OPINION FOR MR WEBSTER CHOMUREMA REGARDING

ENFORCEMENT OF LOCAL COURTS RULINGS ON VERBAL

AGREEMENTS

AREAS FOR CONCERN

 The existence and legality of verbal agreements

 The enforcement of verbal agreements
 Remedies where the verbal agreements are breached

RECOMMENDATIONS

 Legal training and or education for Chiefs and officers of Local Courts
 Strict adherence to the court recording system for ease of
administration
 Follow up on fulfillment of judgment requirements by judgment
debtors (to be done by messenger of the local courts)

1. EXISTENCE OF VERBAL AGREEMENTS AT LAW

A verbal agreement is plainly defined as an oral agreement that is reached

without committing to writing but encompassing all essential elements of a
contract at law. These are generally acceptable on condition that there is a
valid offer and acceptance, the parties to the agreement are well versed on
what they will be agreeing to, are doing this legally, are willing to be bound
by the terms they set out for themselves and are entering into the
agreement willingly without any undue influence, duress or
misrepresentation. It should be noted that these verbal agreements can
translate to contracts and will be governed by the existing contract law. The
Customary law and Local Courts Act in Section 3(1) (b) allows the
application of general law where customary law does not have set out legal
principles. For the determination of matters regarding verbal agreements,
reference will be made to the contract law of Zimbabwe which is derived
mostly from common law principles, case law and authoritative texts.

While the law allows and recognizes verbal agreements, there are certain
circumstances where these will not be regarded as oral contracts. Where
the parties do not meet the requirements referred to in the paragraph
above, the verbal agreement falls short of a legal contract and may not be
enforceable in a court of law.

NB: In as much as verbal agreements are enforceable and at times

translated to contracts, their enforceability is not as certain as that of
written agreements for there is risk that one party to the agreement
may refute the existence of the agreement and in the absence of
evidence, lead to the nonexistence of the oral contract.

2. ENFORCEMENT OF VERBAL AGREEMENTS

Verbal agreements are generally enforceable where parties agree to the

existence of the agreement. However, it should be noted that the
enforcement of these verbal agreements is greatly difficult as more often
than not, in the absence of a written agreement, courts are faced with a he-
said she-said situation which is difficult to ascertain. Generally, the
approach has been taken is that the party alleging that there was a verbal
agreement translating to a legal contract should be in a position to prove
the latter. Where there were other parties present when the verbal
agreement came to effect, these may be called in as witnesses in
accordance to the rules of the particular court presiding over the matter in
this case, the local court.

3. REMEDIES WHERE VERBAL AGREEMENTS ARE BREACHED

In the event that a verbal agreement that parties had entered into is
breached in any way, the remedies for breach of contract will apply as they
are set out. These are: Specific performance, interdicts and declaration of
rights. For the purposes of this opinion, focus will be made on specific
performance as it is a remedy that is in the ambit of local courts. (See
section 17 of the Customary Law and Local Courts Act).

SPECIFIC PERFORMANCE

Where a party to the verbal agreement breaches a term set out in the
agreement and after the establishment that the agreement amounts to a
legally binding contract, the court can order specific performance. This is
generally defined as an order compelling the defaulting party to uphold their
obligations as had been agreed. If parties had agreed that the defaulting
party is to give 10% of their produce to the aggrieved party, and there is
breach, specific performance would be ordered meaning that the defaulting
party would be compelled by the court to complete his contractual
obligation. In the case of Victoria Falls and Power Company Limited v
Consolidated Langlaagte Mines Limited, specific performance was ordered
where a party had failed to meet their contractual obligation. This is done to
ensure that no party is at a disadvantage due to the existence of the
contract.

See also: Rowland Electro Engineering (Pvt) Ltd v Zimbanks,

Intercontinental (Pvt) Ltd v Nestle Zimbabwe
However, it should be noted that this is not an absolute remedy and has
instances where it cannot be applied. Where it is impossible to perform,
causes undue hardship and in contracts for personal service, a court
cannot order specific performance. Hence where a party might have no
goods to deliver if the contract was for delivery of goods, specific
performance cannot be ordered. Therefore, the courts should exercise
caution when considering to grant this remedy.

DAMAGES

Section 17 of the Customary Law and Local Courts Act allows for the local
courts to grant damages. Where verbal agreements are defined as legally
binding contracts, the court can order payment of damages to the
aggrieved party. However these are claimed only for financial loss and this
should be ascertained before they are granted.

CANCELLATION

Where the contract would have been breached, the remedy for cancellation
of the contract is available to the parties. This will terminate any existing
legal contractual relationship between the parties and will return things to
the position they were before (status quo ante). This will mean that if there
had been partial fulfillment of the contract, performance has to be returned.

The above listed remedies are not exhaustive as there is a plethora of

remedies available for breach of contract at law but these are applicable to
local courts.

RECOMMENDATIONS
LEGAL TRAINING AND STRICT ADHERENCE TO RECORDING
SYSTEM

In an era where the Chiefs and officers of Local Courts are confronted by
complex and mostly issues regarding to general law, it is recommended
that the administration of local courts inclusive of the Chiefs be given legal
training to enable them to be in a better position to tackle such issues as
the one at hand, This will ensure a smooth running of the judicial system
from the lower courts to those most superior and efficient delivery of justice.

Local court officers are also encouraged to strictly adhere to the court
recording system for ease of enforcement of judgments as there will be a
record of the proceedings.

FOLLOW UP ON FULFILLMENT OF JUDGMENTS

Where judgments are given by the local courts, it is suggested that efforts
be made by the messenger of court to follow up on the execution of such.
This will avert the problem of ineffective judgments that is prevailing as
parties simply choose to defer and not comply. Where this noncompliance
is present, a penalty should be given to the defaulting party so as to ensure
that in the future judgments are adhered to before the judgment is
registered in the magistrates court so as to try and deal with issues at local
court level before approaching the magistrates court as is provided for in
section 18 of the Customary Law and Local Courts Act.

For further understanding of the concepts stated above the following

authorities can be reffered to
1) Customary law and local courts Act Chapter 7:05

2) The Law of Contract in Zimbabwe - Dr I Maja