TM SUPERMARKETS (PVT) LTD v CHADCOMBE PROPERTIES (PVT) LTD 2010 (1) ZLR 196 (H)

Flynote

Contract — interpretation — clause giving options open to innocent party in event of breach of contract — options separated by "either" and "or" — effect — innocent party not entitled to exercise both options — must elect one or another

Contract — interpretation — use of words "either" and "or" — normally treated as disjunctive unless compelling indication that it is conjunctive

Contract — lease — breach — failure of lessee to pay rental — interpretation of agreement — three options available to lessee in terms of the agreement — right to terminate lease "or" to continue lease and claim rental or to take or enforce any other right or action — word "or" to be treated as disjunctive — lessee could not exercise both actions in respect of the same breach

Costs — higher scale — appeal — legal practitioner belatedly raising a point of no substance during argument — award of costs on the higher scale appropriate

Words and phrases — "or" — word "or" to be treated as disjunctive unless there is a compelling indication to the contrary

The word "or" is usually treated as disjunctive unless there is a compelling indication that in its context it means "and" (dicta per Gubbay JA in S G v Ncube & Ors 1987 (2) ZLR 246 (S) at 264 followed).