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COMMERCIAL LAW

CASES

COMPILED BY INNOCENT MANDONGWE


CONTRACT OF SALE

Mudhanda v Brooker & Anor HH-637-15 Muremba J


The plaintiff in 2002 entered into a sale agreement in respect of two stands with
the 1st defendant. To begin with it must be realized that an agreement of sale is
not an agreement to transfer ownership. The three essential elements of a
contract of sale are (i) the agreement ( consensus ad idem) (ii) the thing sold
(merx) and (iii) the price (pretium). The parties enter into the contract with a view
to exchange the thing for a price. If the three elements are there, then there is a
sale. Neither delivery nor payment of the purchase price is necessary for the
creation of the contract. Delivery and payment fall under the category of
performance of the contract. A contract of sale merely obliges the seller to
transfer vacou possessio. As a result it is not a prerequisite of the contract of sale
that the seller be the owner of the merx. In other words a non-owner of a property
can enter a valid agreement of sale.
Merx

Stationery Box (Pvt) Ltd v Natcon (Pvt) Ltd HH-64-10 Makarau J


Plaintiff issued summons against defendant claiming a sum of money in respect of
goods allegedly sold and delivered at the first defendant. The plaintiff supplied
stationery to the first defendant. The general rule is that once the parties are in
agreement over the merx and the payment of the purchase price payable for the
merx, a valid contract of sale comes into being between parties. The contract then
casts upon the seller the obligation to deliver the merx sold and upon the
purchaser the obligation to pay the purchase price.

Agreement

Ferguson & Partners v Zimbabwe Federation of trade unions 2004 (1)


ZLR 475 (H)
In agreements of sale the consensus of the parties must be given freely and
voluntarily. It should be not be induced by fraud duress or undue influence. The
parties must mutually communicate their intentions to buy or sell unequivocally
and should hold the legal capacity to do so.

Old Mutual Shared Services v Shadaya HH-15-13 Mutema J


The Purchase agreement constitutes a contract of sale which is perfecta in that
the merx is identifiable and the pretium is specific. The mode of payment may be
agreed upon by the parties and these requirements like the purchase price must
be fixed within the contract or capable of being ascertainable.

Mhute v. Chifamba 1999 (2) ZLR 115 (SC)


A contract of sale may be made orally, without it being put in writing. The parties
may agree, however, that the oral contract will not be legally binding until it is
drawn up in a written agreement. Where the parties to an oral agreement
mention that the contract should be reduced to writing, the question is whether
the parties intended that the contract would not be binding until the written
agreement had been signed or simply that the contract should be binding
immediately but should subsequently be put in writing to facilitate proof of the
terms of the contract. The onus of proof is on the party who asserts that an oral
contract was not intended to be binding until reduced to writing and signed. In the
present case it was clear that the parties had intended the oral contract to be
binding and its reduction to writing was intended only to aid the proof of the
terms of the contract.
Implied warrantes

Mudukuti v FCM Motors (Pvt) Ltd HH-14-07 Patel J


Where the seller has given an express or implied warranty against the existence of
the defect or has warranted the fitness of the res vendita for the purpose fo which
it was bought the seller is liable. I agree that, an implied term cannot prevail over
any express contractual term as that cannot have been intended by the parties .
Actio Rhedhibitoria

Chikamhi v Kamangira HH-239-15 Uchena J


The parties entered a sale agreement wherein the appellant was to purchase an
Isuzu truck for $ 7 300. The appellant entered a counterclaim saying the vehicle
was defective and respondent had to refund the deposit.

Law applied: requirements of action rhedhibhitoria are trite and have been
alluded well over the years. These include (a) the merx had a defect at the time of
the sale regardless of knowledge of otherwise of the time of sale, (b) the defect
has to be serious as to render the property unfit for the purpose for which it was
bought and (c) the buyer must restore the property to the seller.

Jacobs v Small 2015 (1) SA p243Makume J


Definition: the action which a buyer of goods brings to set aside a contract of sale
and claim the return of the entire purchase price (if already paid) against the
return of the article sold is latently defective to such an extent that it cannot be
used for the purpose for which it was sold or because the article materially fails to
satisfy a claim made by the seller in regard to its attributes.

