Takabvakure Mutunhu v Crest Poultry Group (Pvt) Ltd

The parties entered into two Contract Growers Agreements - the first on 19 July 2011 for three months, and a replacement agreement on 15 September 2011 lasting six months until 15 March 2012. Under these agreements, the defendant would supply Day Old Chicks (DOCs) to the plaintiff who would rear them to slaughter weight. The defendant would then collect the adult birds for slaughter at an agreed price. After the first cycle, the plaintiff suffered catastrophic losses with high mortality rates and underweight birds, resulting in a debt of US$20,367.70 to the defendant. The defendant agreed to extend the contract to give plaintiff a second chance. The second batch yielded a profit of US$2,985.91. The plaintiff claimed the defendant breached an implied term by failing to place more chicks with him when he had capacity. The defendant denied this, asserting that the plaintiff needed to clear his debt first and that it was the plaintiff's duty to order new batches. The plaintiff made several payment proposals but failed to honor them and cancelled his US$30,000 bank guarantee on 6 December 2011. The defendant ultimately sued and recovered the debt on 22 April 2013.

• Whether the defendant breached the Grower's Contract by failing to place DOCs with the plaintiff
• Whether an implied term existed obligating the defendant to place chicks with the plaintiff whenever he had capacity to raise them
• Whether such an implied term could be read into a contract with express terms
• Whether the plaintiff was entitled to damages for breach of contract
• Whether the plaintiff prevented his own performance (mora debitoris) and committed anticipatory breach
• Whether the defendant was entitled to counterclaim for interest and collection costs
• Whether costs on a higher scale were justified

1. Plaintiff's claim dismissed. 2. Defendant's counterclaim granted. 3. Plaintiff ordered to pay damages of US$1,697.24 (interest accrued on debt). 4. Plaintiff ordered to pay US$2,037.00 (collection commission). 5. Plaintiff ordered to pay interest on sums in paragraphs 3 and 4 at prescribed rate from 9 June 2017 to date of payment. 6. Plaintiff ordered to pay defendant's costs on a higher scale.

An implied term cannot be read into a contract where it contradicts or is inconsistent with express terms of the agreement, particularly where the contract contains an 'entire agreement' clause stating that the written document comprises the full agreement between parties. A party commits anticipatory breach of contract through 'prevention of performance' (mora debitoris) when their conduct creates certainty that they will not perform their contractual obligations. Where a debtor fails to discharge their primary obligation (payment of debt) which is a prerequisite to the creditor's counter-performance, the debtor cannot claim the creditor breached the contract by not performing. A party cannot claim damages for breach of contract when they themselves have breached the contract and prevented performance. The objective test applies to determine contractual consensus - courts look to the external manifestation of the parties' intentions, not their unexpressed mental reservations.

The court made observations about the plaintiff's failure to mitigate damages, noting that clause 2.2 of the second agreement expressly permitted him to purchase DOCs from Hubbard independently, raise them with his own inputs, and sell to third parties when the defendant was unable to place birds with him. The plaintiff's failure to disclose this option in his declaration was dishonest and showed lack of desire to mitigate damages. The court noted that it would be improbable and unreasonable from a business perspective for Hubbard to continue placing birds with the plaintiff on credit when he had not paid for the first batch. The court commented that the plaintiff's misleading statement in his declaration that he was 'bound to use feed and products sold by defendant and its partner companies' omitted the important proviso allowing independent purchases. The judgment emphasizes that naturalia (terms attached by law) can only be implied where they are reasonable, obvious and necessary, and where parties are not ignorant of the matter to be implied.

This Zimbabwean High Court case establishes important principles regarding implied terms in contracts and anticipatory breach. It affirms that courts will not imply terms into contracts where express terms already govern the matter, particularly where the parties have included 'entire agreement' clauses. The judgment provides valuable guidance on 'prevention of performance' (mora debitoris) as a form of anticipatory breach, where a debtor's conduct creates certainty that performance will not occur. The case demonstrates how a party's own breach and failure to mitigate damages can defeat their claim for damages. While this is a Zimbabwean case, it applies common law principles derived from South African authorities including Pieters & Co v Salomon (1911 AD 121), South African Railways & Harbours v National Bank of SA Ltd (1924 AD 704), and Nel v Waterbuurg Landbouwers Ko-operatie Vereenigung (1946 AD 54). The judgment on costs awards reinforces that abuse of court process through unmeritorious litigation and dishonest pleadings will attract costs on a higher scale.