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Intent or Animus Contrahendi re: Deemed, Implied, Tacit, Unsigned Agreements or Informal Contracts

HH10-10 : RANI INTERNATIONAL LIMITED vs BUBYE MINERALS (PVT) LTD AND ANOTHER
Ruled By: UCHENA J

A tacit agreement refers to something done or made in silence. It is manifested by the fact that no contradiction or objection is made and is thus inferred from the situation and the circumstances. It is, in essence, implied.
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HH00-08 : AGRICULTURE BANK OF ZIMBABWE LTD T/A AGRIBANK vs DATANET TECHNOLOGY ZIMBABWE
Ruled By: MTSHIYA J

As was submitted by the plaintiff's legal practitioner, the issue of an agreement becoming impossible of performance is fully covered by R.H. CHRISTIE in his book 'The Law of Contract In South Africa 3ed…, where he writes:-“The Roman law principle that a contract is a nullity if, at the time ...
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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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HH119-09 : ISAAC MANDI vs GRACE MCHICHWA (as Executrix Dative Estate Late Peter Kandeya) and RUWA LOCAL BOARD and MINISTRY OF LOCAL GOVERNMENT
Ruled By: GOWORA J

On 15 October 2009, after hearing counsel, I dismissed this application with costs. The applicant's legal practitioners have now indicated that they require reasons for the dismissal and these are they: During his lifetime, Peter Kandeya entered into an agreement with the third respondent in terms of which he, Peter Kandeya, leased from the respondent certain premises known ...
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HH124-09 : MAXWELL TAWODZERA AND MARGARET TAWODZERA vs DANNY MASUKUMA
Ruled By: MAKARAU JP

The defendant gave evidence. His evidence was to the following effect. On 5 October 2008, he responded to an advert that had been flighted in the local press by the plaintiffs in respect of the two properties they were selling. He met with the plaintiffs, and at the meeting the plaintiffs advised him that they wanted ...
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HB106-09 : CHURCHVILLE TRADING vs BEVERLY BUILDING SOCIETY
Ruled By: KAMOCHA J

The plaintiff's claim against the defendant was for:- (a) The return from the defendant all the property mentioned in paragraph 6 of its declaration; (b) In the alternative, payment in the sum of $29,793,200= being the value of the property that the defendant's employees took unlawfully; (c) Interest a tempore morae from the date of service of summons to date of full ...
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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

The plaintiff in this matter is a commercial bank which is primarily involved in lending to persons, both corporate and individuals, engaged in agricultural pursuits. It is a statutory corporation. In 2006 it flighted an invitation for the tender of supply of trucks of an engine capacity ranging from 1.8 ...
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HH277-10 : BENCHILL INVESTMENTS (PVT) LTD vs BATTERY WORLD (PVT) LTD
Ruled By: KUDYA J

In its declaration, the plaintiff avers that a contract of sale was concluded with the defendant on 13 August 2008. The evidence of Godwin Dingwiza was that when he entered the town branch of the defendant he asked Collin Chakupa for a quotation for 50 batteries. Collin Chakupa had them in stock and he wrote out ...
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HHB93-10 : REGINA MLISA vs THE STATE
Ruled By: CHEDA J and NDOU J

The salient facts of the case are the following. It is common cause in count 1, that the appellant approached the complainant who runs CP Cunningham, a commodity broking company, for a loan of Z$950 million on 30 November 2005. The appellant was given Z$350 million against which she issued the complainant a postdated cheque of ...
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SC54-17 : NDABEZINHLE MAZIBUKO vs THE BOARD OF GOVERNORS, CHRISTIAN BROTHERS COLLEGE and THE NATIONAL INCOMES AND PRICING COMMISSION and THE SECRETARY, MINISTRY OF EDUCATION
Ruled By: GARWE JA, GOWORA JA and HLATSHWAYO JA

WHAT IS AN IMPLIED TERM? In general, the courts are reluctant to imply terms into a contract at common law. It is the contracting parties' role to agree the terms of their particular agreement. It is generally not considered to be the role of the courts to re-write a contract for the parties. Freedom ...
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HH797-15 : PETER KAZINGIZI and THERESA MUCHABAIWA KAZINGIZI vs EQUITY PROPERTIES (PVT) LTD
Ruled By: MATHONSI J

On 18 November 2013, the parties signed a written undertaking to enter into a Sale Agreement. It reads: “In consideration of Peter Kazingizi and Theresa Muchabaiwa Kazingizi, of 6185 Rosedeane Drive, Bloomingdale, Harare agreeing to: (a) Purchase a certain piece of land situated in the District of Salisbury called Number 2073 Salisbury Township, measuring 2270 square metres being a subdivision of Lot ...
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HH228-17 : WILLIAM MUKUDU vs ESTERE STELLA MUKUDU and THE MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS
Ruled By: TSANGA J

Section 10 of the General Law Amendment Act [Chapter 8:07] is very clear that a donation is not invalid just because it was not registered or notarially executed. It provides as follows; “10 Amendment of law in respect of formalities relating to donations No contract of donation shall be invalid solely by reason of the fact that it is ...
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HB14-05 : SMART MALABA vs NOMATHEMBA FENNY MALABA
Ruled By: NDOU J