Bonang v Motsomi 2007 (3) BLR 671 (HC)


The plaintiff purchased a motor vehicle from the defendant which had broken
down on his first trip in the vehicle after he purchased it. Immediately he returned
the vehicle to the defendant and demanded that he returned the purchase price
but the defendant refused to accept the vehicle or return the purchase price. The
plaintiff then instituted action in the cancellation of the agreement of sale and
restitution of the purchase price on the ground that the vehicle was

Law applied: the onus was on the purchaser who invoked the action rhedhibitoria
to prove that the merx was latently defective at the time of sale. The purchaser
also has to prove that the defect was such that it rendered the merx unfit for the
purpose for which it had been sold.
Actio Quanti minoris

Banda v Van Der Spuy 2013 (4) SA p77 (SCA)


The Actio Quanti minoris is one of the so called Aedilitian Remedies developed in
Roman-Dutch law to provide relief for a purchaser who discovered latent defects
in a thing sold. The remedy is aimed at reclaiming a fair portion of the purchase
price as redress for the fact that the thing sold is defective and consequently worth
less than the price actually paid for it. To succeed with a claim based in the action
quanti minoris a plaintiff must not only show that the thing sold was defective at
the date of the sale, but also establish the exact amount by which the purchase
price should be reduced.

Odendaal v Ferraris 2008 (1) SA p 85 (SCA) Cameron J


Definition: the action which the buyer of goods has against a seller while keeping
the goods for a reduction in the price paid because the article sold is latently
defective or does not comply with a statement made by the seller about it
qualities or capabilities. By restitution in the instance of quanti minoris will mean
restoration of price by apportionment we mean price reduction in some
preparation to the value of what is received by the injured party.

PASSSING OF OWNERSHIP

NDLOVU V NDOLOVU & ANOR

AFRICAN SUN ZIMBABWE(PVT LTD V MHLONGONI HC10855/13


Vindication
Actio rei vindicatio is a legal action by which a plaintiff demands that the
defendant return the things that belongs to the plaintiff and it may only be uswd
when plaintiff owns the thing ,and the defendant is somehow impeding the
plaintiff possession of the thing .It is therefore a common law remedy available to
an owner of the property for its recovery from the possession to another person

Requirements

The one claiming must prove ownership of the property

Property must be in possession of another person

STANBIC FINANCE ZIMBABWE LTD V CHIVHUNGWA 1999 (1) ZLR 262


The principle on which the action rei vindicatio is based on that the owner cannot
be deprived of his property against his will and that he is entitled to recover it
from any person who retains possession of it without consent .The plaintiff must
allege and prove that he is the owner of a clearly identifiable movable or
immovable asset and that the defendant was in possession of it at the
commencement of action .Once ownership has been proved onus shifts to the
defendant to prove the right of

Aedilition remedies
Latent Defects – These are hidden defects. It is not the seller’s duty to guarantee
against latent defects. To protect themselves sellers normally invoke voetstoots
clauses which limit the seller’s liability.

Section 5(1) (d) of the Consumer Contracts Act says that a court may find a
consumer contract to be unfair for the purposes of this act if the consumer
contract excludes or limits the obligations or liabilities of a party to an extent that
is not reasonably necessary to protect his interests.

MATAMBO V CHAKAUYA HB-23-92


SPECIAL SALES
SPECIAL SALES

CIF SALES

Gam Plastics (Pvt) Ltd v Speed Link Cargo (Pvt) Ltd HH-38-07
Chitakunye J
Gam plastics purchased a pneumatic punching machine from Queens Machinery
Company Limited, a Taiwanese company operating from Taipei, Taiwan on a
“cost/insurance/freight contract”. The plaintiff duly paid for the machine and
received a Bill of Lading. The carrier of the machinery was DSL Star Express. When
the machine arrived in Harare, the plaintiff demanded the plaintiff demanded the
release of the machinery. Defendant refused on the basis that it had been directed
by its principal not to release the goods until the seller of the goods has settled an
amount that was owed by it in respect of storage and handling charges incurred in
South Africa. The Plaintiff took the position that the defendant had an obligation
to release the machine as per its interpretation of the Bill of Lading. The defendant
on the other hand took the position that it had no such obligation and would only
release the machinery upon instructions from Principal.

