Smartstart Advanced Technologies (Pvt) Ltd v Mushangwe & Anor (HH 31 of 2004) [2004] ZWHHC 31 (17 February 2004)

Smartstart Advanced Technologies (Pvt) Ltd v Mushangwe & Anor (HH 31 of 2004) [2004] ZWHHC 31 (17 February 2004)

The applicant's claim is dismissed because the respondents were not parties to the contract sued upon, the contract constitutes an unlawful pactum commissorium, and the penalty claimed is grossly disproportionate and exploitative, offending the in duplum rule and public policy.

Citation
[2004] ZWHHC 31
Parties
Applicant: SMARTSTART ADVANCED TECHNOLOGIES (PVT) LTD; Respondent: AUSTIN MUSHANGWE; Respondent: ELVIS MUSHANGWE
Court
Harare High Court
Jurisdiction
Zimbabwe
Judgment Date
17 February 2004
Case Number
HH 31 of 2004
Procedural Posture
Unopposed Application / Judgment
Outcome
Application dismissed
Legal Topics
Contractual Penalties, Pactum Commissorium, Illegality of Contract, Self Help Remedies
Source Language
English
Contract Law Civil Procedure Contractual Penalties Pactum Commissorium Illegality of Contract Self Help Remedies

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Parties

SMARTSTART ADVANCED TECHNOLOGIES (PVT) LTD

Applicant

AUSTIN MUSHANGWE

Respondent

ELVIS MUSHANGWE

Respondent

Procedural Posture

Unopposed Application / Judgment

Legal Issues

  1. 1 Whether the respondents are liable under a contract to which they were not parties
  2. 2 Whether the claim for $1,474,861.37 is lawful and enforceable
  3. 3 Whether the contract constitutes a pactum commissorium and is thus illegal

Ratio Decidendi

The applicant's claim is dismissed because the respondents were not parties to the contract sued upon, the contract constitutes an unlawful pactum commissorium, and the penalty claimed is grossly disproportionate and exploitative, offending the in duplum rule and public policy.

Court Disposition

Application dismissed

Orders

  • Application dismissed with no order as to costs.