It is trite that a donation, schenking, is a contract whereby one person, who is not under obligation to do so, but out of sheer liberality, promises to give another person something without receiving anything in return. See Avis v Verseput 1943 AD; Estate Jager v Whittaker 1944 AD 246…,.; The Master v Thompson's Estate 1961 (2) ...
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HH485-13 : LOVENESS KUDZANGA vs GODFREY KUDZANGA and THE REGISTRAR OF DEEDS and DEPUTY SHERIFF HARARE
Ruled By: MAWADZE J

The plaintiff issued summons out of this court on 17 August 2011 seeking an order compelling the first defendant to effect change of ownership of Stand No.9781 Kuwadzana Phase 3, Harare from his name to the plaintiff's name and that of Dickson Kudzanga within seven days of the date of judgment; that should the first ...
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SC70-07 : MICHAEL TAYLOR vs HEATHER MARGARET TAYLOR
Ruled By: CHEDA JA, ZIYAMBI JA and GARWE JA

The first and second issues are related and raise one fundamental issue. That issue is whether the court a quo should have referred the dispute on whether or not the donation was remuneratory to trial. The position is now well established that not every dispute of fact in motion proceedings has to be sent for trial. The correct ...
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HH315-15 : AUCTION CITY (PVT) LTD vs EL ELION INVESTMENTS (PVT) LTD
Ruled By: CHITAKUNYE J and TSANGA J

In his book, Business Law in Zimbabwe, 2014, (Juta)…, R.H. CHRISTIE states that:-“Calling for tenders and conducting auctions are methods of endeavouring to obtain the best contractual terms by inviting members, or selected members of the public, to bid in competition with each other. It is characteristic of tenders that ...
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HH09-09 : SKF ZIMBABWE P/L vs PARIS OLYMPIOUS
Ruled By: MAKARAU JP

Some day in or around October 2003, a businessman, who still believes in customer care, moved down the fuel queue that had formed at his forecourt to ensure that no one was jumping the queue. He would stop and chat with this or the other customer. He came across a ...
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SC03-21 : AFRITRADE INTERNATIONAL LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: PATEL JA, BHUNU JA and BERE JA

This is an appeal against the judgment of the Fiscal Appeal Court dismissing an appeal against the determination of the respondent requiring the appellant to pay value added tax (VAT) on the importation of certain goods into Zimbabwe.BackgroundThe appellant is a foreign company incorporated in the British Virgin Islands and ...
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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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SC12-21 : TOBACCO PROCESSORS ZIMBABWE (PRIVATE) LIMITED vs TONGOONA MUTASA and OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and CHATUKUTA AJA

This is an appeal against the whole judgment of the Labour Court upholding the National Employment Council - Tobacco Grievance and Disciplinary Committee's (NEC GDC Committee) finding that the appellant tacitly renewed the respondents' contracts of employment.FACTUAL BACKGROUNDThe following facts are common cause. The respondents were employed by the appellant ...
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SC13-21 : MOSES MAWIRE vs RIO ZIM LIMITED (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and MAVANGIRA JA

After hearing the parties on 9 March 2018, the court was of the unanimous view that the appeal was devoid of any merit and accordingly ordered as follows:“The appeal be and is hereby dismissed with costs. Full reasons will be available in due course.”The following are the reasons:BACKGROUND FACTSThe appellant ...
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HB04-15 : BULAWAYO CITY COUNCIL vs TRISHUL PROPERTIES
Ruled By: TAKUVA J

This is an application for summary judgment in terms of Order 10 Rule 64 of the High Court Rules 1971.The applicant, a local authority is obliged by the law to provide certain services to residents of the City of Bulawayo which services include the provision of road maintenance, refuse collection, ...
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HH601-14 : SHI JINWU vs BIG VALLEY MASTERS (PRIVATE) LIMITED and PHILLIMON MUBATA
Ruled By: CHIGUMBA J

In interpreting a contract, a court must determine what the intention of the parties was when they entered into a contract....,.In researching what the law says on how to interpret the intention of parties to a contract, I came across the following:In the case of Chikoma v Mukweza 1998 (1) ...
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SC37-09 : EDDIES PFUGARI (PVT) LTD vs KNOWE RESIDENTS ASSOCIATION and NORTON TOWN COUNCIL
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

This is an appeal against the judgment of the High Court directing the appellant to fully service residential stands in Phase 1 of the Knowe Housing Development in Norton.The facts of this case are these:The appellant, a private company, is a property developer whilst the respondent is an association of ...
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HH35-15 : TENDAI PANGETI vs CHRISTINA NYAGUMBO
Ruled By: CHITAKUNYE J

Where a property is registered in the names of two parties, the presumption is that such property is jointly-owned with each party owning a 50% share in the property.It is for the party alleging that the property is not so owned to rebut that presumption.In Lafontant v Kennedy 2000 (2) ...
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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

In Adleu v Elliot 1988 (2) ZLR 283 (S) GUBBAY JA…, recognised, that, in oral contracts, the court had the power to determine whether the terms of that contract required exact performance or the performance of some equivalent act. He stated thus:“The application of this broad principle [that it is ...
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