HEWLETT v CHIPUNZA 1983 (1) ZLR 148 (H)

Flynote

Contract — for sale of goods at price in excess of controlled price — price said to include items price of which not controlled — whether intention thereby to evade regulations makes contract void — Control of Goods (Wholesale Beef Prices) Order, 1980 (SI 644A of 1980) — s 3(1).

Headnote

The plaintiff, a rancher, supplied beef to the defendant butcher over a period. The original price agreed between them was $1 a kilogram, which was later reduced to 95 cents a kilogram. The defendant did not pay for all the beef supplied and, when sued for the outstanding balance, counter claimed on the grounds that he had overpaid.

The trial court mero motu (but not the defendant) raised the question of whether the contract itself was void, as there was in existence at the time the control of Goods (Wholesale Beef Prices) Order, 1980 (SI 644A of 1980), in terms of which the maximum price at which a "carcass", as defined, could not lawfully be sold at a price in excess of a figure ranging from 51 to 80 cents a kilogram. The figure depended on the quality of the carcass. The Plaintiff had first alluded to this order in his replication, and there claimed that the price he charged the defendant included the offal, the price of which was not controlled under the order. This would have made the value of the offal some $56 per beast, whereas the evidence was that offal was actually worth between $12 and $40 a beast.

Held, that the contract was prima facie illegal, being in contravention of the Order; but as to whether it was in fact a disguised transaction, one could only come to that conclusion if it could be shown that the buyer was not paying the controlled price for the beef and the balance for the offal. To find this, the Court would have to conclude that the price of the uncontrolled item in the package of two products was such that no reasonable man would pay it. On the evidence, it was not possible to reach that conclusion, and the contract would be upheld.