Contract Law - Maja

THE LAW OF CONTRACT
IN ZIMBABWE
INNOCENT MAJA
LLBs Hons (UZ), LLM (UP – SA), LLD (Candidate)
Lecturer in Law, Chairperson, Private Law Department
Faculty of Law, University of Zimbabwe
Legal Practitioner, Notary Public and Conveyancer
THE MAJA FOUNDATION
2015
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COPYRIGHT
This book is published by
THE MAJA FOUNDATION

288 Samora Machel Avenue.
Eastlea, Harare,
Zimbabwe.
Telephone +263 4 776306
Email: mrmaja@hotmail.com
© Innocent Maja, 2015
ISBN 978-0-7974-5791-1
The moral right of Innocent Maja to be identified as the author of this work has been
asserted by him.
All rights reserved; no part of this publication may be reproduced, stored in a

retrieval system, or transmitted in any form or by any means, electronic, mechanical,
photocopying, recording, or otherwise without the prior written permission of the
Publishers or the Author. This book may not be lent, resold, hired out, or otherwise
disposed of by way of trade in any form of binding or cover other than that in which it
is published, without the prior written consent of the Publishers or the Author.
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DEDICATION
To my wife Florence and daughters Eliora and Netania

and
to everyone to whom I have taught the law of contract at the University of Zimbabwe
FOREWORD
ENDORSEMENTS
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PREFACE
The law of contract in Zimbabwe provides comprehensive and up to date principles of

the main aspects of the Zimbabwean law of contract. It encompasses key contractual
principles, legislation, and case law through comprehensible analysis. Judges,
lawyers, magistrates, businesspersons, paralegals, law lecturers, law students, and
students undertaking professional courses where law of contract is a component will
find this book useful.
Work of this nature is not undertaken single-handedly. There are men and women who
made immense contribution (direct and indirect) towards the successful completion of
this work. I express my colossal gratitude to Professor Geoff Feltoe for his invaluable
support and expert guidance. Thanks to Mrs Susan Feltoe for editing this book.
I also acknowledge all the students to whom I have taught ‘the Law of Contract’ at
the University of Zimbabwe over the past years for our lively debates that contributed
to refining the content of this book.
I express my gratitude to the Maja Foundation for publishing this book and for
believing in me.
My adorable wife, Florence, and wonderful daughters, Eliora and Netania, deserve
special mention for sacrificing their filial comfort by allowing Daddy time for his
work. I will always treasure your support and you are engrained on the tablet of my
heart.
Above all, I thank the God of the Christian Bible (God the Father, the Son Jesus
Christ, and the Holy Spirit) who is the quintessential fountain of my limited wisdom.
Innocent Maja
January, 2015
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TABLE OF CASES
1. Abreu v Campos 1975 (1) RLR 198 (A)

2. Absa Bank Ltd v Sweet and Others 1993 (1) SA 318 (C)
3. Acting Minister of Industry and Technology & Anor v Tanaka Power (Pvt) Ltd 1990 (2) ZLR
208 (S)
4. Adler v Elliot 1988 (2) ZLR 283 (S) 287
5. Adler v Salisbury City Council 1947 (3) SA 676 (SR)
6. Administrator, Natal v Edouard 1990 (3) SA 581 (A)
7. Angath v Muckunlal's Estate 1954 (4) SA 283 (N)
8. Agribank v Machingaifa & Anor 2008 (1) ZLR 244 (S)
9. Agro Chem Dealers (Pvt) Ltd v Gomo & Ors 2009 (1) ZLR 255 (H)
10. Air Zimbabwe (Pvt) Ltd v Zendera & Ors 2002 (1) ZLR 132 (S).
11. Aitken v Miller 1951 (1) SA 153 (SR).
12. Akasia Road Surfacing (Pty) Ltd v Shoredits Holdings Ltd en andere 2002 (3) SA 346
(SCA)
13. Alfred McAlpine & Sons (Pty) Ltd v Transvaal Administration 1977 (4) SA 310 (T)
14. Allen V Sixteen Stirling Investments (Pty) Ltd 1974 (4) SA 164 (D)
15. Alpha Properties (Pty) Ltd v Export Import Union (Pty) Ltd 1946 WLD 486
16. Amalgamated Motor Corp (Pvt) Ltd v F Klement (Pvt) Ltd 1996 (1) ZLR 17 (H).
17. Angath v Muckunlal's Estate 1954 (4) SA 283 (N)
18. Antonio v Ashanti Goldfields Zimbabwe Ltd 2009 (2) ZLR 372 (H) 383.
19. Apotex Inc v Surgimed (Pvt) Ltd 2002 (2) ZLR 612 (S)
20. Aronson v Estate Hart 1950 (1) SA 539 (A)
21. Asharia v Patel and Ors 1991 (2) ZLR 276 at 279G-280C
22. Associated Manganese Mines of SA Ltd v Claassens 1954 (3) SA 768(A)
23. Associated Printing and Packaging (Pvt) Ltd v Lavin S-7-96 or 1996 (1) ZLR 87 (S).
24. Astra Steel & Eng Supplies (Pvt) Ltd v PM Mfg (Pvt) Ltd HH-393-12
25. Autorama (Pvt) Ltd v Farm Equipment Auctions 1984 (3) SA 483(ZH)
26. Avis v Verseput 1943 AD 331 346, 380
27. Baine v Barclays Bank 1937 SR 191
28. Balfour v Balfour (1919) 2 KB 571
29. Bantu Callies Football Club v Mothlamme & Ors 1978 (4) SA 486 (T)
30. Barclays Bank of Zimbabwe Limited v Binga Products (Pvt) Ltd 1985 (3) SA 1041 (ZS)
1049; 1984 (2) ZLR 76 (S)
31. Barclays National Bank v Smith 1975(4) SA 675 (D)
32. Bardopoulos & Anor v Miltiadous 1947 (4) SA 860 (W)
33. Barker v African Homesteads Touring and Safaris (Pvt) Ltd & Anor 2003 (2) ZLR 6 (S)
34. Barrowby Real Estate (Pvt) Ltd v Olsen 1980 ZLR 448 (A).
35. Basson v Chilwans 1993(3) SA 742 (A)
36. BAT Rhodesia Ltd v Fawcett Security Organisation (Salisbury) (Pvt) Ltd 1972 (2) RLR 22
(G)
37. Bayer South Africa Pvt Ltd v Frost 1991 (4) SA 559 (A)
38. Bayley v Harwood 1954(3) SA 498
39. Be Bop A Lula Manufacturing & Printing v Kingtex Marketing (Pty) Ltd 2006 (6) SA 379
(C)
40. Beaton v Baldachin Bros 1920 AD 312 315
41. Behr v Minister of Health 1960 R & N 715; 1961 (1) SA 629 (SR)
42. Beitbridge-Bulawayo Railway (Pvt) Ltd v Commercial Union Insurance Company of
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Zimbabwe Ltd 2008 (1) ZLR 207 (S) 210 G-H
43. Benchill Investments (Pvt) Ltd v Battery World (Pvt) Ltd HH-277-10)
44. Benjamin v Myers 1946 CPD 655
45. Berning v Berning 1942 (1) PH B26 (W)
46. Bernitz v Euvrad 1943 AD 595
47. Beretta v Rhodesia Railways Ltd 1947 SR 48; 1947 (2) SA 1075 (SR)
48. Bertelsmann v Per 1996 (2) SA 375 (T)
49. Bevcorp v Nyoni and Ors 1992(1) ZLR 352
50. Bhikhagee v Southern Aviation (Pty) Ltd 1949 (4) SA 105 (E)
51. Bird v Murphy 1963 (2) PH A42 (D)
52. Blackburn v Mitchell (1897) 14 SC 338 & Hendricks v Bernett 1975 (1) SA 765 (N)
53. Blew v Snoxell 1931 TPD 226
54. Bloom v American Swiss Watch Company 1914 AD 100
55. Blue Ranges Ests (Pvt) Ltd v Muduviri & Anor 2009 (1) ZLR 368 (S)
56. Blumo Trading (Pvt) Ltd v Nelmah Milling Company (Pvt) Ltd & Anor HH-39-11
57. Blundell v Bloom 1950 (2) SA 629
58. Bobs Shoe Centre v Heneways Freight Services 1995(2) SA 421(AD)
59. Book v Davidson 1988(1) ZLR 365(S)
60. Border Timbers Ltd v ZRA 2009 (1) ZLR 131 (H)
61. Boyd v Nel 1922 AD 414
62. BP Southern Africa (Pty) Limited v Desden Properties (Pvt) Limited & Anor 1964 RLR
7(G)11 H-I; 1964 (2) SA 21 25 G–H
63. Brennan’s Diesel Svcs (Pvt) Ltd v Tenda Bus Svcs (Pvt) Ltd S-13-14
64. Brink v Humphreys & Jewell (Pty) Ltd 2005 (2) SA 419 (SCA)
65. Brinkibon v Stahag Stahl (1982) 1 ALLER 293
66. Broodryk v Smuts NO 1942 TPD 47 51-2
67. Brummer v Gorlfil Brothers Investments (Pty) Ltd 1999 (3) SA 389 (SCA)
68. Bulawayo Dialogue Institute v Matyatya NO & Ors 2003 (2) ZLR 79 (H)
69. Bulawayo Municipality v Bulawayo Indian Sports Ground Committee 1955 SR 114; 1956
(1) SA 34 (SR)
70. Bulawayo Municipality v Zimbabwe Football Association 1989 (3) ZLR 261 (S)
71. Burger v Central South African Railways 1903 TS 571 578
72. Cabri (Pvt) Ltd v Terrier Svcs (Pvt) Ltd 2004 (1) 267 (H)
73. CAG Farms (Pvt) Ltd v Hativagone & Ors HH-157-14
74. Cairns (Pty) Ltd v Playdon & Co Ltd 1948 (3) SA 99 (AD) 123
75. Cameron v Bray Gibb & Co (Pvt) Ltd 1966 (3) SA 675(R)
76. Cape Explosives Works Ltd v SA Oil and Fat Industries Ltd 1921 CPD 244
77. Carlill v Carbolic Smoke Ball Co. 1893 1QB 256 CA
78. Carthew-Gabriel v Fox & Carney (Pvt) Ltd 1977 (2) RLR 152 (A); 1978 (1) SA 598
79. Cassimjee v Cassimjee 1947 3 SA 701 (N)
80. Central African Processed Exports (Pvt) Ltd and Ors v Macdonald and Others 2002 (1)
ZLR 399 (S)
81. Central African Railways v Williams 1963 Rand Nyasaland 106/166
82. Champion v Morkel 1971 (1) RLR 81 (H)
83. Chanakira v Mapfumo & Anor HH-155-10
84. Chapleton v Barry (1940) 1 KB 532
85. Chidziva & Ors v ZISCO 1997 (2) ZLR 368(S)
86. Chikoma v Mukweza 1998 (1) ZLR 541 (S)
87. Chikumbu v Bryden Technical Svcs (Pvt) Ltd HH-93-09
88. Chinyerere v Fraser 1994 (2) ZLR 234
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89. Chipunza v Muzangaza NO 2004 (1) ZLR 377 (H)
90. Chiraga v Msimuko 2002 (2) 368 (H)
91. Chirenje v Vendfin Investments and Ors S-13-09 or 2009 (1)ZLR 196 (S)
92. Chiwawa v Mutzuris & Ors 2009 (1) ZLR 72 (H)
93. Christian Faith Tabernacle v Sparrows Nest Ministries 2009 (2) ZLR 15 (H) or HH-69-09
94. City of Gweru v Kombayi 1991 (1) ZLR 333 (S)
95. Clapham v Struckel 1979 RLR 521(H)
96. Clapham v Struckel 1980 (2) SA 71(ZR)
97. Cloete v Smithfield Hotel (Pty) Ltd 1955 (2) SA 622 (O)
98. Collective Self Finance Scheme v Asharia 2000 (1) ZLR 472 (S)
99. Commercial Bank of Namibia Ltd v Trans Continental Trading (Namibia) (1992) 2 SA 66
5, 77
100. Commercial Bank of Zimbabwe Ltd v MM Builders & Suppliers (Pvt) Ltd 1996 (2) ZLR 420
(H)
101. Commercial Union Fire, Marine & General Insurance Co Ltd v Fawcett Security
Organisation Bulawayo (Pvt) Ltd 1985 (2) ZLR 31 (S)
102. Cone Textiles (Pvt) Ltd v Tribal Trust Land Development Corpn Ltd 1979 (2) SA 1051
103. Conrad v Rossouw 1919 AD 279
104. Coopers & Lybrand v Bryant 1995(3) SA 761(A) 767E-768E
105. Costain & Partners v Godden 1960 R & N 658; 1960 (4) SA 456 (SR)
106. Cotton Marketing Board v National Railway of Zimbabwe 1988(1) ZLR 304 (S)
107. Cradwell v Taylor 1971 (2) SA 184.
108. Crawley v Rex 1909 TS 1105
109. Crispette and Candy Co Ltd v Michaelis NO & Anor 1947 (4) SA 521 (A)
110. Crookes NO and Anor v Watson and Ors 1956 (1) SA 277 (A)
111. Crundal Brothers (Pvt) Ltd v Lazarus 1991 (2) ZLR 125 (S)
112. Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A)
113. Cyster v Du Toit 1932 CPD 345
114. Da Silva v Janowski 1982 (3) SA 205 (A)
115. Dadoo v Krugersdorp Municipality Council 1920 AD 530
116. Datacolor International v Intermarket 2001 (2) SA 284 (SCA)
117. De Villiers & Anor v Sports Pools (Pvt) Ltd 1976 (2) RLR 233
118. Delta Operations (Pvt) Ltd v Origen Corporation (Pvt) Ltd S-86-06
119. Department of Police, Road and Transport Free State Provincial Government and Anor
(3489/2012) (2013) ZAFSHC 11
120. Derry v Peek (1889) 14 App. Case 337
121. Design and Planning Service v Kruger 1974 (1) SA 689 (T)
122. Diamond v Kernick 1947 (3) SA 69 (A) 83
123. Dibley v Furter 1951 (4) SA 73 (C)
124. Dickens v Daley 1956 (2) SA 11 (N)
125. Dickinson Motors v Oberholzer 1952 (1) SA 448(A)
126. Dickson v Jones (1939) 3 All ER 182 (ChD)
127. Diedericks v Minister of Lands 1964 (1) SA 49 (N)
128. Dijkstra v Janowsky 1985 (3) SA 560 (C)
129. Diocese of Harare v Church of Province of Central Africa & Anor (1) 2008 (1) 112 (H)
130. Direct Response Marketing (Pvt) Ltd v Shepherd 1993 (2) ZLR 218 (H)
131. Dobrock Holdings (Pvt) Ltd v Turner and Sons (Pvt) Ltd & Ors 2006 (2) ZLR 353 (H)
132. Dodhill (Pvt) Ltd & Anor v Min of Lands & Anor 2009 (1) ZLR 182 (H)
133. Donners Motors (Pvt) Limited v Kufinya 1968(1) SA 434(RA)
134. Driftwood Properties (Pty) Ltd v Mcleon 1971 (3) SA 591 (A)
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135. Du Plooy v National Industrial Credit Corp Ltd 1961 (3) SA 741 (W)
136. Dube v Khumalo 1986 (1) ZLR 103( S)
137. Duly & Company Limited v Shonge 1985 (2) ZLR 351 (S)
138. Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co (1915) AC 847
139. Duplesis v Nel 1952 (1) SA 513 ( A )
140. Dynamos Football Club (Pvt) Ltd & Anor v ZIFA & Ors 2006 (1) ZLR 346 (S)
141. E Underwood and Son Ltd v B Barker (1899) I CH 300 (CA)
142. Eastview Gardens Residents Association v Zimbabwe Reinsurance Corporation Ltd and
Ors 2003 (2) ZLR 388 (H)
143. Econet Wireless (Pvt) Ltd v Trustco Mobile (Proprietary) Limited and Anor S-43-13
144. Edelstein v Edelstein 1952 (3) SA 1 (A)
145. Electra Rubber Products (Pvt) Ltd v Socrat (Pvt) Ltd 1981 ZLR 356 (A)
146. Electronic Building Elements v Huang 1992 (2) SA 384 387 (W)
147. Elite Electrical Contractors v Covered Wagon Restaurant 1972 (2) RLR 221 (A)
148. Enslin v Meyer 1960 (4) SA 520
149. Ericsson (Pvt) Ltd v Protea Motors Ltd and Anor 1973(3) SA 655 (A)
150. Essakow v Galbraith 1970 OPD 53
151. Esso Petroleum Co Ltd v Harper’s Garage (Strourport) Ltd (1967) 1 All ER 699
152. Esso Standard SA (Pty) Ltd v Katz 1981 (1) SA 964
153. Estate Breet v Peri-Urban Areas Health Board 1955 (3) SA 523 (A)
154. Eastern Motors (Pvt) Ltd v City of Mutare 2002 (2) ZLR 735 (H)
155. Evans v Snapper 2004 (2) ZLR 121(S)
156. Ex parte Blignaut 1963 (4) SA 36 (O)
157. Ex parte Calderwood, in re Estate Wixley 1981 ZLR 161(H)
158. Executive Hotel (Pvt) Ltd v Bennett NO S–77–06; 2007 (1) ZLR 343 (S)
159. Extel Industrial (Pty) Ltd v Crown Mills 1999 (2) SA 719 (A)
160. Farmers’ Co-operative Society (Reg) v Berry 1912 AD 343
161. Feinstein v Niggli 1981 (2) SA 684 (A)
162. Ferguson & Partners v Zimbabwe Federation of Trade Unions & Ors 2004 (1) ZLR 475 (H)
163. Ferguson v Merensky 1903 TS 657 660
164. Firstel Cellular (Pvt) Ltd v Sefaidiga & Anor HH-70-12
165. Fisc Guide Investment v Tazarura & Ors HH-28-2005
166. Fitch v Dewes (1921) 2 AC 158
167. Flamelily v Zimbabwe Salvage (Pvt) Ltd and Anor 1980 ZLR 378(H)
168. Flanagan v Wheeler 1976 (1) RLR 60; 1976 (4) SA 35 (R)
169. FMB Zimbabwe Ltd v Fortress Industrial Invstms (Pvt) Ltd & Anor 2000 (1) 221 (S)
170. Forestry Commission v Cell Insurance Company (Pvt) Ltd HH-116-2013
171. Fouche v Battenhausen and Company (1939) CPD 228
172. Fourie v CDMO Homes (Pty) Ltd 1982(1) SA 21(A)
173. Friday Bruno Peni v The Society of Jesuits of Zimbabwe S-14-10
174. Gambiza v Taziva 2008 (2) ZLR 107 (H)
175. Ganief v Hoosen 1977 (4) SA 458 (C)
176. Geldenhuys v Maree 1962 (2) SA 511
177. General Finance Co (Pvt) Ltd v Robertson 1980 ZLR 166 (A) or 1980 (4) SA 122(ZH)
178. George v Fairmead (Pty) Ltd 1958 (2) SA 468 (A)
179. Georgias & Anor v Standard Chartered Bank Zimbabwe Ltd 1998 (2) ZLR 488 (S)
180. Georgias v ZDB Financial Services Limited 2000 (2) ZLR 447 (H)
181. Gibson v Van der Walt 1952 (1) SA 262 (A)
182. Gideon v Ngumo 1973 RLR 197 (H)
183. Gifford v Muzire & Ors 2007 (2) ZLR 131 (H)
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184. Girjac Services (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 243 (S)
185. Glass v Glass 1920 SR 48
186. Gold Mining and Minerals Development Trust v Zimbabwe Miners Federation HH 24-
2006; 2006 (1) 174 (H)
187. Gold Schmidt v Folip (1974) 1 SALR 576
188. Goldblatt v Fremantle 1920 AD 123 128
189. Golden Cape Fruits (Pty) Ltd v Fotoplate 1973 (2) SA 642 (C)
190. Government v Tinto Industries Limited 1985 (1) ZLR 66 (H)
191. Graf v Beuchel 2003 (4) SA 378 (SCA)
192. Greebe & Anor v Famaps Investments (Pvt) Ltd 2004 (1) ZLR 522 (H)
193. Green Acres Farm (Pvt) Ltd v Haddon Motors (Pvt) Ltd 1983 (1) ZLR 17 (S)
194. Greendale Hardware & Electrical (Pvt) Ltd v Bangaba 2007 (2) ZLR 17 (S)
195. Grey v Pearson (1857) 10 ER 1216
196. Grobbelaar v Bosch 1964 (3) SA 687 (E)
197. Guardian Security Services (Pvt) Ltd v ZBC 2002 (1) 1 (S)
198. Gwanetsa v Green Motor Services HH-159-03
199. Halsey v Jones 1962 (3) SA 484 (A)
200. Halwick Investments v Nyamwanza 2009 (2) 400 (S)
201. Hanakira v Mapfumo and Anor HH-155-10
202. Harper v Webster (1956) R&N 10 / 1095 (2) SA 495 (SR)
203. Harvey v Facey (1893) AC 552
204. Hattingh & Ors v van Kleek 1997 (2) ZLR 240 (S)
205. Haynes v King Williamstown Municipality 1951 (2) SA 371 (A)
206. Heilbron v Blignaut 1932 WLD 167 169
207. Henry v Branfield 1996 (1) SA 244 (D)
208. Herbert Morris Ltd v Saxelby (1916) 1 AC 688 (HL) 709 & 710
209. Hershman v Shapiro and Co. 1926 TPD, 367
210. Hewlett v Chipunza 1983 (2) ZLR 148(H)
211. Heyneke v Abercrombie 1974 (3) SA 338 (T) 345 F
212. Heyns v Heyns 1978 RLR 324 (A)
213. Highveld 7 Properties v Bailes 1999 (4) SA 1307 (SCA)
214. Hillas & Co Ltd v Arcos Ltd [1932] UKHL 2
215. Hitchcock v Raaff 1920 TPD 366
216. Hockey v Rixom and Smith 1939 SR 107
217. Hodgson v Granger 1991 (2) ZLR 10 (H)
218. Holmedene Brickworks (Pty) Ltd V Roberts Construction Co Ltd 1977 (3) SA 670 (A)
219. Hyde v Wrench (1840) 49 ER 132
220. Import and Export (Pvt) Ltd v Zimbabwe Banking Corporation Limited 1999 (4) SA 1119
(ZS)
221. Independent African Church v Maheya 2000 (1) ZLR 39 (H)
222. Industrial Equity v Walker 1996 (1) ZLR (H)
223. Inhambane Oil and Mineral Development Syndicate Ltd v Mears and Ford (1906) 23 SC
250
224. Intercontinental (Pvt) Ltd v Nestle Zimbabwe 1993(1) ZLR 21 (H)
225. International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) 700.
226. International Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21(H)
227. International Trading (Pvt) Ltd 1993 (1) ZLR 21 (H)
228. International Who’s Who Ltd v Bernstein Clothing (Pvt) Ltd S-28-99
229. Jacksonv Unity Insurance Co Ltd 1999 (1) ZLR 381 (S)
230. Jajbhay v Cassim 1939 AD 537 544-545
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231. Jammine v Lowrie 1958 (2) SA 430 (T)
232. Jena v Nyemba 1986 (1) ZLR 138 (SC)
233. Jiawu Mfrs v Mitchell Cotts Freight Zimbabwe (Pvt) Ltd 2003 (2) 369 (H)
234. Johnson v Incorporated General Insurances Ltd 1983 (1) SA 318 (A)
235. Johnson v Leal 1980(3) SA 927 (A)
236. Jones v Jones 1965 R & N 133; 1963 (2) SA 193(SR)
237. Jones v Padabaton 1969 2 All ER 166
238. Jonnes v Anglo-African Shipping Co. Ltd 1972 (2) SA 827(A)
239. Joubert v Enslin 1910 AD 6
240. Kanengoni v Zimbabwe Spinners & Weavers (Pvt) Ltd 1995 (2) ZLR 348 (S) 351
241. Kantor v Kantor,1962(3) SA 202 (T)
242. Karabus Motors (1959) Ltd v Van Eck 1962(1) SA 451 (C)
243. Karimazondo v Standard Chartered Bank of Zimbabwe 1995 (2) ZLR 404 (S)
244. Katekwe v Muchabaiwa 1984 (2) ZLR 112 (S)
245. Kazizi v Kazizi 2006 (1) ZLR 501 (H)
246. Kempston Hire (Pty) Ltd v Snyman 1988 (4) SA 465 (T)
247. Kenilworth Estates Ltd v Kremer Enterprises (Pvt) Ltd 1969 (1) RLR 1(H)
248. Kennedy v Loyne (1909) 26 SC 271
249. Kent v Salmon 1910 TPD 637 640
250. Kergeulen Sealing and Whaling Co. Ltd v Commissioner of Inland Revenue 1939 AD 487
251. Khan v Naidoo 1989 (3) SA 724 (N)
252. King v Potgieter 1950(3) SA 7 (T)
253. Kings Car Hire (Pty) Ltd v Wakeling 1970 (4) SA 640 (N)
254. Knightsbridge Investments (Pvt) Ltd v Gurland 1963 R&N 37 (SR)
255. Koenig v Johnson & Co 1935 AD 262
256. Kok v Osborne 1993(4) SA 788 (SE)
257. Krell v Henry (1903) 2 KB 407
258. Kufandirori v Chipuriro and Ors 2004 (1) ZLR 74 (H)
259. Lake v Caithness 1997 (1) SA 667 (E)
260. Lallemand v Lallemand 2003 (2) ZLR 178 (H)
261. Landsbergen v Van der Walt 1972(2) SA 667 (R)
262. Lange v Lange 1945 AD 332 341
263. Laws v Rutherfund 1924 AD 261
264. Leader Tread Zimbabwe (Pvt) Ltd v Smith 2003 (2) ZLR 139 (H)
265. Lee v American Swiss Watch Company 1914 AD 121
266. Lees Import and Export (Pvt) Ltd v Zimbabwe Banking Corporation Limited 1999 (4) SA
1119 (ZS)
267. Legogote Development Co (Pty) Ltd v Delta Trust and Finance Co 1970 (1) SA 584 (T) 587
268. Lief NO v Dettmann 1964 (2) SA 252 (A)D
269. Levenstein v Levenstein 1955 (3) SA 615 (SR)
270. Levy v Banket Holdings (Private) Ltd 1956 R&N 98; 1956 (3) SA 558 (FC)
271. Levy v Geoff’s Motors (Pvt) Ltd 1992 (1) ZLR 127 (S)
272. Logan v Beit 1890 7 SC/AC 19
273. Logan v Partridge 1918 SR 101
274. Logan v Sibiya 2002 (1) ZLR 531 (H)
275. Lourenco v Raja Dry Cleaners & Steam Laundry (Pvt Ltd 1984 (2) ZLR 151 (S)
276. LTA Engineering Co Ltd v Seacat Investments (Pty) Ltd 1974 (1) SA 747 (A)
277. Lupu v Lupu 2000(1) ZLR 120 (S)
278. Mabhena v Bulawayo Polytechnic H-22-94
279. Mac and Son Coachbuilders (Pvt) Ltd v Mapfumo 1984 (1) ZLR 16 (H)
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280. Macape (Pty) Ltd v Executrix, Estate Forrester 1991 (1) ZLR 315 (S)
281. MacDuff & Co v Johannesburg Consolidated Investments Co. Ltd 1924 AD 573
282. Maceys Stores Limited v Tanganda Tea Co. Ltd 1983 (1) ZLR 255 (S)
283. Madan v Macedo Heirs & Anor 1991 (1) ZLR 295 (S)
284. Madoo (Pty) Ltd v Wallace 1979 (2) SA 957 (T)
285. Magna Alloys and Research (S.A) (Pty) Ltd v Ellis 1984 (4) SA 874 (A)
286. Mahabeer v Sharma 1985 (3) SA 729 (A)
287. Majora v Kuwirirana Bus Service (Pvt) Ltd 1990 (1) ZLR 87 (S)
288. Makamure v Deven Engineering (Pvt) Ltd 2008 (2) ZLR 319 (H)
289. Malaba v Takangovada 1990 (3) SA 413 (ZH)
290. Mandala v Glens Removals & Storage (Zimbabwe) (Pvt) Ltd HH-78-13
291. Mandhu v Scotfin Ltd 2003 (1) ZLR 476 (H)
292. Mangwana v Muparadzi 1989 (1) ZLR 79 (S)
293. Mangwiza v Ziumbe NO & Anor 2000 (2) ZLR 489 (S)
294. Mans v Union Meat Co 1919 AD 268 271
295. Maparanyanga v The Sheriff and Ors SC-132-02
296. Marais & Anor v Kennedy & Anor 1996 (2) ZLR 610 (H)
297. Marais v Edlman 1934 CPD 212
298. Marimo v Brancos & Anor 2002 (2) ZLR 288 (H)
299. Marisa v Madondo 1992 (1) ZLR 276 (S)
300. Maritz v Pratley (1894) 11 SC 345
301. Martin Harris & Seuns OVS (Edms) Bpk v Qwa Qwa Regeringsdiens 2000 (3) SA 339 (SCA)
302. Mashoko v Mobil Oil Zimbabwe (Pvt) Ltd 2005 (1) 421 (H)
303. Mashonaland Turf Club v Nyamangunda 2009 (1) ZLR 160 (H)
304. Matsika v Jumvea Zimbabwe (Pvt) Ltd & Anor 2003 (1) ZLR 71(H)
305. Mayes v Noordhof 1992 (4) SA 233 (A)
306. Mazodze v Mangwanda 2005 (1) ZLR 87 (S)
307. Mbayiwa v Chitakunye and Anor S-20-09; 2009 (1) ZLR 314 (S)
308. MBE Ltd v Try Again Bus Co (Pvt) Ltd 1975 (1) RLR 39
309. McAninch v Maisiri & Anor 2002 (2) 54 (S)
310. McHardy v Olifant 1905 ORC 42
311. Mega Pak Zimbabwe (Pvt) Ltd v Global Technologies Central Africa (Pvt) Ltd 2008 (2) LR
195(H))
312. Melmoth Town and Board v Marious Mostenrt Pty Ltd 1984(3) SA 718 (A)
313. Menashe v Georgiadis 1936 SR 59
314. Merchant Bank of Central Africa Ltd v Liquidators, Tirzah (Pvt) Ltd & Ors 2000 (2) ZLR
163 (H)
315. Metallon Corporation Ltd v Stanmarker Mining (Pvt) Ltd S-82-06
316. Metro International (Pvt) Ltd v Old Mutual Property Investment Corporation (Pvt) Ltd
and TM Centre (Pvt) Ltd S-83-2006; 2007 (1) ZLR 408 (S)
317. Metro Western Cape (Pty) Ltd v Ross 1986 (3) SA 181 (A)
318. Meyers-Mbidzo N.O V Chipunza and Anor HH-3-2009
319. Middleton v Carr 1949 (2) SA 374 (A) 391
320. Mikesome Investments (Pvt) Ltd v Silcocks Investments (Pvt) Ltd 2003 (2) ZLR 56 (H)
321. Miller and Ors v Bellville Municipality 1973 (1) SA 914 (C)
322. Minister of Home Affairs & Anor v Trimu Agencies & Distributors (Pvt) Ltd 2000 (2) ZLR
191 (S)
323. Minister of Industry and Technology v Tanaka Powers S-114-1990
324. Minister of Public Construction & National Housing v Zescon (Pvt) Ltd 1989 (2) ZLR 311
(S)
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325. Mitchell Cotts Freight Zimbabwe (Pvt) Ltd v S & T Import and Export (Pvt) Ltd 1982 (2)
SA 669 (Z)
326. Mlambo v Mupfiga HH-65-14
327. Mobil Oil Zimbabwe (Pvt) Ltd v Mashoko 2006 (1) 182 (S)
328. Mohr v Kriek 1953 SR 65; 1953 (3) SA 600 (SR)
329. Moyo & Anor v Intermarket Discount House Ltd 2008 (1) ZLR 268 (S)
330. Moser v Milton 1945 AD 517 526
331. Mothle v Mathole 1951 (1) SA 785 (T)
332. Mountain Lodge Hotel (1979) (Pvt) Ltd v McLoughlin 1984 (2) SA 567 (ZS)
333. Mowbray and Rondebosch Councils v Smith (1909) 26 SC 681
334. Mtoko Heavy Haulage (Pvt) Ltd v Sykes & Anor 1975 (2) RLR 132 (H)
335. Muchabaiwa v Grab Enterprises (Pvt) Ltd 1996 (2) ZLR 691 (S)
336. Mud Man Enterprises (Pvt) Ltd v Nechironga & Ors 2003 (2) 131 (H)
337. Mudzengi & Ors v Hungwe & Anor 2001 (2) 179 (H)
338. Mudukuti v F C M Motors (Pvt) Ltd 2007 (1) ZLR 183 (H)
339. Mufakose Housing Cooperative Society v Magozore HH-17-2007; 2007 (1) ZLR 175 (H)
340. Muguti v Uboxit Worlwide (Pvt) Ltd and Ors 2010 (1) ZLR 13 (H)
341. Mujaji v Mushoriwa HH–30–09
342. Mukahlera v Clerk of Parliament & Ors 2005 (2) ZLR 365 (H)
343. Muleya v Bulle 1994 (2) ZLR 202 (H)
344. Munhuwa v Mhukahuru Bus Services (Pvt) Ltd 1994 (2) ZLR 382 (H)
345. Municipality of Bulawayo v Zimbabwe Football Association 1989 (3) ZLR 261 (S)
346. Municipality of Kwekwe v Imprecon (Pvt) Ltd 1983 (1) ZLR 101 (S)
347. Municipality of Kwekwe v Space Age Investments (Pvt) Ltd 1985 (1) ZLR 300 (S)
348. Municipality of Victoria Falls v Nyathi and Ors HB-2-12
349. Munyani v Liminary Investments & Anor HH-38-10
350. Musadzikwa v Minister of Home Affairs & Anor 2000 (1) ZLR 405 (H)
351. Musgrove & Watson (Rhodesia) (Pvt) Ltd v Rotta (1) 1978 RLR 129 134
352. Musundire v OK Zimbabwe HH-94-12
353. Mutangadura v TS Timber Building Supplies 2009 (2) ZLR 424 (H)
354. Mutomba Supermarket v R & C Investments (Pvt) Ltd S-85-2002
355. Mutomba v R & C Investments (Pvt) Ltd 2002 (2) ZLR 510 (S)
356. Mutual and Federal Insurance Co Ltd v Oudtshoorn Municipality 1985 (1) SA 419
357. Mwayipaida Family Trust v Madoroba and Ors S-22-04
358. Nash v Golden Dumps 1985 (3) SA 1 (A)
359. National Bank v Cohen’s Trustee 1911 AD 235
360. National University of Science and Technology v National University of Science and
Technology Academic Staff and Ors HB-7-06
361. National & Grindlays Bank Ltd v Yelverton 1972 (4) SA 114 (R)
362. National and Overseas Distributors Cooperation Pty Ltd v Potato Board 1958(2) SA 473
363. National Chemsearch (SA) (Pty) Ltd v Borrowman & Anor 1979 (3) SA 1092 (T)
364. Ncube & Anor v Willey & Anor 1985 (2) ZLR 69 (H)
365. Ncube v Mpofu & Ors HB-69-06; 2006 (2) ZLR 41 (H)
366. Ncube v Ndlovu 1985 (2) ZLR 281(S)
367. Nedcor Bank Ltd v Hyperlec Electrical & Mechanical Supplies CC 2000 (2) SA 880 (T)
368. Nel v Cloete 1972 (2) SA 150 AD
369. Nerger Properties (Pvt) Ltd v R. Chitrin and Ors (Pvt) Ltd 2006 (2) ZLR 287 (S) 291
370. Nestoros Nestoros v Innscor Africa Ltd HH-73-2007; 2007 (2) ZLR 267
371. Nhundu v Chiota & Anor 2007 (2) ZLR 163 (S)
372. Nicol, Nicol, Thrush and Thrush v Crowley 1960 R & N 313(SR)
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373. Niemand v African life Assurance Society Ltd 1969 (3) SA 259 (C)
374. Niri v Coleman and Ors 2002 (2) ZLR 580 (H) 588
375. Nkomo and Ors v ZESA 2004 (1) ZLR 345 (H)
376. Novick v Comair Holdings 1979 (2) SA 116 (W)
377. NUST v NUST Academic Staff & Ors  2006 (1) ZLR 107 (H)
378. Nyaguse v Skinners Auto Body Specialists & Anor 2007 (1) ZLR 296 (H)
379. Nyika Investments v Zimasco Holdings and Anor S- 49 – 05
380. Oatorian Properties (Pty) Ltd v Maroun 1973 (3) SA 779 (A) 785
381. Oceaner (Pvt) and Anor v Upperclass Enterprises(Pvt) and Anor 2001 (2) ZLR 130 (H)
382. Okeke v Duro & Co (Pvt) Ltd 2006 (1) 506 (H)
383. Old Mutual Property Investments v Metro International (Pvt) Ltd and Thomas Meikles
Centre (Pvt) Ltd HH 53 – 2006
384. Old Mutual Shared Services (Pvt) Ltd v Shadaya HH-15-2013
385. Orion Investments (Pvt) Ltd v Ujamaa Investments (Pvt) Ltd & Ors 1987 (1) ZLR 141 (S)
386. Otto v Heymans 1971(4) SA 418 (T)
387. Patel v Grobbelaar 1974 (1) SA 532 (A)
388. Patel v Sigauke and Anor H-55 –1994
389. Peters, Flamman and Co v Kokstad Municipality 1919 AD 427
390. P G Industries (Zim) Ltd v Machawira HH-255-12
391. Petit v Abramson 1946 NPD 673
392. Pheasant v Warne 1922 AD 481
393. Phigidemac Consultants (Pvt) Ltd v Zvimba Rural District Council 2004 (2) ZLR 326 (H)
394. Phil Morkel Bpk v Niemand 1970 (3) SA 455 (C)
395. Phillips Electrical (Pvt) Ltd v Gwanzura 1998 (2) ZLR 117 (H) 122
396. Philmatt (Pvt) Ltd v Masselbank Development CC 1996 (2) SA 15 (A) 23
397. Pieters & Co v Salomon 1911 AD 121
398. Pieters, Flamman & Co. v Kokstad Municipality 1919 AD 422
399. Pietzsch v Thompson 1972 (2) RLR 11; 1972 (4) SA 122 (SR)
400. Pleat v Van Staden 1921 OPD 91
401. PMA Real Estate (Pvt) Ltd v ARDA HH-236-11
402. Pockets Holdings (Pvt) Limited v Lobels Holdings (Pvt) Ltd 1966 RLR 150; 1966 (4) SA 238
(SR)
403. Power Coach Express (Pvt) Ltd v Martin Millers (Pvt) Ltd HH-232-11
404. Preller v Jordan 1956 (1) SA 183 (A)
405. Presbyterian Church of Southern Africa v Shield of Zimbabwe Insurance Co Ltd 1991 (2)
ZLR 261 (H)
406. Price Waterhouse Coopers v National Potato Co-operative Ltd 2004 (6) SA 66 (SCA)
407. Pringle-Wood v Master of the High Court & Anor 1975 (1) RLR 315 ( H )
408. Printing & Numerical Registering Company v Sampson 1875 LR 19
409. Provincial Government and Anor (3489/2012) (2013) ZAFSHC 11 (7 February 2013)
410. PTC Pension Fund v Standard Chartered Merchant Bank Zimbabwe Limited 1993 (1) ZLR
55 (H)
411. PTC v Zimbabwe Posts & Telecommunications Workers Union & Ors 2002 (2) ZLR 722 (S)
412. Pumpkin Construction (Pvt) Ltd v Chikaka 1997(2) ZLR 430 (H)
413. Putco Ltd v TV & Radio Guarantee Co (Pty) Ltd 1985 (4) SA 809 (A)
414. R v Chavendera 1939 SR 218 and Abbott v Nolte 1951 (2) SA 419 (C) 427-8
415. R v Hees 1938 TPD 333 336-7 &
416. R v Milne and Erleigh (7) 1951 (1) SA 791 (A)
417. Raffles v Wichelhaus (1864) 2 H & C 906; 159 ER 375
418. Ranch International Pipelines v LMG Construction 1984 (3) SA 861 (W)
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419. Rand Reitfontein Estates Ltd v Cohn 1937 AD 517
420. Rand Rietfontein Estates Ltd v Cohn 1937 AD 317
421. Ranger v Wykerd 1977 (2) SA 976 (A)
422. Raymond v Abdulnabi 1985 (3) SA 348 (W)
423. Redriver Development (Pvt) Ltd v Provenance Support Co 2003 (2) ZLR 412 (H)
424. Regenstein v Brabo Investments Pty Ltd 1959 (1) R & N 392 (FS)
425. Reid v Hepker & Sons (Pvt) Ltd 1971 (1) RLR 284 OR 1971 (2) SA 138 (RA)
426. Reid v Spring Motor Metal Works 1943 (TPD) 154
427. Reigate v Union Manufacturing Co (1918) 1 KB 592 605
428. Rhodesia Railways Limited v Mackintosh 1932 AD 359 369
429. Roffey v Catterall, Edwards and Goudre (Pty) Ltd 1977 (4) SA 494 (N)
430. Roman Catholic Church v Southern Life Assurance Ass 1992(2) SA 807 (A)
431. Rose and Frank Co v JR Crompton & Brothers Ltd & Anor 1923 2 KB 261.
432. Rowland Electro Engineering (Pvt) Ltd v Zimbank 2007 (1) ZLR 1 (H)
433. Runatsa v Rumani Estates (Pvt) Ltd & Ors 2009 (2) ZLR 286 (S)
434. SA Breweries Ltd v Riberiro t/a Doc’s Liquor Merchants 2000 (1) SA 803 (W)
435. Saambou-Nasionale Bouvereniging v Friedman 1979 (3) SA 978 (A)
436. Sackstein NO v Proudfoot SA (Pty) Ltd 2006 (6) SA 358 (SCA)
437. Sakala v Wamambo 1990 (2) ZLR 263 (H)
438. Salisbury Municipal Employees Association v Salisbury City Council 1957 R & N 127
439. Sampson v Union and Rhodesia Wholesale Ltd 1929 AD 481
440. Santos Professional Football Club (Pvt) Ltd v Igesund & Anor 2003 (5) SA 73 (C)
441. Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A)
442. Savanhu v Marere N.O and Ors S-22-09; 2009 (1) ZLR 320 (S)
443. Sawyer v Chioza & Ors 1999 (1) ZLR 203 (H)
444. Scaurnel v Ostern 1941 AC 257
445. Scheirant v Union Government 1926 AD 256
446. Schierhart v Minister of Justice 1925 AD 41
447. Schierhout v Union Government 1926 AD 286
448. Schneider and London Ltd v Bennett 1927 TPD 346
449. Scott v Poupard 1971 (2) SA 373(A)
450. Scottish Union and National Insurance Co Ltd v Native Recruiting Coop Ltd 1934 AD 458
451. Sealed Africa (Pty) Ltd v Kelly 2006 (3) SA 65 (W)
452. Secretary for Justice and Constitutional Affairs v A Nass & Co. (Pvt) Ltd 1981 ZLR 427
453. Setlogelo v Setlogelo 1914 AD 221
454. Seven Eleven Corporation of South Africa (Pty) Ltd v Cancun Trading NO 150 CC 2005 (6)
SA 186 (SCA)
455. Shatz Investments (Pty) Ltd v Kalovyrnas 1976(2) SA 545 (A)
456. Shiriyekutanga Bus Services (Pvt) Ltd v Total Zimbabwe (Pvt) Ltd 2008 (2) ZLR 37 (H)
457. Shubara Ranch (Pvt) Ltd v Shield of Zimbabwe Insurance Co. Ltd 1988(2) ZLR 306 (S)
458. Sibanda & Anor v Pentaville Investments (Pvt) Ltd & Ors HH 14 – 03
459. Sibanda v Nyathi & Ors 2009 (2) ZLR 171(H)
460. Signature Design Workshop v Eskom Pension & Provident Fund 2002 (2) SA 488 (C)
461. Singh v McCarthy Motors 2000 (4) SA 795 (SCA)
462. Sleightholme Farms (Pvt) Ltd v National Farmers Union Mutual Insurance Society
Limited 1967 (1) SA 13 (R)
463. Small v Smith (1954) 35 ALR 434 437
464. Smith & Ors v ZESA 2003 (1) ZLR 158 (H)
465. Smith v Carson 1916 EDL 26 30
466. Smith v Hughes (1871) 6 QB 597
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467. Sonap Petroleum (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A)
468. South African Railways & Harbours v National Bank of South Africa, Limited 1924 AD 704
715-716
469. Spindufter (Pty) Ltd v Lester Donorvan (Pty) Ltd (1896) (1) SA 303 (A)
470. Springvale Ltd v Edwards 1968 (2) RLR 141 (A)
471. Stanbic Finance Zimbabwe Ltd v Chivhungwa 1999(1) 262 (H)
472. Stanfeld v Kuhn 1940 NPD 84
473. Sterling Products (International) Ltd v Zulu 1988 (2) ZLR 293 (S)
474. Steward v Zagreb Properties (Pvt) Ltd 1971 (1) RLR 180 (A) at 187
475. Stiglingh v Theron 1907 TS 198 103
476. Stuttaford and Company v Oberholzer 1921 CPD 855
477. Suncliff (Pvt) Ltd v Dyke 1978(1) SA 1980
478. Super Safes (Pty) Ltd & Ors v Voulgarides & Ors 1975 (2) SA 783 (W) 785E
479. Supline Investments (Pvt) Ltd v Forestry Co of Zimbabwe 2007 (2) ZLR 280 (H)
480. Swart v Smuts 1971 (1) SA 819 (A)
481. Swartz & Son (Pty) Ltd v Wolmaransstad Town Council 1960 (2) SA 1 (T)
482. Symons and Moses v Davies 1911 NPD 69
483. Tanganda Tea Co (Pvt) Ltd v Amtec (Pvt) Ltd 2003 (1) ZLR 340 (H)
484. Tel Peda Investigation Bureau (Pty) v Van Zyl 1965 (4) SA 475
485. Terra Graphics (Pty) Ltd t/a Terra Works v MEC: Department of Police, Road and
Transport Free State (3489/2012) [2013] ZAFSHC 11 (7 FEBRUARY 2013)
486. Tesben v SA Bank of Athens (1994) 4 AII SA 396 401
487. Theron Ltd v Gross 1929 CPD 345
488. Thompson v Van der Vyver 1954(2) SA 192 194 (C)
489. Thornicroft v Vas 1957 R & N 376 (FS); 1057 (3) SA 754 (FC)
490. Thornton & Anor v Aetna Insurance Co & Anor 1965 RLR 373 (H)
491. Thoroughbred Breeders’ Association v Price Waterhouse 2001 (4) SA 551 (SCA)
492. Tirzah (Pvt) Ltd & Ors Companies, Liquidators of v Merchant Bank of Central Africa Ltd
& Ors 2003 (1) 294 (S)
493. Tobacco Sales Ltd v Agriculture Investments (Pvt) Ltd and Ors 1982 (1) ZLR 180 (H)
494. Tonderai Hamandishe & Anor v Maffack Properties (Pvt) Ltd HH-160-10
495. Total SA (Pty) Ltd v Bekker (1954) 35 ALR 434
496. Total SA Pty Ltd v Bekker 1992(1) SA 617 (A)
497. Transport & Crane Hire (Pvt) Ltd v Hubert Davies & Co (Pvt) Ltd 1991 (1) ZLR 190 (S)
498. Treasure General v Van Vuren 1905 TS 582
499. Trinity Engineering (Pvt) Ltd v Anglo Shipping Ltd 1986(1) SA 700(ZS)
500. Trojan Nickel Mine v Reserve Bank of Zimbabwe HH-169-13
501. Trust Bank of Africa Limited v Standard Bank of South Africa Limited 1968 (3) SA 166
(A)
502. Trustco Mobile (Pty) Ltd & Anor v Econet Wireless (Pvt) Ltd & Anor HH-158-11
503. Tsamwa v Hondo and Ors 2008 (1) ZLR 401(H)
504. Turner & Co (Pvt) Ltd v Arcturus Road Council 1957 R & N 775 777-778 or 1958 (1) SA
409 (SR)
505. Turner & Sons (Pvt) Ltd v Zambezi Paddle Steamer (Pvt) Ltd & Anor 2006 (2) ZLR 353(H)
506. Unilever South East Africa v Viewleen Investments (Pvt) Ltd HH 37-07
507. Union Free State Mining and Finance Corporation Ltd v Union Free State Gold and
Diamond Corporation Ltd 1960 (4) SA 547 (W)
508. Union Government v Vianini Ferro-Concrete Pipes (Pvt) Ltd 1941 AD 43
509. University of Zimbabwe v Gudza 1996 (1) ZLR 249 (S)
510. Unilever plc & Anor v Vimco (Pvt) Ltd & Anor 2004 (2) ZLR 253 (H)
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511. Upper Class Enterprises (Pvt) Ltd v Oceaner (Pvt) Ltd and Ors 2002 (2) ZLR 603 (S)
512. Van Copenhagen v Van Copenhagen 1947(1) SA 576 (T)
513. Van den Berg & Kie Rekenkundige Beamptes v Boomprops 1999 (1) SA 780 (T)
514. Van der Merwe v Nedcor Bank Bpk 2003 (1) SA 169 (SCA)
515. Van Mertzinger v Badenhorst 1953 (3) SA 291 (T)
516. Van Reenen Steel (Pty) Ltd v Smith NO 2002 (4) SA 264 (SCA)
517. Van Rooyen v Minister van Openbare Werke en Gemeenschapsbou 1978 (2) SA 835 (A)
518. Varkevisser v Estate Varkevisser 1959 (2) R & N 58; 1959 (4) SA 196 (SR)
519. Ventab (Pvt) Ltd v Gondo 1988 (2) ZLR 197(H)
520. Victoria Falls and TV1 Power Company Ltd v Consolidated Langlaagte Mines Ltd 1915 AD
1
521. Walker v Industrial Equity Ltd 1995 (1) ZLR 87 (S).
522. Ward S 19 Council v Premier, Western Cape Province & Ors 1998 (3) SA 1056 (C)
523. Warren Park Trust v Pahwaringira and Ors HH-39-2009
524. Wasmuth v Jacobs 1987 (3) SA 629 (SWA)
525. Waste Management Services (Pvt) Ltd v City of Harare S-126-02
526. Watergate (Pvt) Ltd v CBZ 2006 (1) 9 (S)
527. Water Mayer v Murry 1911 (AD) 61
528. Waterfalls Town Management Board v Minister of Housing 1956 R & N 691(SR)
529. Watson v Gilson Enterprises (Pvt) Ltd 1997 (2) ZLR 318 (H)
530. Wells v Eagle Rhodesian Tobacco Co Ltd 1955 (1) SA 385 (SR)
531. WFD Network (Pvt) Ltd v Jaggers Wholesalers 2001 (1) ZLR 368
532. Whaley and Ors (Law Society of Zimbabwe intervening) v Cone Textiles (Pvt) Ltd 1989
(1) ZLR 54 (S)
533. Wheeldon v Moldenhauer 1910 EDL 97
534. W I Carroll & Co v Ray Hall Motors (Pty) Ltd 1972 (4) 728 (T)
535. Whitaker v Daly 1948 SR 52
536. Wikins NO v Voges 1994 (3) SA 130; Chinyerere v Fraser NO 1994 (2) ZLR 234 (H)
537. Wilken v Kohler 1913 AD 135 141
538. Wilson v Smith 1956 (1) SA 393 (W)
539. Winterton Holmes and Hills v Paterson S-115-95
540. Wire OHMS v Greenbalt 1939(3) SA
541. WLSA & Ors v Mandaza & Ors 2003 (1) ZLR 500 (H)
542. Woods v Walters 1921 AD 303
543. Wylock v Milford Investments (Pty) Ltd 1962 (4) SA 298 (C)
544. Wynina (Pvt) Ltd v MBCA Bank Ltd S-27-14
545. Wynn’s Car Care Products v First National Industrial Bank 1991 (2) SA 754 (A)
546. X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt Ltd 2000 (2) ZLR 348 (S)
547. Yates v Dalton 1938 EDL 177
548. Yelverton 1972(4) SA 114 ( SR)
549. York Estates Ltd v Wareham 1949 SR 197 198 or 1950 (1) SA 125
550. Young v van Rensburg 1991 (2) ZLR 149 (S)
551. Zambezi Conference of Seventh Day Adventists v General Conference of Seventh Day
Adventists & Anor 2001 (1) 160 (S)
552. ZESA v Bikita Minerals (Pvt) Ltd 2001 (1) 438 (H)
553. ZESA v Smith & Ors 2005 (1) ZLR 120 (S)
554. Zimbabwe Care v Grain Marketing Board S-214-92
555. Zimbabwe Express Services (Pty) Ltd v Nuanetsi Ranch (Pty) Ltd S-21-09; 2009 (1) ZLR
326 (S)
556. Zimbabwe Sun Hotels (Pvt) Ltd v Lawn 1988 (1) ZLR 143 (S)
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557. Zimbank Ltd & Anor v Efficient Security (Pvt) Ltd & Anor 2001 (2) 55 (H)
558. Zimbank & Ors v Shiku Distributors (Pvt) Ltd & Ors 2000 (2) ZLR 11 (H)
559. Zingwe v Gwanzura & Anor 2011 (1) ZLR 589 (H)
560. ZINWA v Kadoma Municipality HB-13-13
561. Zvoma v Amalgamated Motor Corporation (Pvt) Ltd 1988 (1) ZLR 60 (H)
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TABLE OF CONTENTS
DEDICATION .............................................................................. 3
FOREWORD ............................................................................... 3
ENDORSEMENTS ......................................................................... 3
PREFACE .................................................................................. 4
TABLE OF CASES......................................................................... 5
SECTION 1 24
BASIC CONCEPTS IN THE LAW OF CONTRACT 24
1.1 Introduction ............................................................................... 24
Essential questions for basis of contract 24
Fig 1: Summary of law of contract 25
1.2 What is a contract? ....................................................................... 25
1.3 The basic concepts in the law of contract ........................................... 25
1.3.1 The concept of obligations ........................................................... 25
1.3.2 The concept of terms of a contract ................................................ 26
i) Essential terms (essentialia) (essential terms) 26
ii) Legal terms (naturalia) 26
iii) Residual terms (incidentalia) 26
1.3.3 The concept of performance......................................................... 26
1.4 Theories of contractual liability ....................................................... 27
1.4.1 Declaratory theory .................................................................... 27
1.4.2 Will or consensual theory............................................................. 27
1.4.3 Reliance theory ........................................................................ 27
1.5 Doctrines of the law of contract ....................................................... 27
1.5.1 Freedom of contract .................................................................. 27
Circumstances under which the doctrine of freedom of contract is not strictly
applied 28
1.5.2 Sanctity of contract ................................................................... 29
1.5.3 Privity of contract ..................................................................... 32
1.6 Sources of the law of contract ......................................................... 33
1.6.1 Statute .................................................................................. 33
1.6.2 Common law ............................................................................ 34
1.6.3 Authoritative texts .................................................................... 34
1.6.4 Custom .................................................................................. 35
SECTION 2 36
ESSENTIAL ELEMENTS OF A VALID CONTRACT 36
2.1 What are the essential elements of a valid contract? .............................. 36
2.2 Offer and acceptance .................................................................... 36
2.2.1 What is an offer? ....................................................................... 36
2.2.1.1 Characteristics of a valid offer..................................................... 38
2.2.2 Irrevocable offers ...................................................................... 40
i) Option 40
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ii) Right of first refusal or preemptive right 41
iii) Contracts to keep an offer open for acceptance by a third party 42
2.2.3 Termination of an offer ............................................................... 43
2.2.4 Acceptance ............................................................................. 44
2.2.4.1 Characteristics of a valid acceptance............................................. 44
2.2.4.2 Modes of communicating acceptance ............................................. 46
2.2.4.3 Contracts where there is no offer and acceptance ............................. 47
Fig. 2 Essential element of offer and acceptance 48
2.3 Agreement ................................................................................. 48
2.3.1 Animus contrahendi ................................................................... 51
2.4 Contractual capacity ..................................................................... 52
2.4.1 Artificial persons ....................................................................... 52
i) Types of artificial persons 52
2.4.2 Natural persons ........................................................................ 54
i) Types of natural persons 54
2.5 Possibility to perform .................................................................... 58
i) Factual impossibility 59
ii) Legal impossibility 59
2.6 Formalities ................................................................................ 60
i) Statutory formalities 60
ii) Self-imposed formalities 60
2.7 Certainty or clarity ....................................................................... 60
Contracts void for vagueness 61
2.8 Legality .................................................................................... 62
2.8.1 Causes of illegality .................................................................... 63
i) Statutory illegality 63
ii) Common law illegality 65
2.8.2 Contracts accepted as contrary to public policy ................................. 66
i) Contracts tendering to injure the state or public service 66
ii) Contracts injurious to the administration of justice 66
Law relating to covenants in restraint of trade 70
2.9 Consequences of illegality .............................................................. 74
i) The exturpi causa rule 74
ii) The in pari delicto rule 75
iii) Severing a part of the contract 76
iv) General unjust enrichment action 77
SECTION 3 78
TERMS OF A CONTRACT 78
3.1 What are terms of a contract? ......................................................... 78
3.2 Classification of terms of a contract .................................................. 78
3.2.1 Express Terms .......................................................................... 79
3.2.1.1 Interpretation of express terms ................................................... 79
The golden rule of interpretation of contracts: 79
3.2.1.2 The parole evidence or integration rule............................................. 81
3.2.1.3 Exceptions to the parole evidence rule ............................................. 83
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3.2.1.4 Criticisms leveled against the parole evidence rule ............................ 84
3.2.1.5 Signed Contracts ..................................................................... 85
3.2.1.6 Unsigned contracts or ticket cases ................................................ 85
3.2.2 Implied terms .......................................................................... 86
3.2.2.1 Terms implied by facts, conduct or tacit terms ................................. 86
3.2.2.2 Terms implied by the law ........................................................... 87
3.2.2.3 Terms implied by trade usage...................................................... 87
3.3 Rectification of contracts ............................................................... 88
3.4. Special terms of a contract ............................................................. 88
3.4.1 Conditions............................................................................... 88
3.4.1.1 Classification of conditions ......................................................... 89
3.4.1.2 Suspensive Condition/Condition Precedent ...................................... 90
3.4.1.3 Resolutive Condition/Condition Subsequent ..................................... 90
3.4.1.4 The doctrine of fictional fulfillment of a condition ............................ 91
3.4.1.5 Exemption Clauses ................................................................... 91
3.4.1.6 Limitation or exclusion of liability based on negligence ....................... 93
3.4.1.7 Warranty............................................................................... 94
3.4.1.8 Non-variation clauses ................................................................ 94
SECTION 4 96
VOID AND VOIDABLE CONTRACTS: FACTORS VITIATING A CONTRACT 96
4.1 Definitions ................................................................................. 96
4.2 General remedies for voidable contracts ............................................. 96
4.2.1 Restitution in integrum (Rescission coupled with restitution) ................. 96
4.2.2 Delictual damages in the context of the law of contract ....................... 97
4.3 Specific factors vitiating a contract ................................................... 97
4.3.1 Misrepresentation...................................................................... 97
4.3.1.1 Definition .............................................................................. 97
4.3.1.2 Elements of misrepresentation .................................................... 97
Exceptions to the general rule 98
4.3.1.3 Types of misrepresentation ........................................................ 99
i) Fraudulent or intentional misrepresentation 99
ii) Negligent misrepresentation 99
iii) Innocent misrepresentation 100
4.3.1.4 Remedies for misrepresentation ..................................................100
i) Restitutio in integrum (rescission of contract) 100
ii) Damages in delict 100
iii) Aedilitian remedies 100
4.3.2 Duress ..................................................................................101
4.3.2.1 Definition .............................................................................101
4.3.2.2 Elements of duress ..................................................................101
4.3.2.3 Remedies for duress ................................................................102
4.3.3 Undue influence ......................................................................102
4.3.3.1 Definition .............................................................................102
4.3.3.2 Elements of undue influence ......................................................103
4.3.3.3 Remedies for undue influence ....................................................103
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i) Restitutio in integrum 103
ii) Delictual damages 103
4.4 Mistake ....................................................................................103
4.4.1 Definition ..............................................................................103
4.4.2 Classification of mistake.............................................................104
i) Causal versus non-causal mistake 104
ii) Mistake in motive versus essential or material mistake 104
iii) Unilateral, common and mutual mistake 106
4.4.2.1 Unilateral essential mistake .......................................................106
i) The Justus error theory 106
ii) The reasonable reliance theory 107
Which approach or theory should be used in Zimbabwe? 107
What is the Zimbabwean position? 108
4.4.2.2 Common essential mistake ........................................................109
4.4.2.3 Mutual essential mistake ...........................................................109
4.4.3 Factors to be considered for mistake to vitiate a contract ....................110
4.4.3.1 Remedies available to an innocent party in the event of mistake ..........112
i) Rescission of contract 112
ii) Delictual damages 112
iii) Rectification 112
iv) Condictio indebiti 113
4.4.3.2 Summary of the legal approach to cases of mistake ..........................113
4.5 Bribery of agent .........................................................................114
SECTION 5 115
BREACH OF CONTRACT 115
5.1 What is breach of contract.............................................................115
5.2 Categories of breach of contract .....................................................115
5.2.1 Breach of contract according to when performance was due .................115
5.2.1.1 Anticipatory breach .................................................................115
i) Repudiation 115
Requirements for repudiation 116
ii) Prevention of performance 116
Requirements for prevention 116
5.2.1.2 Malperformance .....................................................................116
i) Mora 116
a) Mora ex re 117
b) Mora ex persona 117
5.2.1.3 Legal consequences of mora ......................................................118
5.2.1.4 Positive malperformance ..........................................................119
5.2.2 Breach of contract according to which a party has failed to honour the
contractual obligation(s) .......................................................................119
i) Mora debitoris 119
Requirements for mora debitoris 119
ii) Mora creditoris 120
Requirements for mora creditoris 120
@ Innocent Maja 21
5.2.3 Legal consequences of mora creditoris ...........................................121
5.3 Breach of contract according to the impact on the essential terms of the
contract ...........................................................................................121
5.3.1 Breach going to the root of the contract .........................................121
5.3.2 Breach that does not go to the root of the contract ............................121
5.4 Defences available to an innocent party whenever there is breach ............122
Requirements for the use of exceptio non-adimpleti contractus as a defence 122
SECTION 6 123
REMEDIES FOR BREACH OF CONTRACT 123
6.1 Issues to be established ................................................................123
6.2 The cause of action .....................................................................123
6.3 Purpose of remedies for breach of contract ........................................123
6.4 Classification of remedies for breach of contract ..................................123
6.4.1 Remedies available when an innocent party chooses to abide by the contract
123
i) Specific performance 123
ii) Interdict 123
iii) Declaration of Rights 123
6.4.1.1 Specific performance ...............................................................123
6.4.1.2 Circumstances under which specific performance cannot be ordered: ....125
6.4.1.3 Interdict ..............................................................................126
i) Prohibitory Interdict 126
ii) Mandatory Interdict 126
iii) Restitutionary Interdict 126
6.4.1.4 Declaration of rights ................................................................127
6.5 Remedies available when an innocent party chooses to cancel the contract .127
6.5.1 Cancellation ...........................................................................127
6.5.1.2 Requirements for cancellation ....................................................127
6.5.2 Remedies available when a party chooses to either abide by or cancel the
contract 129
6.5.2.1 Damages ..............................................................................129
6.5.2.2 Requirements for a claim for damages ..........................................129
i) The Contemplation principle 130
ii) The Convention principle 130
6.6 Duty to mitigate loss ....................................................................131
6.7 Apportionment of damages ............................................................131
SECTION 7 133
DISCHARGE OR TERMINATION OF CONTRACT 133
7.1 Termination or discharge by the parties .............................................133
i) By the parties 133
ii) By law 133
7.1.1 Performance ...........................................................................133
i) Proper and full performance 133
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ii) Monetary debts 133
iii) Payment in full and final settlement 133
7.1.2 Agreement .............................................................................134
7.1.3 Notice ..................................................................................134
7.1.4 Waiver ..................................................................................134
7.1.4.1 Requirements of a Waiver .........................................................134
7.1.5 Novation ................................................................................135
i) Novatio voluntaria (voluntary novation) 135
ii) Novatio necessaria (compulsory novation) 136
7.1.6 Compromise or settlement agreement ............................................136
7.1.7 Delegation .............................................................................136
7.1.8 Cession .................................................................................136
7.1.8.1 Requirements of a valid cession ..................................................137
7.1.8.2 Consequences of cession ...........................................................139
i) Rights are transferred from the cedent to the cessionary 139
ii) Cession in securitatem debiti 139
7.1.8.3 The effects of cession before and after litigation .............................139
7.1.9 Assignment .............................................................................140
7.2 Termination or discharge by law ......................................................140
7.2.1 Set-off ..................................................................................140
7.2.1.1 Requirements for set-off ...........................................................141
7.2.2 Merger ..................................................................................141
7.2.3 Prescription ............................................................................141
7.2.4 Death ...................................................................................142
7.2.5 Insolvency and liquidation...........................................................143
7.2.6 Supervening impossibility ...........................................................143
BIBLIOGRAPHY .........................................................................146
BOOKS ..................................................................................146
JOURNALS AND PAPERS ..............................................................147
STATUTES ..............................................................................148
GLOSSARY ..............................................................................149
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SECTION 1
BASIC CONCEPTS IN THE LAW OF CONTRACT
1.1 Introduction
The law of contract is the foundation of all business, commercial and corporate
transactions. It provides the basic principles to follow when entering into business
transactions. These principles derive largely from common law and were developed by
our courts through case law. Some of these legal principles are incorporated into
statute. Constant reference is therefore be made to both statute and case law in this
book.
RH Christie1 poses eight incisive questions that assist parties in ascertaining,

