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Damages re: Contractual Damages, Damages In Lieu of Specific Performance & Contractual Effects of Breach of Contract

HH25-09 : KWINDIMA FABIOLA vs MVUNDURA LOUIS
Ruled By: MAKARAU JP

The plaintiff issued summons against the defendant on 19 May 2007 seeking an order for the payment of damages in the sum of $20 billion. In her declaration, she averred that she had purchased, from the defendant, certain immovable property situate in the district of Kariba for the sum of $180 billion which she paid in ...
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HH68-09 : RONALD MUCHAKA vs DONALD ZHANJE and THE HONOURABLE JUDGE GEORGE SMITH (RETIRED) N.O.
Ruled By: PATEL J

In Pamire Ors v Dumbutshena NO Anor 2001 (1) ZLR 123 (H) it was noted that an award of damages for breach of contract is intended to put the parties in the position they would have been had the contract been properly performed. Accordingly, MAKARAU J held that to grant full damages ...
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Appealed
SC25-12 : MINING INDUSTRY PENSION FUND vs DAB MARKETING (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA and MAKARAU JA

The Cross-AppealThe respondent sued the appellant in the court a quo for damages in the sum of US$196,250= arising out of breach of the lease agreement. It was the respondent's contention that the appellant failed to keep the roof of the leased premises in a state of repair resulting in leaks developing forcing the ...
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HH15-08 : HOMEPLUS INVESTMENTS (PVT) LTD vs KANTHARIA INSURANCE BROKERS (PVT) LTD and GLOBAL INSURANCE COMPANY
Ruled By: CHITAKUNYE J

On 26 August 2004, the plaintiff instituted proceedings in the High Court wherein it sued for $60,000,000= being the sum assured in terms of a motor vehicle comprehensive policy it held with the second defendant. The first defendants were the insurance brokers who facilitated the policy. On 21 December 2006, and before the pre-trial conference, the plaintiff amended ...
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HH13-08 : JEOFREY G MUKORERA vs OCEAN BREEZE ENGINE & COOLING SYSTEMS
Ruled By: MAKARAU J

The distortions caused by the galloping inflation currently characterizing our economy are graphically shown, in part, by the claims that are being brought before the courts. The above, in my view, is one such example. While inflation is a fact that they must take judicial note of, courts must, in my view, be wary that the distortions ...
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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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HH100-09 : ZIMBABWE REINSURANCE COMPANY LIMITED vs MOHAMMED A. K. RAMJAN AND BELTCHLEY TRADING [PVT] LIMITED
Ruled By: KARWI J

The plaintiff had, on 19 March 2003, contracted with the defendants to supply it with two Mercedes Benz vehicles, in terms of a written agreement entered into by and between the parties. In terms of an invoice supplied by the defendants, the purchase price was $170,000 for both vehicles. The vehicles, whose description, in terms ...
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HH100-09 : ZIMBABWE REINSURANCE COMPANY LIMITED vs MOHAMMED A. K. RAMJAN AND BELTCHLEY TRADING [PVT] LIMITED
Ruled By: KARWI J

The law relating to contractual damages is settled. A wronged party has a right to claim contractual damages for breach of the contract, or to claim specific performance. A wronged party is entitled to damages where it is clear the breaching party is liable for causing the non-performance of the contract, whether negligently or ...
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HH112-09 : DR. J L MAVURUDZA AND MRS MAVURUDZA vs MEIDLER POOLS AND CONSTRUCTION (PRIVATE) LIMITED
Ruled By: BHUNU J

Although the initial transaction between the parties was in local currency, both parties were alive to the fact that the product was to be imported using foreign currency. Now that the Zimbabwean Dollar is no more, the justice of the case demands that compensation be paid in foreign currency. The parties were aware all the time ...
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HH123-09 : JOHN MANATSA vs ZONDAI CHIMBWANDA and GIVEMORE KARIMAZONDO and WILLARD DZOMBA and CITY OF HARARE
Ruled By: CHITAKUNYE J

The plaintiff's claim was for specific performance of an agreement of sale for the cession of personal rights and interests held jointly by the first defendant and second defendant in a property known as 5706 Muroro Crescent, Glen Norah B, Harare.The plaintiff asserted that he entered into the agreement with ...
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HH124-09 : MAXWELL TAWODZERA AND MARGARET TAWODZERA vs DANNY MASUKUMA
Ruled By: MAKARAU JP

Wisely, counsel for the plaintiffs abandoned the plaintiffs claim for damages. It is, therefore, unnecessary that I determine whether damages can flow from an illegal contract.
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HH146-09 : ELLIOT MUTANGADURA vs T.S. TIMBER BUILDING SUPPLIES
Ruled By: PATEL J