Law applied: the contract being a CIF there are mercantile custom, certain
essential features which maybe varied in accordance with the actual agreement of
the parties. The ordinary obligations of the seller are:

a) To ship to the agreed port of shipment the goods ordered

b) To procure a contract of freightment for delivery of goods at the agreed


destination (which includes the Bill of Lading evidencing the contract).

c) To arrange insurance current in Trade.

d) To invoice goods to the purchaser debiting him with the agreed price and costs
of insurance and freight

e) To tender to the purchaser documents in a valid and effective condition .


INSTALMENT SALE OF LAND

Dzirutwe v Grabroc Enterprises and Others HH-70-04 Gowora J


Applicant entered an agreement of sale for the purchase of a vacant piece of land.
In terms of the agreement of sale a) an initial deposit of $20 000 payable to Tony
West Real Estate b) a further deposit of $52 000 to be paid to Tony West Real Estate
within a period of 6 months in monthly instalments c) the Balance of $108 000 was
to be secured by means of a mortgage from Founders Building Society.

Law applied: where credit is given but no specific date is given or date of payment
agreed upon, payment must be made within a reasonable time. The agreement did
not stipulate a period of payment in the event that the purchaser failed to obtain a
mortgage with Founder’s Building Society. Payment should therefore be within a
reasonable period is relative and depends upon the circumstances of each case.
HIRE PURRCHASE SALES

Commissioner of Inland Revenue v Langa National Brickworks [1991]


ZASCA p86
Definitions of a Hire Purchase Sale is that there are 2 types the 1 st referring to a
contract whereby goods are sold and the 2nd being a contract which provides for
the Hiring of goods that are later owned by the hirer. The universal definition is
that a hire purchase agreement is contract under which the price is payable in 2 or
more instalments and the seller has the right to the return of property if the price
is not paid. The trader to protect himself, invariably stipulates that during the
continuance of the agreement the ownership of the goods is to remain in him. To
meet the customer, it is provided that periodical payments are to be made. These
payments are commonly referred to as rent. The sum total of the payments
correspond with the value of the merx and it is provided that when all the
payments have been made the customer may become the owner of the merx
without further payment.
Radar Holdings Ltd & Anor v. Eagle 1998 (1) ZLR 479
It was a condition of an insurance policy that, in the event of a claim, the insured
must notify the insurance company as soon as possible of the event giving rise to
the claim. The insured, who had suffered loss in a fire, had notified the insurance
company about the fire some eight days after the fire. The insurance company
refused to indemnify the insured because it had breached the condition requiring
him to notify the insurance company as soon as possible. The insured argued that
this condition had been complied with, alternatively that this condition in the
contract was unenforceable under the Consumer Contracts Act [Chapter 8:03].

Duly & Company Ltd v. Shonge 1985 (2) ZLR 350


A hire purchase agreement is a consumer contract. Generally speaking a hire
purchase agreement is a sale subject to a suspensive condition that ownership will
only pass upon payment of the last instalment. It is also a common practice for
financial institutions to buy the seller’s rights and then enter into a contract with
the purchaser. This is what is known as cession of rights.

Before would-be purchasers conclude hire-purchase agreements, they should


enter into collateral agreements with the suppliers of the goods warranting the
quality or suitability of the goods supplied.

Tubb (Pvt) Ltd v. Mwamuka 1996 (2) ZLR 27


Held, that at common law the right of a party to sue for loss or damage to
property may be excluded by the express terms of the contract. But any claim to
such exemption must be examined in accordance with these well-established
principles:

(1) The words of the exclusionary clause must be read as part of the contract as
a whole and they must be sufficiently clear and comprehensive to require
the court to give effect to them.
(2) Any ambiguity as to the meaning and scope of the exemption must be
resolved against the party who inserted it and the latter must prove that the
words used clearly and aptly embraced the contingency that has arisen
(3) If there is not express reference to negligence in the exemption, the court
must consider whether the words are wide enough, in their ordinary
meaning, to cover negligence on the part of the defendant or his servants
and, if they are, whether the claim for damages may be based on some
ground other than negligence.
(4) Where the existence of an exemption excluding liability for negligence is not
in dispute, the burden of establishing any other possible ground for liability,
such as gross negligence or dolus, rests upon the claimant.
(5) The exemption must be brought to the attention of the other party or must
be within the knowledge of the other party. Where an “owner’s risk” notice
is displayed so conspicuously that a normal person could hardly have failed
to see it, an inference will be drawn that it was seen by the other party.
(6) The exemption will not avail unless it was known at the time that the
contract was entered into; it is not binding if the party against whom it was
to be applied only became aware of the exemption after he had already
entered into the contract.
(7) A party cannot exempt himself from liability for the wilful misconduct or
criminal or dishonest activity of himself, his servants or his agents or
perhaps even from the loss of or damage to the subject matter of the
contract resulting from gross negligence on his part or the part of his
servants or agents.
Option

