The appellant (Majero) was the owner of Shop Number 22035 Landas Business Centre, Chihota. He entered into a contract of sale with the respondent (Danda) for Z$50 million, with Z$10 million deposit payable on signing and monthly instalments of Z$6 million until end of August 2004. The respondent paid the deposit but did not pay instalments for the first two months (March and April 2004), claiming she had not received vacant possession and had to resist disturbances from other persons claiming rights to the same property. Thereafter, she commenced payments but in an irregular manner with disparately varying amounts. By the end of August 2004 when the balance of Z$40 million should have been paid in full, only about half had been paid. The appellant continued to accept irregular payments without demur for five months thereafter until the full purchase price was exceeded. When the respondent sent a final cheque for Z$9,130,000 in "full and final settlement", the appellant sued for cancellation of the contract and eviction of the respondent from the property. The magistrate's court dismissed the claim, and the appellant appealed to the High Court.
The appeal was dismissed with costs.
A creditor who continuously accepts defective performance (late and irregular payments) without protest over an extended period loses his right to cancel the contract for those past breaches. The creditor can only regain the right to cancel by giving the debtor notice that he will in future insist strictly on performance as stipulated in the contract. Where a party accepts full payment under a contract, he cannot simultaneously claim cancellation as enforcement and cancellation are mutually exclusive remedies - he must elect between them and cannot approbate and reprobate. The principles of estoppel, waiver and election, though conceptually distinct, often overlap in practical application and can collectively operate to defeat a claim for cancellation where the creditor's conduct demonstrates acceptance of defective performance.
The court observed that estoppel, waiver and election are legal concepts that often overlap and in practical terms may amount to the same thing. The court noted that describing the juristic act as an election is probably more meaningful than waiver, though adherence to one or other concept would probably not make much difference in terms of practical results. The court also remarked that the concept of tacit variation mentioned by the magistrate did not appear applicable as an open-ended variation is unthinkable. Regarding the objection that waiver must be specifically pleaded, the court observed that while this is generally true, exceptional circumstances may exist where the court would consider the defence in absence of proper pleadings, particularly where the failure to raise the objection earlier and the intrinsic connection between waiver and other defences is present.
This case is significant in Zimbabwean and South African contract law for clarifying the overlapping application of estoppel, waiver and election in contractual disputes. It establishes that a creditor who continuously accepts defective performance from a debtor loses his right of cancellation for past breaches, and can only regain this right by giving proper notice that he will in future insist strictly on performance as stipulated. The case demonstrates that a party cannot approbate and reprobate by accepting full payment while simultaneously claiming cancellation. It provides important guidance on when conduct amounts to condonation of breach and how the doctrine of election operates to prevent inconsistent positions.