interpreting, and enforcing contracts. The following questions, essentially, summarize
the law of contract in Zimbabwe:
Essential questions for basis of contract
Is there a contract? (Essential elements of a valid contract)
What does it say? (The terms of a contract)
Who is involved in it? (Parties to a contract)
Is it enforceable? (Enforceability of contract)
How is it to be performed? (Performance of a contract)
Is it still operative? (Variation and discharge of a contract)
Has it been broken? (Breach of contract)
What remedies are available? (Remedies for breach of contract)
These eight questions can be divided further into three main questions as shown by
the diagram below:
1
RH Christie Business Law in Zimbabwe (1998) 30.
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Is there a valid contract?
What are the contents of

the contract?
Did any of the parties

breach the contract? If
so, what are the
consequences of such
breach?
Fig 1: Summary of law of contract
1.2 What is a contract?

A contract is a legally enforceable agreement. This simply means that for an
agreement to be deemed a contract, it has to satisfy some legal requirements. These
include the following:
i) There should be a valid offer that should be accepted
ii) The minds of the parties should meet
iii) The parties must have the intention to be legally bound by the
agreement
iv) The parties should have contractual capacity
v) Whatever parties agree on should be within human capacity to perform
vi) The terms of the agreement must be clear
vii) The contract may be required to satisfy formalities by the law
viii) The agreement should be legal.
It is important to note that a contract can be either written or oral. The obvious
benefit of a written contract is that it is easy to prove its terms.
1.3 The basic concepts in the law of contract

There are a number of concepts of contract. We will discuss only three essential ones,
namely:
1.3.1 The concept of obligations

The aim of every contract is to create legally binding obligations between legal
persons (natural or artificial). A legal obligation is a legal relationship or tie between
two parties (vinculum juris). One party has a duty to give a certain performance and
@ Innocent Maja 25
is referred to usually as the debtor The other party has a corresponding right to
receive the performance and is usually called the creditor. This therefore means that
every obligation involves a right and a duty.
Suffice to mention is the fact that a contract can create more than one obligation. It
is therefore useful to identify each obligation in a contract and determine whom the
debtor and creditor is in respect of each obligation.
Obligations in a contract can be unilateral, bilateral, or reciprocal. Unilateral

obligations are those where one party only has rights and the other party only has
duties of performance. Bilateral obligations occur where both parties have rights and
duties of performance. Reciprocal obligations arise where one party undertakes
performance in exchange for the other party’s performance.
1.3.2 The concept of terms of a contract

The obligations within a contract are determined by the terms of the contract.
Section 3 of this book is devoted to terms of a contract. However, as a way of
introduction, terms of a contract are divided generally into three categories, namely:
i) Essential terms (essentialia)
These terms identify the type of contract into which the parties have entered. They
are essential or material in identifying the type of contract. For instance, in a
contract of sale the essentialia are the thing sold, the price and delivery.
It is imperative to note that if the essential terms for a particular contract are not
present, a valid contract can still be present but the contract will be different from
the one to which the essentialia relate. For instance, if a supposed contract of sale
has a description of the merx (sale item) but does not have a purchase price, it will
not be a contract of sale but may perhaps be regarded as a donation.
ii) Legal terms (naturalia)
Law to a specific type of contract attaches these terms automatically without parties
having to include them specifically. An example of a naturalia is a warranty against
latent defects in a contract of sale. Suffice to mention is the fact that parties can
expressly agree to exclude naturalia.
iii) Residual terms (incidentalia)
These terms cover the residual matters for which the parties wish to make special
provision or to alter or exclude the naturalia. An example of an incidentalia is a
voetstoots clause in a contract of sale that has the effect of excluding the naturalia
that a seller has to guarantee against defects.
1.3.3 The concept of performance

The essence of an obligation is that one party has to perform something and the other
party has to receive performance. Performance can be dare (to give something),
facere (to do something), or non-facere (to refrain from doing something). The right
@ Innocent Maja 26
to claim performance can be claimed only from a particular debtor that has an
obligation to perform. This makes this right personal.
1.4 Theories of contractual liability

These theories explain why the law should protect certain agreements by providing
enforcement mechanisms such as remedies. Three basis theories are worth noting:
1.4.1 Declaratory theory

It provides that parties to a contract be bound because they declared their intentions
to enter into a binding contract when they entered into the contract. The concept of
caveat subscriptor (a person who signs a written document is bound by its contents
whether or not he has read them) (signer beware) and sanctity of contract hinge on
the declaratory theory.
1.4.2 Will or consensual theory

It provides that parties to a contract be bound because they intended to be bound by
it. Their contract expresses their free will and the law respects such choices by
enforcing the contract. Parties are bound therefore by the contract that they agreed
upon subjectively. The whole concept of agreement (consensus ad idem) hinges on
this theory.
1.4.3 Reliance theory

It states that if a party to a contract creates an impression that the parties had
reached consensus and the other party reasonably relies on this impression, the
parties will be bound to the contract, even if there was no subjective consensus. The
whole concept of quasi-mutual assent hinges on this theory.
1.5 Doctrines of the law of contract

These doctrines are foundational principles upon which Roman-Dutch law of contract
was founded initially. Some aspects of these doctrines still apply in the law of
contract today but other aspects are redefined. This section will analyse these
doctrines and highlight the extent to which these doctrines are still applicable in the
current Zimbabwean law of contract.
1.5.1 Freedom of contract

The doctrine of freedom of contract provides that one is free to enter (not to enter)
into a contract without government interference or restriction. A person has the
freedom to choose with whom to contract, whether or not to contract, and on what
terms to contract. In Munyanyi v Liminary Investments & Anor,2 the court established
that freedom of contract is not limited only to the freedom to make a contract but
also freedom to vary the contract. The parties have the liberty to change their minds
2
Munyanyi v Liminary Investments & Anor, HH-38-2010.
@ Innocent Maja 27
as many times as it suits them as long as at each time that they do so, they are acting
in concert and their minds meet.3
In Printing & Numerical Registering Company v Sampson, the court underscored the
doctrine of freedom of contract when it held as follows:4
If there is one thing more than another that public policy requires, it is that man of
full age and competent understanding shall have the utmost liberty of contracting and
that their contracts, when entered into freely and voluntarily, shall be held sacred and
shall be enforced by courts of justice. Therefore, you have this paramount public
policy to consider – that the courts are not likely to interfere with this freedom of
contract.5
In Chanakira v Mapfumo & Anor,6 the court established that public policy upholds ─ as
a fundamental principle ─ the freedom and sanctity of contract and requires that
commercial transactions should not be ‘unduly trammeled by restrictions on that
freedom.’
It is interesting to note that, inherent in the doctrine of freedom of contract is the

acknowledgment that individual citizens and or corporations have delegated
sovereignty that enables them to participate constantly in the law making process.
The consent of contracting parties embodied and expressed in a contract creates law.
Viewed from this perspective, freedom of contract decentralises the law making
process. As a result, law is not only an order imposed by the state from above upon its
citizens but also an order created from below.7
However, there are a number of circumstances where the doctrine of freedom of

contract is not strictly applied. The following five are worth noting.
Circumstances under which the doctrine of freedom of contract is not strictly
applied
i) Freedom of contract is limited with the requirement that all contracts
should be legal. This means that any contract which is entered into freely and
voluntarily but which contravenes some legal rule in statute or public policy in
common law cannot be enforced at law based on illegality. It is also a legal
requirement that parties to a contract should have capacity to contract.
Contracts entered into freely and voluntarily by minors, insane persons,
intoxicated persons, prodigals, insolvents etc cannot be enforceable at law.
This limits freedom of contract.
3
See Kessler, Friedrich, ‘Contracts of Adhesion-Some Thoughts About Freedom of Contract’ (1943).
Yale Law School Faculty Scholarship Series. Paper 2731.
4
Printing and Numerical Registering Co v Sampson (1875) LR 19 Eq 462 465.
5
See also Chanakira v Mapfumo & Anor Limited S-86/06; Tonderai Hamandishe & Anor v Maffack
Properties (Pvt) Ltd HH-160-10; and International Trading (Pvt) Ltd 1993 (1) ZLR 21 (H).
6
Chanakira v Mapfumo & Anor HH-155-10.
7
See Cohen, M ‘The Basis of Contract’ (1933) 46 Harvard Law Review 553, 585; & Note, E Mutuality in
‘Exclusive Sales Agency Agreements’ (1931) 31 Columbia Law Review 830.
@ Innocent Maja 28
ii) Monopolies restrict the freedom of parties to choose with whom they
want to contract. For example, in Zimbabwe the Zimbabwe National Water
Authority monopoly on water and the Zimbabwe Electricity Supply Company
monopoly on electricity limit the consumer’s freedom to contract with
whosoever they please. Consumers are compelled to contract with these
institutions only.
iii) Covenants in restraint of trade also restrict freedom of expression. A
contract in restraint of trade is one by which a party restricts his future liberty
to carry on his trade, business or profession in such manner and with such
persons as he chooses.8 Such contracts place restrictions upon the parties’
freedom to contract with whosoever they want and wherever they choose.9
iv) Quasi-mutual assent (potentially limits freedom of expression). Quasi-
mutual assent binds a party to a contract ─ no matter what his or her real
intention is ─ if (s)he conducts himself in a manner that the other party
reasonably believes that (s)he has assented to the terms of a contract. This
rule may lead to the imposition of non-consensual obligations and therefore
restrict the doctrine of freedom.
v) Standard form contracts also limit freedom of contract. Examples of
standard form contracts include bank account opening contracts, insurance
policy contracts, air tickets, mortgage contracts, university enrolments etc. For
practical reasons and cost considerations, it is more expedient for banks,
insurance companies, airlines, building societies, and universities to couch
their contracts in a standard manner thus limiting the freedom of contract on
the part of the contracting client.
1.5.2 Sanctity of contract

Sanctity of contract provides that once a contract is entered freely and voluntarily, it
becomes sacrosanct and courts should enforce it. According to Sir David Hughes
Parry:10
When all persons interested in a particular transaction have given their consent to it
and are satisfied, the law may safely step in with its sanctions to guarantee that right
be done by the fulfillment of reasonable expectations.
A similar sentiment was echoed in E. Underwood & Sons Ltd v B. Baker11 where the
court held as follows:
8 Seddon, N; Bigwood, R; Ellinghaus, M (2012) Cheshire and Fifoot’s Law of Contract 351.
9
See Mangwana v Muparadzi 1989 (1) ZLR 79 (S
10
Sir David Hughes Parry The Sanctity of Contracts in English Law (1959) The Hamlyn Trust Series 1-2.
11
E. Underwood & Sons Ltd v B. Baker 1899 (1) CH 305.
@ Innocent Maja 29
To allow a person of mature age and not imposed upon, to enter into a contract, to
obtain the benefit of it, and then to repudiate it and the obligations that he has
undertaken, prima facie at all events, is contrary to the interest of any and every
country.
In Madoo (Pty) Ltd v Wallace12 the Court held that ‘[o]ur system of law pays great
respect to the sanctity of contact. The Courts would rather uphold than reject
(contracts).’ The Zimbabwean case of Old Mutual Shared Services (Pvt) Ltd v
Shadaya13 established that the doctrine of sanctity of contract holds in Zimbabwe.
Mwayipaida Family Trust v Madoroba and Ors buttresses this point by holding that
‘[i]t is the policy of the law to uphold, within reason, the sanctity of contracts.’14
Beale, Bishop and Furmston15 argue convincingly that sanctity of contract has a
double emphasis. The first emphasis is that if parties hold to their bargains, they are
treated as masters of their own bargains and the courts should not indulge in ad hoc
adjustment of terms that strike them as unreasonable or imprudent. The second
emphasis is that if parties must hold to their bargains, then the courts should not
lightly relieve contractors from performance of their agreements.
A number of decisions have upheld the application of the doctrine of sanctity of

contract in Zimbabwe. For instance, in Mangwana v Mparadzi16 the court held that,
‘[t]he principle that contracts are to be obeyed (i.e., that they are sacrosanct) takes
precedence over the principle of freedom of trade.’ In Book v Davidson17 the court
held as follows:
I cannot see why a person, who has agreed to the restraint with both his eyes open,
should be allowed to aver that the restraint was unreasonable without showing the
courts the circumstances that make it unreasonable or unfair to him.
In Meyers-Mbidzo N.O v Chipunza and Anor,18 the court took the view that poor
business decisions and greed cannot be allowed to interfere with the sanctity of
contracts and that courts should uphold sanctity of contract.19 Again, in Warren Park
Trust v Pahwaringira and Ors,20 the court established that sanctity of contract is
upheld even by ensuring that termination of contract is done by following the mode of
termination to the letter.21
12
1979 (2) SA 957.
13
HH-15-2013.
14
S-22-04.
15
Beale HG; Bishop WD & Furmston MP Contract Cases and Materials (2008) 58.
16 Mangwana v Muparadzi 1989 (1) ZLR 79 (S)
17 Book v Davidson 1988 (1) ZLR 365 (S).
18 HH-3-2009.
19 See Unilever South East Africa v Viewleen Investments (Pvt) Ltd HH 37-07. See BP Southern Africa
(Pty) Limited v Desden Properties (Pvt) Limited & Anor 1964 RLR 7(G)11 H-I; 1964 (2) SA 21 25 G-H;
Fisc Guide Investment v Tazarura & Ors HH-28-2005.
20 HH 39 2009.
21 See also Minister of Public Construction & National Housing v Zesco (Pvt) Ltd 1989 (2) ZLR 311 at 316
@ Innocent Maja 30
A number of principles underpin the doctrine of sanctity of contract. First, there is
the golden rule of interpretation of contracts whose major cannon is that contracts
are interpreted using the ordinary grammatical meaning of words used. A case in
point is Total SA (Pty) Ltd v Bekker22 where the court held that:
… [t]he underlying reason for this approach is that where words in a contract, agreed
upon by the parties thereto and therefore common to them, speak with sufficient
clarity, they must be taken as expressing their common intention.
The net effect of such interpretation is to preserve the sacrosanct nature of a

contract.
Second, there is the parole evidence rule that empowers the courts to interpret
express terms of a written contract within the four corners of the agreement without
admission of extrinsic except in limited circumstances. The assumption is that parties
intended the written document to reflect all the express terms of the contract and
courts should consider the written document sacrosanct. In Nhundu v Chiota and
Anor,23 the court held as follows:
When a contract has been reduced to writing, the document is, in general, regarded as
the exclusive memorial of the transaction and in a suit between the parties, no
evidence to prove its terms may be given, save the document or secondary evidence of
its contents, nor may the contents of such document be contradicted, altered, added
to or varied by parole evidence.
Third is the principle of caveat subscriptor that postulates that a signature appended
on a written contract binds the signatory to the terms of the contract. Muchabaiwa v
Grab Enterprises (Pvt) Ltd24 established that ‘[t]he general principle, commonly
referred to as caveat subscriptor, is that a party to a contract is, in general, bound
by his signature, whether or not he read and understood the document…’. Implicit in
caveat subscriptor is, that once a person signs a contract, the contract becomes
sacrosanct and binding. This upholds sanctity of contract.
It is important to note that there are some principles of the law of contract in
Zimbabwe that limit the application of the doctrine of sanctity of contract. For
instance, the legal principle that a covenant in restraint of trade is not enforced if it
is contrary to public policy25 limits sanctity of contract. It follows, therefore, that a
court can intervene and alter a term in a covenant in restraint of trade that it
considers against public policy, thus curtailing sanctity of contract.
The doctrine of severability of some aspects of a contract ─ the blue pencil test ─
also limits the application of the doctrine of sanctity of contract. The blue pencil test
22 Total SA (Pty) Ltd v Bekker (1954) 35 ALR 434, at 437.

23 2007 (2) ZLR 163 (S).
24 1996 (2) ZLR 691 (S).
25 In Basson v Chilwans 1993 (3) SA 742, it was held that ‘[t]he contract in restraint of trade is against
public policy if it restricts a party’s freedom of economic activity in a manner or to an extent that is
unreasonably judged against the broad interests of community and the interests of the contracting
parties.’
@ Innocent Maja 31
allows the court to sever unreasonable parts and enforce only the reasonable parts of
a contract. This was demonstrated in Mangwana v Mparadzi26 where the court
shortened the time restriction imposed on the appellant from five years to three
years and limited the restraint clause to Chinhoyi and not the rest of Zimbabwe on
the basis that the restraint of trade was unreasonable. It is clear that the doctrine of
severability of a contract limits the sanctity of the contract to the extent of the
severability of the provisions so deemed unreasonable.
1.5.3 Privity of contract

The doctrine of privity of contract provides that contractual remedies are enforced
only by or against parties to a contract, and not third parties, since contracts only
create personal rights.27 According to Lilienthal,28 privity of contract is the general
proposition that an agreement between A and B cannot be sued upon by C even
though C would be benefited by its performance. Lilienthal further posits that privity
of contract is premised upon the principle that rights founded on contract belong to
the person who has stipulated them; and that even the most express agreement of
contracting parties would not confer any right of action on the contract upon one who
is not a party to it.
In Gwanetsa v Green Motor Services,29 the Court established as follows:

The general rule is that an agent may not depute another person to do that which he
has himself undertaken to do. There is no privity of contract between the sub-agent
and the principal.30
In the same vein, Kennedy v Loyne31 held that:

… [t]he rule is that where an agent has employed another person to perform the duty
entrusted to him, no action accrues to the principal against the sub-agent; but he
must sue the agent, who on his part, must sue the sub-agent.32
Zimbabwean courts have been consistent in applying this doctrine where parties to
agency contracts have sought to escape liability based on having engaged sub-agents.
In such cases, the courts have insisted on placing liability on the contracting parties,
thus upholding the principle of privity of contract. The test to determine whether
there was privity of agreement or not is a factual one requiring a careful
consideration of the factual matrix.33
There are a number of instances where the doctrine of privity of contract is not
applied in the law of contract in Zimbabwe. First, privity of contract will not apply in
26
n16 above.
27
See Bhana, D; Bonthuys, E & Nortje M Students’ Guide to the Law of Contract (2009) 18.
28
Lilienthal JW ‘Privity of Contract’ (1887) 1 (5) Harvard Law Review 226.
29
HH-159-03.
30
See Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co (1915) AC 847 853.
31
(1909) 26 SC 271, at 279.
32
See Ncube v Mpofu & Ors HB-69-06.
33
Terra Graphics (Pty) Ltd t/a Terra Works v MEC: Department of Police, Road and Transport Free
State Provincial Government and Anor (3489/2012) (2013) ZAFSHC 11 (7 February 2013).
@ Innocent Maja 32
cases of an undisclosed principal. For instance, if A has made a contract with B, C
may intervene and take A’s place if he can show that A was acting throughout as his
agent.34
Second, privity of contract has limited application in trust. A trust forms an equitable
obligation to hold property on behalf of another. The law of trusts can enable a third
party beneficiary to initiate action that will enforce the promisor’s obligation. Using
the above example, if B had contracted with A in the capacity of trustee for C, C as
beneficiary under the trust has enforceable rights. These rights arise because the law
of trusts gives a beneficiary certain rights against a trustee. In the context of privity,
if C is a beneficiary under a trust, C can bring an action against B, the trustee, which
has the effect of compelling B to sue A for breach of contract. In formal procedural
terms, C sues in an action in which B and A are joined as defendants. The use of trust
law here does not give rise, in the strict sense, to an exception to the doctrine of
privity. In conceptual terms, B pursues the action against A, albeit at C’s insistence.
Third, privity of contract is usually limited in instances where contracts are made for
the benefit of third parties ─ commonly known as stipulatio alteri. Astra Steel & Eng
Supplies (Pvt) Ltd v PM Mfg (Pvt) Ltd35 establishes that for a stipulatio alteri to exist,
the stipulator and the promiser must intend to create a right for the third party to
adopt and became a party to the contract. Until acceptance of the benefit by the
third party takes place, the contract remains one between the actual parties.
Fourth, there are statutory exceptions to the doctrine of privity of contract. For
example, the Road Traffic Act36 empowers an injured party to recover compensation
from an insurance company once he has obtained judgment against the insured.
1.6 Sources of the law of contract

There are four sources of the law of contract in Zimbabwe, namely:
1.6.1 Statute
A statute refers to a piece of legislation passed by Parliament and any other
subsidiary enactments authorized by Parliament. The supreme statute is the
Constitution of Zimbabwe, followed by Acts of Parliament and then by-laws (or
statutory instruments). Statutes are supreme sources of law compared to other
sources of law discussed below. They override all inconsistent rules of existing law
derived from other sources of law.
Section 192 of the current Zimbabwean Constitution provides that ‘[t]he law to be
administered by the courts of Zimbabwe is the law that was in force on the effective
34
n8 above 404. See also Watson v Gilson Enterprises (Pvt) Ltd 1997 (2) ZLR 318-319.
35
HH-393-12.
36
[Chapter 13:11].
@ Innocent Maja 33
date, as subsequently modified.’37 The law that was in force on the effective date
was the old constitution known as the Lancaster House Constitution ─ as amended.
Section 89 of the Lancaster House Constitution provided that:
Subject to the provisions of any law for the time being in force in Zimbabwe relating
to the application of African customary law, the law to be administered by the
Supreme Court, the High Court and by any other courts in Zimbabwe subordinate to
the High Court shall be the law in force in the colony of the Cape of good Hope on 10th
June, 1891, as modified by subsequent legislation having in Zimbabwe the force of
law.
It is clear from the section that two sources of law emerge, ─ namely statute and
common law ─ with statute being the supreme law.
1.6.2 Common law

In terms of section 192 of the Zimbabwean Constitution as read with section 89 of the
Lancaster House Constitution, Zimbabwe’s common law is the law that applied at the
Cape of Good Hope on 10 June 1891. This law is predominantly Roman Dutch law with
some English law components.38 Roman-Dutch law usually finds expression in court
decisions where judges make pronouncements on what they consider legal principles
of Roman-Dutch law. This is the reason why most principles of the law of contract in
Zimbabwe derive from case law. That is the reason why this book will make extensive
reference to Zimbabwean case law. Reference is made also to South African and
English cases in as much as they reflect the law that applied at the Cape of Good
Hope on 10 June 1891.
1.6.3 Authoritative texts

Authoritative texts refer to writings by leading authorities in the field of law. These
include treatises written by Roman Dutch jurists and modern textbooks, scholarly
articles or publications. They have no inherent authority but are used as a persuasive
source of law. According to Madhuku:39
The persuasive nature of an opinion of an author depends, inter alia, on the standing
of the author in the field of law in question, the reputation of the author among
judges, the scholarly level of the piece of work involved and the degree to which the
nature of the presentation is convincing.
37
The new constitution was published as a draft on 1 February 2013. The final draft constitution passed
via a referendum on 16 March 2013. 3 079 966 people voted for the adoption of the draft constitution
and 179 489 voted against the document. The draft constitution gazetted as a Constitutional Bill on 28
March 2013. The House of Assembly debated the Bill on 9 May 2013 and it was voted for unanimously.
After deliberation in the senate, it was voted for unanimously, with two amendments. The Bill came
back to the House of Assembly on 15 May 2013 and was voted for unanimously, with the two
amendments. The President assented to The Constitutional Bill on 22 May 2013 and it gazetted in an
extraordinary Gazette on the same day. It is now the new constitution of Zimbabwe promulgated as
the Constitution of Zimbabwe Amendment (No. 20) of 2013. The effective date of the current
Zimbabwean Constitution is, therefore, 22 May 2013.
38
See Book v Davidson 1988 (1) ZLR 365.
39
Madhuku L, An Introduction to Zimbabwean Law (2010) 32.
@ Innocent Maja 34
1.6.4 Custom
Custom generally refers to certain, reasonable, uniformly observed, and clearly
established rules that become binding in the course of time through observance by a
specific community. There are two types of custom. First, custom may refer to
African customary law. In this sense, custom is not used as a source of the law of
contract since there are currently no rules of African customary law governing
contracts.
Second, custom can be used in commercial or contract parlance to refer to ‘trade

usage.’ Trade usage refers to universally and uniformly observed rules, practices or
customs adopted by a certain trade, business or profession that are read into contract
of that trade, business or profession. Such terms are implied by trade usage when a
particular practice in a trade is so common that people involved in that trade will
assume that the practice is a term of the contract.
The terms sought to be implied should be long established, universal (followed by

everybody in the trade), uniformly observed, notorious (well known), reasonable,
certain and should not conflict with other provisions of the contract.40
For instance, the Banking Act [Chapter 24:20] does not provide for a right to charge
interest on overdraft facilities but this is derived from the customs and practices of
the bankers. These are read usually into the contracts that offer overdraft facilities.41
Trade usage is arguably a source of the law of contract in Zimbabwe.
40
See Bertelsmann v Per 1996 (2) SA 375 (T).
41
See Golden Cape Fruits (Pty) Ltd v Fotoplate 1973 (2) SA 642.
@ Innocent Maja 35
SECTION 2
ESSENTIAL ELEMENTS OF A VALID CONTRACT
2.1 What are the essential elements of a valid contract?
For an agreement to qualify as a contract at law the following essential elements
should be satisfied:
2.2 Offer and acceptance

As a rule, for an agreement to be deemed valid at law, one party has to make an offer
and other has to accept it. According to Manase and Madhuku:42
The standard approach is to ascertain whether an ‘offer’ made by one party, has been
‘accepted’ by the other. In brief, the approach is as follows:
i) Has an offer been made?
ii) If an offer has been made, has it been accepted?
iii) If the offer has been accepted, there is an enforceable agreement

unless either there is no intention to create legal relations or there is a
factor that vitiates the agreement.
2.2.1 What is an offer?

