Deasury Investments (Private) Limited t/a Tonderai Music Corporation v Fungisai Zvakavapano and Ngaavongwe Records (Private) Limited

The second respondent (Ngaavongwe Records) entered into a 5-year contract with the first respondent (Fungisai Zvakavapano), a musician, on 11 March 2001, running until 10 March 2006, whereby she would compose and record music for the company. Clause 6.3 of that agreement prohibited the artist from entering into separate music production agreements with other companies during the contract period. In September 2003, while the first contract was still in force, the first respondent entered into a new contract with the applicant (Deasury Investments/Tonderai Music Corporation) to produce at least three music albums from 1 October 2003 to 31 August 2005. Clause 9 of this second contract contained the first respondent's undertaking that she was not bound by any other contract, with the applicant indemnifying her up to Z$5 million. The first respondent subsequently abandoned the applicant and returned to record with the second respondent, abandoning preparatory work done at the applicant's expense. The applicant sought an urgent interdict to restrain the respondents from exercising their current agreement.

• Whether the applicant established a prima facie case for the granting of a temporary interdict
• Whether the first respondent breached her original contract with the second respondent by entering into a contract with the applicant
• Whether the first respondent breached her contract with the applicant by returning to the second respondent
• Whether the court should restrain the respondents from exercising a valid contract when the applicant's contract had been invalidated by breach
• The effect of the original contract which provided that subsequent work by the first respondent would accede to the second respondent during the currency of that contract

The application was dismissed with costs.

A party whose contract has been breached or invalidated cannot obtain an interdict to restrain the other contracting party from exercising the terms of a subsequent apparently valid contract. Where an artist subject to an exclusive service contract enters into a subsequent contract with another party, thereby breaching the first contract, and then returns to the original contracting party, this constitutes a novation of the original contract. The appropriate remedy for the second contracting party is to pursue contractual remedies for breach of contract (damages) rather than seeking injunctive relief. To obtain a temporary interdict, the applicant must establish a prima facie case, which cannot be established where the contract sought to be enforced has itself been invalidated by the artist's breach or where the original contract's terms provide that subsequent work by the artist accrues to the original contracting party.

The court observed that the applicant's counsel's argument that the first respondent must be deemed to have breached the first contract with the second respondent by her conduct in concluding a contract with the applicant, if taken to its logical conclusion, would mean that when the first respondent abandoned the applicant to return to the second respondent, she also breached her contract with the applicant. The court noted that the applicant may pursue its contractual remedies for breach of contract, suggesting that damages or other contractual remedies would be the appropriate avenue rather than an interdict. The judgment implies that parties entering into exclusive service contracts in the entertainment industry should conduct proper due diligence regarding existing contractual obligations, and that indemnity clauses (such as clause 9 in the applicant's contract) may not prevent the fundamental invalidity of a contract entered into in breach of an existing exclusive agreement.

This case is significant in Zimbabwean contract law and entertainment law as it addresses the complex issues arising from conflicting exclusive service contracts in the music industry. It illustrates the principles governing temporary interdicts and emphasizes that a party cannot obtain injunctive relief to enforce a contract that has itself been breached or invalidated. The judgment also demonstrates the application of the doctrine of novation in the context of entertainment contracts and confirms that parties whose contracts have been breached must pursue their remedies through claims for damages rather than seeking to prevent the breaching party from performing under a subsequent valid contract. The case provides guidance on the enforceability of exclusive service agreements and the prioritization of competing contractual claims.