEATERS t/a SUPREME PANEL BEATERS & SPRAY PAINTERS
Ruled By: CHITAKUNYE J

When the plaintiff left the scene to look for assistance he returned to find the defendant had towed his motor vehicle to its garage. The plaintiff sourced quotations for the repair of the motor vehicle from other panel beating garages. He was advised that the motor vehicle was damaged beyond economic repair. The defendant, being in the ...
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HH145-10 : TENDAI MUCHENJE vs G. AND M. PANEL BEATERS t/a SUPREME PANEL BEATERS & SPRAY PAINTERS
Ruled By: CHITAKUNYE J

The plaintiff gave evidence and called two witnesses in support of his claim. In his evidence, the plaintiff chronicled how the accident occurred and how, thereafter, the defendant towed his motor vehicle to its garage. He confirmed being advised by other panel beating garages that the motor vehicle was damaged beyond economic repair. When he ...
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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 also pertinent to note that paragraph 4 of the second respondent's letter of 7 December 2009 makes no reference to anyone on behalf of the applicant guaranteeing a set-off, contrary to the second respondent's contention in his opposing affidavit in which set off is alleged for the first time in March 2010. ...
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HH14-13 : JOHN SWAY MUGADZAHWETA vs AZVIRIBASI NENGOMASHA
Ruled By: HUNGWE J

The plaintiff claims for damages for breach of contract arising to an oral agreement entered into between him on one hand and the defendant on the other; interest at the prescribed rate together with costs of suit. The trial proceeded on the evidence of the two parties involved. For his part, the plaintiff's evidence amounted ...
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HH113-11 : ALSHAMS BUILDING MATERIAL t/a LLC (a company incorporated in the United Arab Emirates) vs TAPERA NYEMBA and CHRISTOPHER GOROMONZI and JOSPHAT SACHIKONYE
Ruled By: KUDYA J

Whether the defendants assured the plaintiff that all necessary exchange control approvals had been obtained prior to the furnishing of the personal guarantees The loan agreement answers this question. It will be recalled that it was signed by Christopher Goromonzi and Tapera William Nyemba on behalf of Barato Holdings Limited. These two defendants were aware of the requirement ...
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HB01-14 : COTIM TRADING (PVT) LTD vs ZIMBABWE POWER COMPANY t/a HWANGE POWER STATION
Ruled By: MUTEMA J

The plaintiff's evidence, adduced through its Managing Director, Jasper Nare, was to the following effect: He holds a Bachelor of Science Honours Degree in Chemistry, obtained from the University of Zimbabwe in 1993. He has work experience in the field of chemistry spanning over twenty years. He joined Delta in 1993 as Production trainee in ...
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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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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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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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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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