An offer is a promise made by one party requiring mere acceptance by the other party
in order to create a contract. RH Christie shares these sentiments when he argues:43
A person is said to make an offer when he puts forward a proposal with the intention
that by its mere acceptance, without more, a contract should be formed.
In the same vein, Manase and Madhuku define an offer as:44

… [a] proposal put forward by one party with the intention that its mere acceptance,
without more, by the other, brings forth a contract. It is therefore a definite promise
to be bound by the terms being put forward.
Kerr also defines an offer as ‘…a proposition put forward as a basis of a proposed
contract.’45 In Antonio v Ashanti Goldfields Zimbabwe Limited,46 the Court defined an
offer as:
… [a] proposal by the offeree made with intention that, by its mere acceptance, a
contract shall form. In other words, the proposal objectively construed must be
intended to create binding legal relations and must have so appeared to the offeree.
42
AJ Manase & L Madhuku A Handbook on Commercial Law in Zimbabwe (1996) 9.
43
RH Christie The Law of Contract (2003) 32.
44
n42 above 10.
45
AJ Kerr The Principles of the Law of Contract (1989) 54.
46
2009 (2) ZLR 354 (H) at 383.
@ Innocent Maja 36
Two key observations can be made about offers from the above definitions. First, an
offer should be unconditional and unqualified. It must state all the terms and the
material facts on which the offer is based.
Second, an offer needs to be accompanied by an intention that its mere acceptance

should lead to the conclusion of negotiations between the parties by culminating into
a valid contract. Put differently, it must lead to the conclusion of a contract upon an
acceptance of the offer as it stands. This is referred to an animus contrahendi and
will be discussed below. In this vein, RH Christie correctly argues that:47
… [a]n offer made in jest or anger or in other circumstances from which it is clear that
no animus contrahendi is present cannot be accepted so as to make a contract.
This position was emphasized in Nkomo and Ors v ZESA48 where the Court held as
follows:
What distinguishes a true offer from any other proposal or statement is the express or
implied intention to be bound by the offeree’s acceptance. In other words, looking at
the terms of the offer without more, one should be able to come to the conclusion
that the intention to contract animus contrahendi is manifest in the offer.
Animus contrahendi distinguishes a firm offer from other statements uttered during
negotiations that do not have an intention to create a legally binding agreement.
Statements that lack animus contrahendi and are not offers include the following:
a) Invitations to treat or negotiate49
This is an invitation to discuss the possibility of entering into a contract between the
two parties or an invitation for the other party to make an offer. Advertisements are
regarded generally as invitations to treat. However, advertisements can constitute a
firm offer if they are couched in a way that reveals animus contrahendi.
For instance, in Carlill v Carbolic Smoke Balls Co,50 a company placed an

advertisement in the newspaper offering to pay £100 to anyone who caught influenza
after using the Carbolic Smoke Ball three times daily for two weeks according to the
printed directions supplied on each ball. The advertisement went on to say that,
£1000 had been deposited with their banker showing the company’s commitment and
sincerity. The Plaintiff sued the company for £100 after having contracted influenza
when he used the smoke balls as instructed. The Defendant argued that the
advertisement was not an offer but a mere puff and an invitation to do business. The
Court held that this specific advertisement was an offer to the public. The fact that
the company had deposited £1000 with its bankers evinced an intention to be bound
contractually if any member of the public accepted the said offer.
47 n1 above 33.
48 2004 (1) ZLR 345 (S).
49 Ferguson v Merensky 1903 TS 657 660.
50 (1893) 1QB 256.
@ Innocent Maja 37
b) Statements of information51
These refer to information supplied by one party about the terms of a contract on
which he is prepared to do business, without committing himself to a firm offer on
those terms. In Green Acres Farm (Pvt) Ltd v Haddon Motors (Pvt) Ltd,52 the
defendant sent a truck to the plaintiff with a note requesting the plaintiff to check
over the truck. The plaintiff checked the truck and proceeded to effect repairs. Upon
presentation of the invoice, the Defendant refused to pay arguing that they had not
requested the plaintiff to effect any repairs. The plaintiff took the matter to the
courts. The Court held that there is no offer made by the plaintiff to repair the truck.
c) Requests for an offer
Examples of such include catalogues, placards outside shops, cars in showrooms, price
tickets on goods in supermarkets, tenders, auctions, etc. In Crawley v Rex,53 a
shopkeeper had advertised a sale of a particular brand of tobacco at a very cheap
price using a placard. The Appellant entered the shop, bought the tobacco, and went
away. After some minutes he came back again asked for another pound of the same
tobacco. The complainant declined to serve the Appellant with the tobacco and told
him to leave his shop. The Appellant refused to leave the shop whereupon he was
arrested for trespass. In his defense, the Appellant argued that he had a contract of
sale with the shopkeeper and was therefore entitled to remain in the shop until the
contract was performed. The court held that there was no contract between the
parties because the price placard was not an offer but a mere invitation to treat. It is
the customer who makes an offer by presenting the advertised goods at the till and,
when the shop owner accepts the offer to buy, a contract then comes into being.
d) Mere puffs, commendations or sales talk54
e) Statements of intention to contract or make an offer
The difference between stating that one intends to contract and actually offering to
do so is a fine one, and turns on whether the offerer indicated an intention to be
bound without further thought on his part.55
f) Proposals for partial, incomplete, or provisional agreement
These are, typically, when the constituent parts of a complex contract are discussed
as separate issues in the course of negotiations.56
2.2.1.1 Characteristics of a valid offer

The following are some characteristics of a valid offer:
51
Harvey v Facey (1893) AC 552.
52
1983 (1) ZLR 17 (S).
53
1909 TS 1105.
54
Nestoros Nestoros v Innscor Africa Limited 2007 (2) ZLR 267 (H) 271F.
55
n42 39.
56
See Associated Printing and Packaging (Pvt) Ltd v Lavin S-7-96 or 1996(1) ZLR 87 (S); Maceys Stores
Limited v Tanganda Tea Co. Ltd 1983 (1) ZLR 255 (S). RH Christie n1 above 33.
@ Innocent Maja 38
a) It should be unconditional and unqualified
b) It must clearly define all the terms in which an agreement is sought
The offer must not be vague. Instead, it should be certain and definite in its
terms.57
c) It must be addressed to a specific offeree
The offer may be addressed to a particular person, to a group of persons or to
the world at large, depending on its terms.
d) It must be communicated to the offeree
The offeree must have knowledge of the offer if his acceptance is to constitute
a valid contract. In Bloom v American Swiss Watch Company,58 it was held that
there was no offer made to the plaintiff when he volunteered the information
and did not know that there was an offer of reward money.59
e) It must be a firm offer
In other words, it is made with the intention of being accepted.60 This means
serious intention to create legal relations.
f) The offer may be verbal written or implied
Thus, if a person boards a bus, the owner of a bus impliedly makes an offer to
the person to ride in the bus and the passenger accepts the offer by taking bus
seat and tending his fare.
g) It must be consistent with all the essentials of the contract
h) The offer must not have been revoked or lapsed
An offer is revoked if the offerer withdraws it. Three things are worth noting.
First, revocation is not effective until the offeree is aware of it. Second, an
offer can be revoked at any stage before it is accepted. Third, the offerer must
take reasonable steps to find and inform the offeree of the revocation.
An offer can lapse in any of the following circumstances:
i) if the person who offers dies;
ii) if it is for a specified period and the said time elapses;
iii) if contractual capacity is negated;
57
Nkomo and Ors v ZESA 2004 (1) ZLR 345 (H) 350C; Wasmuth v Jacobs 1987 (3) SA 629 (SWA) 633D;
Levenstein v Levenstein 1955 (3) SA 615 (SR).
58
1914 AD 100.
59
See also Lee v American Swiss Watch Company 1914 AD 121.
60
Nestoros Nestoros v Innscor Africa Limited 2007 (2) ZLR 267 (H) 271E-F.
@ Innocent Maja 39
iv) if parties agree that the offer lapse;
v) if it is expressly rejected.
2.2.2 Irrevocable offers

These offers cannot be revoked for a fixed time, at all or within the fixed time.61
They come in the following forms, namely:
i) Option
This is when two parties agree to keep an offer open for a specified time.62 According
to Firstel Cellular (Pvt) Ltd v Sefaidiga & Another63 an option is an “offer” which is
irrevocable by the grantor during the period stipulated in the contract or, if there is
no such provision, within a reasonable time. If the option is exercised, the potential
contract contemplated by the parties to the option agreement is complete. The
option holder has merely to accept the offer in the manner and within the time
prescribed by the contract, and a new contract comes into existence between him
and the other party. An option constitutes nothing more than an offer coupled with an
arrangement (express or implied) to keep the offer open for a certain period. It is
fundamental to the nature of any offer that it should be certain and definite in its
terms. It must be firm, that is, made with the intention that, when it is accepted, it
will bind the offeror.
Once a person, A, gives an option, he or she is bound and cannot withdraw it.64 If the
offeree, B, does not accept the offer within the stipulated time, then the offer can
lapse and A can make an offer to a third party. However, if A offers to a third party
before the stipulated time elapses, he will be in breach of the offer. In the event of
breach, the option holder A can either claim an interdict or sue for damages without
first deciding whether to exercise his option.
If A decides to exercise his option, he may claim specific performance of the main
contract. This position was illustrated in Tobacco Sales Limited v Agriculture
Investments (Pvt) Ltd and Ors,65 where the Court held as follows:
An option to purchase can remain open for an indefinite time, if that is what the
parties to the contract have agreed. Such an agreement can endure for an indefinite
time and during that time be exercisable at the will of the grantee.66
An option can come in the form of an option to buy, an option to sell or an option to
enter into any other type of contract.67
61
See Antonio v Ashanti Goldfields Zimbabwe Limited 2009 (2) ZLR 372 (H).
62
See Eastview Gardens Residents Association v Zimbabwe Reinsurance Corporation Limited and Ors
2003 (2) ZLR 388 (H).
63
HH-70-12.
64
See Boyd v Nel 1922 AD 414.
65
1982 (1) ZLR 180 (H).
66
See also Eastern Motors (Pvt) Ltd v City of Mutare 2002 (2) ZLR 735 (H).
67
Thompson v Van der Vyver 1954(2) SA 192 194.
@ Innocent Maja 40
ii) Right of first refusal or preemptive right
This is an agreement that entitles the holder to the first opportunity of buying if the
seller decides to sell.68 In Madan v Macedo Heirs,69 it was held that there is no need
for the purchase price to be stipulated in the right of first refusal.
In Makamure v Deven Engineering (Pvt) Ltd,70 the Court summarized the essential
elements of the right of pre-emption as follows:
In my view, the above captions describe the essential elements of the right of pre-
emption (or first refusal) in terms that are both clear and unambiguous. My reading of
these requirements is that the following steps must, in that sequence, be followed in
the exercise of the right of pre-emption:
a) a specific third party offers to buy the property at a given price;
b) the grantor is prepared to sell at that price; but
c) before accepting the buyer’s offer, the grantor reverts to the right of
preemption, informs him of his decision to sell at the price offered by
the particular buyer and asks him (grantee) to exercise his right of first
refusal.
Thereafter, the outcome, in terms of who ends up buying the property, depends on
the grantee’s decision on whether to exercise his right … The grantor of a right of pre-
emption cannot be compelled to sell the subject of the right. Should he, however,
decide to do so, he is obliged, before executing his decision to sell, to offer the
property to the grantee of the right of pre-emption upon the terms reflected in the
contract creating that right.71
It is important to note that if the seller offers another party at the material time,
then he is considered in breach of the preemptive right and will be liable to pay
damages. The approach adopted by Zimbabwean courts was summarized aptly in
Sawyer v Chioza & Ors72 where the Court held that:
… [t]he right of first refusal imposes a duty on the seller to offer the property to the
lessee at the price which the other would-be purchaser has offered. If the lessee
accepts that price, the lessor must sell it to him at that price. If he refuses, the right
of first refusal falls away and the lessor is entitled to sell to the other person… An
agreement of pre-emption contains both a negative and a positive element. The
negative element is that the grantor is restrained from selling to a third party; the
positive element is once he is prepared to sell he is under obligation to sell to the
grantee.
In Crundal Brothers (Pvt) Ltd v Lazarus,73 the Court held that the courts reserve a
general discretion to either grant or refuse an order for specific performance.
68
See Central African Processed Exports (Pvt) Ltd and Ors v Macdonald and Ors 2002 (1) ZLR 399 (S).
69
1991 (1) ZLR 295 (S).
70
2008 (2) ZLR 319 (H) 323 D-E.
71
Makamure case n70 324B.
72
1999 (1) ZLR 203 (H).
73
1991 (2) ZLR 125 (S).
@ Innocent Maja 41
It is interesting to note that in Nerger Properties (Pvt) Ltd v R. Chitrin and Ors (Pvt)
Ltd,74 the Supreme Court averred that the right of first refusal is the same as the right
of an option. In substantiating his judgment, the Honourable Cheda JA quotes
Mackeurtan’s Sale of Goods in South Africa75 where it stated as follows:
The rights of the holder of an option, or of a pre-emptive right, to interdict the
delivery of the thing in question to a subsequent purchaser and to obtain specific
performance are the same in law as those of a prior purchaser. The right of the holder
of an option or of a pre-emptive right to exercise it remains prior in time to the
personal right of a subsequent purchaser, even where the latter was ignorant of the
option or right of preemption.
According to the Nerger judgment, the similarity between an option and the right of
first refusal lies in the remedies of an interdict and specific performance whenever
there is a breach.
iii) Contracts to keep an offer open for acceptance by a third party
A can contract with B that A will keep open an offer (which has been, or is being, or
will be made) for acceptance by a third person, C. Such a contract is referred to
commonly as one for the benefit of a third party or person. Examples of such
contracts include charity; insurance contracts in which a third person is named as a
beneficiary; contracts by promoters of companies yet to be formed; contracts
establishing a trust inter vivo, etc.76 Kerr argues convincingly that, for a transaction
to fall into this category, it is required that the purpose or object, or one of the
purposes or objects, of the contract between A and B is for the benefit of C ─ in the
sense of offering him an opportunity to contract with A.77
Kerr goes further to divide contracts for the benefit of third parties into simple or
complex contracts. The simple contract between A and B for the benefit of a third
party imposes on A one obligation only, namely, to keep the offer open to C. If C
accepts the offer, a new contract between A and C comes into existence78 and the old
contract between A and B ceases to exist. In the complex form, the contract between
A and B imposes a number of obligations on A, of which at least one is to keep open
for acceptance by C an offer which has been, or is being or will be made. When C
accepts the offer, a new contract between A and C comes into being but the contract
between A and B remains valid.79
It is interesting to note that in contracts for the benefit of third parties, A is bound to
B and not C (the third party) to keep the offer open, or if it has not been made, to
make it and to keep it open. B may interdict A from acting in breach of his
74
2006 (2) ZLR 287 (S) 291.
75
HG Mackeurtan & GRJ Hackwill Mackeurtan’s Sale of Goods in South Africa (1984) 277-17G.1.6.
76
Crookes NO and Anor v Watson and Ors 1956 (1) SA 277 (A).
77
n43 above 71.
78
See Whaley and Ors (Law Society of Zimbabwe intervening) v Cone Textiles (Pvt) Ltd 1989 (1) ZLR 54
(S) and Acting Minister of Industry & Anor v Tanaka Power (Pvt) Ltd 1990 (2) ZLR 208 (S).
79
n43 above 73.
@ Innocent Maja 42
undertaking. C cannot make a claim or be held liable before he accepts the offer
because he will not be privy to the contract.80 In Chirenje v Vendfin Investments and
Ors,81 the position of the law was summarized as follows:
It is now settled law that in a contract for the benefit of the third party, the
beneficiary third party’s right to sue and the obligation to be sued under such contract
accrue upon the offer being communicated to and accepted by the third party in
terms of the contract. It is the communicating of the offer and the acceptance of the
offer that creates the vinculum juris, which in turn creates the entitlement to sue and
the obligation to be sued.
2.2.3 Termination of an offer

An offer can terminate in any of the following ways:
a) If it is rejected by the offeree;82
b) After expiry of fixed time;
This applies if the offer stipulates the time within which it should be
accepted.
c) After expiry of a reasonable time;
If the offer does not stipulate a fixed period within which an offer should
be accepted, an offer lapses after the expiry of reasonable time. What
constitutes a reasonable time depends on the facts and circumstances of
each case.
d) If one of the parties dies;
Death terminates an offer unless the offer specifies that the executor of
the deceased can contract on the deceased’s behalf.83
e) If one of the parties loses their contractual capacity;
Examples include supervening insanity and insolvency.
f) If the offer is withdrawn or revoked (repudiated) by the offerer.
Zimbabwean law empowers the offerer to withdraw his offer before it is accepted.
The caveat though is that the withdrawal becomes effective only from the time it
comes to the notice of the offeree.84
g) When there is a counter-offer
80
PTC Pension Fund v Standard Chartered Merchant Bank Zimbabwe Limited 1993 (1) ZLR 55.
81
S 13-09 or 2009 (1) ZLR 196 (S).
82
Orion Investments (Pvt) Ltd v Ujamaa Investments (Pvt) Ltd 1987 (1) ZLR 141.
83
Costain & Partners v Godden 1960 R & N 658 or 1960 (4) SA 456.
84
Steward v Zagreb Properties (Pvt) Ltd 1971 (1) RLR 180 (A) at 187.
@ Innocent Maja 43
A counter offer has the effect of rejecting the original offer and replacing it with a
new one. In Hyde v Wrench,85 Wrench offered to sell a farm to Hyde for £1000. Hyde
counter offered £950, which Wrench rejected. Hyde then purported to accept the
previous offer of £1000. The Court held that the counter-offer amounted to a
rejection of the previous offer, which was therefore no longer open for acceptance. In
the same vein, Orion Investments (Pvt) Ltd v Ujamaa Investments (Pvt) Ltd & Ors86
held as follows:
For a contract to be formed it is necessary that the offeree must, in agreeing, accept
the exact terms offered by the offerer. Where the offeree makes a counter-offer or
signifies a qualified acceptance of the offer, the offer is taken as refused and no
contract is formed.
2.2.4 Acceptance
A contract comes into being if the person to whom the offer is made unequivocally
accepts it.
2.2.4.1 Characteristics of a valid acceptance

The following are some characteristics of a valid acceptance:
a) It should be unequivocal
Acceptance of the offer must be clear, unambiguous, and unequivocal and should not
leave any reasonable doubt in the mind of the offerer that his offer was accepted.
b) It should not be qualified and must bring negotiations to an end
Once it is qualified, it introduces new terms to the negotiations and amounts to a
counter-offer. As already alluded to above, a counter-offer nullifies the original
offer.87
c) It must exactly correspond with the terms of the offer88
In Orion Investments (Pvt) Ltd v Ujamaa Investments (Pvt) Ltd & Ors,89 the Court held
that ‘[f]or a contract to be formed it is necessary that the offeree must, in agreeing,
accept the exact terms offered by the offeror.’
d) It must be accepted by the person to whom the offer was directed
In Blew v Snoxell,90 the court held that:

…it is trite law (i.e., simple legal principle), and an offer made by one person to
another cannot be accepted by a third party for the simple reason that there was no
intention on the part of the one person to contract with the other.
85
(1840) 49 ER 132.
86
1987 (1) ZLR 141 (S).
87
Water Mayer v Murry 1911 (AD) 61.
88
Joubert v Enslin 1910 AD 6.
89
1987 (1) ZLR 141 (S).
90
1931 TPD 226.
@ Innocent Maja 44
e) It can be either express or implied from the conduct of the offeree
If acceptance is by conduct, the doctrine of quasi-mutual assent applies. Springvale
Ltd v Edwards captures the operation of the doctrine of quasi-mutual assent when it
established as follows:91
If, whatever a man’s real intention may be, he so conducts himself that a reasonable
man would believe that he is assenting to the terms proposed by the other party, and
that other party upon that belief enters into a contract with him, the man thus
conducting himself would be equally bound as if he had intended to agree to the other
party’s terms.
Bulawayo Municipality v Zimbabwe Football Association92 firmly established that

acceptance by conduct is valid acceptance.
f) The offeree must have had knowledge of the offer before acceptance
An offeree cannot have an intention to accept an offer of which he is not aware. This
point is made in Bloom v The American Swiss Co93 where the Respondent had
published an advertisement in the press offering £500 to anyone who availed
information that could lead to the arrest of thieves who had stolen diamonds and
jewellery. The Appellant was not aware of this reward when he supplied this
information to the CID. When he heard about the reward, he tried to claim it.
However, the Court held that he could not lawfully claim the reward because he was
not aware of the offer when he supplied the information. Accordingly, he lacked the
requisite intention ─ animus contrahendi ─ to accept the offer of which he was not
aware. His reward claim was therefore dismissed.
g) It must be communicated to the offeror
The general rule is that acceptance of the offer must be communicated to the
offeror. The exceptions to this rule are where the circumstances reveal that
communication of acceptance was not necessary94 or where the offeror waives
communication. However, where communication of acceptance is not waived, the
offeror may specify the manner of acceptance.95 In that case, adherence is made to
the prescribed manner of acceptance.96
The position was summarized aptly in Orion Investments (Pvt) Ltd v Ujamaa
Investments (Pvt) Ltd & Ors,97 where the Court held as follows:
The general rule with regard to the formation of contracts is that a contract is not
concluded until the offeree has not only decided in his own mind to accept the offer
made, but has communicated his acceptance to the offeror. It is competent for the
offeror to dispense with such notification either expressly or impliedly, and to indicate
91
1968 (2) RLR 141 148-9.
92
1989 (3) ZLR 261 (S).
93
1915 AD 100.
94
See Carlill v Carbolic Smoke Ball Co. 1893 1QB 256 CA.
95
See Driftwood Properties (Pty) Ltd v Mcleon 1971 (3) SA 591.
96
See Laws v Rutherfund 1924 AD 261.
97
1987 (1) ZLR 141 (S).
@ Innocent Maja 45
the manner in which acceptance may be manifested. Compliance with the method of
acceptance, even though not brought to the knowledge of the offeror, will create a
vinculum juris between the parties.
Antonio v Ashanti Goldfields Zimbabwe Limited98 was even more emphatic:

It is trite that, as a general rule, a contract is not concluded until the offeree has not
only decided in his mind to accept the offer, but has communicated his acceptance to
the offeror. In each case, it is necessary to consider the terms of the offer to
determine the mode of acceptance required. Where, in my view, the offer is silent as
to how the offer is to be accepted, any conduct on the part of the offeree, by deed or
by word is, in my view; that is consistent with acceptance of the offer and which
conduct or word is brought to the attention of the offeree and is also understood by
the offeree as an acceptance of the offer is sufficient to create the requisite vinculum
juris between the parties.
2.2.4.2 Modes of communicating acceptance

a) Acceptance by post
It is a general rule of the law that if an offer is made by post, it should be accepted
by post if the mode of acceptance is not specified. The basis of the rule is that by
using the post service the offeror by implication authorises the offeree to use the
same method of communication. However, when acceptance is by post, a valid
contract is bought into being at the moment of the posting of the letter irrespective
of whether or not the offeree received and read the letter of acceptance. This is
referred to as the expedition theory. The rationale behind the expedition theory is
that the offeror must suffer the risks or consequences of choosing a specific method
of acceptance.99
b) Acceptance by telegram
The general rule is that handing a telegram of acceptance to the post office
concludes a contract.100
c) Acceptance by telephone
Tel Peda Investigation Bureau (Pty) v Van Zyl101 established that a contract comes
into effect when the offeror becomes aware of the offeree’s acceptance. Such
communication is regarded as face-to-face communication.
d) Acceptance by telex, fax, email, etc
These modes of acceptance are treated as instantaneous communication pathways.
There is no clear decision on this matter in Zimbabwe. However, the inclination is to
follow the English case of Brinkibon v Stahag Stahl102 which established that
98
2009 (2) ZLR 372 (H) 383.
99
See Cape Explosives Works Ltd v SA Oil and Fat Industries Ltd 1921 CPD 244 and Kergeulen Sealing
and Whaling Co. Ltd v Commissioner of Inland Revenue 1939 AD 487.
100
Yates v Dalton 1938 EDL 177.
101
1965 (4) SA 475.
102
(1982) 1 All ER 293.
@ Innocent Maja 46
acceptance by fax is effective when the fax is received by the offeror. According to
Manase and Madhuku:103
The problem, however, for both telex and fax is what is meant by ‘received’? Is
communication received when the message arrives on the machine? Or when it is
actually taken by the other party? Or taken and read? The courts have not yet resolved
this issue…
Zimbabwean courts are yet to resolve this issue.
2.2.4.3 Contracts where there is no offer and acceptance

There are instances where a contract comes into being without offer and acceptance,
namely:
i) Where there are pure fictions imported into a transaction for doctrinal
reasons.104
Examples of these include the simultaneous signature and exchange of copies of a
written agreement, the simultaneous acceptance of terms suggested by a third party
and the acceptance by competitors in a race of rules laid down by a committee.105
ii) When a scheme is set up and a number of participants enter into
contracts with the originator of the scheme.
Even though the participants do not expressly contract with each other, they
participate in the expectation that all other participants will obey the rules of the
scheme. Examples include imposition of rules on competitors in a race or other
competition, imposition of territorial limits on distributors or sole agents, restriction
of tenants in a block of shops from carrying on business similar to those of other
tenants, imposition of restrictive covenants in a township, etc.106
iii) Contracts created by statute.
A statute may specify that certain defined circumstances can be deemed a contract.
There a contract will exist even though there is offer and acceptance.
The essential element of offer and acceptance is summarized in Fig. 2, as follows:107
103
AJ Manase & L Madhuku n42 above 15.
104
Breet v Estate Peri-Urban Areas Health Board 1955 (3) SA 523 (A) 532E.
105
RH Christie n43 above 88.
106
RH Christie n43 above 89.
107
See Bhana et al n27 above 25.
@ Innocent Maja 47
OFFER
A animus contrahendi B CONTRACT
ACCEPTANCE
Fig. 2 Essential element of offer and acceptance
2.3 Agreement
For a contract to be valid at law, parties must agree on who the parties to the
contract are; the rights and obligations created by the contract (or terms of the
contract) and that the contract will be legally binding.
As a rule, there must be subjective agreement, a meeting of the minds, consensus ad

idem (a coincidence of wills regarding parties to, terms of, and the legal binding
nature of the contract.108 Joubert v Enslin109 establishes that ‘[t]here can be no
consent where the minds of the parties do not meet, or, as some writers express it,
where there is no consensus ad idem.’ In Phigidemac Consultants (Pvt) Ltd v Zvimba
Rural District Council,110 the court held that ‘[a] contract becomes binding when the
parties minds meet on the terms of the contract.’
Courts are enjoined strictly to look at such subjective agreement in order to establish
the existence of a contract. The Court’s approach in this regard is two pronged. The
first approach is a subjective approach summarized in Pieters & Co v Salomon111
where the following is firmly established:
When a man makes an offer in plain and unambiguous language, which is understood in
its ordinary sense by the person to whom it is addressed, and accepted by him bona
fide in that sense, then there is a concluded contract. Any unexpressed reservations
hidden in the mind of the promissor are in such circumstances irrelevant. He cannot
be heard to say that he meant his promise to be subject to a condition that he omitted
to mention, and of which the other party was unaware.112
108
See Salisbury Municipal Employees Association v Salisbury City Council 1957 R & N 127 131H; 1957
(2) SA 554 557E.
109
1910 AD 6 23.
110
2004 (2) ZLR 326.
111
1911 AD 121 137.
@ Innocent Maja 48
The second approach is an objective one that looks at the conduct of the parties using
the lens of a reasonable person. This approach developed out of a realization that it is
not always easy for the Courts to ascertain conclusively the state of mind of the
parties at the time of contracting. A number of cases capture this approach. Levy v
Banket Holdings (Pvt) Ltd113 held that:
… [i]n considering whether a contract is concluded between two parties, a court is not
interested in the state of mind of the parties considered in the abstract. It must
decide the issue on the state of mind of the parties as manifested by word or deed. It
is idle for a party to avow mental reservations or unspoken qualifications if there are
inconsistent with what is said or done.
The second approach is referred to as the doctrine of quasi-mutual assent (or

agreement by conduct) and has been applied in Zimbabwe. It stems from the
following words by Blackburn J in Smith v Hughes:114
If whatever a man’s real intention may be, he so conducts himself that a reasonable
man would believe that he was assenting to the terms proposed by the other party,
and that other party upon that belief enters into the contract with him, the man thus
conducting himself would be equally bound as if he had intended to agree to the other
party’s terms.115
In Munyanyi v Liminary Investments and Anor,116 Makarau JP said this about the
doctrine of quasi-mutual assent:
It is a trite principle of the law of contract that where, by word or deed, one party to
a contract gives out to the other a certain position and that position is accepted, both
parties are bound. This is referred to as the quasi- mutual assent doctrine that is an
intrinsic part of objectively establishing consensus ad idem between the parties to a
contract… The doctrine of quasi-mutual assent has been a part of our contract law
from time immemorial…
South African Railways & Harbours v National Bank of South Africa, Limited117 also
established the following concerning quasi-mutual assent:
The law does not concern itself with the working of the minds of parties to a contract,
but with the external manifestation of their minds. Even therefore if from a
philosophical standpoint the minds of the parties do not meet, yet, if by their acts
112
See also Mtoko Heavy Haulage (Pvt) Ltd v Sykes & Anor 1975 (2) RLR 132; Musgrove & Watson
(Rhodesia) (Pvt) Ltd v Rotta (1) 1978 RLR 129 134 and Stanbic Finance Zimbabwe Ltd v Chivhungwa
1999(1) 262 (H).
113
1956 R & N 98 (FS) 104-5; 1956 (3) SA 558 561.
114
(1871) 6 QB 597 at 607.
115
The doctrine of quasi-mutual assent as typified by the cited words was adopted in Zimbabwean law
of contract in the cases of Diamond v Kernick 1947 (3) SA 69 (A) 83; Springvale Ltd v Edwards 1968 (2)
RLR 141 (A) 148-9 and Associated Printing & Packaging (Pvt) Ltd v Lavin 1996 (1) ZLR 82 (S).
116
HH–38–10. See Air Zimbabwe (Pvt) Ltd v Zendera & Ors 2002 (1) ZLR 132 (S); WFD Network (Pvt) Ltd
v Jaggers Wholesalers 2001 (1) ZLR 368 and Mutomba v R & C Investments (Pvt) Ltd 2002 (2) ZLR 510
(S).
117
1924 AD 704 715-716. This latter statement was approved by the Federal Supreme Court in an
appeal from the Southern Rhodesia High Court in Levy v Banket Holdings (Private) Ltd 1956 R. & N. 98
105; 1956 (3) SA 558 (FC).
@ Innocent Maja 49
their minds seem to have met, the law will, where fraud is not alleged, look to their
acts and assume that their minds did meet and that they contracted in accordance
with what the parties purport to accept as a record of their agreement. This is the
only practical way in which Courts of law can determine the terms of a contract.
It is imperative to note that in order to invoke successfully the doctrine of quasi-

mutual assent; the following factors have to be established:
a) The party seeking to invoke the doctrine is treated as if he had been
aware of all relevant facts of which a reasonable man in his position ought to
have been aware of;
b) No fault, wrongfulness, nor unlawfulness needs to be proved on the part
of the other party. All that needs to be shown is that his conduct led the party
seeking to invoke the doctrine ─ as a reasonable person ─ to believe that he is
binding himself;
c) The party seeking to invoke the doctrine need not show that in relying
on the other party’s conduct, he has suffered any prejudice.118
Once the above three requirements are established, the onus shifts to the other party
to disprove the existence of an agreement by conduct. In Woods v Walters,119 the
Court observed:
It follows of course that where the parties are shown to have been ad idem as to the
material conditions of the contract, the onus of proving an agreement that legal
validity should be postponed until the due execution of a written document lies upon
the party who alleges it.
The process of ascertaining the existence of the doctrine of quasi-mutual assent is

two-fold. First, the Court asks itself the question, ‘judging by the external
manifestations, were the parties in true agreement?’ If the answer is in the
affirmative, the Court will determine that there was an agreement. Second, if the
Court answers the first inquiry in the negative, it will ask itself a further question
‘was the one party reasonably entitled to assume, from the words or conduct of the
other that they were in true agreement?’ If so, the Court will determine that there
was an agreement between the parties. If not, the Court will hold that there was no
agreement.
Finally, the Court’s approach on how to determine the existence of agreement is

summarised as follows in Municipality of Victoria Falls v Nyathi and Ors:120
It is trite that agreement by consent is the foundation of contract… In order to decide
whether a contract exists one looks first for the true agreement of two or more parties
118
See Springvale Ltd v Edwards 1968 (2) RLR 141 (A) 149. These requirements distinguish quasi-mutual
assent from estoppel where the party seeking to invoke estoppel should prove fault, fraud, detriment
and prejudice.
119
1921 AD 303.
120
HB-2-12.
@ Innocent Maja 50
and because such agreement can only be revealed by external manifestations one’s
approach must of necessity be generally objective. The court can only judge from
external facts whether the minds of the parties have come together.121
2.3.1 Animus contrahendi

An agreement is not deemed a contract at law if the parties do not have an intention
to bind themselves with a legally enforceable contract. In contract parlance, such
parties are lacking animus contrahendi ─ a serious and deliberate intention to create
a legal obligation.122
The animus contrahendi requirement has inspired Courts to divide contracts into
commercial transactions and social agreements. Commercial transactions are
generally presumed to create legally binding obligations.123 However, some
commercial transactions can specifically exclude animus contrahendi by what are
called ‘honour clauses.’ An honour clause specifies that an agreement is only
supposed to be binding in honour and not give rise to any legally enforceable
obligation. This position was confirmed in the case of Electronic Building Elements v
Huang124 where the Court established that:
…if the parties choose to exclude from legal enforceability any arrangements arrived
at between them, it can then become no more that a moral obligation or an obligation
of honor but unenforceable in court of law.
Unlike commercial transactions, social agreements are presumed generally not to

create legally binding obligations unless there are special arrangements that allow for
that. In Balfour v Balfour,125 a husband who worked overseas ─ Ceylon (Sri Lanka) ─
whilst his wife remained in England, due to illness, promised to pay her maintenance
of £30 per month at a time when the couple was happily married. The relationship
later soured, leading to a divorce. An issue then arose as to whether agreement to
pay £30 per month was enforceable. The Appellate Court held that the agreement
was a purely social and domestic agreement and therefore it was presumed that the
parties did not intend to be legally bound.126
It is therefore clear from the above that an agreement is a contract at law only if
parties have a serious and deliberate intention to create a legal obligation ─ animus
contrahendi.
121
P G Industries (Zim) Ltd v Machawira HH-255-12 held that for a contract to exist, the parties must
be of the same mind, there must be a coincidence of wills or consensus ad idem. In determining
whether such meeting of the minds occurred, a court is not equipped with a magical crystal ball but
must find the answer from the conduct of the parties.
122
See Conrad v Rossouw 1919 AD 279; Estate Breet v Peri Urban Areas Health Board 1955 (3) SA 523
(A) 532E; De Villiers & Anor v Sports Pools (Pvt) Ltd 1976 (2) RLR 233 and Nyika Investments v Zimasco
Holdings and Anor S 49 – 05.
123
See Jones v Padabaton 1969 2 All ER 166 and Rose and Frank Co v JR Crompton & Brothers Ltd &
Anor 1923 2 KB 261.
124
1992 (2) SA 384 387.
125
(1919) 2 KB 571.
126
Barclays Bank of Zimbabwe Limited v Binga Products (Pvt) Ltd 1985 (3) SA 1041 (ZS) 1049.
@ Innocent Maja 51
2.4 Contractual capacity
For a contract to be valid, the parties must be legally entitled to enter into legally
binding agreements (locus standi in judicio). They must be able to understand the
nature of a contract and the consequences of entering into such a contract.
Zimbabwean law recognizes the following two categories of legal persons that can
potentially have contractual capacity.
2.4.1 Artificial persons

An artificial or juristic person is an entity other than a human created by the law and
recognized as a legal entity having distinct identity, legal personality and duties and
rights.127 Examples include a Company, Partnership, Trust, State institutions and the
State itself that are given corporate status in order to allow them to transact
business. They can enter into binding contracts through their agents.128
i) Types of artificial persons
a) Corporations
Registered Companies, private business corporations, and statutory corporations
generally have contractual capacity. A natural person must represent them. Their
power to enter into commercial transactions is found in the articles of association,
the Companies Act, or the enabling statute.129 The contract itself must fall within the
ambit of the memorandum of association or the relevant statute.
b) Partnerships
Partnerships are regulated usually by a partnership deed that spells out the persons
that can contract on behalf of the partnership. However, it is agreed generally that
any partner can enter into an agreement on behalf of a partnership if the contract
furthers the interests of the partnership.130
c) Trusts
Trusts are regulated generally by a trust deed that spells out persons with contractual
capacity.131 In WLSA & Ors v Mandaza & Ors132 the Court established that a trust is not
a legal person but the trustees are. A trust cannot therefore institute legal
proceedings but the trustee(s) can.
d) Common law universitas
The term universitas usually refers to common law voluntary organizations such as
churches, clubs, co-operative societies, etc. The power of a universitas to contract is
127
http://www.businessdictionary.com/definition/artificial-person.html#ixzz375NJOae6T
128
See Lees Import and Export (Pvt) Ltd v Zimbabwe Banking Corporation Limited 1999 (4) SA 1119 (ZS)
and Pumpkin Construction (Private) Limited v Chikaka 1997(2) ZLR 430 (H).
129
Chikumbu v Bryden Technical Svcs (Pvt) Ltd HH-93-09.
130
Metallon Corporation Ltd v Stanmarker Mining (Pvt) Ltd S-82-06.
131
Gold Mining and Minerals Development Trust v Zimbabwe Miners Federation HH 24-2006; 2006 (1)
174 (H).
132
2003 (1) ZLR 500 (H).
@ Innocent Maja 52
found in their constitution and charter.133 In Christian Faith Tabernacle v Sparrows
Nest Ministries,134 the Court summarized the contractual capacity of a church as
follows:
The locus standi of a voluntary association derives from the provisions of its charter or
constitution, either expressly or impliedly. For the power to sue to be implied, it must
be incidental to the express powers as being requisite for the due carrying out of the
express objects of the association. The two principal characteristics of the capacity of
a universitas to sue are perpetual succession, viz. continued existence or identity of
the association despite changes in its membership, and the capacity to acquire rights
and incur obligations independently of its members, in particular, the capacity to own
property. Where the constitution of a church shows that the membership of the church
is open to all persons meeting the prescribed spiritual qualifications and that the
composition of its executive body is subject to change under specified circumstances,
this clearly demonstrates the separate existence or identity of the church,
notwithstanding changes in its leadership or general membership. Where the
constitution endows the church with the capacity to do everything necessary to effect
its objectives, including by implication the power to advance and protect its property
rights, the power to sue must perforce be implied as being necessarily incidental to its
express powers for the due carrying out of its express objects. The biblical injunction
against recourse to temporal, as opposed to spiritual, authority cannot be invoked in
the realm of human affairs to preclude the administration and application of the
general law through the secular courts. This is so particularly where the issues that
call for resolution centre on proprietary interests and their assertion in the material
world.135
In Mashonaland Turf Club v Nyamangunda136 and Dynamos Football Club (Pvt) Ltd &
Anor v ZIFA & Ors,137 the courts emphasized that there has to be strict compliance
with the provisions and procedures of the constitution in order for contractual
capacity to be established.138
e) The state
Section 2 of the State Liabilities Act139 affords the state the same contractual capacity
as a natural person.140 The state can therefore enter into contract through natural
persons empowered to contract on the state’s behalf. PMA Real Estate (Pvt) Ltd v
ARDA141 held as follows:
133
Voet 3 4 2.
134
2009 (2) ZLR 15 (H) or HH-69-09. See also Zambezi Conference of Seventh Day Adventists v General
Conference of Seventh Day Adventists & Anor 2001 (1) 160 (S); Diocese of Harare v Church of Province
of Central Africa & Anor (1) 2008 (1) 112 (H); Independent African Church v Maheya 2000 (1) ZLR 39
(H) and Friday Bruno Peni v The Society of Jesuits of Zimbabwe S-14-10.
135
See also Bantu Callies Football Club v Mothlamme & Ors 1978 (4) SA 486 (T) & Ward S 19 Council v
Premier, Western Cape Province & Ors 1998 (3) SA 1056 (C)
136
2009 (1) ZLR 160 (H).
137
2006 (1) ZLR 346 (S).
138
See also Mudzengi & Ors v Hungwe & Anor 2001 (2) 179 (H).
139
[Chapter 8:14].
140
See Waterfalls Town Management Board v Minister of Housing 1956 R & N 691.
141
HH-236-11.
@ Innocent Maja 53
The scope of a State servant’s authority is more often than not determined by
statutory provisions and the requirements of the statute or regulations concerned must
be complied with. If such requirements are mandatory, any contract made in breach
of them is invalid and unenforceable. No State servant has the authority to circumvent
or dispense with the requirements of a statute. To recognise or enforce any such
contract would operate to render the applicable enactment nugatory. Although it
might be argued, by analogy with company law, that persons dealing with the State
are entitled to assume that the functionaries in question have duly complied with the
prescribed formalities, any hardship which might befall persons contracting with the
State is outweighed by the public interest in safeguarding State property and public
moneys. If contracts made in material breach of statute were to be recognised and
enforced, the unavoidable result would be to frustrate and defeat an explicit
injunction of the legislature… A contract in breach of statute cannot be
retrospectively ratified or otherwise validated because (a) the law does not
countenance the ratification of a contract or transaction which, being contrary to
statute, is null and void ab initio; and (b) the executive is not at liberty to waive or
renounce a peremptory statutory obligation imposed by the legislature for the
protection of State property and public moneys.
f) Universities and parastatals