Eastview Gardens Residents v Zimbabwe Reinsurance Corporation HH-


174-2003 ParadzaJ
The true nature of an option is clearly analyzed in 2 different parts namely an offer
to enter into a main contract together with concluded subsidiary contract (the
contract of Option), binding the offeror to keep the offer open for a certain period.
THE LAW OF AGENCY

Tevera v Makaranga HB-175-15 Mojo J


An agent must act in accordance with and within the limits of the authority
confirmed by the principal, whether express or implied.

If an agent, either negligently or fraudulently fails to perform the mandate or


performs it improperly and thereby causing loss to the principal, the agent is liable
to the principal in damages.

Where an agent has disclosed that he acts for the principal and has acted within
the scope of the express or implied authority conferred, a transaction effected by
the agent with a third party is binding between the principal and the 3 rd person.

Even if the agent has not acted in the interest of the principal or has actually
defrauded the principal, the latter is bound by the transaction, if the 3rd party was
not party to the irregularity, and if the agent acted in fact within the express or
implied scope of his authority.

Clearly where the agent acts within the scope of his mandate from the principal as
in the case, the principal is bound by the same transaction and if the agent has
defrauded the principle, by not remitting the requisite funds, it is for the principal
to deal with the agent and not to refuse to perform his part of the deal.

Principal and Agent Relationship

Gwafa v. Small Enterprises Development Corporation & Anor 1999 (2) ZLR 261
(SC)

Held, that if a principal employs an agent in a certain capacity, and it is generally


recognised that an agent employed in that capacity has authority to do certain
acts, then any of those acts performed by the agent will bind the principal because
they are within the scope of his “apparent” authority. An auctioneer has ostensible
authority to conclude a sale agreement in respect of the property being sold by
public auction for other persons, because it is generally recognised that an
auctioneer has authority to conclude sales of properties which he sells by public
auction. The agreement reached by the appellant with the auctioneer bound the
first respondent.

Undisclosed Principal

Nyamweda v. George SC 88-00

The law allows an undisclosed principal to come forward and seek specific
performance from the third party.

Duties of the Agent

Honey & Blackenburg v. Lou 1965 RLR 685

An agent must prosecute mandate with diligence and always act in good faith. As
with every delict, the degree of skill and care that the agent must show will
depend on the circumstances of each matter. Look at reasonableness – diligent
paterfamilias. It has been held that a legal practitioner holds himself to clients as
possessing adequate skills, knowledge and learning for the purpose of carrying out
all lawyering business.

THE LAW OF NEGOTIABLE INSTRUMENTS AND OTHER COMMERCIAL


PAPERS

COMPETITION LAW
Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others
(CCT 59/2004) [2005] ZACC 14; 2006 (8) BCLR 872 (CC); 2006 (2) SA 311 (CC) (30
September 2005)
“manufacturers may reduce and increase their prices in response to competitive
imperatives, as long as the price at no time exceeds the SEP that has been
established for that year and that these price increases do not occur more than
once a quarter.”

“The Minister may, in exceptional circumstances, authorise a manufacturer or


importer, on written application by such manufacturer or importer, to increase the
price of a medicine or Scheduled substance by a specified amount greater than
that permitted in terms of regulation 8.”

“A manufacturer, importer, distributor or wholesaler may not charge any fee or


amount other than the single exit price in respect of the sale of a medicine or
Scheduled substance to a person other than the State.”

Telkom SA Limited and Business Connexion Group Ltd (51/LM/Jun06) [2007]


ZACT 55 (20 August 2007)

The merger comes at a critical time in the market for managed network services.
Specifically the strong trend towards IP-VPN solutions, a service with fewer service
providers, which exhibits strong scale and network effects to the benefit of initial
market leaders, suggests that the longer-term impact of the merger will be more
detrimental to competition than any initial increase in concentration

When determining whether a merger can or cannot be justified on public interest


grounds, the Competition Commission or the Competition Tribunal must consider
the effect that the merger will have on

(1) a particular industrial sector or region


(2) employment;
(3) the ability of small businesses, or firms controlled or owned by historically
disadvantaged persons, to become competitive; and

(4) the ability of national industries to compete in international markets.