The plaintiff in this case claims the delivery of 1,200 bags of PC15 cement or, in the alternative, damages for breach of contract equivalent to the current market value of the cement, being US$11,400=, and costs of suit. The defendant resists the claim on several grounds, to wit, that delivery of the cement was conditional on the ...
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HB09-09 : TERENCE ALAN BLAKE and EDWARD GRAHAM BURROUGHS vs TABS-AVOIN LIGHTING (PVT) LTD and ASMARA COMPANY (PVT) LTD and JONATHAN TAFADZWA JERE and JAIROS MTHONISI MOYO
Ruled By: CHEDA J

Counsel for the plaintiff filed Heads of Argument in support of this application. Counsel for the plaintiff referred me to the case of Watergate (Pvt) Ltd v Commercial Bank of Zimbabwe SC 78/05 where it was held that a party is entitled to payment in foreign currency if he can show that a judgment in ...
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HH87-10 : VENETIAN BLINDS SPECIALISTS LIMITED vs APEX HOLDINGS (PRIVATE) LIMITED
Ruled By: PATEL J

Mario de Angelis further conceded that the plaintiff's claim for special damages before the Malawian courts was based on a profit mark-up of 30% on gross annual turnover. It did not take into account the plaintiff's net profit after deductions of taxes and other contingencies. The Supreme Court of Malawi allowed the appeal and awarded general ...
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HH121-10 : POWER COACH EXPRESS (PVT) LIMITED vs MARTIN MILLERS AND ENGINEERS
Ruled By: BERE J

THE QUANTUM OF DAMAGES Having accepted that the plaintiff is justified to claim damages as a result of breach of contract, and that the claim itself is properly before me, I must now focus on the exact amount which the plaintiff is entitled to. I have already indicated that there was no serious challenge raised by ...
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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

It now remains for me to determine the question of damages. At the commencement of the trial I allowed an amendment to the plaintiff's claim from one sounding in Zimbabwe dollars to one for United States dollars. It is generally accepted that damages for breach of contract are to be calculated at the time when performance was ...
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HH281-10 : MINING INDUSTRY PENSION FUND vs DAB MARKETING (PRIVATE) LIMITED
Ruled By: KUDYA J

It seems to me that the defendant's plea was not framed with an eye to the relevant and applicable remedies for breach of contract. The purpose for damages for breach of contract is succinctly set out by CHRISTIE in The Law of Contract in South Africa 3rd…, thus- “Unlike damages for delict, damages for breach of ...
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HH14-13 : JOHN SWAY MUGADZAHWETA vs AZVIRIBASI NENGOMASHA
Ruled By: HUNGWE J

The plaintiff claimed and demanded payment in United States dollars at a time when only the Zimbabwe dollar was legal tender. At the close of his case, the plaintiff appeared unsure regarding the amended claim which now sounded in foreign currency. Counsel for the plaintiff went out of his way to demonstrate why an award in ...
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HH30-11 : PRIMAC ENTERPRISES (PRIVATE) LIMITED t/a PRIMAC TELECOMMS vs NATIONAL HANDICRAFT CENTRE (PRIVATE) LIMITED and VICE SECURITY COMPANY (PRIVATE) LIMITED
Ruled By: MTSHIYA J

2. If first defendant is liable for plaintiff's loss, what is reasonable compensation for the plaintiff's lost goods I have, in this judgment, already made a finding, on a balance of probabilities, that the first defendant was in breach of a contract and therefore liable for the plaintiff's loss. As indicated elsewhere in this judgment, the first ...
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HH43-13 : FORM SCAFF (PRIVATE) LIMITED vs CHARLES LINZI
Ruled By: KUDYA J

3. Whether the plaintiff is entitled to claim hire charges from 1 February 2009 in foreign currency and the amount of the hire fees in question The submission by counsel for the defendant was that as the hire fees were denominated in Zimbabwe dollars they could not be charged in foreign currency after the introduction of ...
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Appealed
SC27-14 : WYNINA (PVT) LTD vs MBCA BANK LIMITED
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

DISPOSITION The respondent conceded in the court a quo that the deposit of Z$250,000= made by the appellant into the account was sufficient to enable the respondent to submit the appellant's application. The question before the court, however, is what sum constitutes the value of the appellant's loss. Whether or not the appellant would have obtained payment from the ...
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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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HH66-15 : ROLLEX (PVT) LTD vs DELTA BEVERAGES (PVT) LTD
Ruled By: DUBE J

On 17 May 2013, the plaintiff issued summons against the defendant claiming $53,432= in damages for breach of contract.
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Appealed
SC71-18 : CURECHEM OVERSEAS (PVT) LTD vs VADAC PROPERTIES (PVT) LTD
Ruled By: GARWE JA, GUVAVA JA and MAKONI JA