The contractual capacity of universities and parastatals is in the statute that
establishes such an organization as read with the State Liabilities Act.
2.4.2 Natural persons

Natural persons refer to human beings. For natural persons to enter into binding
contractual relations, they should have reached the legal age of majority ─ eighteen
years. The following people are disqualified from entering into binding contractual
relations:
i) Types of natural persons
a) Minors
Sections 81(1) of the Constitution and 15(1) of the General Law Amendment Act142
define a minor as a person that has not yet reached the age of eighteen years.
Consequently, a person who is eighteen years or older has full contractual capacity.
There are two general rules. The first is that a minor below the age of seven does not
have any contractual capacity at all and a guardian should enter into a contract on his
behalf. The second is that a child between seven and eighteen cannot enter into
binding contractual relations without the assistance of a parent or guardian.143 These
two general rules were emphasised in Mujaji v Mushoriwa144 where the Court
established that:
142
[Chapter 8:07].
143 Edelstein v Edelstein 1952 (3) SA 1 (A) 11G.
144
HH–30–09.
@ Innocent Maja 54
… (a) child under the age of seven has no contractual capacity at all and thus a
guardian must enter a contract on his behalf. Where the children's age is above seven
but under age of majority then they must be assisted by their guardian.
In Ex parte Blignaut,145 the Court established that guardian’s assistance does not need
to go further than knowledge and lack of objection. Without such assistance, minors
can obtain only rights from the contract and not duties or obligations.
It is interesting to note that, if a major enters a contract with a minor who is not
assisted by a guardian, the major is bound by that contract whilst the minor is not.
This is called a limping contract.
However, an unassisted minor is bound by a contract in the following circumstances:

i) If the minor is tacitly emancipated
A tacitly emancipated minor is one who is no longer under the control of his or her
parents and either earns his own living or maintains a separate household, or both. In
the case of Dickens v Daley,146 a 20 year old147 ─ who operated his own account, paid
rent and was responsible for sustaining his parents ─ was held to be tacitly
emancipated. Once a minor is declared tacitly emancipated, he is given majority
status. He can enter into binding contracts without the assistance of parents or
guardian.
ii) If a minor gets married
If a minor gets married in terms of sections 20, 21 and 22 of the Marriages Act,148
(s)he can be allowed to enter into binding contracts without the assistance of the
guardian. In this respect, such a minor is a tacitly emancipated minor.
Marriage on its own confers majority on a woman who is married from the age
between sixteen and twenty years. Berning v Berning149 establishes that if the
marriage ends by death or divorce150 before a married minor reaches the legal age of
majority, majority status endures.
iii) If a minor misrepresents his or her age
If, at the time of contracting, the minor misrepresents his or her age to the other
party or misrepresents that (s)he had been given the guardian’s consent when in
essence he had not been given such, the minor will be bound by the contract.151
iv) If a minor is unjustly enriched
145
1963 (4) SA 36 (O) 37-38.
146
1956 (2) SA 11 (N) 16-17.
147
The legal age of majority in this case was 21 years.
148
[Chapter 5:11].
149
1942 (1) PH B26 (W).
150
This is ably captured in section 20(4) of the Marriages Act [Chapter 5:11].
151
See Voet 27 9 13 and Pleat v Van Staden 1921 OPD 91.
@ Innocent Maja 55
A minor is unjustly enriched when (s)he unduly benefits from a contract that (s)he
enters with a major. The minor is obliged to restore things that are still in his
possession when an unjust enrichment action comes before the court.152 In Edelstein v
Edelstein, the Court held as follows:153
The other exception is that a minor is under an obligation is obliged to make
restitution to the other party to the extent to which he has been enriched. However,
the minor is not obliged to restore whatever he has received pursuant to the contract
but only so much as still remains in his possession at the time of the action or the
surrogates of such residue.
v) If the minor ratifies the contract upon reaching the legal age of
majority
It is imperative to note that any contract entered into with an unassisted minor is not
void but voidable at the instance of the innocent party. For such a contract to be
binding on a minor, it has to be ratified by either the minor when (s)he reaches the
legal age of majority or by their parent or guardian before they reach eighteen.154
b) Insolvents
These persons accrue more liabilities than their assets can pay for. Put differently, a
debtor whose estate is subject to a sequestration order owing to his inability to pay
debts. Section 35(2) of the Insolvency Act155 makes it clear that an insolvent generally
has full contractual capacity. However, an insolvent cannot purport to dispose of any
property of his or her insolvent estate or enter into any contract that is likely going to
have an adverse effect on his estate or his contribution to the estate without the
consent of the trustee. If he enters into these contracts without the trustee’s consent
such a contract will be voidable at the instance of the trustee.156
c) Prodigals
These people are declared by the court to be incapable of managing their affairs
because of their propensity to squander. A relative or interested person can apply for
a curator appointed by the court to manage their affairs. Once a curator is appointed,
the prodigal may not enter into contractual relations in respect to their property
unless assisted by a curator. If they enter into contracts without the consent of a
curator, such a contract is not void but voidable at the instance of the prodigal’s
curator.157
d) Insane or mentally ill persons
The general rule is that any party who suffers from a mental illness or incapacity at
the time of contracting has no contractual capacity at all because they are deemed
152
See Fouche v Battenhausen and Company (1939) CPD 228.
153
1952 (3) SA 1 (A) 11.
154
Stuttaford and Company v Oberholzer 1921 CPD 855.
155
[Chapter 6:04].
156
W I Carroll & Co v Ray Hall Motors (Pty) Ltd 1972 (4) SA 728 (T).
157
Phil Morkel Bpk v Niemand 1970 (3) SA 455 (C).
@ Innocent Maja 56
incapable of understanding the nature and consequences of the contract.158 This
position was stated in the case of Lange v Lange,159 where the court held as follows:
It is clear of course, that if, owing to a mental disease, a contracting party does not
understand or appreciate the nature of the matter the contract will be void.
The Court’s inquiry in cases of insanity is illustrated in Pheasant v Warne160 where the
court held that:
A court of law that is called upon to decide a question of contractual liability
depending upon mental capacity must determine whether the person concerned was
or was not at the time capable of managing the particular affairs in question ─ that is
whether his mind was such that he could understand and appreciate the transaction
into which he purported to enter.
In Executive Hotel (Pvt) Ltd v Bennett NO,161 Chidyausiku CJ summarized the

principles of testing the existence or otherwise of insanity as follows:
Three principles of testing the existence or otherwise of corpus mentis emerge from
the foregoing authorities. I would summarise these as follows –
(1) Was the state of mind of the contracting party whose capacity is at issue such that
he was incapable of estimating what was or what was not a fair and beneficial
bargain?;
(2) Was the state of mind of the contracting party whose capacity is at issue such as
would in common honesty not make him liable or responsible for such act or contract?;
and
(3) Whether the contracting party whose capacity is at issue was of such unsound mind
as to be incapable of understanding and appreciating the transaction into which he
purported to enter.
Once insanity is established, a contract is deemed as void.

e) Intoxicated persons
A person that is under the influence of alcohol or other drugs and is intoxicated162
that (s)he is incapable of appreciation the nature of a contract163 does not have
contractual capacity. The contract entered into by an intoxicated person is void
because that person did not have the mental capacity to reach consensus.
f) Married women
158
There is a rebuttable presumption that if a person is declared mentally ill in terms of the Mental
Health Act [Chapter 15:06], that person is incapable of contracting. The person that intends to enforce
the contract should rebut this presumption by proving that at the time of contracting, the insane
person was capable of understanding the nature and consequences of a contract.
159
1945 AD 332 341.
160
1922 AD 481 488.
161
S–77–06; 2007 (1) ZLR 343 (S).
162
The intoxication may be acute or chronic. See Essakow v Galbraith 1970 OPD 53.
163
Van Mertzinger v Badenhorst 1953 (3) SA 291 (T).
@ Innocent Maja 57
The contractual capacity of married women is determined by the type of marriage
into which they enter. Marriages are classified into two, namely:
i) Marriage in community of property
This is a marriage where the husband and the wife have a joint estate. The husband is
the administrator of the estate. He can enter into contracts in relation to the estate
without the consent of his wife. The wife cannot, however, enter into any contract in
respect of that estate without the consent of the husband except in respect of
necessities (i.e., daily basic necessities such as food). Kent v Salmon164 establishes
that under Roman-Dutch law, women were married in community of property and
presumed to have no contractual capacity. The onus was upon the person seeking to
make the wife personally liable to prove her capacity.
ii) Marriage out of community of property
In this marriage, the husband and the wife own property separately, and the wife is
allowed to enter into contractual relations in respect of her property. Section 2 of the
Married Persons Property Act165 clearly excludes community of property from all
marriages solemnized in Zimbabwe after 1 January 1929. This essentially means that
all marriages in Zimbabwe are now out of community property unless parties enter
into ante nuptial contract, an instrument, or a notarial deed to the contrary. A
married woman therefore has full contractual capacity unless the contrary is proved.
However, there has been a question of whether or not customary marriages are in or
out of community of property. This issue was addressed in the case of Jena v
Nyemba166 where the court held that, even though the very nature of a customary
marriage reveals that it is in community of property, the promulgation, or enactment
of the Legal Age of Majority Act conferred majority status on women that are married
customarily. What this means is that women married customarily can enter into a
valid contract without the consent or assistance of the husband.
It is also important to note that a married woman has the capacity to bind her
husband in contracts for household necessities.167 This capacity stems from the
consequences of a marriage where one of the objectives is to ensure the supply of
necessities for the joint household.
2.5 Possibility to perform

Whatever is agreed between parties should be within the capability of human beings
to perform. If performance is objectively impossible, then the contract is ab initio
(void from the beginning). This principle is embodied in the maxim lex non-cogit ad
impossibilia (no legal obligation can arise out of an agreement that is impossible of
164
1910 TPD 637 640.
165
Married Persons Property Act [Chapter 5:12].
166
1996(1) ZLR 138.
167
See Behr v Minister of Health 1960 R & N 715; 1961 (1) SA 629.
@ Innocent Maja 58
performance).’ In Peters, Flamman and Co v Kokstad Municipality, the court held that
‘(a) contract is void if at the time of its inception its performance is impossible.’168
The general rule is that a contract is invalid where performance is objectively

impossible at the conclusion of the contract. For this principle to apply, Christie169
argues that the impossibility must be absolute and not merely likely to arise,170
absolute as opposed to relative, not the fault of either party,171 and not treated in the
contract as a risk that one expressly172 or impliedly173 undertakes to bear.
Impossibility is classified into factual and legal impossibility.174

i) Factual impossibility
Factual impossibility has two categories. The first category is subjective impossibility
that occurs when performance is not possible for a specific debtor, although it will be
possible for other persons. Such subjective impossibility does not invalidate the
contract. In fact, the debtor who fails to perform will be sued for breach of contract.
The second category of factual impossibility is objective impossibility that occurs
when performance is impossible for all people. Such impossibility is one that makes a
contract void from the beginning.175
ii) Legal impossibility
Legal impossibility occurs where there is a legal rule or legal factors that prevent one
of the parties to a contract from performing.176 Legal impossibility makes
performance in a contract objectively impossible and therefore invalidates a contract
ab initio. For instance in Wilson v Smith,177 parties to a contract agreed to a sale of a
portion of land under the impression that the piece of land could be subdivided. They
were not aware of a town planning ordinance that prevented such a subdivision at the
time of concluding the contract. The court ruled that it was objectively impossible to
carry out the contract of sale.
Suffice to mention is the fact that the impossibility should not be by one of the
parties to the contract.178 Again, if impossibility supervenes later, the contract will
automatically terminate and neither party will be liable for damages to the other.
This aspect is dealt with under supervening impossibility later on in the text.
168
1919 AD 427.
169
RH Christie (n1 above) 46.
170
Heyneke v Abercrombie 1974 (3) SA 338 (T) 345 F.
171
Theron Ltd v Gross 1929 CPD 345.
172
Inhambane Oil and Mineral Development Syndicate Ltd v Mears and Ford (1906) 23 SC 250.
173
Wilson v Smith 1956 (1) SA 393 (W) 396 D.
174
See Bhana et al (n27 above) 82-84.
175
National University of Science and Technology v National University of Science and Technology
Academic Staff and Ors HB-7-06. See also Zimbabwe Express Services (Pty) Ltd v Nuanetsi Ranch (Pty)
Ltd S-21- 09 and Ncube v Mpofu and Ors HB-69-06. Even if these last two cases relate to impossibility
after the contract comes into existence, they embody principles that apply to initial impossibility.
176
See Wylock v Milford Investments (Pty) Ltd 1962 (4) SA 298 (C) 318-319.
177
1956 (1) SA 393 (W).
178
Theron Ltd v Gross 1929 CPD 345.
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2.6 Formalities
In Zimbabwe, the general rule is that there are no formalities required for the valid
formation of a contract.179 A contract can therefore take any of the basic three forms,
namely, verbal, written, or tacit180 (implied from the conduct of the parties).
However, there are two circumstances when formalities may be required, namely:
i) Statutory formalities
These are formalities prescribed by a statute for a particular type of a contract. For
example, section 5 of Hire Purchase Act181 provides that a hire purchase agreement
must be reduced into writing and state the cash price. Similarly, Section 7 of the
Contractual Penalties Act182 provides that an installment sale of land must be reduced
into writing. Section 48 of the Companies Act183 provides that a pre-incorporation
contract must be reduced into writing.
ii) Self-imposed formalities
Self-imposed formalities are those imposed by parties on themselves. For instance,
parties may agree that for a contract to be formed, varied or cancelled, it has to be
reduced into writing and signed by both parties. This essentially means that a
contract with such self-imposed formalities cannot be formed, varied, or cancelled if
the formation, variation, or cancellation is not reduced into writing.
2.7 Certainty or clarity

For a contract to be valid, its terms should be certain or ascertainable. There should
be sufficient detail or content concerning the exact performance in the contract to
enable the court to enforce such an agreement. If there is no clarity concerning exact
performance, such a contract is void for vagueness or void for uncertainty.
The approach that the Zimbabwean courts adopt usually was summarised in the case
of Chikoma v Mukweza,184 where the Court held as follows:
The approach that the courts will adopt to the issue of whether a contract is void for
vagueness will be to help the parties towards what they both intended rather than
obstruct them by legal subtleties and allow one of the parties to escape the
consequences of all he has done and all he has intended. The courts will interpret
contracts fairly and broadly, without being too quick to find defects, following the
principle ut res magis valeat quam pereat.
179
This approach is consistent with common law – see Goldblatt v Fremantle 1920 AD 123 128.
180
Tacit contracts were held to be valid in Salisbury Municipality Employees Association v Salisbury
City Council 1957 R & N 127 131 and Municipality of Bulawayo v Zimbabwe Football Association 1989
(3) ZLR 261 (S). According to Mutomba Supermarket v R & C Investments (Pvt) Ltd S-85-2002, for a
court to conclude that there was a tacit contract, courts should assess whether the conduct of the
parties shows that the parties intended to contract with each other. (See also Benchill Investments
(Pvt) Ltd v Battery World (Pvt) Ltd HH-277-10).
181
Hire Purchase Act [Chapter 14:09].
182
Contractual Penalties Act [Chapter 8:04].
183
Companies Act [Chapter 24:03].
184
1998 (1) ZLR 541 (S).
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It is interesting to note that Zimbabwean courts have devised a three-pronged test to
ascertain certainty or vagueness. In Nestoras Nestoros v Innscor Africa Limited,185
Patel J decided the issue of vagueness by looking at three aspects, namely:
i) When was the party’s promise or undertaking going to be fulfilled?
ii) What was actually promised?
iii) What was the essence of the party’s promise?
Contracts void for vagueness
Suffice to mention, also, is the fact that in Levenstein v Levenstein,186 contracts void
for vagueness were divided into four categories, namely:
a) Contracts that are apparently incomplete but are shown by evidence to
be complete
In Madan v Macedo Heirs,187 the Court established that Zimbabwean courts usually
lean towards upholding the contract as far as possible instead of declaring it void. The
rationale for such an approach was articulated clearly in Hillas & Co Ltd v Arcos Ltd188
where the Court held that Courts must construe contractual documents in a way that
gives effect to the contract instead of destroying bargains.
b) Contracts where the vague and uncertain language indicates that parties
did not reach an agreement/consensus on an essential/material term of a
contract
These agreements are not enforceable because they are void for uncertainty or
vagueness. In Dijkstra v Janowsky,189 the court, citing Jammine v Lowrie,190 held that
‘[t]here is no valid contract where a material term has not been finally agreed upon
but is left open for further negotiation.’
c) Contracts that reserve an unlimited option to the promissor
Such contracts are unenforceable because the promissor can always resist
enforcement by saying that he has not opted to perform. For example, in Kantor v
Kantor,191 the court held unenforceable an agreement where a husband undertook to
buy his wife all such furniture, linen and domestic effects ‘at such times and in such
185
HH-73-2007.
186
1955(3) SA 615.
187
1991 (1) ZLR 295 (S).
188
(1932) 147 LT 503 (HL) 514. See also Elite Electrical Contractors v Covered Wagon Restaurant 1972
(2) RLR 221 (A); Regenstein v Brabo Investments Pty Ltd 1959 (1) R & N 392 (FS) and Blundell v Bloom
1950 (2) SA 629. Contrary decisions include King v Potgieter 1950(3) SA 7 and Mitchell Cotts Freight
Zimbabwe (Pvt) Ltd v S & T Import and Export (Pvt) Ltd 1982 (2) SA 669 (Z).
189
1985 (3) SA 560 (C). See also Schneider and London Ltd v Bennett 1927 TPD 346 and Raymond v
Abdulnabi 1985 (3) SA 348 (W).
190
1958 (2) SA 430 (T).
191
1962(3) SA 202. See also Scaurnel v Ostern 1941 AC 257; Clapham v Struckel 1979 RLR 521 and Cone
Textiles (Pvt) Ltd v Tribal Trust Land Development Corpn Ltd 1979 (2) SA 1051.
@ Innocent Maja 61
quantities as may seem expedient to him’ because it gave the husband an unlimited
discretion.
d) Incomplete contracts where the unspecified details of the contract are
questions of fact, which are incapable of determination by evidence
These contracts, normally, are held to be void for vagueness. In Merchant Bank of
Central Africa Limited v Liquidators, Tirzar (Pvt) Ltd,192 the court held that:
… [i]f an agreement is couched in such wide terms that it is not clear that the parties
intended a pledge or an out and out security; the agreement should be regarded as
void for vagueness.
Again, Zimbabwean courts usually lean towards upholding the contract as far as
possible rather than declaring it void. For instance, in Angath v Munckunlal Estate,193
the Defendant had invited the Plaintiff to assist in his shop with no agreed salary but
a promise that the Plaintiff would be paid something, sometime. The Court leaned
towards upholding the contract and held that the Plaintiff be awarded what the court
considered as reasonable remuneration for his services.
It is clear from the above cases that when courts are faced with contracts that are
purportedly void for vagueness they have a tendency of leaning towards enforcing
them rather than striking them down. This is in a bid to try as much as possible to
preserve sanctity of contract.
Whilst this approach is commendable, it can be argued that the Supreme Court
stretched it too far in the case of Associated Printing & Packaging (Private) Limited v
Lavin194 where the third Respondent owned shares in the first and second
Respondent’s companies which he sold to the Appellant. The parties started
negotiating and finally made a draft agreement that stated that it was subject to the
signature of both parties. They agreed on the price and method of payment. It stated
that the money had to be paid in a way that was tax advantageous to the seller. Then
the accountant was left to do his work. The document was sent to the third
Respondent for his signature but he refused to sign it and the contract could not go
further. The High Court held that the contract was not vague even if the parties had
not reached agreement as to the method that was tax advantageous to the seller.
2.8 Legality
Every agreement has to comply with the provisions of the law for it to be legally
enforceable. A contract that violates the law is illegal, usually, and is unenforceable.
Put differently, such a contract is null and void (invalid).
192
2000 (2) ZLR 163 (H).
193
1954 (4) SA 695.
194
1996 (1) ZLR 82 (S). See also Cassimjee v Cassimjee 1947 3 SA 701 (N).
@ Innocent Maja 62
Whenever dealing with illegality, two major issues stand out. The first is that one has
to establish the cause of illegality. The second is that one should ascertain the
consequences of illegality.
2.8.1 Causes of illegality

The causes of illegality refer to the reasons determining the illegality of a contract. In
Zimbabwe, the reason is either statutory illegality or common law illegality.
i) Statutory illegality
This refers to contracts prohibited by legislation either in the form of an Act of
Parliament or delegated legislation such as a statutory instrument or by-law. The
validity or otherwise of a contract forbidden by legislation is determined by reference
to the intention of the legislature.
There are four instances where Zimbabwean courts can deem a contract illegal
because it contravenes a statute.
a) First, a statute may expressly prohibit a certain type of contract and declare
such contract void, invalid or of no force or effect. Such a contract will be void and
unenforceable at law.195 In Mikesome Investments (Pvt) Ltd v Silcocks Investments
(Pvt) Ltd,196 the sale of stands that had no subdivision permit were declared to be
void for want of compliance with section 39(1) of the Regional, Town and Country
Act.197 The estate agent that sold the land without a subdivision permit was not
entitled to commission for such a sale.198
b) Second, a statute may expressly prohibit a certain type of contract but make
no express provision about the validity of the forbidden contracts. In these cases,
courts must ascertain the intention of the legislature to determine whether such a
contract is void and unenforceable.199 Courts have generally developed guidelines in
determining the intention of the legislature. For instance, they look at the wording of
the statute. Peremptory words like ‘shall’ or ‘must’200 as well as negative provisions
like ‘No person shall’ have been construed to indicate that the legislature intended
the contract to be void.201 Discretionary words like ‘may’ have been construed to give
courts the discretion to determine whether such contract are void. Courts have also
195
See Wilken v Kohler 1913 AD 135 141 and Patel v Sigauke and Anor H-55 –1994.
196
2003 (2) ZLR 56 (H).
197
[Chapter 29:12]. See also X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt Ltd 2000 (2) ZLR
348 (S).
198
See Phigidemac Consultants (Pvt) Ltd v Zvimba Rural District Council 2004 (2) ZLR 326 (H).
199
See Moser v Milton 1945 AD 517 526.
200
International Who’s Who Ltd v Bernstein Clothing (Pvt) Ltd S 28–99; Macape (Pty) Ltd v Executrix,
Estate Forrester 1991 (1) ZLR 315 (S) 320C-D; Young v van Rensburg 1991 (2) ZLR 149 (S) 155; and Adler
v Elliot 1988 (2) ZLR 283 (S) 287.
201
See Abreu v Campos 1975 (1) RLR 198 (A) and Swart v Smuts 1971 (1) SA 819 829-30.
@ Innocent Maja 63
looked at whether or not declaring such contact void or valid eradicates or brings
about the mischief that the statute aimed to prevent.202
If holding the contract valid brings about the exact problem that the legislature was
trying to eradicate, the contract is invalid. If the mischief can be prevented by means
other than declaring the contract invalid, then the contract will be valid.203 Courts
also look at whether or not declaring such contract void would lead to greater
inconvenience, unfairness, and injustice.204
It is interesting to note that in York Estates Ltd v Wareham,205 the Court established
as follows:
As a general rule, a contract or agreement which is expressly prohibited by a statute is
illegal and null and void even when, as here, no declaration of nullity has been added
by the statute.206
In Dobrock Holdings (Pvt) Ltd v Turner and Sons (Pvt) Ltd & Ors,207 an agreement by a
Zimbabwean resident to make a payment in sterling outside Zimbabwe without
authority was held to be in contravention of section 11(1) of the Exchange Control
Regulations 1996 (SI 109 of 1996) and therefore illegal, invalid, and unenforceable.208
c) Third, a statute may not expressly prohibit a specified type of contract but
make it a criminal offence. In such instances, courts must ascertain the intention of
the legislature to ascertain whether it intended to have the criminal penalty as the
only sanction. If the contractor intended criminal penalty as the only sanction, as in
Mac and Son Coachbuilders (Pvt) Ltd v Mapfumo,209 then it holds that the contract is
not illegal. The obvious danger of this approach, as articulated in Flanagan v
Wheeler,210 is that if the contract is not declared void, the very situation that the
legislature intended to prevent by providing for a criminal penalty will be permitted
in the law of contract.
d) Fourth, instances may occur when parties to a contract ─ conscious of the

statutory prohibition ─ draft their contract in such a way as to circumvent the
202
See Hattingh & Ors v van Kleek 1997 (2) ZLR 240 (S) where Korshah JA held at p 244D that ‘Section 8
of the Regulations only prohibits, but does not declare void or illegal, the transactions enumerated
therein.’ He also held that because one of the parties did not know about the cause of illegality, their
contract did not contravene section 8 of the Exchange Control Regulations. In his words at 246B, ‘The
cases clearly show that where a contract is on the face of it legal but by reason of a circumstance
known to one party only, is forbidden by statute, it may not be declared illegal so as to debar the
innocent, party relief, for to deprive the innocent person of his rights would be to injure the
innocent, benefit the guilty and put a premium on deceit.’
203
D Bhana et al (n27 above) 101-102.
204
See Metro Western Cape (Pty) Ltd v Ross 1986 (3) SA 181 (A).
205
1949 SR 197 198 or 1950 (1) SA 125 126.
206
See Dobrock Holdings (Pvt) Ltd v Turner & Sons (Pvt) Ltd & Ors 2006 (2) 353 (H).
207
2006 (2) ZLR 353 (H).
208
See also Barker v African Homesteads Touring and Safaris (Pvt) Ltd & Anor 2003 (2) ZLR 6 (S).
209
1984 (1) ZLR 16.
210
1976 (1) RLR 60; 1976 (4) SA 35.
@ Innocent Maja 64
statutory provision. Courts have adopted a three-pronged approach to ascertain
whether a contract was designed to circumvent a statutory provision.211 First, the
court must interpret the statute in the ordinary way in such a manner as not to do
violence to it but to ascertain the intention of the parties. Second, courts must then
determine whether the contract in question falls within the ambit of the statute; if it
falls within the statute, then cadit queastio (end of story). If the contract falls
outside the ambit of the statute, then the court should proceed to make a third
inquiry of whether or not said contract was designed craftily to circumvent the
statute.
Courts have established that such contracts are fraudem legis (illegal and void).212 In
Dadoo v Krugersdorp Municipality Council, 213 the court held as follows:
An examination of the authorities therefore leads me to the conclusion that a
transaction is fraudem legis ( illegal by virtue of contravening a statute or legislation)
where it is designed to escape the provisions of the law but falls in truth within these
provisions. Thus the rule is merely a branch of the fundamental doctrine of the law
regards the substance rather than the form of things.
In Chipunza v Muzangaza NO,214 the court declared illegal a contract that was entered
into with the aim of evading tax and duties. Such a contract was held to be void ab
initio and unenforceable in whole and in part. In Sibanda v Nyathi and Ors,215 the
court declared illegal an agreement understating the purchase price to avoid capital
gains tax and stamp duty.
ii) Common law illegality
Common law illegality relates to contracts prohibited by a common law rule.
Contracts are deemed illegal in terms of common law if they offend good moral
standards216 or are contrary to public policy. Examples of contracts that offend good
moral values include contracts for the sale of sex, agreements to defraud creditors,
trading with the enemy, selling people as slaves, agreements to undermine the
institution of marriage, and agreements to commit a crime or delict.
Generally, a contract is said to be contrary to public policy if it is clearly detrimental

to the interests of the community and runs counter to social economic expedience.
Sasfin (Pty) Ltd v Beukes217 established the following:
211
See Dadoo v Krugersdorp Municipality Council (1920) AD 530 543-8.
212
See Zimbabwe Care v Grain Marketing Board S-214-92; Knightsbridge Investments (Pvt) Ltd v
Gurland 1963 R&N 37; MBE Ltd v Try Again Bus Co (Pvt) Ltd 1975 (1) RLR 39 and Hewlett v Chipunza
1983 (2) ZLR 148.
213
1920 AD 530 547.
214
2004 (1) ZLR 377 (H).
215
2009 (2) ZLR 171 (H).
216
Good moral standards are referred to bonos mores and usually relates to sexual conduct, protection
of families and children, honesty, etc. Contracts that undermine these moral values are generally
regarded as illegal in terms of common law.
217
1989 (1) SA 1 (A).
@ Innocent Maja 65
Agreements which are clearly detrimental to interests of the community whether they
are contrary to law or run counter to social or economic expedience will accordingly
on the grounds of public policy not be enforced. No court should therefore shrink from
the duty of declaring the contract contrary to public policy if it is clearly detrimental
to the interests of the community/is contrary to law or morality/runs counter social or
economic expedience/ is plainly improper and unconscionable and unduly harsh and
oppressive.
This position was confirmed in Karimazondo v Standard Chartered Bank of

Zimbabwe218 where the court established that public policy upholds freedom of
contract and demands the doing of simple justice between man and man. According
to ZINWA v Kadoma Municipality,219 contractual provisions are deemed to be contrary
to public policy if they are inimical to community interests, contrary to law or
morality, run counter to social or economic expedience, harm the public, and are
plainly improper or unconscionable, unduly harsh or oppressive. Public policy usually
relates to the protection of public institutions such as the integrity of government,
the judicial process, etc.
2.8.2 Contracts accepted as contrary to public policy

i) Contracts tendering to injure the state or public service
The most common is trading with the enemy in wartime.220 Roman-Dutch law does not
permit any contract in the nature of a bribe to a public official or corruption that
secures a promise of advancement, employment, office or any other advantage. The
main difficulty with a contract induced by corrupting a public official is that he
undertakes to exercise the discretion vested in him not in accordance with his public
mandate but for personal gain or a sense of obligation to a suitor. Such contracts are
void and unenforceable.
ii) Contracts injurious to the administration of justice221
Examples include the following:
a) Contracts ousting of the jurisdiction of the courts
Parties to a contract are allowed to neither deprive the courts of their normal
jurisdiction nor confer the jurisdiction upon a court not in possession of it. In terms of
either common law or statute, this position was emphasized in Schierhart v Minister
of Justice,222 where the court observed:
If the terms of an agreement are such as to deprive a party of his legal rights generally
or prevent him from seeking redress at any time in the courts of justice for any future
218
1995 (2) ZLR 404 (S).
219
HB-13-13
220
See Adler v Salisbury City Council 1947 SR 66; 1947 (3) SA 220.
221
In addition to the list below, some contracts that are unenforceable are contracts for excessive
witness expenses as established in Champion v Morkel 1971 (1) RLR 81 and agreements to remunerate a
legal practitioner with a contingency fee based on results as in Hitchcock v Raaff 1920 TPD 366.
222
1925 AD 41 at 424
@ Innocent Maja 66
injury or wrong committed against him, there would be good grounds for holding that
such an undertaking is against the public law of the land.
According to Gold Schmidt v Folip:223

Private individuals cannot confer jurisdiction on the court which they do not possess in
terms of the common law/statute, nor can they impose tasks upon the courts which
they are not legally obliged to perform. However, this principle does not apply to
arbitration and honour clauses.
Examples of such contracts include agreements not to apply for variation of

maintenance224 and agreements for self-help.225 Arbitration clauses do not fall into
this category.226
b) Collusion
Collusion refers to an agreement or mutual understanding between the parties where
they connive that one party will either commit, or pretend to commit, an act in order
that the other party may obtain a remedy at law as if real injury has occurred. Such
agreements are illegal and unenforceable.227
c) Contracts encouraging a crime, delict, and other unlawful acts
These include contracts to commit or stifle prosecution for crimes,228 compounding229
and insuring oneself against one’s own deliberate wrongdoing.230 Such contracts are
void and not enforceable. It will be hopelessly self-contradictory if courts treated a
contract to commit an unlawful act as enforceable because the court would be
approbating or reprobating the same act, ‘blowing hot and cold’.
d) Contracts injurious to the institution of marriage
Examples of these are contracts that encourage or facilitate polygamy in a
monogamous marriage, contracts by a married person to marry another when
divorced231 and contracts in restraint of marriage.232
e) Miscellaneous contracts
Examples include unlicensed gambling, wagers and bets;233 champerty,234 contracts to
commit acts of sexual immorality,235 contracts to defraud creditors,236 contracts
223
(1974) 1 SALR 576
224
Jones v Jones 1965 R & N 133; 1963 (2) SA 193.
225
See Aitken v Miller 1951 (1) SA 153 (SR) and Sakala v Wamambo 1990 (2) ZLR 263.
226
See Rhodesia Railways Limited v Mackintosh 1932 AD 359 369.
227
See Glass v Glass 1920 SR 48.
228
See Logan v Partridge 1918 SR 101.
229
See Du Plooy v National Industrial Credit Corp Ltd 1961 (3) SA 741 (W) 745-6.
230
See Niemand v African life Assurance Society Limited 1969 (3) SA 259 (C) 264C.
231
See Pietzsch v Thompson 1972 (2) RLR 11; 1972 (4) SA 122.
232
See Aronson v Estate Hart 1950 (1) SA 539 (A).
233
See Halsey v Jones 1962 (3) SA 484 (A) and Gibson v Van der Walt 1952 (1) SA 262 (A).
234
Champerty is an agreement whereby a person agrees to provide funds for litigation by another
person in exchange for a share of the proceeds if the case is won. This agreement is deemed to be
@ Innocent Maja 67
lending to produce forced labour, and contracts to waive in advance the in duplum
rule forbidding the recovery of interest exceeding the capital sum.237
f) Pactum successorium
A pactum successorium is a contract whereby a person curtails his or her freedom of
testation by promising to bequeath, or not to bequeath, property to the promise or to
a third party. These agreements are not enforceable.238
g) Pactum commissorium
In Upper Class Enterprises (Pvt) Ltd v Oceaner (Pvt) Ltd and Ors,239 a pactum
commissorium was defined as a pact by which the parties agree that if the debtor
does not ─ within a certain time ─ release the thing given in pledge by paying the
entire debt ─ after the lapse of the time fixed ─ the full property (ownership) in the
thing will irrevocably pass to the creditor in payment of the debt.
It is trite that a pactum commissorium is illegal and therefore not enforceable at

law.240 Whilst South African Courts have allowed exceptions like fair price to the rule
that a pactum commissorium is not enforceable, there are no authorities to suggest
that such exceptions are part of our law in Zimbabwe.241
Oceaner (Pvt) and Anor v Upperclass Enterprises (Pvt) and Anor,242 established that
Zimbabwean Courts have always been reluctant to enforce such agreements, because
it can happen that things of the greatest value are surrendered in payment of a
trifling debt, the debtor having agreed to onerous conditions in the hope of avoiding
the rigours of the agreement before the day of reckoning came. Such agreements
amount to a disproportionate penalty in a contract proscribed by section 4 of the
Contractual Penalties Act.243
For this reason, Kufandirori v Chipuriro and Ors244 held emphatically that a creditor
cannot simply transfer ownership when the pledger defaults on the debt. The pledger
contrary to public policy because it encourages frivolous litigation and speculation in law suits. See
Price Waterhouse Coopers v National Potato Co-operative Ltd 2004 (6) SA 66 (SCA).
235
See Thornicroft v Vas 1957 R & N 376 (FS); 1057 (3) SA 754.
236
See Hockey v Rixom and Smith 1939 SR 107 and Heyns v Heyns 1978 RLR 324 (A).
237
See Commercial Bank of Zimbabwe Limited v MM Builders & Suppliers (Pvt) Ltd 1996 (2) ZLR 420
(H).
238
See Varkevisser v Estate Varkevisser 1959 (2) R & N 58; 1959 (4) SA 196; Costain & Partners v
Godden 1960 R & N 658; 1960 (4) SA 456 and Ex parte Calderwood, in re Estate Wixley 1981 ZLR 161.
239
2002 (2) ZLR 603 (S).
240
See Upper Class Enterprises (Pvt) Ltd v Oceaner (Pvt) Ltd and Ors 2002 (2) ZLR 603 (S); Oceaner
(Pvt) and Anor v Upperclass Enterprises (Pvt) and Anor 2001 (2) ZLR 130 (H) and Kufandirori v
Chipuriro and Ors 2004 (1) ZLR 74 (H).
241
A pactum commissorium is different from a paratie executie in that in a paratie executie the actual
liability is agreed by the parties. For a discussion of the paratie executie see Mandala v Glens Removals
& Storage (Zimbabwe) (Pvt) Ltd HH-78-13.
242
2001 (2) ZLR 130 (H).
243
[Chapter 8:04].
244
2004 (1) ZLR 74 (H).
@ Innocent Maja 68
retains ownership of the pledged property until the creditor takes court action for
redress.
h) Covenant in restraint of trade
A covenant in restraint of trade is usually found in employment contracts and
contracts of sale of business. The purpose for such a contract or clause is to restrict
the right of an employee or seller of a business to carry on a particular occupation,
profession or business within a specified area and for a limited time.245
In Esso Petroleum Co Ltd v Harper’s Garage (Strourport) Ltd,246 the court established
that a contract is in restraint of trade if it sterilizes production or services but, if it
merely regulates and promotes trade by absorbing production or services, the
restraint of trade doctrine cannot apply to it.247
Covenants in restraint of trade conclude invariably to protect the employer or buyer’s

specialized knowledge, business contacts and trade secrets from exploitation by the
other party.248
In Basson v Chilwans,249 the court highlighted the scope of contracts in restraint of

trade as follows:
It is reasonable for a party to a contract to impose a restraint in order to protect their
proprietary interests in trade secrets, trade connections and customer contracts,
but not in order to protect their investment in the business or simply to protect
themselves from competition.
245
In Dickson v Jones (1939) 3 All ER 182 (ChD), the court held that ‘an employer may require and may
take from his employee a restriction, so long as it is not more than is reasonably necessary for the
protection of the employer, and so long as it is not against public policy.’ Again, in Mangwana v
Muparadzi 1989 (1) ZLR 79 (S) the court established that ‘there is nothing inherently wrong or immoral
in a restraint of trade clause between a legal practitioner (Employer) and his professional assistant
(Employee).’
246
(1967) 1 All ER 699.
247
In Book v Davidson 1988(1) ZLR 365 (S), the following restraint of trade clause was enforced:
'Furthermore neither partner shall within three years from the termination of the partnership and
within the magisterial province of Mashonaland operate or engage in or be interested in, whether
directly or indirectly, any business or occupation involving the re-enamelling or restoring of baths or
any other business carried out by the partnership.' In Mangwana v Muparadzi 1989(1) ZLR 79(S) the
following restraint of trade clause was partially enforced: ‘It is covenanted that you shall be restrained
from entering into competition with this practice wherever situate within Zimbabwe within the next
five years following upon your severance of employment with this practice. This covenant applies to
both clientele as well as trade secrets.’ The restraint was limited from applying to the whole of
Zimbabwe to Chinhoyi where Mangwana was working and limited, also, from 5 years to 3 years.
248
In Fitch v Dewes (1921) 2 AC 158, the Court held that ‘[t]he [the employer) might claim, in my
judgment, for his protection, that that business which was his, and to which he had admitted the
appellant in the manner defined by the successive agreements, should continue to be his, and that if
at any time the contract of employment between himself and his employee came to an end, on such
determination the latter should not be in the position to use the intimacies and the knowledge which
he had acquired in the course of his employment in order to create a practice of his own in that same
place and by doing so undermine the business and the correction of the respondent.’
249
1993(3) SA 742.
@ Innocent Maja 69
According to Herbert Morris Ltd v Saxelby,250
… [w]herever such covenants have been upheld it has been on the ground ... that he
might obtain such personal knowledge of and influence over the customers of his
employers, or such acquaintance with his employer's trade secrets as would enable
him, if competition were allowed, to take advantage of his employer's trade
connection or utilize information confidentially obtained... In fact the reason, and the
only reason, for upholding such a restraint on the part of the employee is that the
employer has some proprietary right, whether in the nature of trade connection or in
the nature of trade secrets, for the protection of which such restraint is - having
regard to the duties of the employee - reasonably necessary.
It is however important to note that a restraint of trade cannot be used to protect an

employer from mere competition by its former employees. According to Greendale
Hardware & Electrical (Pvt) Ltd v Bangaba:251
A restraint of trade which does no more than protect the employer against mere
competition from a former employee by preventing him or her from carrying on
business similar to that undertaken by him or entering the services of an undertaking
in fear that in doing so the employee would exercise the knowledge and skill acquired
during employment with him is an unreasonable restraint.252
i) Is the restraint of trade enforceable at law?