President of the Republic of South Africa and Others v M & G Media Ltd (CCT
03/11) [2011] ZACC 32; 2012 (2) BCLR 181 (CC); 2012 (2) SA 50 (CC) (29
November 2011)
Ratlhagane and Others v S (CAF 09/2011) [2012] ZANWHC 50 (3 May 2012)

Competition Commission of South Africa v Senwes Limited (110/CR/Dec06)


[2009] ZACT 8 (3 February 2009)

There is nothing in our Act that suggests that an abuse of dominance cannot be
perpetrated in one market and the effect thereof be experienced in another
related market. Any contrary interpretation would mean that a dominant firm
could leverage its market power from one market to another with impunity

It is a prohibited for a dominant firm to- engage in any of the following


exclusionary acts, unless the firm concerned can show technological, efficiency or
other pro-competitive gains which outweigh the anti-competitive effect of its act
,selling goods or services on condition that the buyer purchases separate goods or
services unrelated to the object of a contract,or forcing a buyer to accept a
condition unrelated to the object of the contract

Airports Company South Africa Limited v Airport Bookshops (Pty) Ltd t/a
Exclusive Books (31580/2014) [2015] ZAGPJHC 154; 2016 (1) SA 473 (GJ); [2015]
3 All SA 561 (GJ) (3 July 2015)

Competition Commission and Another v British American Tobacco South Africa


(Pty) Ltd (05/CR/Feb05) [2009] ZACT 46 (25 June 2009)

An agreement between parties in a vertical relationship is prohibited if it has the


effect of substantially preventing or lessening competition in a market, unless a
party to the agreement can prove that any technological, efficiency or other pro-
competitive, gain resulting from that agreement outweighs that effectâ

It is clear that a firm with lawful monopoly power has no general duty to help its
competitors, whether by holding a price umbrella over their heads or by otherwise
pulling its competitive punchesâ¦Advertising a competitors product free of charge
is not a form of cooperation commonly found in competitive markets; it is the
antithesis of competitionâ.

Competition Commission v Pioneer Foods (Pty) Ltd (15/CR/Feb07,


50/CR/May08) [2010] ZACT 9 (3 February 2010)

Fighting cartels is one of the most important areas of activity of any competition
authority .....Of all restrictions of competition, cartels contradict most radically the
principle of a market economy based on competition.”
Horizontal price-fixing , market sharing and output-limitation agreements,
which are usually secret, are, by their very nature, among the most harmful
restrictions of competition. As a matter of policy, they will be heavily fined.
Therefore, the proportion of the value of sales taken into account for such
infringements will generally be set at the higher end of the scale.”

Harmony Gold Mining Company Ltd & Another and Mittal Steel South
Africa Ltd and Another (13/CR/FEB04) [2007] ZACT 21 (27 March 2007 )

The key implication of the cellophane fallacy is that the identification of


substitutes at existing prices does not necessarily identify those products that are
effective substitutes at the competitive price, which is the relevant benchmark for
defining markets in most non-merger cases. Evidence that products are effective
substitutes at current prices merely identifies those competitors that constrain the
prices of the firm or firms under investigation from increasing above the current
level. It does not necessarily provide information on whether those products are
constraining prices to the competitive level

Generally and particularly for the analysis of merger cases, the price to take into
account will be the prevailing market price. This might not be the case where the
prevailing prices have been determined in the absence of sufficient competition. In
particular for investigation of abuses of dominant positions, the fact that the
prevailing price might already have been substantially increased will be taken into
account.

Sasol Oil (Pty) Ltd v Nationwide Poles CC (49/CAC/Apr05) [2005]


ZACAC 5 (13 December 2005)
United States Law.
˜It shall be unlawful for any person engaged in commerce, in the course of such
commerce, either directly or indirectly, to discriminate in price between different
purchasers of commodities of like grade and quality, where either or any of the
purchases involved in such discrimination are in commerce, where such
commodities are sold for use, consumption, or resale within the United States or
any Territory thereof or the District of Columbia or any insular possession or other
place under the jurisdiction of the United States, and where the effect of such
discrimination may be substantially to lessen competition or tend to create a
monopoly in any line of commerce, or to injure, destroy, or prevent competition
with any person who either grants or knowingly receives the benefit of such
discrimination, or with customers of either of them.’ (our emphasis).

