NCUBE V NDHLOVU 1985 (2) ZLR 281 (S)

NCUBE v NDHLOVU 1985 (2) ZLR 281 (S)

Flynote

Appeal — grounds not advanced in lower courts — whether may be raised for first time on appeal.

Contract — mistake of law — whether vitiates contract — mistaken motives — effect of.

Customary law — contract between seducer and father of seduced major daughter in terms of which former agrees to pay damages to the latter in respect of seduction of the daughter — whether enforceable.

Headnote

Appellant seduced the major daughter of the respondent. He signed an agreement undertaking to pay the respondent damages for the seduction. His claim of duress was dismissed in the lower courts and in the Supreme Court three contentions were advanced: that the contract was void for immorality; that it was void as contrary to public policy, being based upon trading children for money; that it was voidable as being induced by a mistake in law. None of these grounds had been raised below.

Held that the first two grounds raised questions of law and fact, and since no evidence had been led to establish the factual basis, the points could not be advanced for the first time on appeal. The third ground was a question of law alone which could be dealt with on appeal, there being no prejudice to the respondent.

Held, further, that a contract induced by a mistake in law or a mistaken motive remains enforceable.

Held, further, that there is no reason why the undertaking of a seducer of a woman over the age of majority to pay damages for seduction to the father should not be enforced.