Law relating to covenants in restraint of trade
There are five salient points that are worth noting about the law relating to covenants
in restraint of trade, namely:
i) A contract in restraint of trade is prima facie (on the face of it)
valid
In coming up with this decision, the Zimbabwean courts have had to balance the
doctrine of sanctity of contract and freedom of trade. The balance leans towards
sanctity of contract. In Mangwana v Muparadzi,253 the court held that ‘… the principle
that contracts are to be obeyed takes precedence over the principle of freedom of
trade.’
As alluded to above, sanctity of contract states that once a party enters into a
contract freely and voluntarily, (s)he will be bound by the terms of that contract. This
was underscored in Printing and Numerical Registering Co v Sampson,254 where the
court established the following:
250
(1916) 1 AC 688 (HL) 709 & 710.
251
2007 (2) ZLR 17 (S) 24G-H.
252
See also Super Safes (Pty) Ltd & Ors v Voulgarides & Ors 1975 (2) SA 783 (W) 785E where Nicholas J
held: ‘A bare covenant not to compete cannot be upheld. A restraint against competition must, if it
is to be valid, serve some interest of the person in whose favour it was inserted ... the purchaser of a
business, for example, who requires protection against the erosion of its goodwill by the competition
of the seller; or the employer who requires that his trade secrets and his trade connections be
protected against exploitation by the man whom he is taking into his employment.’
253
1989 (1) ZLR 79 (S).
254
(1875) LR 19 Eq 462 465.
@ Innocent Maja 70
If there is one thing which more than another public policy requires, it is that men of
full age and competent understanding shall have the utmost liberty of contracting, and
that their contracts when entered into freely and voluntarily shall be held sacred and
shall be enforced by courts of justice. Therefore you have this paramount public policy
to consider-that you are not lightly to interfere with this freedom of contract.
The ‘inviolability’ of contracts was also described in E Underwood and Son Ltd v B
Barker255 as essential to trade and commerce. By referring to the covenanter as the
defendant, the court held that:
to allow a person of mature age, and not imposed upon, to enter into a contract, to
obtain the benefit of it, and then to repudiate it and the obligations which he has
undertaken is, prima facie at all events, contrary to the interests of any and every
country. Of course I am not speaking of contracts induced by fraud, duress or undue
influence or impeachable on any other recognised ground of invalidity. Omitting all
such cases, the public policy which allows a person who obtains employment, on
certain terms understood and agreed to by him, to repudiate his contract conflicts
with, and must to avail the defendant prevail for some sufficient reason over, the
manifest public policy which as a rule holds him to his bargain.
In the Zimbabwean case of Book v Davidson,256 which followed the South African case
of Magna Alloys and Research (S.A) (Pty) Ltd v Ellis,257 the court held that covenants
in restraint of trade were prima facie valid in Zimbabwe. In the Court’s words:
I cannot see why a person who agreed to the restraint with both his eyes open should
be allowed to aver that the restraint was unreasonable without showing the court the
circumstances that make it unreasonable or unfair to him.
ii) A covenant in restraint of trade cannot be enforced if it is

contrary to public policy
The question that inevitably arises is what constitutes public policy? This question was
answered in Basson v Chilwans,258 where the court held that:
The contract in restraint of trade is against public policy if it restricts a party’s
freedom of economic activity in a manner or to an extent that is unreasonably judged
against the broad interests of the community and the interests of the contracting
parties.
Similar sentiments were shared in Magna Alloys and Research (S.A) (Pty) Ltd v Ellis, 259
where the Court established as follows:
It is in the public interest that agreements freely entered into must be honoured.
Generally speaking, however, it is also in the public interest that anyone must as far
as possible be able to participate in the business and professional world. It can be
assumed that an unreasonable restriction of a person's freedom of trade would
255
(1899) I CH 300 (CA) 305.
256
1988 (1) ZLR 365.
257
1984 (4) SA 874.
258
1993(3) SA 742.
259
This was consonant with what was said in Roffey v Catterall, Edwards and Goudre (Pty) Ltd 1977 (4)
SA 494 (N) and National Chemsearch (SA) (Pty) Ltd v Borrowman 1979 (3) SA 1092 (T).
@ Innocent Maja 71
probably also harm the public interest if the person concerned were to be held bound
thereby. (Unofficial translation).
It therefore follows from the above that an unreasonable restraint of trade is contrary
to public policy. The unreasonableness usually pertains to the geographical scope
and time frame covered by the restraint of trade.
A classical example is the case of Mangwana v Muparadzi,260 where the appellant and
respondent were both legal practitioners. The appellant joined the respondent's firm
in Harare as a professional assistant, but after a month was sent to open a branch of
the firm in Chinhoyi. He was the sole legal practitioner there for some sixteen
months, after which he left the respondent's firm and opened a practice in Chinhoyi
under his own name. This he did in spite of a clause in his contract of employment,
restraining him ‘from entering into competition with (the respondent's) practice
wherever situate in Zimbabwe within the next five years following upon (his)
severance of employment with (the respondent).’ The respondent instituted
proceedings in the High Court to enforce this clause. The High Court granted an
interdict, preventing the appellant from setting up or continuing, whether on his own
account or in partnership, a practice in law within the municipal area of Chinhoyi
instead of the whole of Zimbabwe and the restraint to remain in force for three years
instead of five years.
iii) The party trying to run away from or escape the restraint of trade
has the onus to prove that it was unreasonable
According to Magna Alloys and Research (S.A) (Pty) Ltd v Ellis:261
… [W]hen a party to an agreement alleges that he is not bound by a restriction which
he has allowed to be placed upon him, he will bear the burden of proving that the
enforcement of the restriction will damage the public interest just as a party to any
other sort of agreement, who alleges he is not bound thereby, must normally offer
proof of one ground or another which can release him from his obligation under the
agreement. Acceptance of the view that the enforceability of a provision restricting
someone's freedom of trade should be judged according to whether the restriction
damages the public interest entails certain consequences. One such consequence is
that, when a party to an agreement alleges that he is not bound by a restriction which
he has allowed to be placed upon him, he will bear the burden of proving that the
enforcement of the restriction will damage the public interest-just as a party to any
other sort of agreement, who alleges he is not bound thereby, must normally offer
proof of one ground or another which can release him from his obligation under the
agreement. (Translation)
iv) The reasonableness of the covenant is determined at the time the

court makes a decision and not when the parties entered into the contract
In Magna Alloys and Research (S.A) (Pty) Ltd v Ellis; Book v Davidson; and Mangwana v
Muparadzi, the Court established that whenever a court is enjoined to determine the
260
1989 (1) ZLR 79 (S).
261
1984 (4) SA 874 893.
@ Innocent Maja 72
reasonableness ─ or otherwise ─ of a covenant in restraint of trade, the Court should
look at the circumstances prevailing at the time the court is asked to enforce the
restraint of trade provision and not when parties entered into the contract. Put
differently, a restraint of trade has to be reasonable at the time the court hears the
matter for it to be enforceable.
v) The court has the power to enforce the reasonable parts and
eliminate the unreasonable parts in the covenant in restraint of trade
This is the severability or blue pencil test, which was introduced first in the South
African case of Magna Alloys, and adopted in the Zimbabwean case of Mangwana v
Muparadzi cited above.
The severability has raised concerns over the court’s power to make contracts for
parties (which potentially hampers sanctity of contract). This concern was addressed
in the Magna Alloys case, thus:
It could perhaps be said that to enforce something less than the restriction on which
the parties originally agreed results in the court's order being tantamount to an
amendment of the agreement concluded by the parties, and in a certain sense that is
of course so. If, however, one bears in mind that the point at issue is the
enforceability or otherwise of the restrictive provision, and, in addition, that
considerations of public policy dictate whether such a provision ought to be
enforceable, then it is in my view logical and realistic to adopt the attitude that, if
the enforcement of any part of a restriction would be prejudicial to the community at
the relevant time, the court must have the power to order that that part cannot be
enforced. This view ─ that the court must not be limited to saying that a restriction is
either enforceable or not enforceable as a whole, but that it must also have the
power, in an appropriate case, in the light of the requirements of public policy, to say
that a restriction is only partly enforceable or unenforceable ─ has already been
expressed in certain recent decisions, and I agree therewith. (Unofficial translation of
the original Afrikaans).
In deciding this point, the court must have regard to the circumstances prevailing at
the time it enforces the provision. It is not limited to a finding that a restrictive
provision is enforceable or unenforceable as a whole, nor does it have to consider the
artificiality of the test of severability; it has the power to decide that part of such a
provision is enforceable or unenforceable.
This argument found favour in National Chemsearch (SA) (Pty) Ltd v Borrowman and
Anor,262 where the court held that:
… [W]hen a restraint according to its terms as agreed upon is found to be unreasonably
wide in its scope of operation, the Court can, in a proper case, enforce the restraint
partially, by issuing an order incorporating the addition of such limiting words to the
restraint as agreed upon as are appropriate to restrict its scope of operation to what is
found to be reasonable…it may be that the Court will decline to enforce the restraint
262
1979 (3) SA 1092 (T) at 1116D & 1117G. See also Carthew-Gabriel v Fox & Carney (Pvt) Ltd 1977 (2)
RLR 152 (A); 1978 (1) SA 598 and Direct Response Marketing (Pvt) Ltd v Shepherd 1993 (2) ZLR 218.
@ Innocent Maja 73
partially...where the employee's conduct is not in flagrant or obviously defiant conflict
with his former employer's legitimate interests.
It is therefore clear from the above that courts can enforce reasonable parts of the
restraint of trade and strike off the unreasonable parts.
Greendale Hardware & Electrical (Pvt) Ltd v Bangaba263 summarises the Court’s
approach to covenants in restraint of trade as follows:
The correct test for the validity of a restraint of trade in a contract of employment is
whether there are proprietary rights for the protection of which the restraint was
imposed by the employer and undertaken by the employee. If there are proprietary
interests to be protected, the next question is what are they being protected against
and is the restraint more than is reasonably necessary for the protection of the
proprietary interests. The onus is on the employee who seeks to resile from the
restraint of trade in the contract to show that it is against public policy and
unenforceable.
2.9 Consequences of illegality

There are three possible consequences of illegality (whether statutory or common
law). These are:
i) The exturpi causa rule
This rule stipulates that no action arises from an illegal contract. It applies usually
when one of the parties attempts to enforce an illegal contract. As general rule,
illegal contracts are exturpi causa non-oritur actio (illegal contracts are not
enforceable at law).264
Mega Pak Zimbabwe (Pvt) Ltd v Global Technologies Central Africa (Pvt) Limited265
held that the exturpi causa rule is absolute and admitting of no exceptions. Courts do
not have, therefore, any discretion to relax this rule. In Tsamwa v Hondo and Ors,266
the Court established that a court is bound to refuse to enforce an illegal contract. It
cannot be an accomplice to such an illegality by enforcing the contract.
Joubert267 argues that:

The basic rule is that agreements contrary to law are invalid. This means that no
obligation arises from such agreements and that no action on any contract can be
maintained. No party can claim performance of what has been promised to him. If the
unlawful agreement is the causa for another agreement, then the lawfulness of the
other agreement can be attacked.
According to Chipunza v Muzangaza NO,268 Zimbabwean Courts will not enforce an

illegal agreement that has not yet been performed ─ either in whole or in part. This
263
2007 (2) ZLR 17 (S).
264
See Chipunza v Muzangaza NO 2004 (1) ZLR 377(H); Turner & Sons (Pvt) Ltd v Zambezi Paddle
Steamer (Pvt) Ltd & Anor 2006 (2) ZLR 353(H).
265
2008 (2) ZLR 195(H).
266
2008 (1) ZLR 401(H).
267
DJ Joubert General Principles of the Law of Contract (1987) 151.
@ Innocent Maja 74
principle is to prevent a party, who has acted disgracefully by making performance in
an illegal contract, from recovering such performance.
ii) The in pari delicto rule
The in pari delicto potior est conditio defenditis (or possidentis) (loss lies where it
falls) principle stipulates that where parties are equally in the wrong and value in
terms of property or money has exchanged hands as a result of an illegal contract,
loss lies where it falls. According to Dube v Khumalo, ‘(t)he objective of the rule is to
discourage illegality by denying judicial assistance to persons who part with money,
goods or incorporeal rights, in furtherance of an illegal transaction.’
It is however, important to note that the in pari delicto269 rule is not rigid. In Jajbhay
v Cassim,270 the court established that the rule can be relaxed to prevent injustice by
doing ‘simple justice between man and man’. The factors that courts normally
consider in order to relax the rule are public policy, the moral blameworthiness of the
parties’ conduct, unjust enrichment and whether relaxing the rule would amount to
indirect enforcement of the contract.271
Zimbabwean Courts have relaxed the in pari delicto rule whenever there is unjust
enrichment.272 The rationale has been that no party should benefit unduly where
there is an illegal contract. It is in the best interests of justice, fairness, and equity
that no party benefits from an illegal contract. According to Joubert:273
… [t]he only matter that remains is the question of recovery of performance by any of
the parties to the unlawful agreement. In this regard the factual position is of
importance. It may be that the performer is the poorer and that the recipient is the
richer. This enrichment is without a legal cause and therefore unjustified. On principle
it should be possible for the performer to reclaim his performance or whatever has
enriched the other party. In the Roman law there was in fact a remedy, vis the
condictio ob turpem vel iniustam causam. This remedy has survived into modern
times. This means that basically the law recognises the right of the performer to
reclaim his performance or whatever is left thereof. Apart from the above-mentioned
condictio no other enrichment claim is recognized.
This position was taken in Matsika v Jumvea Zimbabwe (Pvt) Ltd and Anor,274 where
the Court held that:
… [t]he court may relax the in pari delicto rule to prevent injustice between man and
man where public policy is not foreseeably affected by a grant of the relief claimed, a
268
2004 (1) ZLR 377(H).
269
See Sibanda v Nyathi & Ors 2009 (2) ZLR 171(H); Mega Pak Zimbabwe (Pvt) Ltd v Global
Technologies Central Africa (Pvt) Ltd 2008 (2) ZLR 195(H).
270
1939 AD 537 544-545. See also Logan v Sibiya 2002 (1) ZLR 531 (H).
271
See Henry v Branfield 1996 (1) SA 244 (D).
272
See Dube v Khumalo 1986 (1) ZLR 103; Matsika v Jumvea Zimbabwe (Pvt) Ltd & Anor 2003 (1) ZLR
71(H); Mikesome Investments (Pvt) Ltd v Silcocks Investments (Pvt) Ltd 2003 (2) ZLR 56 (H); Evans v
Snapper 2004 (2) ZLR 121(S); Greebe & Anor v Famaps Investments (Pvt) Ltd 2004 (1) ZLR 522 (H).
273
DJ Joubert General Principles of the Law of Contract (1987) 152.
274
2003(1) ZLR 71(H). See also Gambiza v Taziva 2008 (2) ZLR 107 (H).
@ Innocent Maja 75
court of law might well decide in favour of doing justice between the individuals
concerned and so prevent unjust enrichment. Where there is an illegal contract, and
the criminal law provides a sanction, ordinarily the courts should not increase the
punishment of one delinquent and lessen that of the other by enriching one to the
detriment of the other275
According to Hattingh and Others v Van Kleek;276

The cases clearly show that where a contract is on the face of it legal but, by reason
of a circumstance known to one party only, is forbidden by statute, it may not be
declared illegal so as to debar the innocent party from relief, for to deprive the
innocent party of his rights would be to injure the innocent, benefiting the guilty and
put a premium on deceit.
In Dube v Khumalo,277 Dube was in an adulterous affair with Khumalo. There were
Municipality regulations to the effect that a person could not own more than one
house in Bulawayo. Dube already had a house. In order to facilitate his adulterous
affair and to circumvent the municipal regulations, Dube bought a house and
registered it in Khumalo’s name. As time went on, their relationship soured beyond
reconciliation and Dube demanded his house from Khumalo. The question that the
courts had to determine was whether Dube was entitled to his claim since this was an
illegal contract. The court held that the contract was illegal but the unjust
enrichment principle was invoked to prevent Khumalo from unduly benefiting. The
court thus ordered Khumalo to transfer the house in Dube’s name.278
Muguti v Uboxit Worldwide (Pvt) Ltd and Ors279 summarized the exturpi causa and in
pari delicto rules as follows:
The law applicable to illegal contracts is quite clear. Where the contract has not been
performed the courts will not compel performance by either party to the contract.
The rule is absolute and admitting of no exceptions. Where the parties are equally in
the wrong, the loss will lie where it falls, unless, in its discretion, the court is of the
view that one party will thereby be enriched at the expense of the other. In such
cases, the court will relax the in pari delicto potior set condition possidentis rule to
do simple justice between the parties
iii) Severing a part of the contract

When a contract has a part that is legal and a part that is illegal, a court may choose
to sever or cut out the illegal part of the contract and enforce the legal part. In doing
this, courts usually consider the intentions of the parties. According to Bhana et al,280
the following factors should be considered:
275
See also Young v Van Rensburg 1991 (2) ZLR 149 (S).
276
1997 (2) ZLR 240 246B.
277
1986 (1) ZLR 103.
278
See also Evans v Snapper 2004 (2) ZLR 121(S); Mikesome Investments (Pvt) Ltd v Silcocks
Investments (Pvt) Ltd 2003 (2) ZLR 56 (H) and Greebe & Anor v Famaps Investments (Pvt) Ltd 2004 (1)
ZLR 522 (H) for a discussion of the relaxation of the in pari delicto rule.
279
2010 (1) ZLR 13 (H).
280
D Bhana et al (n27 above) 138.
@ Innocent Maja 76
Do the illegal sections of the contract form part of the main purpose of the contract
or are they merely subsidiary? Are the illegal parts of the contract contained in
separate sections and could they easily be removed, without re-writing the contract?
Are the illegal and legal parts of the contract interlocking and interdependent? Does
the contract consist of separate promises, some legal and some illegal? Would the
parties have concluded the contract without the illegal parts?281
In Niri v Coleman and Ors,282 as well as Muleya v Bulle,283 the Court established that
the charging of excessive interest prohibited by the law does not disentitle the lender
from recovering the debt together with lawful interest. This essentially replaces the
illegal excessive interest from lawful interest and makes the contract with illegal
sections enforceable to some degree. In Sibanda v Nyathi and Ors,284 the Court held
that a court has a power to sever an illegal part of the contract concerning a purchase
part285 and declare the true purchase price to reflect the true agreement between the
parties.
iv) General unjust enrichment action
It is interesting to note that beyond the above remedies, a party to an illegal contract
can also mount a general unjust enrichment action whenever there is unjust
enrichment. In Industrial Equity v Walker,286 the court accepted the unjust
enrichment action as part of Zimbabwean law287 and held that in order to succeed in
an unjust enrichment action, the following should be satisfied:
a) The Defendant must be enriched;
b) The enrichment must be at the expense of another (i.e., the
Plaintiff must be impoverished and there must be a causal
connection between enrichment and impoverishment;
c) The enrichment must be unjustified;
d) The case should not come under the scope of one of the classical
enrichment actions; and
e) There should be no positive rule of law that refuses an action to
the impoverished.
281
See Karimazondo v Standard Chartered Bank of Zimbabwe 1995 (2) ZLR 404 (S); Middleton v Carr
1949 (2) SA 374 (A) 391; R v Hees 1938 TPD 333 336-7 and Cameron v Bray Gibb & Co (Pvt) Ltd 1966 (3)
SA 675.
282
2002 (2) ZLR 580 (H) 588.
283
1994 (2) ZLR 202 (H).
284
2009 (2) ZLR 171 (H).
285
In this case, $70 million was the illegal purchase price and $130 million was the true purchase price.
286
1996 (1) ZLR (H).
287
The same position was underscored in Walker v Industrial Equity Ltd 1995(1) ZLR 87(S) 98F-G where
the Supreme Court held that ‘…the English law of unjust enrichment is identical to the lex fori and the
lex fori is to be applied.’
@ Innocent Maja 77
SECTION 3
TERMS OF A CONTRACT
3.1 What are terms of a contract?
Terms of a contract are the promises agreed upon and obligations undertaken by the
parties that together make up the contract. The terms of a contract determine which
obligations are created by a contract.
RH Christie288 convincingly contends that a two-pronged approach be used to ascertain

the existence of terms of a contract, namely:
i) What was said, written or done?289
ii) Whether what was said, written or done should be included among the
terms of a contract.290
The first inquiry is an evidentiary inquiry where the court seeks to establish what
parties said, wrote, and did. The second inquiry seeks to distinguish terms of a
contract from other statements spoken during negotiations of a contract. This
distinction was illustrated in Petit v Abramson291 where the Court made the following
observation:
It is notorious that statements made by parties when negotiating a contract may
conceivably take the status either (i) of mere puffing or commendation, or (ii) of
representations or (iii) of undertakings, commonly referred to as warranties. An
undertaking or warranty in this relation denotes a promise which gives rise to a
contractual obligation.
It is clear from the above that terms of a contract are different from statements
made only to induce one of the parties to enter into the contract. Such statements
may be mere puffs, commendations, or representations that, unlike terms, cannot
ground an action for breach of contract in the event of them turning out to be
untrue.292 A representation cannot qualify as a term of the contract because it is not
in the form of a promise and is not incorporated into the contract in such a way as to
give it the effect of a promise.293
3.2 Classification of terms of a contract

Terms are classified into two main groups, namely, express and implied terms.
288
289
See Kenilworth Estates Ltd v Kremer Enterprises (Pvt) Ltd 1969 (1) RLR 1.
290
See Whitaker v Daly 1948 SR 52.
291
1946 NPD 673 679.
292
See AJ Manase & L Madhuku (n42 above) 16.
293
@ Innocent Maja 78
3.2.1 Express Terms
These are gathered from what was actually said by the parties either orally or in
writing. It must be proved whether what is stated to have been said was, indeed,
said.
In written contracts, express terms are easy to prove because they are reduced
into writing. Express terms are found usually within the four corners of the
agreement. Judges tend to uphold the position that ‘documents speak for
themselves.’ What this essentially means is that judges prima facie rely on a
written contract unless a justifiable reason presents to prove otherwise.
However, in oral contracts, contractual terms are usually difficult to prove. However,
the test used is found in Small v Smith,294 where the Court held that:
A statement made seriously and deliberately during the negotiation of a verbal
contract becomes a term of the contract if the parties by mutual intention either
expressed or implied intended it to be a term of the contract.
3.2.1.1 Interpretation of express terms

There are four major principles taken into consideration whenever express terms are
interpreted. These principles are referred to as:
The golden rule of interpretation of contracts:
i) Contracts are interpreted using the ordinary grammatical meaning of
words used.
The main rationale behind this principle is that a contract must speak for itself
through the ordinary grammatical meaning of its words. In Total SA Pty Ltd v
Bekker,295 the court held that
… [t]he underlying reason for this approach is that where words in a contract agreed
upon by the parties thereto and therefore common to them speak with sufficient
clarity, they must be taken as expressing their common intention.
However, the ordinary grammatical meaning is not applied in the following two
circumstances:
a) If the result will be absurd
In Grey v Pearson,296 the court established as follows:
In construing… all written instruments, the grammatical and ordinary sense of the
words is to be adhered to, unless that would lead to some absurdity, or some
repugnance or inconsistency with the rest of the instrument, in which case the
grammatical and ordinary sense of the words may be modified, so as to avoid that
absurdity and inconsistency, but no farther.
294
(1954) 35 All ER 434 437.
295
1992(1) SA 617 625.
296
(1857) 10 All ER 1216 at 1234.
@ Innocent Maja 79
Again, in Scottish Union and National Insurance Co Ltd v Native Recruiting Coop
Ltd,297 the court emphasized the following:
If however the ordinary sense of the words necessarily lead to some absurdity or to
some repugnance or inconsistency with the rest of the contract then the court may
modify the words just so much as to avoid the absurdity of inconsistency but no more.
b) If it is clear from the contract itself or from evidence that the

words have been used in some special and technical sense
In Rand Reitfontein Estates Ltd v Cohn,298 the court held:
Again if the words on the contract have been used in a peculiar sense, evidence of the
sense in which the parties used the words may be given.
ii) Contracts are interpreted within the context in which they were made
When a court interprets a contract within context, it looks at the whole document
and the purpose of the contract to interpret its provisions. In Municipality of Kwekwe
v Imprecon (Pvt) Ltd,299 the Court held that:
The task in this case accordingly is to interpret the contract into which the parties
entered, having regard not only to the particular clause under consideration but also
the overriding purpose which the contract was intended to achieve.
Again, in Melmath Town and Board v Marious Mostenrt Pty Ltd,300 the court
established the following:
As in the case of statutes, the contextual approach phrase in a contract requires that
regard must be heard not only to the language of the rest of the provision concerned
or the contract as a whole but also to considerations such as the apparent scope of
purpose of the provisions.
iii) Contracts are interpreted using the surrounding circumstances in which

they were made
Surrounding circumstances usually refer to matters that were probably present to the
minds of the parties when they contracted. The courts have applied, over time, the
following rules in interpreting express terms of a contract:
(i) A presumption that the parties to a contract intended an interpretation that
is fair to them both rather than an interpretation that gives one party on
unfair advantage over the other;
(ii) an interpretation that avoids inconvenience is usually preferred;
(iii) an interpretation that gives effectiveness to a contract is usually preferred to
the one that renders it abortive;
297
1934 AD 458, 465.
298
1937 AD, 517, 318.
299
1983 (1) ZLR 101 (S) 107D-E.
300
1984 (3) SA 718 728.
@ Innocent Maja 80
(iv) a presumption that every word in the contract was intended to have some
effect or to be of some use;
(v) the change of expression will be presumed to signify a change of meaning;
(vi) general words will be given a restricted meaning to fit in with the context in
which they are used;
(vii) greater weight will be given to special provisions rather than to general
provisions;
(viii) the express mention of one item will be presumed to exclude similar items
that are not mentioned unless it appears that the one item was mentioned for
the sake of caution.301
The Zimbabwean courts have referred to this approach to interpreting contracts as
the golden rule of interpretation. Metro International (Private) Limited v Old Mutual
Property Investment Corporation (Pvt) Ltd and TM Centre (Pvt) Ltd302 quoted with
approval Coopers & Lybrand v Bryant303 to establish that:
According to the ‘golden rule’ of interpretation the language in the document is to be
given its grammatical and ordinary meaning, unless this would result in some absurdity
or some repugnancy or inconsistency with the rest of the instrument… The mode of
construction should never be to interpret the particular word or phrase in isolation (in
vacuo) by itself… The correct approach to the application of the ‘golden rule’ of
interpretation after having ascertained the literal meaning of the word or phrase in
question is, broadly speaking, to have regard:
(ix) to the context in which the word or phrase is used with its inter-relation to
the contract as a whole, including the nature and purpose of the contract;
(x) to the background circumstances which explain the genesis and purpose of
the contract, i.e., to matters probably present to the minds of the parties
when they contracted;
(xi) to apply extrinsic evidence regarding the surrounding circumstances when the
language of the document is on the face of it ambiguous by considering
previous negotiations and correspondence between the parties, subsequent
conduct of the parties showing the sense in which they acted on the
document, save direct evidence, of their own intentions.304
3.2.1.2 The parole evidence or integration rule

Generally, courts usually use the parole evidence rule to interpret express terms of a
contract. This rule provides that courts must interpret the terms of a written contract
within the four corners of the agreement. No external evidence (extrinsic or parole
evidence) should be used when interpreting express terms. The integration rule makes
it clear that when a contract is reduced to writing, the written document is generally
301
RH Christie (n1 above) 69-70.
302
S-83 – 2006; 2007 (1) ZLR 408 (S).
303
1995 (3) SA 761(A) 767E-768E.
304
See also Sibanda & Anor v Pentaville Investments (Pvt) Ltd & Ors HH 14 – 03.
@ Innocent Maja 81
regarded as the ‘exclusive memorial’ of the agreement between the parties. Put
differently, the courts will assume that the parties intended the document to reflect
all the express terms of the contract. The courts will not therefore consider the
‘parole’ or extrinsic evidence that differs from the written document.
This position was emphasised in Nhundu v Chiota & Anor,305 where the Court held
that:
When a contract has been reduced to writing, the document is, in general, regarded as
the exclusive memorial of the transaction and, in a suit between the parties, no
evidence to prove its terms may be given, save the document or secondary evidence of
its contents, nor may the contents of such document be contradicted, altered, added
to or varied by parole evidence.
In the South African case of Johnson v Leal,306 the court held as follows:
When a contract has been reduced to writing, the writing is regarded as the exclusive
embodiment or memorial of the transaction and no extrinsic evidence may be given of
other utterances or oral acts by the parties which will have the effect of
contradicting, altering, adding to or varying the written contract.
Union Government v Vianini Ferro-Concrete Pipes (Pvt) Ltd307 ruled:

Now this Court has accepted the rule that when a contract has been reduced to
writing, the writing is, in general, regarded as the exclusive memorial of the
transaction and in a suit between the parties no evidence to prove its terms may be
given save the document or secondary evidence of its contents, nor may the contents
of such document be contradicted, altered, added to or varied by parole evidence.308
The rationale for this is that, if parties to a written contract are permitted to give
extrinsic or external evidence, written contracts will lose much of their value. In
Johnston v Leal,309 the Court aptly summarized this position thus:
Dealing first with the integration rule, it is clear to me that the aim and effect of this
rule is to prevent a party to a contract which has been integrated into a single and
complete written memorial from seeking to contradict, add to or modify the writing
by reference to extrinsic evidence and in that way to redefine the terms of the
contract. The object of the party seeking to adduce such extrinsic evidence is usually
to enforce the contract as redefined or, at any rate, to rely upon the contractual force
of the additional or varied terms, as established by the extrinsic evidence… To sum up,
therefore, the integration rule prevents a party from altering, by the production of
extrinsic evidence, the recorded terms of an integrated contract in order to rely upon
the contract as altered.
305
2007 (2) ZLR 163 (S).
306
1980(3) SA 927 937.
307
1941 AD 43 47.
308
See Maparanyanga v The Sheriff and Ors S- 132 – 02.
309
1980 (3) SA 927 (A) 943.
@ Innocent Maja 82
3.2.1.3 Exceptions to the parole evidence rule
The parole evidence rule is not a hard and fast rule. It is subject to the following
exceptions:
i) Extrinsic evidence can be used to prove the existence of a suspensive

condition;
According to Nhundu v Chiota & Anor,310

… [t]he parole evidence rule does not preclude extrinsic evidence that the contract is
conditional upon the happening of an event which has not occurred. However, if the
object of leading such extrinsic evidence is not only to prove the alleged oral
condition precedent but to incorporate it into the agreement of sale and then to
enforce the said condition by relying on the respondent’s failure to comply therewith,
then the extrinsic evidence would be inadmissible.311
It is important to note however, that external evidence will not be admitted to prove
a resolutive condition.312
ii) When the words used are ambiguous, external evidence will be admitted
to give meaning to such words;
Old Mutual Property Investments v Metro International (Private) Limited and Thomas
Meikles Centre (Private) Limited313 held that
… [i]t is trite law that the courts are at liberty to have regard to extrinsic evidence
pertaining to the circumstances surrounding a written agreement in order to resolve
any ambiguity in the interpretation of the agreement.
iii) When words are used in a technical sense, external evidence will be
admitted to give meaning to such words;314
iv) If the parties did not intend the written agreement to be the exclusive
embodiment of their contract, the parole evidence rule will not apply.315
This normally occurs where a contract is partly written and partly oral.
v) Extrinsic evidence is allowed to show that the written contract was
contradicted, altered, added to, or varied by a subsequent oral contract.316
vi) External evidence may also be given to an oral agreement the making of which
induces the making of a written contract provided the oral agreement does not
conflict with the written agreement.317
310
2007 (2) ZLR 163 (S).
311
See Philmatt (Pvt) Ltd v Masselbank Development CC 1996 (2) SA 15 (A) 23.
312
See Sealed Africa (Pty) Ltd v Kelly 2006 (3) SA 65 (W).
313
HH 53 – 2006 8.
314
See Rand Rietfontein Estates Ltd v Cohn 1937 AD 317 327.
315
See Avis v Verseput 1943 AD 331 346, 380.
316
See Menashe v Georgiadis 1936 SR 59.
@ Innocent Maja 83
In Stiglingh v Theron,318 the court established as follows:
… [b]ut again evidence is admissible of a separate oral agreement constituting a
condition precedent to the attachment of any liability under the written instrument.
This is an exception to the general rule.
vii) The parole evidence rule does not prohibit evidence in support of a claim of
rectification;319
viii) The rule does not apply whenever a person is disputing the date of
signature recorded in the contracts since this is not part of the agreement
between the parties but an objectively determinable fact;320
ix) The parole evidence rule only applies to express terms of a contract and not
implied terms of a contract;321
Parties are free to bring external evidence proving implied terms of a contract.
x) The rule does not apply to evidence disputing the validity of a contract.
External evidence can be proved to show that a contract is invalid or voidable based
on misrepresentation, duress, undue influence, illegality, or mistake.322
xi) The parole evidence rule only applies to parties to a contract. It does not apply
to third parties who wish to bring oral evidence to contradict the terms of the
contract.323
3.2.1.4 Criticisms leveled against the parole evidence rule

The parole evidence rule has been criticized on the basis of a number of grounds.324
The first criticism is that the parole evidence rule is subject to too many exceptions,
some of which are hard to distinguish from the general rule. For this reason, the rule
is deemed confusing and misleading. Second, the existence of exceptions to the
parole evidence rule undermines the purpose of the rule to reduce disputes between
parties to terms of the contract. Third, the parole evidence rule prevents the courts
from finding and giving effect to the true consensus of the parties because it
excludes evidence of verbal agreements between them.
Despite these and other criticisms, the parole evidence rule remains a part of
Zimbabwean law.
317
See Duplesis v Nel 1952(1) SA 513.
318
1907 TS 198 103. See also Minister of Home Affairs & Anor v Trimu Agencies & Distributors (Pvt) Ltd
2000 (2) ZLR 191 (S).
319
See Pringle-Wood v Master of the High Court & Anor 1975 (1) RLR 315 319.
320
See Otto v Heymans 1971(4) SA 418, 453-153.
321
See R v Chavendera 1939 SR 218 and Abbott v Nolte 1951 (2) SA 419 (C) 427-8.
322
See Beaton v Baldachin Bros 1920 AD 312 315; Wells v Eagle Rhodesian Tobacco Co Ltd 1955 (1) SA
385 and Clapham v Struckel 1979 RLR 521.
323
See Thornton & Anor v Aetna Insurance Co & Anor 1965 RLR 373.
324
See D Bhana et al (n27 above) 151.
@ Innocent Maja 84
3.2.1.5 Signed Contracts
The principle of caveat subscriptor (signer beware) postulates that a signature
appended on a written contract binds the signatory to the terms of the contract even
if (s)he did not read the contract, did not understand or did not intend to be bound by
its terms.325 The caveat subscriptor rule is an exception to the general rule that
parties to a contract have to reach subjective consensus on the terms of the
contract.326
The essence of this rule is shown in a number of cases. In Burger v Central South
African Railways,327 the court held that
… [i]t is a sound principle of law that when a man signs a contract he is taken to be
bound by the ordinary meaning and effect of the words which appear over his
signature.
According to Muchabaiwa v Grab Enterprises (Pvt) Ltd:328

The general principle, commonly referred to as caveat subscriptor, is that a party to a
contract is, in general, bound by his signature, whether or not he read and understood
the document, or if the contract was signed with blank spaces to be filled in later.
In essence, this principle applies the doctrine of quasi-mutual assent. A reasonable

person is entitled to assume that a person who signs a contract intends to be bound
by it. So (s)he is bound even if that was not his or her true intention.329
There is also a presumption that a person who signs a contract containing blank
spaces is prepared to be bound by that contract when the other party fills in the
blank spaces.330 However, if the signatory has, in any way, indicated how (s)he wishes
the blank spaces to be filled, then the other party must, of course, comply with the
indications.331
However, the caveat subscriptor principle is not rigid. Zimbabwean courts will not
apply it where there is misrepresentation, fraud, illegality, duress, undue influence,
and influence.332
3.2.1.6 Unsigned contracts or ticket cases

If one of the parties has not signed a contract, rules relating to ticket cases apply.
Ticket cases refer predominantly to notices, tickets and other unsigned documents.
325
See Bhikhagee v Southern Aviation (Pty) Ltd 1949 (4) SA 105 (E).
326
327
1903 TS 571 578.
328
1996 (2) ZLR 691 (S).
329
See George v Fairmead (Pty) Ltd 1958 (2) SA 468 and Mothle v Mathole 1951 (1) SA 785 (T)
330
National & Grindlays Bank Ltd v Yelverton (1972) (4) SA 114 & Da Silva v Janowski 1982 (3) SA 205
(A).
331
Commercial Bank of Namibia Ltd v Trans Continental Trading (Namibia) (1992) 2 SA 66 75, 77.
332
Spindufter (Pty) Ltd v Lester Donorvan (Pty) Ltd (1896) (1) SA 303 and Mans v Union Meat Co 1919
AD 268 271.
@ Innocent Maja 85
For example, in a bus or train or at a cinema or a soccer match, it is not practical for
every person to sign a contract. People are issued, therefore, with tickets and some
of those tickets have conditions written on them.
The moot question that arises is whether a person is bound by the terms and
conditions written on the tickets. According to Christie,333
… [t]he starting point is that a customer who reads and understands the terms printed
on the ticket or notice and goes ahead with the contract (by boarding a train, entering
a cinema) must be taken to have agreed to the terms.334
If it cannot be proved that the customer read and understood the terms, the following
three-pronged approach ─ established in Kings Car Hire (Pty) Ltd v Wakeling335 ─
would be applied:
The approach of the courts is to enquire whether the person who received a ticket
knew that there was printing or writing on it. Secondly, if so, a further question ‘Did
the person who received the ticket know that the printing or writing contained
provisions of or references relating to the provisions of the contract in question.’ If
these questions are answered in the affirmative, then the provisions in questions are
part of the contract. If either of such questions are answered in the negative, then a
third question becomes relevant namely, ‘did the person giving the ticket do what was
reasonably sufficient to give the other party notice of the conditions?’ If the answer to
such last mentioned question is in affirmative then, also, the provisions or conditions
are part of the contract. If not then the conditions form no part of the contract.
It is therefore clear from the above, that a party to a contract is bound to the terms
contained in an unsigned document if (s)he was aware of the terms of the unsigned
contract and was willing to be bound to them (actual consensus) or if the other party
took reasonable steps to bring those terms to his or her attention (deemed
consensus).
It is further important to note that a customer is not bound by unreasonable terms

printed on an unsigned written contract such as a ticket if he has not read them.
3.2.2 Implied terms

These are not reduced into writing but are read into the contract because of either
conduct or the law or trade usage.
3.2.2.1 Terms implied by facts, conduct or tacit terms

These terms are not reduced into writing but are read into the contract through the
conduct of the parties.336 Normally, these terms are so obvious that the parties do not
think it necessary to spell them out at the time of contracting. For example, if the
landlord and his tenant write in their lease agreement that rent will be US$200 per
333
RH Christie The Law of Contract (1994) 43.
334
See Smith v Carson 1916 EDL 26 30.
335
1970 (4) SA 640, 643 D-F.
336
See Marimo v Brancos & Anor 2002 (2) ZLR 288 (H).
@ Innocent Maja 86
month, and the landlord increases this amount verbally without altering the
agreement and the tenant pays, the new amount paid will be read into the contract
as the new rental amount.337
In Secretary for Justice and Constitutional Affairs v A Nass & Co. (Pvt) Ltd,338 the
court established as follows:
A term can only be implied in a contract if it can confidently be said that, if at the
time the contract was being negotiated, an officious bystander had asked ‘what will
happen in such-and-such a case?’ both parties would have replied ‘Of course, so-and-
so will happen; we did not say so as it is too clear.’
An officious person is a busybody, somebody who gives advice even if not asked for it.
The officious bystander test asks what would have happened if such an officious
bystander was present while the parties were negotiating the terms of a contract, and
whether they wished to include the tacit term. If the parties had agreed upon the
tacit term, then it would have been incorporated into the contract.339
3.2.2.2 Terms implied by the law

These terms are read automatically into a contract either by statutes or by common
law even if the parties did not reach consensus on their inclusion.340 For instance,
section 22 of the Hire Purchase Act341 provides that a buyer cannot waive his rights
under the Act. This provision is read into every Hire Purchase contract to prevent
buyers from waiving their rights. Again, it is a general rule that of law that minors are
represented by guardians and insolvents by trustees when entering into a contract. It
is also an implied term of an agreement of sale that goods are sold free from
encumbrances unless there is a voetstoots clause.342
However, if parties to a contract expressly agree that these terms will not apply, such
terms will not apply.
3.2.2.3 Terms implied by trade usage

These universally and uniformly observed rules, practices, or customs, adopted by a
certain trade, business, or profession, can be read into the contract of that trade,
business, or profession. Such terms are implied by trade usage when a particular
practice in a trade is so common that people involved in that trade will assume that
the practice is a term of the contract.
337
See Wikins NO v Voges 1994 (3) SA 130; Chinyerere v Fraser NO 1994 (2) ZLR 234 (H); Marais & Anor
v Kennedy & Anor 1996 (2) ZLR 610 (H).
338
1981 ZLR 427.
339
See Reigate v Union Manufacturing Co (1918) 1 KB 592 605.
340
See Mudukuti v F C M Motors (Pvt) Ltd 2007 (1) ZLR 183 (H).
341
[Chapter 14:09]. See Electra Rubber Products (Pvt) Ltd v Socrat (Pvt) Ltd 1981 ZLR 356 (A).
342
See Marimo v Brancos & Anor 2002 (2) ZLR 288 (H).
@ Innocent Maja 87
The terms sought to be implied should be long established, universal (followed by
everybody in the trade), uniformly observed, notorious (well known), reasonable,
certain and should not conflict with other provisions of the contract.343
For instance, the Banking Act344 does not provide for a right to charge interest on
overdraft facilities but this derives from the customs and practices of the bankers.
These, usually, are read into banking contracts that offer overdraft facilities.345
3.3 Rectification of contracts

Rectification occurs when a written contract ─ which incorrectly reflects the parties’
common intention ─ is corrected to reflect the parties’ consensus. Rectification does
not change a contract but corrects the document in a way that reflects the true
common intentions of the parties.
A party seeking rectification must prove the common intention of the parties346 and
that the document incorrectly reflects the common intention of the parties. In
proving the second element, the party may need to prove that the incorrect
documentation was due to a mistake by one or both of the parties or even a third
party.347
3.4. Special terms of a contract
3.4.1 Conditions
A condition is a term of the contract that makes the existence of a contractual
obligation dependent on whether an uncertain future event will or will not occur. Two
aspects make a condition unique from other terms of the contract. First, a condition
relates to a future event. This makes a condition different from a supposition that
relates to a past or present event.348 Second, it is uncertain whether the event will
occur. This distinguishes a condition from a time clause that relates to a certain
future event.349
A condition is different from a normal term of the contract in that a normal term of
the contract creates binding contractual obligation whereas a condition does not
343
See Bertelsmann v Per 1996 (2) SA 375 (T). Golden Cape Fruits (Pty) Ltd v Fotoplate (Pty) Ltd 1973
(2) SA 642 (C) 645 held that ‘… despite its ignorance, appellant would be bound by – and the contract
would be subject to – the alleged trade usage provided that it is shown to be universally and uniformly
observed within the particular trade concerned, long established, notorious, reasonable and certain,
and does not conflict with positive law (in the sense of endeavouring to alter a rule of law which the
parties could not alter by their agreement) or with the clear provisions of the contract.’
344
[Chapter 24:20].
345
See Golden Cape Fruits (Pty) Ltd v Fotoplate 1973 (2) SA 642 and Greenacres Farm (Pvt) Ltd v
Haddon Motors (Pvt) Ltd 1983 (2) ZLR 21.
346
See Munyani v Liminary Investments & Anor HH-38-10.
347
See SA Breweries Ltd v Riberiro t/a Doc’s Liquor Merchants 2000 (1) SA 803 (W) and Akasia Road
Surfacing (Pty) Ltd v Shoredits Holdings Ltd en Andere 2002 (3) SA 346 (SCA).
348
See Fourie v CDMO Homes (Pty) Ltd 1982(1) SA 21.
349
See Bernitz v Euvrad 1943 AD 595.
@ Innocent Maja 88
create contractual rights and duties. Instead, a condition qualifies the operation of an
obligation with reference to the occurrence or non-occurrence of a future event. Non-
fulfillment of a condition does not constitute breach of contract.350
3.4.1.1 Classification of conditions351

