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

2010 (1) ZLR p196

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 v Ncube & Ors 1987 (2) ZLR 246 (S) at 264 followed).