LAW OF CARRIAGE

Independence Mining v Fawcett Security Ops 1994 (2) ZLR p222 Chidyausiku J

For a party to be a public carrier, it is not necessary for that party to have as its
main business the carriage of goods. When a party carries on the trade or
profession of carriage of goods as part of its business that is sufficient enough to
make that carrier a public carrier. There is nothing in the authorities that suggests
that a party has to have as its sole business the carriage of goods before it can be
regarded as a public carrier.

Madzone case: according to Roman Praetor edicts, a public carrier is absolutely


liable to restore property received by him unless he can prove that the loss or
damage was caused by Damnum Fatale (unexpected and unavoidable accident),
vis major (superior force), Negligence of the consignor or inherent fault or vice in
the goods themselves. The liability of the carrier commences from the moment he
takes delivery of the goods and continues until he has discharged his contractual
obligation i.e to deliver the goods to the consignee at the agreed destination.

Roberts v Air Zim Coorp (HH-28-03)


The Plaintiff was a passenger aboard flight UM 14176 from Harare to London on
09 September 1997. He had luggage and the defendant had to carry the
passenger and the luggage from Harare to London.

At the pre trial stage, it was agreed that the following question was to be placed
before the court as stated in the case. ; is the contract between the parties
governed by the Carriage by Air Act [Chapter 13:04]. In terms of the Carriage by
Air Act, the court has discretion in adjudicating cases in claims brought to enforce
liability limited by Article 22 of the Geneva Convention. The limitation imposed by
Article 22 of the Convention is a guide but not a……….limitation and as such as a
limitation, is qualified by the use of the words “just and equitable” in subsection 2
so he argued.

Air Zim (pvt) Ltd v Patsikadova and Anor (19/03)2004

In line with the Cargo Carriers Concessions, members of the staff, be allowed
cargo up to a certain weight exceeding the general limit of each person or
passenger, but withut any details it is not possible to establish breeds

Rix Upholstery pvt ltd v Buddylphs pvt ltd (HC 7204/07) 2008

Dealing with the issue of the “owner’s risk” clause in the contract of carriage
between the parties, Dumbutshena CJ (as he then was)had this to say at page 315;

“Generally, carriers by land may contract themselves out of strict liability imposed
by the common law or limit their liability. The issue here is whether in spite of the
strict liability imposed by common law, the Respondent is exempted from liability
for damage occasioned by its servants’ negligence.”

Zoweta Manufacturers pvt ltd v Zimbabwe United Freight Company 1990 (1) ZLR
337

It his case, Chidyausiku J (as he then was) had to deal with the case of the
consignment of jewellery in a small parcel that was stolen together with a tricycle
belonging to an employee of the defendant as he was making deliveries the
consignment was in a padlocked cargo bi but the tricycle was itself left
unattended and unlocked. In absolving the defendant fom liability, the Chief
Justice, who was dealing with the exemption clause that specifically referred to
negligence had this to say;

“I am satisfied that for the Plaintiff to succeed he has to establish that the conduct
of the defendant’s employees constitute gross negligence. It will not be sufficient
for him to prove ordinary negligence”

Tawanda v Ndebele (HB 27/06) 2006

S v Kutani (HH-72-16 CA 310/13) 2016

➢ driving without a superior in contravention of Section 9(6) of the Road


Traffic Act
➢ carrying more than seven passengers for a reward in contravention of
Section 6 (1) of the Road Traffic (Carriage of Passengers) Regulations
[Statutory Instrument Number 76 of 1984]

Gam Plastics pvt ltd v Speed Civic Cargo pvt ltd (HC 1600/66) 2006

Chattonooga Tuffers Co v Cheville Coorp 1974 (2) SA 10 at 15 B-E

This case shows that whilst in a CIF contract, there are certain customs and
practices, such may be varied in certain instances. See page 15 B-E where Cloete J
said “the contract being a CIF sale, there are by …………custom, certain essential
features which may be varied in accordance with the actual agreement of the
parties.
(1) to ship to the agreed port of shipment the goods ……………..
(2) to procure a contract of affreightment for delivery of the goods at the
agreed destination (which includes the Bill of Lading evidencing the
contract)
(3) to arrange insurance current in the trade
(4) invoive goods to the purchaser debiting him with the agreed price of costs
of insurance and freight
(5) to tender to the purchaser documents in a valid and effective condition.