Conditions can be classified, namely, in three ways:
i) Positive and negative conditions
This distinction arises from when a condition creates a legally binding obligation. A
positive condition is term of the contract that creates an obligation if the uncertain
future event does happen. For example, ‘I will pay you US$900 if your horse wins in a
race at Borrowdale Race Course.’
A negative condition on the other hand is a term of the contract that creates an
obligation if an uncertain future event does not happen. For instance, ‘I will pay you
US$900 if your horse does not win in a race at Borrowdale Race Course.’
ii) Potestative, casual and mixed conditions
This distinction relates to the extent to which fulfillment of the condition is within
the power of any of the parties.
In a potestative condition, the fulfillment of the condition depends entirely on the

will and corresponding act of one of the parties. For example, ‘I will give you US$500
if you run in a marathon.’ The fulfillment of this condition entirely depends on you.
In a casual condition, the fulfillment of a condition is unrelated to the will of the

parties. Instead, it depends on the will of a third party or an event outside the control
of the parties. For instance, ‘I will pay you US$500 if it snows in Harare in June.’
Neither you nor I have control on whether or not it will snow.
In a mixed condition, fulfillment of the condition is partly within one party’s power
and partly dependant on the will of a third party or an event outside the control of
the parties. For instance, ‘I will give you US$2 000 if you marry my sister.’ In this
case, fulfillment of this condition depends on you asking my sister to marry you and
my sister deciding to either marry you or not.
iii) Suspensive and resolutive conditions
The distinction between the suspensive and resolutive condition relates to the effect
of the condition on the obligation that it qualifies. Suffice to mention is the fact that
in Zimbabwe, case law revolves around supensive and resolutive conditions.
350
See Design and Planning Service v Kruger 1974 (1) SA 698 T.
351
I have heavily relied on D Bhana et al (n27 above) 185-186 in couching these classifications.
@ Innocent Maja 89
3.4.1.2 Suspensive Condition/Condition Precedent
This suspends or postpones the operation of a contract or obligation until the
condition is fulfilled, or it is certain that the condition fails.352 For example, A can
agree with B that A will buy B’s racehorse for US$1 000 if the horse wins on Saturday.
The operation of the contract or obligation to pay is suspended until the horse either
wins or it becomes clear that it is not going to win.
Before fulfillment of the condition, there is a valid contract at the conclusion of the
contract but the operation of the contract or obligation is postponed or suspended
until the condition is fulfilled.
One question that Zimbabwean courts have dealt with is whether a condition
precedent should be fulfilled in forma specifica (in the exact manner stated by the
parties in the agreement), or per aequipollens (in some equivalent manner). This
question was addressed in Runatsa v Rumani Estates (Pvt) Ltd & Ors,353 where the
Court held that the answer depended upon the intention of the parties as expressed
in the agreement. If the intention of the parties as expressed in the agreement is such
that fulfillment of a condition has to be in forma specifica as in the Runatsa case,
then fulfillment has to be in forma specifica.
Conversely, if the intention of the parties as expressed in the agreement is such that
fulfillment of a condition has to be per aequipollens, substantial fulfillment of the
condition then suffices. This position was emphasised in Mazodze v Mangwanda,354
where the appellant sold a house to the respondent. One of the conditions of the sale
was that the respondent should obtain a loan from Kingdom Bank. Instead of obtaining
a loan from Kingdom bank, the respondent obtained a mortgage bond from CABS,
guaranteed by Kingdom Bank. He tendered payment but the appellant sought to resile
from the contract on the pretext that the transference was not strictly in accordance
with the wording of the agreement. The Court held that even though there was a
condition precedent, the respondent had satisfied it by tendering the purchase price
within the stipulated period even though the money was not from the specific bank.
3.4.1.3 Resolutive Condition/Condition Subsequent

This causes a fully operational contract or obligation to come into effect at the time
of conclusion of the contract but it may be terminated (resolved) if the condition is
fulfilled.355 For example, ‘I will pay you US$300 per month until you graduate and
find a job.’ The contract comes into operation as soon as it concludes and terminates
352
Okeke v Duro & Co (Pvt) Ltd 2006 (1) ZLR 506 (H). A suspensive condition is, however, different
from an agreement to agree in the future and enter into a proposed final agreement. Such an
agreement does not constitute a contract between the parties as they lack legal certainty. For a
discussion of such an agreement see CAG Farms (Pvt) Ltd v Hativagone & Ors HH-157-14.
353
2009 (2) ZLR 286. See Forestry Commission v Cell Insurance Company (Pvt) Ltd HH-116-2013.
354
2005 (1) ZLR 87 (S).
355
See McAninch v Maisiri & Anor 2002 (2) ZLR 54 (S).
@ Innocent Maja 90
upon your graduation and finding a job or if it becomes clear that you are never going
to graduate and get a job.
3.4.1.4 The doctrine of fictional fulfillment of a condition

It provides that if any of the parties frustrates the fulfillment of the condition, the
condition is deemed to be fulfilled. The following requirements are met before the
doctrine of fictional fulfillment can be applied:
i) One party must deliberately prevent fulfillment of the
condition;356
ii) In breach of the duty on the party not to prevent fulfillment and
iii) The actions of such party must cause the non-fulfillment of the
condition.357
Pending the fulfillment of the condition, neither party should act in such a way as to
destroy the rights of the other party if the condition is fulfilled. The time allowed for
the fulfillment of the condition depends on the wording of the contract. If there is a
fixed period and the condition is not fulfilled within such period, the contract falls
away in the event of a suspensive condition or becomes unconditional in the event of
a resolutive condition. If there is no fixed period, the courts will assume that the
condition was supposed to be fulfilled within a reasonable time.358
Fulfillment or non-fulfillment of a condition precedent operates retrospectively,

making the contract valid or invalid with effect from the date of the contract.359 Any
value that has exchanged hands should be returned.360
Hanakira v Mapfumo and Anor361 established the following:

It is a fundamental principle of our law of contract that the non-fulfillment of a
suspensive condition does not render the contract illegal or void. A suspensive
condition merely suspends the operation of all or some of the obligations of the
contract until the occurrence of a future event. Its non-fulfillment does not per se
vitiate the contract.
3.4.1.5 Exemption Clauses

An exemption clause is a term of a contract that seeks to exclude or limit the liability
of one of the parties to a contract. For instance, parties can exclude or limit liability
356
See Clapham v Struckel 1980 (2) SA 71(ZR); McHardy v Olifant 1905 ORC 42 and Cyster v Du Toit
1932 CPD 345.
357
Scott v Poupard 1971 (2) SA 373; Koenig v Johnson & Co 1935 AD 262.
358
See Design and Planning Service v Kruger 1974 (1) SA 689 (T) 696H.
359
See Absa Bank v Sweet 1993 (1) SA 318; MacDuff & Co v Johannesburg Consolidated Investments Co.
Ltd 1924 AD 573.
360
See Sleightholme Farms (Pvt) Ltd v National Farmers Union Mutual Insurance Society Limited 1967
(1) SA 13 (R); Malaba v Takangovada 1990 (3) SA 413 (ZH); Ncube & Anor v Willey & Anor 1985 (2) ZLR
69 (H).
361
HH-155-10.
@ Innocent Maja 91
for negligence, breach of contract, misrepresentation, delictual damages, losses, a
term implied by law, etc
The general rule is that an exemption clause is like any other term of the contract
and is enforceable. However, courts have adopted rules designed to limit the
applicability of exemption clauses. Courts have developed a two-pronged approach,
namely:
i) Is the exemption clause part of the contract?
As regards written contracts, the courts resort to the caveat subscriptor rule (a
person who signs a written document is bound by its contents whether or not he has
read them).
However, where there is no written contract, the law requires that the other party is
notified adequately of the operation of the exemption clause before it is held to be
part of the contract.362
If the exemption clause is not part of the contract, then the matter ends there. The
weaker party is not be bound. However, if it is a part of the contract, the courts will
raise the following question:
ii) What does the exemption clause mean?
Here the court usually adopts a strict interpretation. For example, if the exemption
clause is ambiguous or leads to doubt, the court will interpret it against the drafter of
the clause or the stronger party. This is the contra proferentem rule.363
The ambit of the contra proferentem rule was well illustrated in Old Mutual Property
Investments v Metro International (Private) Limited and Thomas Meikles Centre
(Private) Limited,364 where the Court established as follows:
As a rule, where there is some ambiguity in the use of a word or choice of expression
which leaves the court unable to decide which of two meanings is correct, the word or
expression ought to be construed against the party who was responsible for drafting
the document in question365… It is to be cautioned, however, that the rule is one of
last resort and is only to be applied where it is not possible to ascertain the proper
meaning of the contractual provision in question, after having exhausted all the
ordinary rules of interpretation366… As I understand it, the rule is generally applicable
362
See Chapleton v Barry (1940) 1 KB 532.
363
See Shubara Ranch (Pvt) Ltd v Shield of Zimbabwe Insurance Co. Ltd 1988(2) ZLR 306.
364
HH–53–2006 6.
365
See Cairns (Pty) Ltd v Playdon & Co Ltd 1948 (3) SA 99 (AD) 123; Commercial Union Fire, Marine &
General Insurance Co Ltd v Fawcett Security Organisation Bulawayo (Pvt) Ltd 1985 (2) ZLR 31 (S);
Presbyterian Church of Southern Africa v Shield of Zimbabwe Insurance Co Ltd 1991 (2) ZLR 261 (H).
366
See in this respect the Cairns case, supra, cited in Jonnes v Anglo-African Shipping Co. Ltd 1972 (2)
SA 827(A). As explained by Faber: Rat 2.14.39 (Wessels translation): ‘But the interpretation against the
seller or the lessor must clearly not be applied in the first instance, but only if nothing better can be
determined: That is to say, if it can neither be proved what was the intention of the parties nor an
interpretation given in accordance with the probabilities.’
@ Innocent Maja 92
where the party that drafted the document under dispute is the dominant party,
allowing for minimal or purely perfunctory input from the other party, as invariably
occurs in the case of contracts of insurance. The rule ought not to apply where the
parties are relatively equal in their respective bargaining positions.
Musundire v OK Zimbabwe367 held that Zimbabwean courts protect the public from
the worst abuses of exemption clauses by setting limits to the exemptions they will
permit and by interpreting exemption clauses narrowly. Contractual conditions by
which one of the parties engages to verify all representations for himself and not to
rely upon them as inducing a contract must be confined to honest mistake or honest
representations. However wide the language, the court will cut down and confine its
operations within these limits. This is the law’s way of protecting innocent and
unsuspecting individuals.
Zimbabwean courts have insisted that the exemption clauses are brought to the
attention of the parties to the contract.368
3.4.1.6 Limitation or exclusion of liability based on negligence

In Cotton Marketing Board v National Railway of Zimbabwe,369 the court held that a
party who wishes to exempt himself, herself, or itself from liability caused by his own
negligence should clearly state so in the exemption clause.
It is important to note that if a party’s negligence amount to breach that goes to the
root of the contract, the exemption clause is not enforced.370
However, this position is different when it comes to consumer contracts. Section 2 of

the Consumer Contracts Act371 defines a consumer contract as a contract
… [f]or the sale or supply of goods or services or both, in which the seller or supplier is
dealing in the course of business and the purchaser or user is not, but does not
include—
a) a contract for the sale, letting or hire of immovable property; or

b) a contract of employment.372
The scheduled provisions to sections 2 and 7 of the Consumer Contracts Acts
proscribe, prohibit, or render inoperative the following exemption clauses in
consumer contracts:
367
HH-94-12.
368
See Jiawu Mfrs v Mitchell Cotts Freight Zimbabwe (Pvt) Ltd 2003 (2) 369 (H) and Redriver
Development (Pvt) Ltd v Provenance Support Co 2003 (2) ZLR 412 (H).
369
1988(1) ZLR 304.
370
See Transport and Crane Hire (Pvt) Ltd v Hubert Davies and Co (Pvt) Ltd 1991(1) ZLR 190;
Government v Tinto Industries Limited 1985 (1) ZLR 66 (H).
371
Consumer Contracts Act [Chapter 8:03].
372
See ZESA v Bikita Minerals (Pvt) Ltd 2001 (1) 438 (H) and Cabri (Pvt) Ltd v Terrier Svcs (Pvt) Ltd
2004 (1) 267 (H).
@ Innocent Maja 93
i) those that exclude/limit negligence
ii) those that exclude/limit liability in the event that goods do not conform
with any description or sample given in respect of the goods
iii) those that exclude/limit liability for latent defects in goods
iv) those that deny/limit the buyers’ right to require the seller/supplier to
either:
a) reimburse the goods
b) replace the goods
c) repair the goods
d) reduce the price or amount payable in respect of goods
This position was confirmed in Cabri (Pvt) Ltd v Terrier Services (Pvt) Ltd,373 where
the court established that an exemption clause that limits or excludes liability based
on negligence in a consumer contract could not be enforced.
3.4.1.7 Warranty
A warranty is a term of a contract whereby a party assumes contractual liability for
the existence of a certain state of affairs or the occurrence of an event.374 Examples
include a warranty against eviction, a warranty on a merx being sold,375 a warranty
that transfer of ownership will be effected within a given time, a warranty that a
party to a contract will comply with its obligations, etc.
The effect of a warranty is that it imposes absolute liability on the person giving such
warranty. Failure to comply with a warranty amounts to breach of contract. The
innocent party is entitled to remedies for breach of contract. It is interesting to note
that a person giving the warranty cannot escape liability based on the impossibility of
performance or absence of fault. The usual remedy for breach of a warranty
especially in an agreement of sale is a claim for aedilition damages.376
3.4.1.8 Non-variation clauses

A non-variation clause provides that no subsequent agreement between the parties
shall be valid and binding as between the parties unless it is reduced to writing and
signed by both parties. In Munyani v Liminary Investments & Anor,377 the Court held
that the effect of a non-variation clause is to prevent parties from varying or altering
their contract outside what the parties agreed. In the absence of a non-variation
clause, however, parties to a contract are free to vary their contract as they wish as
long as they agree to such variation. In the court’s words:
The law does not restrict the parties’ power to vary their own contract. They are at
liberty to change their minds as many times as it suits them, as long as, each time that
they do so, they are acting in concert and their minds meet. The law will only restrict
373
2004 (1) ZLR 267 (H).
374
375
Lourenco v Raja Dry Cleaners & Steam Laundry (Pvt Ltd 1984 (2) ZLR 151 (S).
376
Duly & Company Limited v Shonge 1985 (2) ZLR 351 (S).
377
HH-38-10.
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their power to vary their own contract where they have, in the contract, restricted
their own power to do so by inserting a non-variation clause.378
378
Munyani v Liminary Investments & Anor HH-38-10.
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SECTION 4
VOID AND VOIDABLE CONTRACTS:
FACTORS VITIATING A CONTRACT
4.1 Definitions
A void or invalid contract is one that is not enforceable at law because it lacks one or
more of the essential elements of a valid contract. The essential elements of a valid
contract are covered in sufficient detail in section 2 of this book. Suffice to mention
is that a void contract does not create any legal rights and duties and can never be
enforced. Such a contract is referred to as void ab initio. The law treats such an
agreement as if it never existed because it lacks one or more of the essential
elements of a valid contract.
A voidable contract is one that has all the essential elements of a valid contract but
the consensus was obtained in an improper manner through misrepresentation,
duress, undue influence, mistake, or bribery of an agent. Such a contract is
potentially void. This means that the innocent party can elect or choose whether to
enforce the contract or have it declared void. If the innocent party chooses to set
aside the contract, the contract becomes invalid. However, if the innocent party
chooses to uphold a contract, such a contract is valid and enforced just like any other
valid contract.
4.2 General remedies for voidable contracts

There are two general remedies available whenever it is established that a contract is
voidable. These are:
4.2.1 Restitution in integrum (Rescission coupled with restitution)

An innocent party to a voidable contract can elect to set aside a contract and claim
restitution in integrum. The purposes of this remedy are to undo the consequences of
the voidable contract and place the parties to a legal position where they were
before they entered into the contract (status quo ante).
The legal effect of restitution is twofold. First, the obligations created by the
contract become invalid. Parties cease to hold any rights and obligations under the
contract. Second, any performance already received in terms of the voidable contract
must be returned. Restitution therefore operates retrospectively to completely undo
the consequences of a voidable contract.
@ Innocent Maja 96
4.2.2 Delictual damages in the context of the law of contract
If the guilty party’s improper conduct constitutes a wrongful act for purposes of
delictual liability, the innocent party can claim delictual damages from the
wrongdoer. For an innocent party to claim delictual damages successfully, (s)he must
establish that:
a) That there was a wrongful or an unlawful conduct (by either commission
or omission) by the wrongdoer;
b) That the conduct led to the harm of a person, property, or finances and
c) That the wrongdoer caused patrimonial loss either intentionally or
negligently.379
Delictual damages aim at undoing the consequences of the wrongful act (fraud or
negligence). The delictual damages are calculated according to the innocent party’s
negative interesse (financial position if there had been no wrongful act).
4.3 Specific factors vitiating a contract

Zimbabwean law has recognized five factors that can potentially vitiate a contract.
These are:
4.3.1 Misrepresentation
4.3.1.1 Definition
This is when one of the parties is induced to enter into a contract by words or conduct
that creates a false impression. These false impressions are created before the parties
enter into the contract and they actually induce the innocent party to enter into the
contract which (s)he would not have entered into the contract had the actual facts
been known. These words are not part of the terms of the contract.
4.3.1.2 Elements of misrepresentation

For a party to plead misrepresentation successfully, the following requirements
should be established:
i) There must be a false representation380
A false representation refers to conduct which created a false or
incorrect impression in the other party’s mind.
ii) The false representation must relate to a fact and not to an opinion or
the law.381
379
See Musadzikwa v Minister of Home Affairs & Anor 2000 (1) ZLR 405 (H); Nyaguse v Skinners Auto
Body Specialists & Anor 2007 (1) ZLR 296 (H); Border Timbers Ltd v ZRA 2009 (1) ZLR 131 (H).
380
See Novick v Comair Holdings 1979 (2) SA 116 (W) at 149D – 150C.
381
See Donners Motors (Pvt) Limited v Kufinya 1968(1) SA 434.
@ Innocent Maja 97
This essentially means that the false representation must relate to
something that is capable of being factually established.
iii) A false representation must have been made by a party to a contract or
his agent and not a third party382
iv) The false representation must have been intended to induce a contract
The party making the false representation must have realized that his or
her statement would influence the other party’s decision.
v) The misrepresentation must have induced the contract
This means that the victim would not have entered into the contract had he known
the truth. There are two elements to inducement or causation. First, the innocent
party must have actually believed the misrepresentation. Second, the innocent party
should have contracted on the terms that he did because of the misrepresentation. In
Symons and Moses v Davies,383 the court held that the victim needs to show that the
misrepresentation was the only factor that induced him to enter into the contract.
The test for inducement is subjective. It is not based on what a reasonable person
could have done.384
vi) The misrepresentation must be material
This means that the misrepresentation must be capable of inducing a reasonable
person to enter into a contract.385 The only exception to this is the thin-skull case
where the law insists that the maker of the misrepresentation must take his victim as
he finds him.
vii) As a general rule, there can be no misrepresentation by silence386
Exceptions to the general rule
Included as exceptions are:
• contracts of insurance, partnership, and agency where disclosure is a
requirement and a legal duty. These contracts are referred to as contracts
uberrimae fide .387
• When only part of the truth is told and the omission of the remainder gives a
misleading impression.388
• Where the facts have changed materially since a true representation was
made.389
382
See Karabus Motors (1959) Limited v Van Eck 1962(1) SA 451.
383
1911 NPD 69
384
See Bird v Murphy 1963 (2) PH A42 (D).
385
See Mowbray and Rondebosch Councils v Smith (1909) 26 SC 681.
386
See Novick v Comair Holdings Ltd 1979 (2) SA 116.
387
Mutual and Federal Insurance Co Ltd v Oudtshoorn Municipality 1985 (1) SA 419.
388
Marais v Edlman 1934 CPD 212.
389
Cloete v Smithfield Hotel (Pty) Ltd 1955 (2) SA 622.
@ Innocent Maja 98
• Where a material fact is concealed.390
• Where a party is asked to sign a document which he obviously will not read,
and which contains an unexpected term.391
• Where there is a statutory duty to disclose.
• Where there is an agreement of sale, the seller has the duty to disclose any
known latent defects in the thing sold.
• When a positive statement is made and, subsequently, circumstances change so
that the statement is no longer true.392
4.3.1.3 Types of misrepresentation

There are three types of misrepresentation, namely:
i) Fraudulent or intentional misrepresentation393
This is when a maker of a representation either knows that it is false or has no belief
in its truth and knows that the statement would influence the other party’s
decision.394 An obvious example is a deliberate lie.
In Ranger v Wykerd,395 Ranger bought a house with a swimming pool from Wykerd.
Upon inspection of the premises, the Plaintiff noticed a crack in the pool that the
Defendant assured him was minor. However, upon occupation of the premises, Ranger
discovered that the crack was major and he lost R22 000 in repairing it. He then
brought an action against the Defendant based on fraudulent misrepresentation. The
court held that the Defendant had lied to the Plaintiff and that the plaintiff had the
right to either uphold the contract and claim for damages or set aside the contract.
The court further held that since fraud was a delict ─ a wrong committed against an
individual ─ the Plaintiff was entitled to claim for delictual damages.
ii) Negligent misrepresentation
This is the utterance of a statement of material fact without taking the necessary
steps that a reasonable person should take to ascertain the truth of the statement.
The test for negligence is whether a diligens paterfamilias) ─ reasonable person ─
placed in the position of the sued party would have acted in the same way as the
Defendant. If yes, then there will be no negligence but if not, then the Defendant is
negligent.
In Bayer South Africa Pvt Ltd v Frost,396 the parties agreed that Bayer would spray
Frost’s vineyard ─ which had onions intermingled with wheat ─ using a helicopter.
390
Dibley v Furter 1951 (4) SA 73.
391
Kempston Hire (Pty) Ltd v Snyman 1988 (4) SA 465.
392
See Mayes v Noordhof 1992 (4) SA 233 (A).
393
Zingwe v Gwanzura & Anor 2011 (1) ZLR 589 (H).
394
See Derry v Peek (1889) 14 App. Case 337.
395
1977 (2) SA 976 (A).
396
1991 (4) SA 559.
@ Innocent Maja 99
Bayer assured Frost that the wheat and onions would not be destroyed in the spraying
process. However, the crops were destroyed when the vineyard was eventually
sprayed. It transpired that the company had never before sprayed vineyards, which
had onions, and wheat intermingled, using a helicopter. Neither had the company
taken any steps to discover whether this was feasible. The court found the company
negligent and held that negligence attracted delictual damages.
iii) Innocent misrepresentation
This occurs when a person utters a false statement believing it to be true. It must be
proved that a reasonable person would not have realized that the representation was
false. The usual remedy is rescission of contract. This is when a contract is set aside
and the parties are restored to the status quo ante ─ the position they were before
entering into the contract.
4.3.1.4 Remedies for misrepresentation

There are a number of remedies available to an innocent party whenever any form of
misrepresentation is proved.397 These remedies include:
i) Restitutio in integrum (rescission of contract)
The innocent party has the option or choice to cancel the contract and parties are
restored to the status quo ante. Such election is expressly or by conduct. The
innocent party is entitled to claim back whatever he has parted with as a result of the
contract but he is also obliged to return what he has taken from the other party.
Rescission is refused where restitution has become impossible. In Harper v Webster,398
a fraudulent misrepresentation that it was free from disease induced an innocent
party to buy a herd of 387 cattle. On discovery of the disease, 66 cattle were dead.
Proper restitution was impossible and the party at fault was ordered to make
monetary compensation to prevent unjust enrichment.
ii) Damages in delict
Delictual damages are available only for fraudulent and negligent misrepresentation.
The damages are delictual since fraud and negligence are delicts. They are claimed
from a third party if the third party was responsible for the misrepresentation. The
measure of damages calculates to put the innocent party in the position he would
have held had the misrepresentation not have taken place.399
iii) Aedilitian remedies
These are available in cases of misrepresentation in a contract of sale. They are
divided into two, namely;
Actio redhibitoria:
397
See AJ Manase & L Madhuku (n42 above).
398
(1956) R&N 10 / 1095 (2) SA 495.
399
See Pockets Holdings (Pvt) Limited v Lobels Holdings (Pvt) Limited 1966 RLR 150; 1966 (4) SA 238;
Autorama (Pvt) Ltd v Farm Equipment Auctions 1984 (3) SA 483.
@ Innocent Maja 100

the buyer may set aside the contract and parties are restored to the
status quo ante.
Actio quanti minoris:
the purchaser can claim that the purchase price be reduced to the true
value of the thing being sold (merx).
4.3.2 Duress
4.3.2.1 Definition
This occurs when a person is induced to enter into a contract by compulsion,
coercion, pressure, or threats of harm. These threats can be in the form of violence
or threats of violence or some other form of illegitimate pressure. This deprives the
innocent party of freedom to enter into the contract. It vitiates consensus in that the
consensus was obtained improperly. A contract induced by duress is therefore
voidable at the instance of the innocent party.
4.3.2.2 Elements of duress

In Broodryk v Smuts NO,400 the Plaintiff was forced to join the army by threats of
being placed in a concentration camp or imprisonment. The court had to set aside the
contract based on duress. The court held that a party pleading duress should prove
the following essential elements:401
i) Actual violence or reasonable fear
ii) Threat of some considerable harm
The fear is caused by threat of considerable harm (or evil) to the innocent party402 or
his family or property. This includes bodily injury and physical confinement. Through
the influence of English law, duress of goods is recognised.403 English law further
recognises economic duress that occurs where a party exerts economic pressure on
another party to induce him or her to contract. This is not yet part of Zimbabwean
and South African law.404
iii) The harm must be imminent or inevitable
Imminent means that it must be about to happen. Alternatively, inevitable means
that there must be no way of preventing the harm.
iv) The use of the threat or intimidation must be unlawful or contra bonos
mores
v) The threat must have caused damage (causation)
400
1942 TPD 47 51-2.
401
See also Ferguson & Partners v Zimbabwe Federation of Trade Unions & Ors 2004 (1) ZLR 475 (H).
402
This includes bodily injury and physical confinement.
403
See Blackburn v Mitchell (1897) 14 SC 338 and Hendricks v Bernett 1975 (1) SA 765 (N).
404
See Van den Berg & Kie Rekenkundige Beamptes v Boomprops 1999 (1) SA 780 (T).
@ Innocent Maja 101

This element comes in either of the two forms. Either, the innocent party would not
have contracted at all without the threat or the innocent party would have
contracted without the threat but on different terms.
These five requirements were recognized in the Zimbabwean case of Mlambo v

Mupfiga405 where the court established that these five elements are considered
cumulatively.
4.3.2.3 Remedies for duress

There are two remedies for duress, namely:
i) Rescission coupled with restitution (restitutio in integrum)
The innocent party can elect to set aside the contract and parties revert to the status
quo ante. However, it is important to note that with duress ─ unlike
misrepresentation ─ restitutio in integrum can be claimed for third party duress. In
Ferguson & Partners v Zimbabwe Federation of Trade Unions & Ors,406 the court
emphasized this point when it held that
… a contract signed under duress (metus) is not void ab initio but it is voidable at the
instance of the coerced party. The pressure may be that of the other party or of a
third party or both. The coerced party bears the onus of proving that the law
recognizes the kind and severity of the improper pressure.
ii) Delictual damages

The innocent party can claim for delictual damages if any loss is suffered. The same
principles apply as discussed above.407
4.3.3 Undue influence
4.3.3.1 Definition
This is when a person improperly exploits the influence (s)he has over someone else
to induce that person to enter into a contract. An element of abuse of a relationship
of trust exists between the two parties. Examples include doctor and patient; lawyer
and client; lecturer and student; boyfriend and girlfriend and husband and wife
relationships.
In Preller v Jordan,408 the Appellant was entrusted with the responsibility to transfer
four of the Respondent’s farms to the Respondent’s wife and children when the
Respondent was very ill. However, the Appellant only transferred three of the four
farms and kept one for himself. When the Respondent recovered, he brought an
action based on undue influence for the recovery of the farm. The court held that the
405
HH-65-14. In this case, a threat of criminal prosecution if one does not pay for a debt that the
person threatening is not entitled to (compounding) was deemed to constitute duress.
406
2004 (1) ZLR 475 (H).
407
Amalgamated Motor Corp (Pvt) Ltd v F Klement (Pvt) Ltd 1996 (1) ZLR 17 (H).
408
1956 (1) SA 183.
@ Innocent Maja 102

Appellant had used his position to deprive the Respondent of his farm and the
contract had to be set aside.
4.3.3.2 Elements of undue influence

The essential elements of undue influence are as follows:409
i) The wrongdoer has influence over the innocent party
Influence exists when a stronger party is in a position of dominance over the weaker
party or the weaker party is emotionally or financially dependent upon the stronger
party. The innocent party has to prove that influence exists.
ii) This influence reduces the resistance of the innocent party
This means that the influence weakened the innocent party’s powers of resistance
and made his will pliable. Put differently, it reduced the innocent party’s capacity to
make independent decisions.
iii) There was an unconscionable use of the influence
The wrongdoer must have exercised his influence in an unscrupulous (exploitative)
manner.
iv) The influence should have induced the innocent party to contract
(causation)
Again, either causation can be in the form of the innocent party not having entered
into a contract at all or entered into a contract on different terms had it not been for
the influence.
v) Detriment (or prejudice) is caused to innocent party
4.3.3.3 Remedies for undue influence

There are two remedies for undue influence, namely:
i) Rescission coupled with restitution (Restitutio in integrum)
The innocent party can elect to set aside the contract and parties revert to the status
quo ante. Just like misrepresentation, in undue influence restitutio in integrum
cannot be claimed from a third party.
The innocent party can claim for delictual damages if any loss is suffered. The same
principles apply as discussed above.410
4.4 Mistake
4.4.1 Definition
409
See Patel v Grobbelaar 1974 (1) SA 532 (A).
410
See City of Gweru v Kombayi 1991 (1) ZLR 333 (S).
@ Innocent Maja 103

Mistake refers to an error of a material fact made by one or both parties that
influenced him or them to enter into a contract that he or they would not have
entered.
The law of mistake has two major aims. First, it determines whether a mistake has
affected the existence of subjective consensus. If there is still subjective consensus,
the contract will remain valid and the innocent party will claim remedies. However, if
subjective consensus is vitiated by mistake, the courts will go on to the next inquiry.
Second, it determines the effect of such mistake on the validity of a contract.
In determining these issues, courts usually take the following steps.411 First, Courts
first determine which party was mistaken ─ usually, a party who is trying to escape
the contract is the mistaken party. Conversely, a party that is trying to enforce the
contract is normally the non-mistaken party. Second, Courts also compare the parties’
subjective intentions to their declared (objective) agreement. In other words, courts
first determine the objective meaning of the declared agreement. Thereafter, they
look at each party’s subjective intention to see if it differs from the objective
declaration. The party whose subjective intention differs from the declaration or
agreement is mistaken.
4.4.2 Classification of mistake

There are a number of ways in which mistake can be classified depending on the
effect that that mistake has on a contract. The following are three basic
classifications:412
i) Causal versus non-causal mistake
A causal mistake affects the mistaken party’s decision to contract in that (s)he would
not have entered into the contract at all or would have contracted on different terms
had it not been for the mistake.
On the other hand, a non-causal mistake is one where a party would have entered
into the contract on exactly the same terms even if (s)he had not made the mistake.
The basis for this classification is to determine whether the mistake affected a party’s
decision to enter into a contract. Invariably, only a causal mistake founds a claim for
vitiating a contract. Conversely, a non-causal mistake does not vitiate a contract.
ii) Mistake in motive versus essential or material mistake
An essential mistake is one that is causal and leads to dissensus (a lack of subjective
consensus) between the parties in respect to the parties and terms of the contract as
well as animus contrahendi.413 This mistake has the effect of vitiating a contract
because parties lack subjective agreement.
411
See Seven Eleven Corporation of South Africa (Pty) Ltd v Cancun Trading NO 150 CC 2005 (6) SA 186
(SCA)
412
See D Bhana et al (n27 above) 302-308.
413
See Khan v Naidoo 1989 (3) SA 724.
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An error in motive on the other hand, simply affects the reasons for contracting.
Despite the mistake, there is still subjective consensus between the parties on the
parties, terms of the contract and animus contrahendi. Such a mistake cannot vitiate
a contract unless the mistaken party can prove misrepresentation, a condition, or a
warranty.
The basis of this classification is to determine the factors of mistake. This again
assists in determining whether a mistake can vitiate a contract. In Zimbabwean law,
an essential or material mistake is a legitimate ground for vitiating a contract.
Conversely, an error of motive cannot vitiate a contract (as a general rule), as
discussed below.
According to Bhana et al,414 the Roman system developed a six-fold system of

classifying essential mistakes and mistake in motive that can be useful guidelines in
determining whether a mistake is material or merely an error in motive. The
classification consists of:
Error in negotio –
This refers to a mistake relating to the nature or terms of a contract. This is
usually an essential mistake.
Error in persona –
This refers to a mistake relating to the identity of a contractual party. This,
again, is a material mistake.
Error in nomine –
This refers to a mistake as to the name of the party. This is a non-essential
mistake.
Error in corpore –
This refers to a mistake relating to which thing is the object of performance.
This is an essential mistake since parties have not agreed on the terms of the
contract.
Error in qualitate –
This refers to a mistake as to the qualities of the object of performance. For
instance, John buys a bottle of wine from Peter, believing that it is good
quality wine and discovers that it is not. This mistake is merely a mistake of
motive in that it relates to the reasons for contracting. It does not vitiate a
contract.
Error in substantia –
414
D Bhana et al (n27 above) 304-305.
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This refers to a mistake as to what material constitutes the object of performance.
For instance, Tendai buys a bottle filled with a dark fluid from Chiedza thinking the
fluid is wine when it is actually vinegar. This, again, is a mistake of motive since the
parties have agreed on the thing that must be delivered (the bottle of fluid).
It is interesting to note, though, that notwithstanding these classifications, the

fundamental test for essential mistake is whether the parties to a contract have
agreed on the parties to a contract, terms of the contract and animus contrahendi.415
iii) Unilateral, common and mutual mistake
This distinction is based on which party was mistaken.
4.4.2.1 Unilateral essential mistake

This is when one of the parties to a contract makes a causal mistake of a material
term of the contract and the mistake leads to a lack of consensus about the terms,
parties, or animus contrahendi.
As a rule, whenever a unilateral mistake is established the contract is invalidated due

to lack of subjective agreement between the parties. However, this may be unfair if
the non-mistaken party genuinely and reasonably believed that an agreement was
reached. This is why, at times, our courts have used quasi-mutual assent to hold the
mistaken party bound in certain circumstances because of policy reasons.
Courts normally use two approaches to establish whether a unilateral mistake can
vitiate a contract. These are:
i) The Justus error theory
This theory provides that if a unilateral mistake is essential and reasonable (or
excusable) it can vitiate a contract. This theory views unilateral mistake from the
mistaken party’s perspective. The mistaken party should be able to prove that his or
her mistake was essential and reasonable (excusable) in the circumstances of the
case.
It is trite that a unilateral mistake will not be Justus if the mistaken party was
negligent or careless in making the mistake.416
It is interesting to note that Zimbabwean and South African courts have declared the
following mistakes as Justus:
i) Where the non-mistaken party caused the mistake;417
ii) Where the mistake is reasonable and material;418
415
See Van Reenen Steel (Pty) Ltd v Smith NO 2002 (4) SA 264 (SCA).
416
Diedericks v Minister of Lands 1964 (1) SA 49 (N).
417
Allen v Sixteen Stirling Investments 1974 (4) SA 164.
418
National and Overseas Distributors Cooperation Pty Ltd v Potato Board 1958(2) SA 473 479(g)-(h).
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iii) Where the non-mistaken party was aware of the mistake.
Courts have set such agreements aside on the basis that the non-mistaken party knew
that there was no subjective consensus between the parties;
iv) Where the mistaken party, as a reasonable person, should have been
aware of the mistake;
v) Where the mistaken party was not negligent in making the mistake;419
vi) Where the mistake was caused by a third part;420
vii) Where the other party induced the mistake by misrepresentation.
This position is expressed succinctly in ZESA v Smith & Ors,421 where the Court held
that:
Where an offeror mistakenly makes an offer that is accepted by the offeree, the
offeror will only be entitled to rescind the contract if (a) the offer was induced by
fraudulent misrepresentation by the offeree; or (b) the mistake was a material one
and the offeree knew or ought to have known that the offer had been made in error.
ii) The reasonable reliance theory

This theory provides that if the non-mistaken party reasonably believed (at the time
of contracting) that there was subjective consensus between the parties, (s)he will
enforce the contract despite the other party’s mistake. However, if the non-mistaken
party did not reasonably believe that there was subjective consensus, the mistaken
party will be able to escape the contract. The reasonable reliance theory is referred
to sometimes as the doctrine of quasi-mutual assent.
In terms of the reasonable reliance theory, a contract where a unilateral mistake is

established is valid if the non-mistaken party can prove the following three aspects:
a) That the mistaken party (by his or her conduct) created the
impression that he subjectively agreed to the contract;
b) That the non-mistaken party actually relied on the impression;422
c) That the reliance on the impression was reasonable.
Put differently, a reasonable person placed in the shoes of the non-mistaken party
would have believed that there was subjective consensus between the parties.423
Which approach or theory should be used in Zimbabwe?
An interesting moot question that has arisen is which theory must be used to
determine whether a unilateral mistake can vitiate a contract? Should the Justus
419
Lake v Caithness 1997 (1) SA 667 (E).
420
See Saambou-Nasionale Bouvereniging v Friedman 1979 (3) SA 978 (A).
421
2005 (1) ZLR 120 (S).
422
See Sonap Petroleum (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A).
423
See the National and Overseas Distributors case cited above.
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error theory be used alone? Or, should the reasonable reliance theory alone be used?
Or, should our courts combine both theories?
It is interesting to note that there is a large degree of overlap between the two
theories. In terms of both theories, a contract can be invalid on the basis of unilateral
mistake if:
a) The non-mistaken party is aware of the mistake (or realised that
there was no mistake);
b) The other party should, as a reasonable person, have been aware
of the mistake; or
c) The mistake was caused by the non-mistaken party.
For these reasons, the two theories are regarded sometimes as two sides of the same
coin.424 The Justus error theory explains when the mistaken party is not bound, and
the reasonable reliance theory explains when the non-mistaken party is able to
enforce the contract.
In South Africa, this question is, as yet, unanswered. In Sonap Petroleum (Pty) Ltd v
Pappadogianis,425 the Supreme Court expressed a preference for the reasonable
reliance theory. There are however, instances when the Justus error theory is used.
Interestingly, the South African case of Brink v Humphreys & Jewell (Pty) Ltd426
combined both the Justus error and reasonable reliance theory and held that a
unilateral mistake can vitiate a contract only if it is proved that:
a) The non-mistaken party knew of the mistake;
b) The non-mistaken party should, as a reasonable person, have
known of the mistake, or
c) The non-mistaken party caused the mistake provided it was Justus
for the mistaken party to be misled by his conduct.
What is the Zimbabwean position?
In Agribank v Machingaifa & Anor,427 the court applied the Justus error principle in
determining a dispute on unilateral mistake. Justus error was relied on, also, in PTC v
Zimbabwe Posts & Telecommunications Workers Union & Ors.428 The Zimbabwean
courts appear to have settled for the Justus error theory in resolving matters relating
to unilateral mistake.
424
425
1992 (3) SA 234 (A).
426
2005 (2) SA 419 (SCA).
427
2008 (1) ZLR 244 (S).
428
2002 (2) ZLR 722 (S).
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4.4.2.2 Common essential mistake
This is when both parties make the same mistake and the mistake is causal for them
both.
In dealing with this problem, the court usually considers two things. First, where the
common mistake leads to initial impossibility, then the contract between the parties
becomes void e.g. where parties agree to buy and sell something that they both
mistakenly think is still in existence when, in actual fact, it has been destroyed.
Second, where there is no initial impossibility, the effect of common mistake is that
either party is entitled to rescind the contract if the mistake is sufficiently serious.
This was illustrated in Dickinson Motors v Oberholzer,429 where the Respondent sued
the appellant for repayment of the sum of £291 which he alleged to have paid in
error. He paid it to obtain a car that both parties thought was sold by the appellant to
the Respondent’s son on Hire Purchase terms. In fact, it was a different car, which
belonged to Alris Motors from whom the Respondent’s son had bought it on Hire
Purchase terms. The Messenger of Court had attached the second car thinking that it
was the first and it was delivered to the Appellant for repossession. The Respondent
had paid £291 to get the car back. It was held that the respondent could recover the
money he had paid under a common mistake. The general rule is that such a contract
is voidable.
Usually, courts attempt to give effect to the parties’ true subjective intentions by
rectifying the contract so that it reflects the parties’ intention.
4.4.2.3 Mutual essential mistake

This occurs when both parties make causal mistakes, but they make different
mistakes. They are in essence at cross-purposes.
In solving this problem the court usually applies the doctrine of quasi-mutual assent.
Courts have adopted two approaches. First, if one party understands that what has
been agreed is unreasonable, in that it conflicts with the impression he has given to
the other party, he will be deemed to have agreed in accordance with the impression
he has given. Second, if each party understands or the mistake is reasonable then
there will be no contract between the parties.
In Maritz v Pratley,430 Maritz ─ who was an auctioneer ─ called for bids for Lot 1208.
Pratley was the successful bidder but he refused to pay because he thought he had
bought the mantelpiece together with a mirror that was standing on it. The mirror
was, in fact, a separate Lot 1209. The court held that Pratley’s mistake in thinking
that Maritz intended to sell the mantelpiece and mirror together was held to be
reasonable and Maritz’s mistake in thinking that Pratley was bidding for the
429
1952 (1) SA 448 (A).
430
(1894) 11 SC 345
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mantelpiece only was obviously reasonable. The court held this to be a case of mutual
mistake and there was no contract.
In Raffles v Wichelhaus,431 the buyer and seller agreed to the sale of cotton on the
ship ‘Peerless’ which was to sail from Bombay later that year. Both parties did not
know that there were two ships called Peerless sailing from Bombay in the same year.
The buyer intended to buy cotton on Peerless (ship 1) which was to sail from Bombay
in October. However, the seller intended to sell the cotton on Peerless (ship 2) which
was to sail from Bombay in December that year. The court held that both parties’
mistakes were reasonable in the circumstances and the contract was set aside.
4.4.3 Factors to be considered for mistake to vitiate a contract