On the claim for US$25,000=, being lost rental income, the court a quo held that the appellant could not escape liability as the loss flowed naturally from the breach, although it was indirect. Moreso, the appellant had not shown that the premises could have been repaired much sooner than the five (5) months it took for the ...
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HH98-16 : VADAC PROPERTIES [PRIVATE] LIMITED vs CURE CHEM OVERSEAS [PRIVATE] LIMITED
Ruled By: MAFUSIRE J

In Gort v Tinto Industries Ltd 1985 [1] ZLR 66 [HC], SAMATTA J said…: “Direct damage is that which flows naturally from the breach without other intervening cause and independently of special circumstances, while indirect damage does not so flow.” Consequential or indirect damages should, objectively, be in the contemplation of the parties at the time of the contract. In the present ...
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HB149-16 : MUNATSI SHOKO vs OLD MUTUAL ZIMBABWE LIMITED
Ruled By: MOYO J

The plaintiff claims judgment in the United States dollars. United States dollars are the functional currency at this material time. There is ample authority to show that the plaintiff is indeed entitled to payment in the currency that is functional at the material time. The Supreme Court, in the case of Watergate (Pvt) Ltd v Commercial Bank of Zimbabwe SC70-06 ...
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HH50-12 : CHEMATRON PRODUCTS ZIMBABWE (PVT) LTD vs TENDA TRANSPORT (PVT) LTD and REGISTRAR OF DEEDS
Ruled By: BERE J

The first defendant's position was that there was never a valid agreement between it and the plaintiff, and, alternatively, that if there was one, the plaintiff had breached the terms and conditions of such an agreement justifying its cancellation and retaining any moneys paid by the plaintiff as damages.
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HH198-15 : MUCAL ENTERPRISES vs STEWARD BANK
Ruled By: TSANGA J

The defendant, Steward Bank, applies for absolution from the instance at the close of the plaintiff's case in matter founded on damages for breach of contract. The plaintiff is Mucal Investments. In its summons it seeks payment of US$553,544=42 by the defendant. The amount is sought as damages for loss of business between January and July 2013 ...
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Appealed
SC04-20 : NICKOLAS VAN HOOGSTRATEN vs TAPIWA NELOMWE
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

This is an appeal against the whole judgment of the High Court handed down on 18 July 2018 in which it ordered the appellant to deliver to the respondent 167,275 Old Mutual Public Limited Company shares within 10 days of the date of the order. Alternatively, it ordered the appellant ...
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HH444-18 : TAPIWA NALOMWE vs NICHOLAS VAN HOOGSTRATEN
Ruled By: ZHOU J

The plaintiff instituted the summons in casu claiming the following relief against the defendant:“1. An order compelling the defendant to transfer 167,275 Old Mutual Public Limited Company shares to the plaintiff within ten (10) days of the date of the order; being shares which the plaintiff transferred to the defendant ...
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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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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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SC02-21 : EDDIES PFUGARI (PVT) LTD and EDWARD NYANYIWA vs KNOWE RESIDENTS AND RATEPAYERS ASSOCIATION and NORTON TOWN COUNCIL
Ruled By: PATEL JA, BHUNU JA and BERE JA

This is an appeal against the judgment of the High Court granting an application for specific performance lodged by the first respondent against the appellants. Apart from granting the relief sought, including the payment of damages in the alternative, the court a quo also ordered the appellants to pay costs ...
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HH27-07 : EDWARD MARUME and ELLEN CHAMUNORWA vs TODD MURANGANWA
Ruled By: MAKARAU JP

This matter came before me in Motion Court as an application for default judgment in terms of Rule 58 of the High Court Rules, 1971.The facts of the matter, as set out in the plaintiffs' affidavit of evidence, are as follows:The plaintiffs are husband and wife. On 12 April 2005, ...
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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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HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE
Ruled By: MUTEMA J

This is an application for rescission of a default judgment that was granted against the applicant in case number HC548/14.The facts relevant to the resolution of the dispute between the parties are briefly these:The applicant sold a BMW X5 motor vehicle registration number ACX 0734 to the respondent. The respondent ...
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HB60-15 : JABULANI NCUBE vs INNOCENT NYATHI
Ruled By: MOYO J

This is an application for condonation of the late filing of an application for rescission of judgment.The parties have been engaged in protracted litigation dating far back as 2006.The parties, in 2006, entered into a loan agreement. Part of the terms of the loan agreement were that:“That the loanee offers ...
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HH28-16 : FARPIN INVESTMENTS [PVT] LTD vs NETONE CELLULAR [PVT] LTD and JUSTICE L.G. SMITH [RETD] - ARBITRATOR
Ruled By: MAFUSIRE J

This was an application for the setting aside of an arbitration award.The arbitrator, the second responded herein, was a retired Judge of this court.The basis of the application was that the arbitrator had misconstrued the factual basis of the applicant's claim before him. It was also said, that, the arbitrator's ...
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