BM Technical Ltd v Crescent Transporters Co Ltd (Civil Appeal No 8 of 2002) 2003

Modzone Enterprises (pvt) Ltd and Anor v Transtech Freight Zim (pvt) Ltd t/a UTI
(HC 476/11/02)2007

THE Company was not a common or public carrier. Itd carriage of goods is merely
incidental to the clearing and forwarding operations and it may refuse to accept
for carriage any goods or class of goods.

Clan Transport Co v Mhishi 1991 (2) ZLR 333 (SC) at 334

Korsah JA said, “ the question whether a person is a common carrier or is not a


fact. A man may be a common carrier without styling himself. Anyone who
undertakes to carry the goods of all persons indifferently, for hire, is a common
carrier. It is of consequence that carrier restricts his liability for the goods
transported, that does not make him any the less common carrier.

In similar vein , it was observed by Chidyausiku J in Independence Mining (pvt)Ltd


v Fawcett Security Ops (pvt) Ltd 1994 (2) ZLR 222 (H) at 229-230
“for a party to be a public carrier, it is not necessary for that party to have its main
business the carriage of goods. When aprty carries on the trade or profession of
carriage of goods as part of its business, that is sufficient to make that party a
public carrier.there is nothing in the authorities to suggest that a party has to
have as its sole business the carriage of goods before it can be regarded as a
public carrier”

Mashonaland Railway Company v Gordon 1920 SR 80

AMI Zim (pvt) Ltd v Casalee Holdings (Successors) 1997 (2) ZLR 77 (S) at 85

Mafusire v Greyling and Anor HC 6794/07 2010

Capri (pvt) Ltd v Terrier Services (pvt) Ltd HH 51-2004

Beitbridge Bulawayo/ Railway pvt ltd v Commecial Union Insurance Co of Zim


(76/06) 2007
LAW OF BANKING

Banking Employers Association of Zimbabwe v Zimbabwe Bank and Allied


Workers Union S-34-15

Standard Charteerd Bank v Dangarandove Land and Cattle Co pvt Ltd and Anor
HH 198-03

Reserve Bank of Zimbabwe (Debt Assumption) Act 2015

Trust Bank Coorp v Cold Storage Commission Ltd HC 113-05


LEASE

LEASE

BP Zimbabwe v Cedar Petroleum HH-389-15


Plaintiff sued for the ejectment of the defendant from premises which were used
as a service station. The Plaintiff had leased the premises from its owner on a long
term lese of over 25 years and built a service station. The Plaintiff contended that
it was entitled to protect its rights of use and occupation by seeking the ejectment
of the defendant who was wrongful occupier, as the sub lease agreement was
concluded without the plaintiff’s prior written consent.

Law Applied: the lease agreement should specifically describe the exact property
being let out. A brief description of the property is adequate. At law, the Lessor
should merely have the rights of occupation that he can pass onto the lessee. It
should also specify the period of the lease.

Where a contract of lease contains prohibitions against sub-letting without the


lessor’s consent, a sub-lease entered into by the lessee, without title to do so, is
valueless and confers no rights on the 3rd party for he can acquire no greater
rights in the property than the lessee has. Thus, if the 3rd party enters into occupation of
the leased property, the lessor is entitled to an ejectment order against him.

Francaise v Orford and Another HH-88-09 Patel J


In 2006 the parties entered into a lease agreement to run for a period of 36
months in respect of certain premises situated in Harare. The parties concluded an
addendum to the main agreement, providing for an option to renew and other
incidental matters.

Law Applied: Under Common Law, an essential ingredient of a contractual lease is


that the amount of the rent payable by the lessee must be fixed or that some
definite mode of fixing the rent must be agreed upon. In other words, the rental
must be in an ascertained or ascertainable amount. Until the rent or some definite
mode of fixing the rent is agreed upon, there is no contract of letting and hiring of
the house.

Woodham Agencies Carfill v AMTEC HB-63-06 Ndou J


Should the lessee fail to pay the monthly rental on due date or commit a breach of
any of the other terms and conditions contained in a contract of lease, then the
lessor shall have the right forthwith to cancel this lease and retake possession of
the leased premises and eject the lessee therefrom, without prejudice to any claim
which the lessor may have against the lessee.

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