In Zimbabwe, courts have decided that, in order for mistake to vitiate a contract, the
following have to be satisfied:
i) It must be a mistake of fact and not a mistake of law
It is accepted that a mistake of law does not excuse a party from a contract. The
main basis of such a proposition is found in the maxim ignorantia juris neminen
excusat (ignorance of the law excuses no one)/.432
This point was emphasized in the Sampson v Union and Rhodesia Wholesale Ltd,433
where the court held that
… [A] general proposition of the law is that if you think the meaning of a clause is such
and such, you cannot get rid of your liability when you discover that the legal meaning
is different from what you thought for you cannot be heard to say that you did not
know the law.
The proposition was upheld in the Zimbabwe case of Ncube v Ndlovu,434 where the
appellant seduced the respondent’s daughter. The appellant then signed an
agreement undertaking to pay the respondent damages for seduction. Later on, he
sought to avoid the contract on the basis of mistake of law, although he was mistaken
as to the legal position that a father has no right to sue for seduction in respect of a
daughter who had reached the legal age of majority while relying on the Katekwe v
Muchabaiwa435 case. His appeal was dismissed on the basis that a mistake of law does
not invalidate a contract.
ii) The mistake must be of a material fact or term436
This simply means that the mistake must refer to one of the essential terms of a
contract itself. In this regard, two major categories of mistake have evolved.
a) Error in motive
431
(1864) 2 H & C 906; 159 ER 375
432
See Miller and Others v Bellville Municipality 1973 (1) SA 914.
433
1929 AD 481.
434
1985(2) ZLR 281(S).
435
1984 (2) ZLR 112 (S).
436
See Smith & Ors v ZESA 2003 (1) ZLR 158 (H).
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This occurs where there is a mistake regarding the reasons why parties
entered into a contract. As a rule, a mistake that relates to the
reasoning or motivation of one of the parties does not render a contract
void. This is discussed extensively above.437
b) Error regarding the contents or existence of the contract
These are divided into four categories, namely:
i) Error with regard to the person or the other party.
An example of such occurs where A wishes to conclude a contract of employment with
B, who is trustworthy, but A mistakenly concludes the contract with a criminal whom
he thinks is B. This contract is null and void (invalid) due to error with regard to the
person of the other contracting party.
ii) Error with regard to the identity of the other contracting party.
An example is where A employs John (whom he wants to employ but mistakenly thinks
his name is Peter). This kind of mistake does not affect consensus and does not
invalidate the contract between A and John.
iii) Error with regard to the nature of the agreement.
An example is where A wants to sell his house to B but mistakenly enters into a
contract of lease. Such a contract will be invalid because there will not be any
consensus.
iv) Error with regard to performance.
Such an error relates to an essential aspect of the contract and vitiates the
contract.
iii) The mistake must be reasonable or justifiable
A reasonable mistake is known as a Justus error that can invalidate a contract. In
Mabhena v Bulawayo Polytechnic,438 the Plaintiff had a Zambian Ordinary Level
Certificate equivalent to three ‘O’ Levels. He applied for a cookery course at
Polytechnic that required five ‘O’ Levels. The principal admitted him mistakenly
believing that the Zambian certificate was equivalent to five ‘O’ Levels. The principal
tried to set aside the contract on the basis of mistake. The court held that it was not
a justified mistake and refused to set aside the contract based on unreasonableness.
Suffice to mention is the fact that for Justus error to vitiate a contract, it must be an
error of a material fact. This position was underlined in Lamdsbergen v Van der
Walt,439 where the court held that even a reasonable mistake cannot release the
437
Diedricks v Minister of Lands (1964)(1) SA 49(N).
438
H-22-94.
439
1972(2) SA 667. See also PTC v Zimbabwe Posts & Telecommunications Workers Union & Ors 2002 (2)
ZLR 722 (S).
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mistaken party from the contract unless the mistake is material in the sense that he
would not have contracted if he had known the truth.440
In Logan v Beit,441 the court established that a mistake made by one party to a
contract, which is due to his own carelessness, is not reasonable and cannot be relied
upon as a basis for setting aside a contract.442 Again, reasonableness, or otherwise,
should be decided on the facts of each case.443
4.4.3.1 Remedies available to an innocent party in the event of mistake

There are a number of remedies available to an innocent party whenever mistake of
whatever form is proved. The following are some of the remedies:
i) Rescission of contract
The innocent party can elect to either cancel the contract or be restored to the
status quo ante or to abide by the contract.
In Smith and Ors v Zesa,444 the applicants occupied houses belonging to the
respondent, a statutory body. The respondent offered to sell the houses to the
applicants as part of a drive to divest itself of surplus assets. The applicants accepted
the offer made to them and paid the asking price, together with the necessary
conveyance fees and transfer duty. Before the houses could be transferred to the
applicants, the respondent purported to cancel the sales because it had made a big
mistake and that; in fact, the houses were needed for its operations. The applicants
refused to accept the cancellation and sued for specific performance. The court held
that since the offer was not induced by fraud or misrepresentation on the part of the
applicants and since there was no material mistake that the applicants ought to have
known about, the respondent was not entitled to rescind the contract of sale.
An offeror cannot escape liability arising out of a contract by proving that the offer he
made was wrong, particularly if the offer was accepted. The court held further that
while specific performance is a discretionary remedy, the discretion is not be readily
exercised in favour of an award of damages as opposed to specific performance.
Justice demands that those who enter into contracts should fulfill their obligations.
Delictual damages can be claimed whenever fraud or negligence is proved.
iii) Rectification
This refers to the correction of errors within a contract (in most cases these are
typing errors). Rectification can only be granted by the court when the written
contract contains the exact wording that the parties intended but the wording
440
See also University of Zimbabwe v Gudza 1996 (1) ZLR 249 (S).
441
1890 7 SC/AC 19.
442
See George v Fairmead (Pty) Ltd (1958) 2 SA 465.
443
See Yelierton 1972(4) SA 114.
444
2003 (1) ZLR 158 (H).
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produces an effect that the parties did not intend. This point was underscored in
Tesben v SA Bank of Athens,445 where the court held that:
… to allow the words that the parties actually used in the documents to override the
prior agreement or the common intention that they intended to record is to enforce
what was not agreed and so overthrow the basis on which contracts rest in our law.
Rectification is a remedy that is given usually in cases of common mistake.

iv) Condictio indebiti
This remedy is awarded usually when payment has been made in error. The ambit of
the remedy was canvassed in Tanganda Tea Co (Pvt) Ltd v Amtec (Pvt) Ltd,446 where
the court held that
… under the condictio indebiti, a payment made by mistake to a third party can be
recovered if three essential elements are satisfied: (1) the sum paid must not have
been due; (2) there must not have been a reasonable cause for the payment even if it
was not due; (3) the person paying must not know that the money is not due. The
mistake of fact which is relied on to justify relief in terms of the condictio indebiti
must neither be negligent, slack nor studied; it must not be grossly negligent nor must
it involve the plaintiff’s own affairs or the affairs of others that are generally known.
The real test for allowing recovery is whether the payer has been ‘inexcusably slack’
or ‘grossly negligent’.
4.4.3.2 Summary of the legal approach to cases of mistake447

Step 1 – Is the mistake causal?
If the mistake is not causal, the mistaken party is bound by the contract.
If the mistake is causal, proceed to the following inquiry:
Step 2 – Is the mistake essential or material?
If the mistake is merely a mistake in motive, the mistaken party is bound by
the contract unless the mistaken party can prove that there was
misrepresentation, a warranty, or a condition.
If the mistake was essential or material, proceed to the following inquiry:
Step 3 – Who is mistaken?
There are two ways to determine this, namely:
a) Which party’s intention differs from the declared agreement?
(S)he is mistaken.
b) Which party wants to escape from the declared agreement? (S)he
is mistaken.
445
(1994) 4 AII SA 396 401.
446
2003 (1) ZLR 340 (H). See also Georgias v ZDB Financial Services Limited 2000 (2) ZLR 447 (H).
447
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Unilateral mistake – only one party is mistaken
Common mistake – both parties make the same mistake
Mutual mistake – both parties make different mistakes
Step 4 – What is the effect of the mistake?
Unilateral essential mistake – the contract is in principle invalid, provided
there is:
a) Justus error – the mistake should be reasonable and excusable;
b) Reasonable reliance – the non-mistaken party must have
reasonably relied on the mistaken party’s impression that there
was subjective consensus;
c) Brink approach – combination of the Justus error and reasonable
reliance theories.
Common essential mistake – the contract is usually rectified
Mutual essential mistake – the contract is usually invalid.
4.5 Bribery of agent

This occurs when a party enters into a contract because of a secret bribe given to his
or her agent or representative. For instance, in Extel Industrial (Pty) Ltd v Crown
Mills,448 C manufactured food products. It bought several shipments of sausage casings
from E. C did not know that E had bribed two of C’s employees to influence C to buy
the sausage casings from E rather than another supplier. When C found this out, it
refused to pay E. The court held that the contract of sale between C and E was
voidable at the choice or instance of C because the agreement was obtained
improperly. C was entitled to set aside the contract.
448
1999 (2) SA 719 (A).
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SECTION 5
BREACH OF CONTRACT
5.1 What is breach of contract
Breach of contract occurs when one of the parties to a contract fails to honour his/
her/its obligation(s) in a contract. There is fault on the part of the person breaching
the contract. Breach of contract is limited to parties to a contract and not third
parties. However, if a third party causes a party to breach the contract Trojan Nickel
Mine v Reserve Bank of Zimbabwe449 establishes that such third party can successfully
be sued for intentional inducement of a breach of contract.
Suffice to mention Mashoko v Mobil Oil Zimbabwe (Pvt) Ltd450 and Mobil Oil
Zimbabwe (Pvt) Ltd v Mashoko451 established that the doctrine of vicarious liability
‘has no equal application in the law of contract (as in delict).’
5.2 Categories of breach of contract

There are three major ways in which breach of contract can be categorised:
1. Breach of contract according to when performance was due
1.1 Anticipatory breach
1.2 Malperformance
2. Breach of contract according to which party has failed to honour the
contractual obligation(s)
2.1 Mora debitoris
2.2 Mora creditoris
3. Breach of contract according to the impact on the essential terms of the
contract
3.1 Breach going to the root of the contract
3.2 Breach that does not go to the root of the contract
5.2.1 Breach of contract according to when performance was due
5.2.1.1 Anticipatory breach

This breach takes place before the performance becomes due. There are two major
examples of such breach, namely:
i) Repudiation
449
HH-169-13.
450
2005 (1) 421 (H).
451
2006 (1) 182 (S). The Supreme Court however, held that failure by a party to control its employees
when such control is material to the execution of the contract amounts to breach of contract if such
employees actually breach the contract.
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It occurs when one party to the contract acts ─ by words or by conduct ─ in such a
way that clearly and unequivocally indicates that (s)he is not going to honour his or
her obligations under the contract. Examples of repudiation by the debtor include
denying the existence of a valid contract, disputing terms of a contract and refusing
to tender performance. Examples of repudiation by the creditor include refusing to
give the debtor information that enables him to perform and indicating that proper
performance is rejected.452
Requirements for repudiation
In order to plead repudiation successfully, the following should be established:
a) There must be conduct indicating a refusal to perform
The test used here is not subjective but objective. The party alleging
repudiation does not need to prove that the other party intended to repudiate.
All that is required is that a reasonable party would think that the behavior of
the repudiating party amounts to a repudiation.453 The test as to whether
conduct amounts to such repudiation is, whether fairly interpreted, it exhibits
a deliberate and unequivocal intention to be bound no longer.
b) There must not be any justification for refusal to perform.454
c) The innocent party should accept repudiation.455
ii) Prevention of performance

This refers to conduct by either a creditor or a debtor that makes the delivery of his
own or the other party’s performance impossible. A party who prevents performance
cannot rely on his or her own breach to escape from a contract.456
Requirements for prevention
For prevention of performance to amount to breach, performance is impossible and
one of the parties must be responsible for the impossibility of performance.
5.2.1.2 Malperformance
This breach occurs after performance is due. It comes in the form of mora and
positive malperformance.
i) Mora
Mora occurs when performance is not on time. Sometimes it is called negative
malperformance. For the defaulting party to be in mora, performance must be due,
452
See Bulawayo Municipality v Bulawayo Indian Sports Ground Committee 1956 (1) SA 34.
453
See Highveld 7 Properties v Bailes 1999 (4) SA 1307 (SCA); Chinyerere v Fraser NO 1994 (2) ZLR 234
(H) 250 and Blumo Trading (Pvt) Ltd v Nelmah Milling Company (Pvt) Ltd & Anor HH-39-11.
454
See Zimbabwe Sun Hotels (Pvt) Ltd v Lawn 1988 (1) ZLR 143 (S) at 151E.
455
See Girjac Services (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 243 (S).
456
See Benjamin v Myers 1946 CPD 655 and Grobbelaar v Bosch 1964 (3) SA 687 (E).
@ Innocent Maja 116

the debtor must be or should be deemed to be aware of the performance required of
him or her, and (s)he must have no valid excuse for the failure to perform.457
In order to determine whether performance is due, courts normally look at the terms
of the contract to ascertain whether the time for performance is fixed by the contract
or a demand by the creditor is necessary. To this end, courts have classified mora as
follows:
a) Mora ex re
This occurs when the contract stipulates the date on which performance is due. The
debtor is in mora if (s)he fails to perform by the mentioned date. The creditor does
not have to do anything to ensure that the debtor is placed in mora. The mere passing
of the time of performance is sufficient to place the debtor in mora. This position was
clarified in Laws v Rutherfurd,458 where the Court held that the
… [p]rinciple which applies when a debtor undertakes to discharge an obligation on a
specified date; the creditor need make no demand: dies interpellat pro homine, and
the debtor is in mora if he fails to pay on the appointed day.
b) Mora ex persona
Whenever the contract does not stipulate when performance should be due, the
creditor has an obligation to place the debtor in mora by way of a demand or an
interpellatio. An interpellatio is a demand calling upon a debtor to perform on a
particular day failing which the debtor will be in mora.. This is mora ex persona.
According to Dobrock Holdings (Pvt) Ltd v Turner and Sons (Pvt) Ltd:459
The general rule is that when a contract does not fix a time for performance, there
can be no mora ex re, only mora ex persona, so a demand by the creditor is necessary
in order to place the debtor in mora.
The interpellatio must stipulate a specific time for performance, must be clear and
unambiguous and must give the debtor a reasonable time to perform.460 The
reasonable time is usually much shorter than the previous reasonable time that the
debtor had to perform.461 The demand must indicate the action that the creditor
intends to take (either rectification of breach, claim for interest, claim for damages,
cancellation of contract, or any other action).462
The legal principles applicable to mora ex persona are summarized in Asharia v Patel
and Ors,463 where the court held thus:
457
See Legogote Development Co (Pty) Ltd v Delta Trust and Finance Co 1970 (1) SA 584 (T) 587.
458
1924 AD 173 195 (Innes CJ). See also Zimbabwe Express Services (Pvt) Ltd v Nuanetsi Ranch (Pvt) Ltd
2009 (1) ZLR 326 (S).
459
2006 (2) ZLR 353 (H).
460
See Nel v Cloete 1972 (2) SA 150 AD.
461
See Barrowby Real Estate (Pvt) Ltd v Olsen 1980 ZLR 448 (A).
462
See Asharia v Patel 1991 (2) ZLR 276 (S).
463
1991 (2) ZLR 276 at 279G-280C.
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The general applicable rule is that where time for performance has not been agreed
upon by the parties, performance is due immediately on conclusion of their contract
or as soon as is reasonably possible in the circumstances. However, the debtor does
not fall into mora ipso facto if he fails to perform forthwith or within a reasonable
time. He must know that he has to perform. This form of mora, known as mora ex
persona, only arises if, after a demand has been made calling upon the debtor to
perform by a specified date, he is still in default. The demand, or interpellatio, may
be made either judicially by means of a summons or extra-judicially by means of a
letter of demand or even orally; and to be valid it must allow the debtor a reasonable
opportunity to perform by stipulating a period of performance which is not
unreasonable if unreasonable, the demand is ineffective. Where a debtor has fallen
into the mora ex persona after demand, the creditor can acquire a right to cancel the
contract by serving notice of rescission in which a second reasonable time limit is
stipulated, making time of the essence. Both demand and notice of rescission are
necessary in order to allow for cancellation for non-performance. The two may be,
and commonly are, contained in the same notice. Such notice will then fulfill a double
function. It will fix a time for performance after which the debtor will be in mora, and
create a right in the creditor to rescind the contract on account of the mora.
5.2.1.3 Legal consequences of mora

There are a number of consequences of mora. These include the following:
(i) Mora perpetuates the contractual obligation
Mora is a form of ongoing breach of contract. The defaulting party falls in mora the
moment (s)he fails to perform and remains in mora until performance is rendered,
performance becomes impossible, or the contract is cancelled.
(ii) The innocent party may elect to exercise the right to specific
performance
Mora does not automatically terminate a contract. The innocent party has the
discretion to either insist on late performance or cancel the agreement.
(iii) The innocent party can claim for contractual damages
Contractual damages should compensate the innocent party for any financial loss
suffered as a result of the delay in performance and may include interest.
(iv) The innocent party can exercise the right to cancel the agreement
As stipulated above, there is no automatic right to cancel a contract based on mora.
Cancellation is an extra-ordinary remedy that is granted in the following
circumstances:
a) If the contract contains a forfeiture clause entitling the innocent
party to cancel the contract if the defaulting party fails to
perform on time. The innocent party will cancel notwithstanding
the seriousness of breach.464
464
See Oatorian Properties (Pty) Ltd v Maroun 1973 (3) SA 779 (A) 785.
@ Innocent Maja 118

b) If time is of essence. For instance, in Marisa v Madondo465 held
that failure to perform when time was of essence in the contract
amounted to a tacit forfeiture clause entitling the innocent party
to cancel the contract.
c) If the defaulting party’s mora amounts to a repudiation of a
material term of the contract.466
d) When a demand has been made requiring performance within a
stipulated time and citing cancellation in the event of a failure to
perform within that time.
5.2.1.4 Positive malperformance

This occurs when performance takes place on time but is defective. In other words,
improper or incomplete performance is rendered.467 This relates to the quality of
performance. In order for positive malperformance to amount to breach, the
defaulting party must have made defective performance. The materiality or otherwise
of the breach will help determine which remedy is available to an innocent party. The
innocent party has a right to reject defective performance and claim for specific
performance, cancellation, or contractual damages.468
5.2.2 Breach of contract according to which a party has failed to honour the
contractual obligation(s)
i) Mora debitoris
This is late performance by the debtor where performance is due, enforceable and
possible.
Requirements for mora debitoris
a) There must be delay in performance by the debtor
It is important to note that the creditor does not have to prove that the debtor was at
fault. He simply needs to show that the debtor did not perform on time. However, if
the debtor is able to show that (s)he was not at fault, (s)he will not be held to be in
mora. A debtor is not at fault if the delay in performance was a result of a vis major
(act of God) or casus fortuitus (act of God) or the delay was caused by a third party or
the delay was a result of the creditor’s failure to accept proper performance by the
debtor. However, if the debtor warrants performance on time, lack of fault will not
allow him or her to escape liability for mora debitoris.
b) Performance must remain possible
465
1992 (1) ZLR 276 (S).
466
See Van Rooyen v Minister van Openbare Werke en Gemeenschapsbou 1978 (2) SA 835 (A).
467
See Mbayiwa v Chitakunye and Anor S--20-09; Zimbabwe Express Services (Pty) Ltd v Nuanetsi Ranch
(Pty) Ltd S-21-09.
468
See Reid v Spring Motor Metal Works 1943 (TPD) 154; Singh v McCarthy Motors 2000 (4) SA 795
(SCA).
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Performance must remain possible even after delay of performance. If performance is
no longer possible, depending with the cause of impossibility, breach of contract will
be in the form of either prevention of performance (if one of the parties was at fault)
or supervening impossibility (if the impossibility arose from vis major or casus
fortuitus).
c) The debt must be due and enforceable
Before performance is deemed to have been delayed or late, it must first be due. Put
differently, the time for performance should have arrived.
ii) Mora creditoris
This occurs where the creditor fails to co-operate with a debtor in a way that makes
it impossible for the debtor to perform his or her contractual obligations. The creditor
may fail to co-operate by refusing to accept valid performance on the due date or
failing to supply the debtor with information that will enable him or her to perform.
Requirements for mora creditoris
The following are essential elements that should be satisfied to establish mora
creditoris:
a) The debt must be due
The creditor has no obligation to accept performance before the debt becomes due.
However, the creditor may be obliged to provide the debtor with information that
enables the debtor to perform on time.469
b) The debtor must tender (or offer) proper performance
Rejection of improper or defective performance does not amount to mora creditoris.
c) The creditor has failed to accept performance or to co-operate with the
debtor
The creditor should cause the debtor to delay performance by refusing to accept
performance, not being available to receive performance, or failing to co-operate
with the debtor.
d) The creditor must be at fault
The delay in performance must be due to the creditor’s fault. However, the creditor
will be relieved of liability if his or her failure to accept performance was due to a vis
major, casus fortuitus, or the actions of a third party.
e) Performance must remain possible
If performance has become impossible because of the creditor’s actions, the form of
breach will be prevention of performance instead of mora creditoris.
469
See Martin Harris & Seuns OVS (Edms) Bpk v Qwa Qwa Regeringsdiens 2000 (3) SA 339 (SCA).
@ Innocent Maja 120

5.2.3 Legal consequences of mora creditoris
There are a number of consequences of mora creditoris. The following are some of
them: 470
a) Mora creditoris purges mora debitoris. The debtor is purged from
his or her mora from the moment the creditor falls into mora
creditoris.
b) The creditor bears the risk of damage, destruction, or supervening
impossibility. The debtor will only be responsible for his
intentional deliberate actions or his gross negligence.
c) Sureties for the debt are released.
d) Interest on the debt falls away the moment the creditor falls into
mora.
e) The debtor can cancel the agreement if there is a cancellation
clause, notice of rescission or if time is of essence.
f) The debtor may obtain an order for specific performance to
compel the creditor to accept performance.471
g) The debtor may claim for contractual damages if such damages
were suffered.
5.3 Breach of contract according to the impact on the essential terms of the
contract
5.3.1 Breach going to the root of the contract

This refers breach of an essential term of the contract entitling the innocent party to
cancellation and discharge. In Transport and Crane Hire (Pvt) Ltd v Hubert Davies &
Co,472 the court held that breach of an essential term of a contract is so serious that it
leads to the cancellation of a contract.
5.3.2 Breach that does not go to the root of the contract

This refers to breach of a non-essential term of a contract. Breach of contract does
not usually lead to cancellation of a contract.473 A party can however cancel a
contract if:
a) There is a forfeiture or cancellation clause to that effect. A forfeiture
clause gives one party the right to cancel the contract if the other party
470
See D Bhana et al (n27 above) 225-226.
471
See Ranch International Pipelines v LMG Construction 1984 (3) SA 861 (W).
472
1991 (1) ZLR 190 (S).
473
See Associated Manganese Mines of SA Ltd v Claassens 1954 (3) SA 768(A).
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commits a breach specified in the clause, even if the breach is of a minor
nature.
b) There is material breach of a vital term of a contract, essential term or
a term going to the root of the contract.
c) There is anticipatory breach or repudiation. Repudiation occurs when a
party to a contract acts in such a way as to lead a reasonable person in the
position of the other party to conclude that he no longer intends to perform his
part of the contract.
5.4 Defences available to an innocent party whenever there is breach

It is important to note that whenever there is breach of contract and there are
reciprocal obligations (where contractual parties have rights and obligations), an
innocent party may withhold his or her own performance in order to force the
defaulting party to perform. This is the principle of reciprocity or exceptio non-
adimpleti contractus.
Requirements for the use of exceptio non-adimpleti contractus as a defence

i) One of the parties (plaintiff) should claim performance from the other (
defendant);
ii) The defendant’s performance should be reciprocal to the plaintiff’s
performance;
iii) The plaintiff’s performance should have been due before or at the same
time as the defendant’s performance;
iv) The plaintiff should not have performed and should not have tendered
(offered) his or her own performance. Alternatively, the plaintiff should have
performed but his or her performance should not be complete or proper.474
Beitbridge-Bulawayo Railway (Pvt) Ltd v Commercial Union Insurance Company of
Zimbabwe Ltd475 acknowledged that the principle of reciprocity is part of
Zimbabwean law and further held that:
The principle of reciprocity recognizes the fact that in many contracts the common
intention of the parties, expressed or unexpressed, is that there should be an
exchange of performances, and the exception gives effect to the recognition of this
fact by serving as a defence for the defendant who is sued on the contract by a
plaintiff who has not yet performed or tendered to perform.
474
See Sackstein NO v Proudfoot SA (Pty) Ltd 2006 (6) SA 358 (SCA); Wynn’s Car Care Products v First
National Industrial Bank 1991 (2) SA 754 (A).
475
2008 (1) ZLR 207 (S) 214 D-E.
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SECTION 6
REMEDIES FOR BREACH OF CONTRACT
6.1 Issues to be established
Whenever there is an alleged breach of contract, five things have to be should
established. First, which party breached the contract? Second, in respect of which
obligation did the party breach? Third, which obligations are reciprocal to the
obligation that was breached? Fourth, which form of breach did the party commit?
Fifth, what is the appropriate remedy in the circumstances?
6.2 The cause of action

Breach of contract constitutes a single cause of action. The aggrieved or innocent
party should therefore claim in one action all the remedies that (s)he is entitled to.476
This is referred to as the once and for all rule. He must claim all the damages he is
entitled to at the same time because he cannot split his claim into one for a portion
of his claim and for the rest for institution later, irrespective of the difficulties he
may experience in calculating his full claim. He must therefore claim future loss
together with past loss. The rule aims to prevent a multiplicity of actions based on a
single cause of action and to ensure that there would be a definite end to litigation.
6.3 Purpose of remedies for breach of contract

Remedies for breach of contract aim at either fulfillment of the contract or
termination of the contractual relationship. Whenever breach occurs, the innocent
party has a right to choose and elect to either uphold the contract or cancel it and
claim appropriate remedies commensurate with his or her election. This election can
be express or inferred from conduct.477
6.4 Classification of remedies for breach of contract
6.4.1 Remedies available when an innocent party chooses to abide by the

contract
Three remedies exist:
i) Specific performance
ii) Interdict
iii) Declaration of Rights
6.4.1.1 Specific performance
476
See Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A); Signature Design Workshop v
Eskom Pension & Provident Fund 2002 (2) SA 488 (C).
477
Guardian Security Services (Pvt) Ltd v ZBC 2002 (1) 1 (S).
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The first remedy is specific performance and the aim is to uphold the contract and
obtain the performance as promised. Specific performance is the primary (default)
remedy for breach of contract and usually is claimable. By claiming specific
performance, the innocent party is asking the court to order the defaulting party to
do exactly what (s)he contracted to do or put differently, to fulfill his or her
contractual obligations. For instance, in Intercontinental (Pvt) Ltd v Nestle
Zimbabwe,478 Nestle had undertaken to deliver certain quantities of milk and failed to
deliver the milk. Intercontinental then went to the court for an application for
specific performance. In Brennan’s Diesel Svcs (Pvt) Ltd v Tenda Bus Svcs (Pvt) Ltd479
establishes that an order for the payment of a sum of money in terms of a contract is
in fact an order for the enforcement of the contract.
The general rule under Roman Dutch law is that an innocent party has a right ─ in
every case of breach of contract ─ to a remedy of specific performance unless there
are exceptional circumstances which justify refusal of an order for specific
performance. According to Farmers Co-operative Society (Reg) v Berry:480  
Prima facie, every party to a binding agreement who is ready to carry out his own
obligation under it has a right to demand from the other party, so far as it is possible,
a performance of his undertaking in terms of the contract. As remarked by Kotzé CJ in
Thompson v Pullinger ‘the right of a plaintiff to the specific performance of a
contract where the defendant is in a position to do so is beyond all doubt’.
According to Savanhu v Marere NO and Ors: 481

The right to claim specific performance of a contract by the other party  is premised
on the principle that the appellant must first show that he has performed all his
obligations under the contract or that he is ready, able, and willing to perform his own
side of the bargain.
It therefore follows that the court will not decree specific performance where the
petitioner has broken the contract or made a material default in the performance
It is important to note that the court has discretion whether or not to grant specific
performance.482 Mufakose Housing Co-operative Society v Magozore483 establishes that
the court’s discretion includes compelling the performance of a personal obligation
under a contract. In Minister of Public Construction & National Housing v Zescon (Pvt)
478
1993(1) ZLR 21.
479
S-13-14.
480
1912 AD 343 350. See Smith and Ors v ZESA 2003 (1) ZLR 158 (H).
481
2009 (1) ZLR 320 (S).
482
See Farmers’ Cooperative Society (Reg) v Berry 1912 AD 343.
483
2007 (1) ZLR 175 (H). See Santos Professional Football Club (Pvt) Ltd v Igesund & Anor 2003 (5) SA
73 (C). However, in the Magozore case, the court could not exercise the discretion to compel
performance of a personal obligation under a contract because doing so would infringe on freedom of
association by compel a citizen to associate with another against his will even if he is so bound in
contract.
@ Innocent Maja 124

Ltd,484 the court held that the court’s discretion should not be exercised arbitrarily or
capriciously.
In Farmers’ Co-operative Society (Reg) v Berry,485 the Court held that a party in
breach of contract does not have the option of purging his default by paying damages,
but the injured party may elect to demand specific performance, subject to the
discretion of the court.
6.4.1.2 Circumstances under which specific performance cannot be ordered:

i) Where it is impossible to perform;486
ii) Where the order causes undue hardship;487
iii) In a contract for personal services.
In Winterton Holmes and Hills v Paterson,488 the Supreme Court accepted that it
would not order reinstatement (specific performance) where there has been a bitter
relationship between the employer and employee.489
iv) Where it would be difficult to supervise the Defendant to ensure that he
performed properly.490
In Ncube v Mpofu and Ors,491  the Court reiterated the following principles from
Haynes v King William’s Town Municipality:492
The discretion which the court enjoys, although it must be exercised judicially, is not
confined to specific types of cases nor is it circumscribed by rigid rules. Each case
must be judged in the light of its own circumstances. As examples of the grounds on
which the courts have exercised their discretion in refusing to order specific
performance although performance was not impossible may be mentioned:
(a) where damages would adequately compensate the plaintiff;
(b) where it would be difficult for the court to enforce its decree;
(c) where the thing claimed can be readily bought elsewhere;
(d) where specific performance entails a rendering of services of a personal
484
1989 (2) ZLR 311 (S).
485
1912 AD 343 at 350.
486
See Zimbabwe Express Services (Pvt) Ltd v Nuanetsi Ranch (Pvt) Ltd 2009 (1) ZLR 326 (S).
487
See Haynes v King Williams Town Municipality 1951 (2) SA 371 (A).
488
S-115-95.
489
See also Zvoma v Amalgamated Motor Corporation (Pvt) Ltd 1988 (1) ZLR 60; Ventab (Pvt) Ltd v
Gondo 1988 (2) ZLR 197 (H)
490
See International Trading (Private) Limited v Nestle Zimbabwe (Private) Limited 1993 (1) ZLR 21;
Zimbabwe Express Services (Pty) Ltd v Nuanetsi Ranch (Pty) Ltd S-21-09; Savanhu v Marere N.O and Ors
S-22-09; Mufakose Housing Cooperative Society v Magozore HH-17-2007.
491
2006 (2) ZLR 41 (H).
492
1951 (1) SA 371 (A) 378.
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nature. To these may be added examples given by Wessels Contract Vol
2 s 3119. All good and sufficient grounds for refusing the decree.
(e) Where it would operate unreasonably hardly on the defendant or where

the agreement giving rise to the scheme is not reasonable or where the
decree would produce hardship in those circumstances or would be
inequitable under all the circumstances.493
6.4.1.3 Interdict
An interdict is a court order either restraining a person from doing a particular act or
compelling a person to do a specific act. Interdicts usually come in three forms,
namely:
i) Prohibitory Interdict
This is an order restraining a person from doing a particular act.494
ii) Mandatory Interdict
This is an order compelling a person to do a positive act in order to remedy a wrong.
iii) Restitutionary Interdict
This is an order compelling a person who has disposed another of his property to
restore possession. It normally comes in the form of a spoliation order and all that a
party alleging spoliation needs to prove is that he was in peaceful possession and
dispossessed unlawfully.495
Interdicts may be either interim or final. For an interim interdict to be granted,

Phillips Electrical (Pvt) Ltd v Gwanzura496 held that the innocent party has to
establish:
a) a prima facie right;
b) a well-grounded apprehension of irreparable harm if the interim
relief is not granted and the ultimate relief is granted;
c) that the balance of convenience favours the granting of on
interim interdict; and
d) that the applicant has no other satisfactory remedy.
493
See also Wheeldon v Moldenhauer 1910 EDL 97; Swartz & Son (Pty) Ltd v Wolmaransstad Town
Council 1960 (2) SA 1 (T); Mohr v Kriek 1953 SR 65; 1953 (3) SA 600 (SR); R v Milne and Erleigh (7) 1951
(1) SA 791 (A); Bardopoulos & Anor v Miltiadous 1947 (4) SA 860 (W) and Crispette and Candy Co Ltd v
Michaelis NO & Anor 1947 (4) SA 521 (A).
494
See Bulawayo Dialogue Institute v Matyatya NO & Ors 2003 (2) ZLR 79 (H) and Kazizi v Kazizi 2006
(1) ZLR 501 (H).
495
See Blue Ranges Ests (Pvt) Ltd v Muduviri & Anor 2009 (1) ZLR 368 (S); Shiriyekutanga Bus Svcs (Pvt)
Ltd v Total Zimbabwe (Pvt) Ltd 2008 (2) ZLR 37 (H); Dodhill (Pvt) Ltd & Anor v Min of Lands & Anor
2009 (1) ZLR 182 (H) and Gifford v Muzire & Ors 2007 (2) ZLR 131 (H).
496
1998 (2) ZLR 117 (H) 122. See also Setlogelo v Setlogelo 1914 AD 221; Flamelily v Zimbabwe Salvage
(Pvt) Ltd and Anor 1980 ZLR 378; Gideon v Ngumo 1973 RLR 197; Ericsson (Pvt) Ltd v Protea Motors Ltd
and Anor 1973(3) SA 655 and Mudzengi & Ors v Hungwe & Anor 2001 (2) ZLR 179 (H).
@ Innocent Maja 126

It is also important to note that the possibility of the Applicant to claim for damages
cannot be a satisfactory remedy for purposes of granting the interdict. This position is
articulated in Heilbron v Blignaut,497 where the Court held that:
If an injury which could give rise to a claim in law is apprehended then I think it is
clear law that the person against whom the injury is about to be committed is not
compelled to wait for the damage and sue afterwards for compensation, but can move
the court to prevent any damage being done to him.
For a final interdict, elements (b), (c), and (d) above are similar. The only difference
is that the party requesting relief should establish a clear right instead of a prima
facie right.
6.4.1.4 Declaration of rights

Section 14 of the High Court Act [Chapter 7:06] empowers the High Court to issue a
declaratory order even if no consequential relief can be claimed. Declaratory orders
can be issued (at the discretion of the court) to resolve disputes on the existence,
validity and interpretation of a contract and the rights of a party to a contract.498
6.5 Remedies available when an innocent party chooses to cancel the contract
6.5.1 Cancellation
The cancellation remedy aims at ending the contract. Cancellation is an extraordinary
remedy and can be claimed only in special circumstances. The effect of cancellation
is twofold. First, cancellation extinguishes all existing and future unfulfilled
obligations under the contract.499 Second, cancellation creates an obligation to
restore any performance that was made.500
6.5.1.2 Requirements for cancellation

There are three requirements for cancellation, namely:
i) The right to cancel
The mere fact that a party has breached a contract does not justify cancellation of a
contract. Cancellation is allowed where the other party is in mora (as discussed
previously); has repudiated the contract; has committed a breach going to the root of
the contract; or where there is a forfeiture clause.501
ii) The ability to restore performance received
As cancellation involves undoing the consequences of a contract, it creates an
obligation to restore any performance that was received. The party seeking
cancellation should be able to return any performance that (s)he received in terms of
497
1932 WLD 167 169.
498
See Turner & Co (Pvt) Ltd v Arcturus Road Council 1957 R & N 775 777-778; 1958 (1) SA 409 (SR)
410.
499
See Zimbabwe Express Services (Pty) Ltd v Nuanetsi Ranch (Pty) Ltd S--21-09.
500
See Nash v Golden Dumps 1985 (3) SA 1.
501
See Mud Man Enterprises (Pvt) Ltd v Nechironga & Ors 2003 (2) 131 (H).
@ Innocent Maja 127

the contract together with any fruits or proceeds of the performance. The innocent
party should therefore restore performance or restore the monetary equivalence of
the original performance in order for it to cancel the contract. However, an innocent
party that is unable to restore performance may be allowed to cancel the contract if
his inability is not due to his fault and he is not enriched by the performance made.502
It is important to note that even the defaulting party has an obligation to restore
performance. If (s)he cannot restore, the innocent party has a right to claim for any
loss incurred in the form of damages.
iii) The exercise of the right to cancel
The right to cancel is exercised by way of a notice of cancellation. The notice of
cancellation must express the intention to cancel the contract and be communicated
to the guilty party. It is a unilateral juristic act that does not require agreement by
the defaulting party. Cancellation does not require confirmation by a court.503 The
innocent party will lose the right to cancel the contract if he elects to uphold the
contract or delays cancellation in a way that makes the other party believe that the
innocent party has elected to uphold the contract.504
It is imperative to note that the notice of cancellation that purports to cancel a

contract at a future date is not a proper cancellation at law. Cancellation should be
an unqualified, immediate, and final decision to treat the contract as at an end. In
the South African case of Ganief v Hoosen,505 this position is stated clearly as follows:
[A] notice of cancellation to be effective must clearly and unambiguously convey to
the guilty party the innocent party’s election to bring the contract to an end. It must
embody an unqualified, immediate and final decision to treat the agreement as at an
end. It cannot stipulate for a termination at some future time… Such a notice, it is
urged, which purports to terminate an agreement as from a future date and which by
necessary implication therefore keeps the agreement alive in the interim, cannot in
law amount to an effective notice of termination… In my view, the right to resile from
a contract is one that must be exercised ex nunc..506
This position was upheld in the Zimbabwean Supreme Court decisions of Jackson v
Unity Insurance Co Ltd;507 Waste Management Services (Pvt) Ltd v City of Harare;508
and Econet Wireless (Pvt) Ltd v Trustco Mobile (Proprietary) Limited and Anor.509 It is
therefore clear from these three decisions that cancelation of a contract cannot
stipulate termination of an agreement as from a future date but must be exercised ex
nunc.
502
See Feinstein v Niggli 1981 (2) SA 684 (A).
503
See Datacolor International v Intermarket 2001 (2) SA 284 (SCA).
504
See Mahabeer v Sharma 1985 (3) SA 729 (A).
505
1977 (4) SA 458 (C).
506
Support for the views here expressed (is) to be found in the case of Alpha Properties (Pty) Ltd v
Export Import Union (Pty) Ltd 1946 WLD 486.
507
1999 (1) ZLR 381 (S).
508
S-126-02.
509
S-43-13. Also Trustco Mobile (Pty) Ltd & Anor v Econet Wireless (Pvt) Ltd & Anor HH-158-11
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6.5.2 Remedies available when a party chooses to either abide by or cancel the
contract
6.5.2.1 Damages
Damages are claimed only for financial loss. The locus classic is Victoria Falls and TV1
Power Company Limited v Consolidated Langlaagte Mines Limited,510 where the court
held that:
The sufferer by such breach should be placed in the position he would have occupied
had the contract been performed, so far as that can be done by the payment of
money, and without undue hardship to the defaulting party.
Rowland Electro Engineering (Pvt) Ltd v Zimbank511 emphasized this point as follows:
The rationale for awarding damages to an aggrieved party based on a breach of
contract is to place that party in the position he would have occupied had a breach
not occurred by the payment of money and without causing undue hardship to the
defaulting party. A comparison is made between the patrimonial position that the
plaintiff would have occupied had the breach not occurred and the position that exists
as a result of the breach. The plaintiff would therefore be entitled to the difference
where the former exceeds the latter.
According to Mudukuti v F C M Motors (Pvt) Ltd,512 ‘(t)he general rule is that damages
for breach of contract are to be assessed at the time of the breach of contract, the
time of performance or the time of cancellation.’ However, there are instances (as in
a hyperinflationary environment) where it is necessary to assess the quantum of
damages as at the time of trial in order to achieve justice between the parties.
6.5.2.2 Requirements for a claim for damages

The party claiming damages must prove the following:
i) Breach of contract by the other party
The innocent party must prove that the defaulting party breached the contract in one
or more of the ways discussed in section 5.
ii) Patrimonial loss
Breach of contract must cause financial loss (present and future). In Administrator,
Natal v Edouard,513 the court held that a party to a contract cannot claim for non-
patrimonial loss (such as pain and suffering; mental anguish, sentimental loss,
physical inconvenience, etc) in the law of contract. Patrimonial loss can be loss in
relation to performances, consequential loss, lost profits, or wasted expenses.
iii) A causal connection between the breach and the loss (factual causation)
510
1915 AD 1 22. See also Jiawu Mfrs v Mitchell Cotts Freight Zimbabwe (Pvt) Ltd 2003 (2) ZLR 369 (H).
511
2007 (1) ZLR 1 (H) 13F.
512
2007 (1) ZLR 183 (H). See also Munhuwa v Mhukahuru Bus Services (Pvt) Ltd 1994 (2) ZLR 382 (H)
388.
513
1990 (3) SA 581 (A).
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Here, the conditio sine qua non test (‘but for’ test) is used to ask whether the loss
claimed would have occurred but for the breach of contract. The wrongdoer’s
conduct should have factually caused the harm suffered by the innocent party. The
duty to pay contractual damages therefore arises from factual causation. Suffice to
mention is the fact that the defaulting party cannot raise contributory negligence to
quash or reduce the innocent party’s claim.514
iv) The loss is not too remote
The alleged loss must be reasonably foreseeable at the time of contracting. This test
has led to the distinction between general and special damages.
a) General or consequential damages
These damages flow directly from breach. They flow naturally as a direct
consequence of breach. The innocent party can always claim general damages.515
b) Special or Prospective damages
These are remote from breach but are claimable successfully if the loss was
foreseeable. In a claim for special damages, it must be alleged in the pleadings and
established by evidence that the loss being claimed was within the contemplation of
the parties.516 Courts have often used two tests to assess whether special damages
can be claimed:
i) The Contemplation principle
The question that the court usually asks is whether the loss was reasonably
foreseeable. If it was, then special damages are granted but if not, the special
damages will be denied. Beck J underscores this principle in BAT Rhodesia Ltd v
Fawcett Security Organisation (Salisbury) (Pvt) Ltd,517 when he holds as follows:
It seems to me ... that it is the type, kind, or order of harm that must have been in
the contemplation of the parties ... and not the exact concatenation of circumstances
which might, in an individual case, immediately bring into being the harm of the type,
kind or order that was contemplated.
ii) The Convention principle

It provides that, in addition to loss being reasonably foreseeable, parties should have
agreed that the guilty party will compensate the innocent party in the event of such
loss occurring.
In practice however, courts have done away with the convention principle. This
means that the binding principle for computing special damages is the contemplation
514
See Thoroughbred Breeders’ Association v Price Waterhouse 2001 (4) SA 551 (SCA) and International
Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) 700.
515
See Holmedene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670.
516
See Collective Self Finance Scheme v Asharia 2000 (1) ZLR 472 (S).
517
1972 (2) RLR 22 (G).
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principle.518 This position was summarized in the following dicta in Rowland Electro
Engineering (Pvt) Ltd v Zimbank:519
General damages are the loss which a plaintiff suffers as a direct result of the breach
of the contract, or is the intrinsic loss suffered by the plaintiff and is due to the
diminution of the value of the subject matter of the contract or the impairment of its
use. On the other hand, special or extrinsic damages constitute loss flowing indirectly
from the breach of the contract and extend to all the property. However, in order to
hold a debtor liable for special damage, a plaintiff needs to show that the damage was
within the contemplation of the parties when the contract was concluded.
Power Coach Express (Pvt) Ltd v Martin Millers (Pvt) Ltd520 establishes that as a
general rule of pleading, special damages have to be stated with particularity in a
pleading, but general damages may be claimed without particulars being given. The
Court further held that where a plaintiff claims specific performance and in the
alternative damages, the time for assessing the value is the date of trial. However,
where the purchaser elects instead to claim damages in place of actual performance,
his reimbursement depends upon the value of the thing he ought to have received,
calculated at the date when he ought to have received it, or when the seller declines
definitely to deliver it.
6.6 Duty to mitigate loss

It is interesting to note that, when the party claiming damages discharges of its onus,
the onus shifts to the defaulting party to prove that there was a duty on the innocent
party to mitigate his losses, which he failed to do. This principle provides that the
innocent party has a duty to take reasonable steps to keep losses to a minimum or to
reduce losses. This duty generally applies from the date of breach. The innocent party
is only required to take those steps that a reasonable person in his or her position
would have taken.521
The defaulting party is not obliged to compensate the innocent party for loss that
could have been avoided easily. However, if the innocent party mitigates loss, the
guilty party is obliged to reimburse him for the amount expended in minimizing
loss.522
6.7 Apportionment of damages

A plaintiff who sues for damages is required to prove his damages by placing before
the Court evidence that is reasonably available to him. The general rule is that if he
can prove none he is not entitled to any damages. Wynina (Pvt) Ltd v MBCA Bank
Ltd523 establishes that, as an exception, Zimbabwean courts can award nominal
518
See Shatz Investments (Pty) Ltd V Kalovyrnas 1976(2) SA 545 (A).
519
2007 (1) ZLR 1 (H) 13 A-B.
520
HH-232-11.
521
See Mutangadura v TS Timber Building Supplies 2009 (2) ZLR 424 (H).
522
See Reid v Hepker & Sons (Private) Limited 1971 (1) RLR 284 OR 1971 (2) SA 138; Transport & Crane
Hire (Pvt) Ltd v Hubert Davies & Co (Pvt) Ltd 1991 (1) ZLR 190 (S).
523
S-27-14.
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damages where a party proves breach but is unable to establish the exact quantum of
damages. In the Court’s words:
It is an accepted principle of our law that some types of damage are difficult to
estimate and the fact that they cannot be assessed with certainty or precision will not
relieve the wrongdoer of the necessity of paying damages for his breach of duty. The
principle is not a novel one and decided authorities have gone so far as to state that a
court doing the best it can with insufficient material may have to form conclusions on
matters on which there is no evidence and to make allowance for contingencies even
to the extent of making a pure guess…524It is also accepted, in principle that, a court
will come to a plaintiff’s aid in case of uncertainty and make an estimate in his favour
provided that he has led the best evidence available to him…525 Facts may also be
proved not only by direct evidence but by inference and a man’s intentions may be
proved through the observations of others.
Similar sentiments were expressed in Solomon v The Alfred Lodge526 where the Court
established the following:
But there are many cases where it may be evident that a person has sustained loss
through another’s breach of contract, and where it is impossible to prove specific
damage. In such cases it would be unjust to say that it is left to the caprice of the
party, who has undertaken to do or not to do something, to fulfill or break his contract
as he pleases, and leave the other party entirely without remedy. Where, therefore,
from the evidence or the nature of the case, it is plain that some damage, though its
amount cannot be definitely ascertained and proved, has been sustained through the
breach of contract, the plaintiff will be awarded a small or trifling sum-exiguam
summam-as Voet 45, 1, 12 terms it, or, as we would call it, nominal damages. Now,
the present case appears to me to fall within this rule.
The Damages (Apportionment and Assessment) Act [Chapter 8:06] governs the aspect
of apportionment of damages. It abolishes the common law defence of contributory
negligence in cases where loss results partly from the fault of the defaulting party and
partly from the innocent party.
Contractual Penalties Act [Chapter 8:04]

Section 4(1) of the Act provides that the courts generally enforce penalty stipulations.
However, section 4(2) of the Act empowers the court not to enforce or to assess the
extent of enforcement of a penalty stipulation that is ‘…out of proportion to any
prejudice suffered by the creditor as a result of the act, omission or withdrawal
giving rise to liability under a penalty stipulation.’
524
See also Esso Standard SA (Pty) Ltd v Katz 1981 (1) SA 964.
525
See Enslin v Meyer 1960 (4) SA 520.
526
1917 CPD 177 188.
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SECTION 7
DISCHARGE OR TERMINATION OF CONTRACT
7.1 Termination or discharge by the parties
A contract can be terminated in two major ways, namely:
i) By the parties
ii) By law
Parties to a contract can decide to vary their contract or end it in any of the following
ways:
7.1.1 Performance
If both parties perform their obligations, a contract ends. A party is deemed to have
performed when he does all that he was obliged to do under the contract.527 Wessels
states ‘a contract is said to be performed by a party when he has done all that he
was obliged to do under obligation.’ 528
Performance can be effected in a number of ways some of which include:

i) Proper and full performance
For performance to extinguish a contractual obligation, it must be full and proper
performance and must be made with the intention of extinguishing the contractual
obligation. It follows therefore that a party to a contract can reject incomplete or
defective performance. Performance should be done in the time stipulated in the
agreement or if there is no time stipulation, within a reasonable time.529
ii) Monetary debts
Performance of monetary debts must be in cash, transfer, or legal tender. Payment
by cheque is a conditional fulfillment of the contractual obligation and the condition
is fulfilled when the cheque is honoured.530 A creditor is entitled to refuse a tender of
payment by cheque and demand cash unless the contract expressly or impliedly
authorizes payment by cheque or the creditor has waived his right to refuse payment
by cash.
iii) Payment in full and final settlement
Whenever a debtor offers to perform less than the agreed upon performance ‘in full
and final settlement’, this is usually regarded as an offer to compromise. Once the
527
See Ncube v Mpofu & Ors 2006 (2) ZLR 41 (H) & Mbayiwa v Chitakunye & Anor 2009 (1) ZLR 314 (S).
528
JW Wessels & AA Roberts The Law of Contract in South Africa (1951) para 2118.
529
See Chinyerere v Fraser 1994 (2) ZLR 234.
530
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other party accepts, (s)he will be precluded from claiming the rest of the
performance.531
7.1.2 Agreement
Both parties can agree to terminate the contract and the court will effect this. If
performance has not been done, the agreement suffices to terminate the contract.
However, if there was part performance, each party should restore what was
delivered unless there is agreement to the contrary.532
7.1.3 Notice
The notice should be reasonable i.e., it ‘must allow the person to whom such notice is
given sufficient time in which reasonably to regulate his own affairs.’533
7.1.4 Waiver
This refers to the abandonment, renunciation, or surrender of a contractual right,
release from a contractual duty or acquiescence in a breach of contract. According to
Halwick Investments v Nyamwanza,534
… [w]aiver occurs when one of the parties, by his words, actions or inaction, has
evinced an intention not to enforce one or more or all of his rights under the contract.
There is a presumption against waiver and that it must be clearly proved that the
person who is alleged to have waived his rights knew what those rights were.
For waiver to be effective, the party released from a contractual duty should accept
the release. In Union Free State Mining and Finance Corporation Ltd v Union Free
State Gold and Diamond Corporation Ltd,535 the court held that:
Strictly speaking, applying the ordinary principles of contract… the intimation of the
waiver, abandonment or release by the creditor is really an offer to waive, abandon or
release and a creditor cannot in fact be said to have waived, abandoned or released
until that offer has been accepted tacitly or expressly.
7.1.4.1 Requirements of a Waiver

i) Waiver may be express or implied536; 537
531
See Be Bop A Lula Manufacturing & Printing v Kingtex Marketing (Pty) Ltd 2006 (6) SA 379 (C).
532
Geldenhuys v Maree 1962 (2) SA 511.
533
Putco Ltd v TV & Radio Guarantee Co (Pty) Ltd 1985 (4) SA 809.
534
2009 (2) ZLR 400 (S). Page 407B-C of the same judgment states that ‘When one of the parties, by his
words, actions or inaction, has evinced an intention not to enforce one or more or all of his rights
under the contract we select whichever word seems most appropriate from a list which includes
abandonment, acquiescence, release, renunciation, surrender and waiver. Of these words by far the
most commonly used is waiver, which is regarded in many of the cases as interchangeable with any of
the other words...’
535
1960 (4) SA 547 (W) 549H.
536
See Supline Investments (Pvt) Ltd v Forestry Co of Zimbabwe 2007 (2) ZLR 280 (H).
537
Laws v Rutherfurd 1924 AD 261. See also Chidziva & Ors v ZISCO 1997 (2) ZLR 368(S).
@ Innocent Maja 134

ii) The conduct of a waiver must leave no reasonable doubt as to the
intention of surrendering the right in issue
Put differently, the party alleging waiver must show that the other party, with
full knowledge of his or her right, decided to abandon it, whether expressly or
by conduct plainly inconsistent with an intention to enforce it.
iii) There must be proof of an intention to surrender a right
This can exist only where there is both knowledge of the facts and the legal
consequence of them.538
Lallemand v Lallemand;539 Agribank v Machingaifa and Anor;540 and Unilever plc &
Anor v Vimco (Pvt) Ltd & Anor541 established that delay in enforcing a right does not
per se amount to waiver.542
In Alfred McAlpine & Sons (Pty) Ltd v Transvaal Administration, the court
established that:543
… [t]he defendant must prove knowledge by the plaintiff of its right under the said
clause and a deliberate abandonment of such rights, whether expressly or by conduct
plainly inconsistent with an intention to enforce it.
iv) Waiver should be specially pleaded

v) General presumption against waiver puts onus of proof upon a party
asserting it
7.1.5 Novation
This occurs when the parties to an original contract agree that the original obligations
are extinguished and new obligations created in their stead. It normally results in the
contracting parties replacing an old contract with a new one. The old contract falls
away and the parties’ rights and duties are governed entirely by the new contract.
There must be an intention to novate that comprises the intention to extinguish the
old obligations and the intention to create new contractual obligations.544
There are two types of novation, namely:

i) Novatio voluntaria (voluntary novation)
538
See Barclays Bank of Zimbabwe Ltd v Binga Products (Pvt) Ltd 1984 (2) ZLR 76 (S); Sterling Products
(International) Ltd v Zulu 1988 (2) ZLR 293 (S).
539
2003 (2) ZLR 178 (H).
540
2008 (1) ZLR 244 (S).
541
2004 (2) ZLR 253 (H).
542
Contrast these decisions with Agro Chem Dealers (Pvt) Ltd v Gomo & Ors 2009 (1) ZLR 255 (H).
543
1977 (4) SA 310 (T)
544
See Leader Tread Zimbabwe (Pvt) Ltd v Smith 2003 (2) ZLR 139 (H).
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Where two parties to a contract mutually agree to enter into a new contract to
replace an existing contract.
ii) Novatio necessaria (compulsory novation)
This occurs where an existing contract is superseded by a judgment of a court of law.
This is sometimes called novatio necessaria.545
7.1.6 Compromise or settlement agreement

A compromise agreement is an agreement between the parties to regulate the legal
positions of parties where these are certain or where there is a dispute between
them. It usually replaces the contract of the parties and settles disputes arising from
that contract. According to Georgias & Anor v Standard Chartered Bank Zimbabwe
Ltd:546
Compromise, or transactio, is the settlement by agreement of disputed obligations, or
of a lawsuit the issue of which is uncertain. The parties agree to regulate their
intention in a particular way, each receding from his previous position and conceding
something either diminishing his claim or increasing his liability… The purpose of
compromise is to end doubt and to avoid the inconvenience and risk inherent in
resorting to the methods of resolving disputes. Its effect is the same as res judicata on
a judgment given by consent. It extinguishes ipso jure any cause of action that
previously may have existed between the parties, unless the right to rely thereon was
reserved. As it brings legal proceedings already instituted to an end, a party sued on a
compromise is not entitled to raise defences to the original cause of action.
Moyo & Anor v Intermarket Discount House Ltd547 established that a party sued on a
compromise is not entitled to raise defences to the original cause of action and that a
compromise may not be enforced if it was induced by fraud, duress, or mutual
error.548
7.1.7 Delegation
Delegation entails the transfer of obligations from one person to another. A clear
example is replacing a debtor with a new one. The creditor’s consent is required
here.549
7.1.8 Cession
This is a legal act or agreement, whereby a personal right transfers from a creditor to
another person, who then becomes the creditor. Put differently, cession entails the
transfer of rights from one person to another. According to Christie, cession
545
See the case of Van Copenhagen v Van Copenhagen 1947(1) SA 576; Barclays National Bank v Smith
1975(4) SA 675 and Suncliff (Pvt) Ltd v Dyke 1978(1) SA 1980.
546
1998 (2) ZLR 488 (S) 496D-H.
547
2008 (1) ZLR 268 (S).
548
See Majora v Kuwirirana Bus Service (Pvt) Ltd 1990 (1) ZLR 87 (S); Levy v Geoff’s Motors (Pvt) Ltd
1992 (1) ZLR 127 (S).
549
See Nicol, Nicol, Thrush and Thrush v Crowley 1960 R & N 313.
@ Innocent Maja 136

… [i]nvolves the substitution of a new creditor (the cessionary) for the original creditor
(the cedent), the debtor remaining the same. If the effect of the transaction is not to
divest the cedent of his right to sue the debtor, it is not a cession, but a cedent may
sue as agent for the cessionary.550
In Zimbank and Ors v Shiku Distributors (Pvt) Ltd and Ors,551 the Court established
that:
… (a) contract of cession is one in which a personal right against a debtor is
transferred to the cessionary. It does not transfer real rights to the cessionary. The
cessionary can enforce the claim or accept an amount in settlement or abandon the
claim against the debtor.
It is therefore clear from this definition that cession transfers a personal right only
and not a real right.
In Johnson v Incorporated General Insurances Ltd552 - a judgment in Afrikaans – the

head note reads as follows:
Cession, in our modern law, can be seen as an act of transfer to enable the transfer of
a right to claim (translatio juris) to take place. It is accomplished by means of an
agreement of transfer (...) between the cedent and the cessionary arising out of a
justa causa from which the intention of the cedent to transfer the right to claim to the
cessionary (animus transferendi) and the intention of the A cessionary to become the
holder of the right to claim (animus acquirendi) appears or can be inferred. The
agreement of transfer can coincide with or be preceded by, a justa causa which can
be an obligatory agreement (...) such as e.g. a contract of sale, a contract of
exchange, a contract of donation, an agreement of settlement or even a solutio
(payment).
The person who transfers or cedes his or her right(s) is the cedent and the person who
obtains the ceded right is the cessionary. Christie553 aptly summarizes the effect of
cession as follows:
The effect of a cession depends upon whether it is absolute or in securitatem debiti
(by way of security). The effect of an absolute cession will be examined first. It
divests the cedent of all the rights ceded, the extent and nature of these rights being
a matter of interpretation of the contract of cession and vests them in the cessionary,
so that thereafter only the cessionary and not the cedent is entitled to sue for the
enforcement of those rights...
7.1.8.1 Requirements of a valid cession

554
i) The cedent must have the capacity to cede the right
The cedent must be the holder of a personal right against the debtor. (S)he cannot
transfer a right that (s)he does not have. If (s)he attempts to transfer a right that
550
RH Christie Law of Contract in South Africa 3 ed. 515.
551
2000 (2) 11 (H).
552
1983 (1) SA 318 (A).
553
RH Christie Law of Contract in South Africa 3 ed. 521.
554
See Supline Investments (Pvt) Ltd v Forestry Co of Zimbabwe 2007 (2) ZLR 280 (H).
@ Innocent Maja 137

(s)he does not have, the cessionary can sue for damages for breach of the cession and
there can be no cession. If a debtor has a defense against the cedent, the same
defence can be raised against the cessionary
ii) Formalities
As a rule, the law does not require any formalities for a cession. However, formalities
may be required if parties agree to such formalities and if the law imposes
formalities. For instance, transfer of rights under a mortgage bond is done through
registration in the Deeds Office. Negotiable instruments are ceded by delivering them
to cessionary. Again, shares cede when the cedent hands over the share certificates
to the cessionary.
iii) The right must be capable of being ceded
It is important to note that any personal right that has a monetary value in the estate
of the creditor can be ceded, generally. However, this is not a hard and fast rule. The
following exceptions exist:
a) Public policy may demand that certain rights cannot be ceded
Examples of such rights include rights deriving from a maintenance order, delictual
claims for pain and suffering and injuria before litis contestatio.
b) Where the debtor’s performance is of such a nature that it makes
a difference to him or her as to who the creditor is (delectus
personae), the cedent’s rights cannot be ceded
c) When parties agree not to cede rights, the cedent’s rights cannot
be ceded
d) Rights that are not yet in existence cannot be ceded
This is because a cedent cannot cede a right that (s)he does not have. It is, however,
interesting to note that a cedent can cede a right that is subject to a suspensive or
resolutive condition.555
e) Legality
The cession should not contravene statute or public policy or both.556
f) The cession must not prejudice the debtor
Even though a cession does not require the consent of the debtor, the cession must
not make the debtor’s position burdensome. South African courts have regarded
cessions where a single right cedes to two or more creditors with the effect of
splitting the right and rendering the debtor liable to claims from a multiplicity of
creditors557 as burdensome or prejudicial to the debtor.558
555
Brummer v Gorlfil Brothers Investments (Pty) Ltd 1999 (3) SA 389 (SCA).
556
See Sasfin v Beukes 1989 (1) SA 1 (A) and Nedcor Bank Ltd v Hyperlec Electrical & Mechanical
Supplies CC 2000 (2) SA 880 (T).
557
See Van der Merwe v Nedcor Bank Bpk 2003 (1) SA 169 (SCA).
@ Innocent Maja 138

7.1.8.2 Consequences of cession
i) Rights are transferred from the cedent to the cessionary
The main consequence of a cession is that a right (and all its advantages and
accessory rights) transfers from the cedent to the cessionary.
Suffice to mention is the fact that the nemo plus iuris rule (the cessionary cannot get
rights that are stronger than the cedent had). The nemo plus iuris rule means that the
debtor can raise defences in rem (relating to the validity of the right and not relating
to the person of the cedent) against the cessionary. Defences in rem include the
defence that the original contract was void or voidable, or the right is extinguished by
prescription, agreement, set-off or release of the debtor or the right is not
enforceable because of exception non-adimpleti contractus.
It is important to note that double cession is proscribed. In the event of double

cession, courts usually use the principle of priority to resolve disputes. It states that
the first cession is the valid cession. Once the right cedes, the cedent no longer
retains anything to cede to the second cessionary. In such circumstances, the second
cessionary’s remedy will be to claim damages from the cedent.
ii) Cession in securitatem debiti
This is when the cession of a right is used as a form of security.). The legal effect of
such cessions is a matter of debate in South Africa. One school of thought holds that
the legal effect of this cession is that the cedent retains ownership or dominium of
the right that was ceded as security and the cessionary only gets a security of
interest.559 This is pledge construction.
Another school of thought holds that this cession is akin to an out-and-out cession
with an additional fiduciary agreement that the cessionary will cede back the right
once the principal debt has been satisfied. If the cessionary exercises the right
contrary to the security agreement, (s)he can be sued in terms of this fiduciary
pact.560
However, the South African Supreme Court appears to favour the pledge
construction.561
Zimbabwe is yet to decide the legal effect of a cession in securitatem debiti.
7.1.8.3 The effects of cession before and after litigation

This issue was aptly dealt with in Zimbank and Ors v Shiku Distributors (Pvt) Ltd and
Ors,562 where the court held that:
558
See also LTA Engineering Co Ltd v Seacat Investments (Pty) Ltd 1974 (1) SA 747 (A).
559
See National Bank v Cohen’s Trustee 1911 AD 235.
560
See Lief NO v Dettmann 1964 (2) SA 252 (A); Trust Bank of Africa Limited v Standard Bank of South
Africa Limited 1968 (3) SA 166 (A)
561
See Graf v Beuchel 2003 (4) SA 378 (SCA)
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… [w]here the cession takes place before legal action begins, the cedent divests
himself of the right to claim and cannot institute an action against the defendant and
he cannot even act as agent for the cessionary as an undisclosed principal.
The court further held that, where cession takes place after litigation has begun but
before or after litis contestatio is reached, the right to prosecute the action is not
transferred. What transfers is only the spes in relation to the benefits that flow from
the conclusion of the proceedings begun by the cedent against the debtor. The cedent
is not divested of his right to action until the court grants a substitution of the
cessionary as plaintiff. Until substitution takes place, the cessionary has no right of
action against the debtor and, as such, prescription does not operate, as it has no
rights that could prescribe. Prescription affects a cause of action and not the parties
or the right of action.
The law in respect of a cession, which is effected after litis contestatio, is settled. A
cedent who is a plaintiff in an action and who after litis contestatio cedes, assigns,
transfers and makes over to a third party all rights, title and interest in a claim, can
proceed with the action. This is so because after litis contestatio the plaintiff is not
permitted by mere agreement between himself and a third party to transfer his rights
to prosecute the action. A purported transfer after litis contestatio is ineffective
against the cessionary unless the cessionary is substituted, at the discretion of the
court, as plaintiff. The transfer is perfected only when the court gives its approval by
granting substitution.563
7.1.9 Assignment
Here, both rights and duties transfer. Sometimes, this is referred to as a combination
of cession and delegation. In assignment, the consent of all the three parties is
required.564
7.2 Termination or discharge by law

Sometimes the law can step in to vary, discharge, or terminate a contract in any of
the circumstances following.
7.2.1 Set-off
It usually occurs when both parties are mutually obligated to one another (both debts
being liquidated and fully due) and the obligations cancel one another.565 For
562
2000 (2) ZLR 11 (H).
563
See Merchant Bank of Central Africa Ltd v Liquidators, Tirzah (Pvt) Ltd & Ors 2000 (2) 163 (H);
Tirzah (Pvt) Ltd & Other Companies, Liquidators of v Merchant Bank of Central Africa Ltd & Ors 2003
(1) 294 (S); Zimbank & Ors v Shiku Distributors (Pvt) Ltd & Ors 2000 (2) ZLR 11 (H); Merchant Bank of
Central Africa Ltd v Liquidators, Tirzah (Pvt) Ltd & Ors 2000 (2) ZLR 163 (H); Mangwiza v Ziumbe NO &
Anor 2000 (2) ZLR 489 (S)
564
See General Finance Co (Pvt) Ltd v Robertson 1980 ZLR 166 (A) or 1980 (4) SA 122.
565
Schierhout v Union Government 1926 AD 286 289-90; Scheirant v Union Government 1926 AD 256;
Treasure General v Van Vuren 1905 TS 582; Baine v Barclays Bank 1937 SR 191; Bevcorp v Nyoni and Ors
1992(1) ZLR 352; Roman Catholic Church v Southern Life Assurance Ass 1992(2) SA 807; Central African
@ Innocent Maja 140

example, if A owes B $1 000 and B has repaired A’s radio to the tune of the same
amount, the debt can be set off. The debts are set-off either in full (if they are for
the same amount) or partly (if they are not of the same amount).566
7.2.1.1 Requirements for set-off

The following requirements should be satisfied in order for set-off to terminate a
contract:
i) Both debts must be due and enforceable.
ii) Both debts must be liquidated (capable of easy calculation).
iii) The debts must be of the same kind.
For instance, money debts can be set-off against each other.
iv) The debts must be owed between the same parties in the same
capacities.
7.2.2 Merger
This refers to instances when a party to a contract steps into the shoes of the other
party. Van der Merwe567 defines merger as
… the concurrence of two qualities or capacities in the same person, which mutually
destroy one another... the concurrence of the debtor and creditor in the same person
and in respect of the same obligation
For example, when two companies are joined together to form one company, there is
a merger. In such instances, a party becomes his own creditor or debtor. The
contracts that existed between the said companies terminate automatically. Merger
may also happen when the property owner sells property under a lease agreement to
the tenant. In this case, the tenant replaces the property owner and the lease
agreement terminates.
7.2.3 Prescription
It would be unfair for one person to be sued for a debt many years after taking that
debt. Memory might have faded, witnesses might no longer be available, and records
might have been lost or destroyed.
Section 15 of the Prescription Act [Chapter 8:11] provides that:

The period of prescription of a debt shall be—
(a) thirty years, in the case of—
(i) a debt secured by mortgage bond;
Railways v Williams 1963 Rand Nyasaland 106/166; Trinity Engineering (Pvt) Ltd v Anglo Shipping Ltd
1986(1) SA 700(25).
566
Municipality of Kwekwe v Space Age Investments (Pvt) Ltd 1985 (1) ZLR 300 (S).
567
S Van der Merwe, LF Van Huyssteen, MFB Reinecke, GF Lubbe and JG Lotz Contract: General
Principles (1993) 394.
@ Innocent Maja 141

(ii) a judgment debt;
(iii) a debt in respect of taxation imposed or levied by or under any
enactment;
(iv) a debt owed to the State in respect of any tax, royalty, tribute, share
of the profits or other similar charge or consideration payable in
connection with the exploitation of or the right to win minerals or
other substances;
(b) fifteen years, in the case of a debt owed to the State and arising out of an
advance or loan of money or a sale or lease of land by the State to the
debtor unless a longer period applies in respect of the debt concerned in
terms of paragraph (a);
(c) six years in the case of—
(i) a debt arising from a bill of exchange or other negotiable instrument
or from a notarial contract;
(ii) a debt owed to the State;
unless a longer period applies in respect of the debt concerned in
terms of paragraph (a) or (b);
(d) except where any enactment provides otherwise, three years, in the case
of any other debt.
Prescription begins to run as soon as the debt is due and the creditor becomes, or
ought to have become aware, of the identity of the debtor and of the facts from
which the debt arose.568 Nyandoro & Anor v Nyandoro and Ors569 held that a party
pleading prescription does not necessarily need to raise the issue of prescription in a
special plea and that prescription can be raised at any stage of proceedings.
It is important to note that prescription is interrupted by admission of indebtedness570

and by the institution of judicial process. In Apotex Inc v Surgimed (Pvt) Ltd,571 the
Court established that an application for winding up of the debtor company does not
interrupt prescription. Mukahlera v Clerk of Parliament and Ors,572 held that a letter
of demand issued through a legal practitioner does not constitute judicial process and
accordingly does not interrupt prescription. Chiwawa v Mutzuris and Ors573 found a
court application dismissed on procedural grounds not to interrupt prescription.
Once prescription is interrupted, the prescription of the debt starts to run afresh.
7.2.4 Death
568
See section 16(1) and (3) of the Prescription Act and Kanengoni v Zimbabwe Spinners & Weavers
(Pvt) Ltd 1995 (2) ZLR 348 (S) 351; Hodgson v Granger 1991 (2) ZLR 10 and Zimbank Ltd & Anor v
Efficient Security (Pvt) Ltd & Anor 2001 (2) 55 (H).
569
2008 (2) 219 (H).
570
See section 19 of the Prescription Act and Mountain Lodge Hotel (1979) (Pvt) Ltd v McLoughlin 1984
(2) SA 567 (ZS); FMB Zimbabwe Ltd v Fortress Industrial Invstms (Pvt) Ltd & Anor 2000 (1) 221 (S).
571
2002 (2) ZLR 612 (S).
572
2005 (2) ZLR 365 (H).
573
2009 (1) ZLR 72 (H). See Mandhu v Scotfin Ltd 2003 (1) ZLR 476 (H) regarding suretyship.
@ Innocent Maja 142

Death can terminate a contract only if the contract is of a personal nature or the
contract itself specifies that death can terminate a contract. Examples of personal
contracts include marriage, employment contracts, etc. For all other contracts, an
executor is appointed to administer the deceased’s estate. He will be responsible for
upholding the deceased’s contractual obligations.
7.2.5 Insolvency and liquidation

This can terminate a contract if the contract is of a personal nature. For all other
contracts, a trustee or liquidator is appointed to fulfill the obligations of the insolvent
person. This is governed by The Insolvency Act.574
7.2.6 Supervening impossibility

This occurs when performance of contractual obligations is rendered impossible after
conclusion of the contract because of circumstances beyond human capabilities.
These circumstances are casus fortuitus or vis major.575 According to Beitbridge-
Bulawayo Railway (Pvt) Ltd v Commercial Union Insurance Company of Zimbabwe
Ltd:576
The general rule in our law is that, if, as a result of vis major or other supervening
physical or legal act, performance of a contract has become impossible through no
fault of the debtor, the obligations under the contract are extinguished.
In Lupu v Lupu,577 the court reiterated Christie’s requirements of supervening

impossibility, namely:
i) The impossibility must be absolute, as opposed to probable
Ncube v Mpofu and Ors578 held that impossibility does not include the fact that
something is uneconomical. Chiraga v Msimuko579 also established that shortage of
foreign currency did not constitute impossibility as envisaged by supervening
impossibility.
ii) The impossibility must be absolute, as opposed to relative
Mutangadura v TS Timber Building Supplies580 established that where a party is
disabled temporarily to fulfill a contractual obligation, supervening impossibility is
not enforced. In the case of Beretta v Rhodesia Railways Ltd,581
574
[Chapter 6:04].
575
Pieters, Flamman & Co. v Kokstad Municipality 1919 AD 422.
576
2008 (1) ZLR 207 (S) 210 G-H.
577
2000(1) ZLR 120 at 125. See also Stanfeld v Kuhn 1940 NPD 84; Lupu v Lupu 2000(1) ZLR 120; Bobs
Shoe Centre v Heneways Freight Services 1995 (2) SA 421; Minister of Industry and Technology v
Tanaka Powers S-114-1990; Wire OHMS v Greenbalt 1939(3) SA; Hershman v Shapiro and Co. 1926 TPD,
367; Dickson Motors v Oberholzer 1952(1) SA 443; Kok v Osborne 1993(4) SA 788; Benjamin v Myers
1946 CPD 655; Bayley v Harwood 1954(3) SA 498 and Krell v Henry (1903) 2 KB 740.
578
2006 (2) ZLR 41 (H).
579
2002 (2) 368 (H).
580
2009 (2) ZLR 424 (H).
581
1947 SR 48; 1947 (2) SA 1075 (SR) 1078.
@ Innocent Maja 143

The law is clear that when a contract becomes finally and completely impossible of
performance by reason of an act of State it is discharged… but this does not cover the
situation in which one party is temporarily disabled from fulfilling his obligation. It is
nowhere suggested that the immediate effect of such temporary disability is to end
the contract, and this is not surprising, for any such suggestion would involve
consequences so extreme as to be unthinkable.
NUST v NUST Academic Staff and Ors582 also held that performance of
contractual obligations is not excused by temporary impossibility.
iii) The impossibility must not be as a result of any party’s fault583
iv) The principle must give way to the contrary common intention of the
parties
Two additional requirements are that:

v) Impossibility must be due to vis major or casus fortuitus
Events that are irresistible and outside the control of the ordinary person and may be
unforeseen or unforeseeable584
vi) The impossibility can either be of a physical or legal nature
In Krell v Henry,585 the Plaintiff hired a hotel suite to watch the coronation of King
Henry V11. However, on the morning of the coronation ceremony, the King fell sick
and the ceremony was postponed indefinitely or sine die . The Plaintiff then refused
to pay the money for the hotel suite and an action was brought against him to recover
these amounts. He sought to defend himself on the basis of supervening impossibility.
The court held that the sickness was an act of God that entitled the Plaintiff to
terminate the contract.
Similarly, in Cradwell v Taylor,586 the Defendant hired a hall to hold a performance.

Three days before the date of performance, the hall in question was destroyed by
fire. The Defendant refused to pay the booking fees, arguing that the destruction of
the hall by fire was a supervening impossibility which frustrated the contract. The
court upheld this argument and terminated the contract.587
In determining supervening impossibility, Watergate (Pvt) Ltd v Commercial Bank of

Zimbabwe588 makes it clear that Courts should look at the nature of the contract, the
relationship between the parties, the circumstances of the case and the nature of the
582
2006 (1) ZLR 107 (H).
583
See Watergate (Pvt) Ltd v CBZ 2006 (1) 9 (S).
584
See Kok v Osborne & Anor 1983 (4) SA 788 (SE) 803A-D.
585
(1903) 2 KB 407.
586
1971 (2) SA 184.
587
See Acting Minister of Industry and Technology & Anor v Tanaka Power (Pvt) Ltd 1990 (2) ZLR 208
(S).
588
2006 (1) ZLR 9 (S).
@ Innocent Maja 144

impossibility to see whether the general rule ought, in the particular circumstances
of the case, to be applied.
@ Innocent Maja 145

BIBLIOGRAPHY
BOOKS
Beale HG; Bishop WD & Furmston MP Contract Cases and Materials (2008), 5 ed.
Oxford University Press: Oxford
Bhana, D; Bonthuys, E & Nortje M Students’ Guide to the Law of Contract (2009) Juta
& Co, Cape Town, 18
Christie, RH Business Law in Zimbabwe (1998) 2 ed. Juta & Co, Ltd: Western Cape
Christie, RH (1994) The Law of Contract Butterworths: Durban
Christie, RH (2003) The Law of Contract 4 ed. LexisNexis Butterworths: Durban
Christie, RH Law of Contract in South Africa (2001) 4 ed. Butterworths: Durban
Joubert, DJ (1987) General Principles of the Law of Contract Juta: Johannesburg
Kerr, AJ (1989) The Principles of the Law of Contract 4 ed. Butterworths: Durban
Mackeurtan, HG & Hackwill, GRJ (1984) Mackeurtan’s Sale of Goods in South Africa 5
ed. Juta: Cape Town
Madhuku, L An Introduction to Zimbabwean Law (2010) Weaver Press & Friedrich-
Ebert-Stiftung: Harare
Manase, AJ & Madhuku, L (1996) A Handbook on Commercial Law in Zimbabwe
University of Zimbabwe Publications: Harare
Seddon, N; Bigwood, R; Ellinghaus, M (2012) Cheshire and Fifoot’s Law of Contract 10
ed. LexisNexis: Australia
Van der Merwe, S; Van Huyssteen, LF; Reinecke, MFB; Lubbe, GF and Lotz, JG (1993)
Contract: General Principles Juta & Co, Ltd: Western Cape
Wessels, JW & Roberts, AA (1951) The Law of Contract in South Africa 2 ed.
Butterworths: Durban
@ Innocent Maja 146

JOURNALS AND PAPERS
Cohen, M ‘The Basis of Contract’ (1933) 46 Harvard Law Review 553, 585
Kessler, Friedrich, ‘Contracts of Adhesion-Some Thoughts about Freedom of Contract’
(1943). Yale Law School Faculty Scholarship Series. Paper 2731
Lilienthal JW ‘Privity of Contract’ (1887) 1 (5) Harvard Law Review 226
Note, E ‘Mutuality in Exclusive Sales Agency Agreements’ (1931) 31 Columbia Law
Review 830.
Sir David Hughes Parry ‘The Sanctity of Contracts in English Law’ (1959) The Hamlyn
Trust Series 1-2
@ Innocent Maja 147

STATUTES
Banking Act [Chapter 24:20]

Companies Act [Chapter 24:03].
Constitution of Zimbabwe Amendment (No. 20) of 2013
Contractual Penalties Act [Chapter 8:04]
Consumer Contracts Act [Chapter 8:03]
Contractual Penalties Act [Chapter 8:04].
Damages (Apportionment and Assessment) Act [Chapter 8:06]
General Law Amendment Act [Chapter 8:07]
Hire Purchase Act [Chapter 14:09].
Insolvency Act [Chapter 6:04].
Marriages Act [Chapter 5:11]
Married Persons Property Act [Chapter 5:12]
Mental Health Act [Chapter 15:06]
Prescription Act [Chapter 8:11]
Regional, Town and Country Act [Chapter 29:12].
Road Traffic Act [Chapter 13:11]
State Liabilities Act [Chapter 8:14].
@ Innocent Maja 148

GLOSSARY
ab initio (void from the beginning)............................................................ 59

actio quanti minoris (an action for reduction in the purchase price) ..................102
actio redhibitoria (an action for restitution) ...............................................102
aedilition (remedies given in a contract of sale) ........................................... 95
animus contrahendi (a legal intention to contract) ........................................ 37
ante nuptial (contract entered into before marriage) ..................................... 58
blue pencil test (severance of unreasonable parts of a contract)........................ 32
cadit queastio (end of story) ................................................................... 65
casus fortuitus (an act of God) ................................................................120
caveat subscriptor (a person who signs a written document is bound by its contents
whether or not he has read them) (signer beware) ...................................... 27
cession in securitatem debiti (when the cession of a right is used as a form of
security) ........................................................................................140
condictio indebiti (recovery of things paid by mistake) ..................................114
condictio ob turpem vel iniustam causam (recovery of things paid without cause) .. 76
conditio sine qua non test (‘but for’ test) ..................................................131
consensus ad idem (coincidence of wills regarding parties to, terms of, and the legal
binding nature of the contract) ............................................................. 48
contra bonos mores (contrary to good morals) .............................................103
contra proferentem .............................................................................. 93
corpus mentis ..................................................................................... 57
dare (to give something) ........................................................................ 27
delectus personae ...............................................................................139
dies interpellat pro homine ...................................................................118
diligens paterfamilias (or reasonable person) ..............................................100
doctrine of freedom of contract ............................................................... 28
error in corpore..................................................................................106
error in negotio ..................................................................................106
error in nomine ..................................................................................106
error in persona .................................................................................106
error in qualitate ................................................................................107
error in substantia ..............................................................................107
essentialia (essential terms) ................................................................... 26
ex nunc ............................................................................................129
exceptio non-adimpleti contractus ............................................................ 55
expedition theory ................................................................................ 46
exturpi causa non-oritur actio (illegal contracts are not enforceable at law) ......... 74
facere (to do something) ........................................................................ 27
ignorantia juris neminen excusat (ignorance of the law excuses no one)..............111
in forma specifica (in the exact manner stated by the parties in the agreement) .... 91
in fraudem legis ( illegal by virtue of contravening a statute or legislation) .......... 65
in pari delicto potior est conditio defenditis (or possidentis) (loss lies where it falls)
.................................................................................................... 75
@ Innocent Maja 149

in rem (relating to the validity of the right and not relating to the person of the
cedent) .........................................................................................140
in securitatem debiti (by way of security) ..................................................138
in vacuo ............................................................................................ 82
incidentalia (residual terms) ................................................................... 26
injuria .............................................................................................139
inter alia (amongst other things) .............................................................. 35
inter vivo .......................................................................................... 42
interesse (financial position if there had been no wrongful act) ........................ 98
interpellatio (a demand calling upon a debtor to perform on a particular day failing
which the debtor will be in mora) .........................................................118
ipso jure ..........................................................................................137
justa causa........................................................................................138
Justus error theory..............................................................................107
lex fori ............................................................................................. 77
lex non-cogit ad impossibilia (no legal obligation can arise out of an agreement that
is impossible of performance). .............................................................. 59
litis contestatio ..................................................................................139
locus standi in judicio (legally binding agreements) ....................................... 52
merx (sale item) .................................................................................102
metus (duress) ...................................................................................103
mora ...............................................................................................117
mora creditoris ..................................................................................116
mora debitoris ...................................................................................116
mora ex persona .................................................................................118
mora ex re ........................................................................................118
mora ipso facto ..................................................................................119
naturalia (legal terms) .......................................................................... 26
nemo plus iuris rule (the cessionary cannot get rights that are stronger than the
cedent had) ....................................................................................140
non-facere (to refrain from doing something) .............................................. 27
novatio necessaria (compulsory novation)..................................................137
novatio voluntaria (voluntary novation) ....................................................136
once and for all rule ............................................................................124
pactum commissorium ........................................................................... 68
pactum successorium ............................................................................ 68
paratie executie .................................................................................. 68
per aequipollens (in some equivalent manner).............................................. 91
prima facie (on the face of it) ................................................................. 70
quasi mutual assent .............................................................................. 29
res judicata .......................................................................................137
restitutio in integrum (recission of contract) ..............................................103
restitution in integrum .......................................................................... 97
sine die (postponed indefinitely) .............................................................145
solutio (payment) ...............................................................................138
spes ................................................................................................141
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status quo ante (position before entering into the contract)............................101
stipulatio alteri ................................................................................... 33
sum-exiguam summam .........................................................................133
thin-skull case (the maker of the misrepresentation must take his victim as he finds
him) .............................................................................................. 99
transactio (compromise) .......................................................................137
translatio juris ...................................................................................138
uberrimae fide (contracts where disclosure is a requirement and a legal duty) ...... 99
ut res magis valeat quam pereat .............................................................. 61
vinculum juris ..................................................................................... 25
vis major (act of God) ..........................................................................120
voetstoots ......................................................................................... 26
@ Innocent Maja 151

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THE LAW OF CONTRACT

LLBs Hons (UZ), LLM (UP – SA), LLD (Candidate)

Lecturer in Law, Chairperson, Private Law Department

Faculty of Law, University of Zimbabwe

Legal Practitioner, Notary Public and Conveyancer

THE MAJA FOUNDATION

This book is published by

THE MAJA FOUNDATION

All rights reserved; no part of this publication may be reproduced, stored in a

To my wife Florence and daughters Eliora and Netania

The law of contract in Zimbabwe provides comprehensive and up to date principles of

1. Abreu v Campos 1975 (1) RLR 198 (A)

RH Christie1 poses eight incisive questions that assist parties in ascertaining,

What are the contents of

Did any of the parties

Fig 1: Summary of law of contract

1.2 What is a contract?

1.3 The basic concepts in the law of contract

1.3.1 The concept of obligations

Obligations in a contract can be unilateral, bilateral, or reciprocal. Unilateral

1.3.2 The concept of terms of a contract

1.3.3 The concept of performance

1.4 Theories of contractual liability

1.4.1 Declaratory theory

1.4.2 Will or consensual theory

1.4.3 Reliance theory

1.5 Doctrines of the law of contract

1.5.1 Freedom of contract

It is interesting to note that, inherent in the doctrine of freedom of contract is the

However, there are a number of circumstances where the doctrine of freedom of

1.5.2 Sanctity of contract

A number of decisions have upheld the application of the doctrine of sanctity of

The net effect of such interpretation is to preserve the sacrosanct nature of a

22 Total SA (Pty) Ltd v Bekker (1954) 35 ALR 434, at 437.

1.5.3 Privity of contract

In Gwanetsa v Green Motor Services,29 the Court established as follows:

In the same vein, Kennedy v Loyne31 held that:

1.6 Sources of the law of contract

1.6.2 Common law

1.6.3 Authoritative texts

Second, custom can be used in commercial or contract parlance to refer to ‘trade

The terms sought to be implied should be long established, universal (followed by

2.2 Offer and acceptance

i) Has an offer been made?

ii) If an offer has been made, has it been accepted?

iii) If the offer has been accepted, there is an enforceable agreement

2.2.1 What is an offer?

In the same vein, Manase and Madhuku define an offer as:44

Second, an offer needs to be accompanied by an intention that its mere acceptance

For instance, in Carlill v Carbolic Smoke Balls Co,50 a company placed an

2.2.1.1 Characteristics of a valid offer

2.2.2 Irrevocable offers

a) a specific third party offers to buy the property at a given price;

b) the grantor is prepared to sell at that price; but

2.2.3 Termination of an offer

2.2.4.1 Characteristics of a valid acceptance

In Blew v Snoxell,90 the court held that:

Bulawayo Municipality v Zimbabwe Football Association92 firmly established that