conduct their business for the purposes of these regulations; (3) Orders made under subs (1) shall not have effect until they have been approved by the Minister and published in the Gazette.” At the hearing of the appeal, Mr conceded that the RBZ directive De Bourbon was of the provisions of s 35(1) of the Regulations. Paragraph (c), it will be seen, ultra vires deals with the offer of He foreign currency in their possession for sale to the RBZ. submitted, however, that the defence of supervening impossibility was available to the bank even where the directive was unlawful. I disagree. In by R H Christie, cited above, the following The Law of Contract observation is made by the author: limits of and have not been authoritatively defined “The vis maior casus fortuitous for the purposes of this branch of the law, but it is clear from Peters, Flamman, where the internment and winding- up were carried out under statutory authority, that any similar act of state would qualify. Legislation subsequent to the making of the contract, making performance illegal either absolutely or without a specified consent which has been refused, will also qualify, as will refusal of a statutory consent, but For not obedience to a ministerial directive given without statutory authority. the purposes of this branch of the law there is no necessity to distinguish between vis and which between them include any happening, whether due maior casus fortuitus, to natural causes or human agency, that is unforeseeable with reasonable foresight and unavoidable with reasonable care.” (The emphasis is mine.) And on p 528 created impossibility, that is, impossibility resulting from the act of one of the “self parties, does not discharge the contract but leaves the party whose act created the impossibility liable for the consequences. This will be so whether the impossibility is complete or partial, and whether or not the act that causes the impossibility is wrongful.”
conduct their business for the purposes of these regulations; (3) Orders made under subs (1) shall not have effect until they have been approved by the Minister and published in the Gazette.” At the hearing of the appeal, Mr De Bourbon conceded that the RBZ directive was ultra vires of the provisions of s 35(1) of the Regulations. Paragraph (c), it will be seen, deals with the offer of foreign currency in their possession for sale to the RBZ. He submitted, however, that the defence of supervening impossibility was available to the bank even where the directive was unlawful. I disagree. In The Law of Contract by R H Christie, cited above, the following observation is made by the author: “The limits of vis maior and casus fortuitous have not been authoritatively defined for the purposes of this branch of the law, but it is clear from Peters, Flamman, where the internment and winding- up were carried out under statutory authority, that any similar act of state would qualify. Legislation subsequent to the making of the contract, making performance illegal either absolutely or without a specified consent which has been refused, will also qualify, as will refusal of a statutory consent, but not obedience to a ministerial directive given without statutory authority. For the purposes of this branch of the law there is no necessity to distinguish between vis maior and casus fortuitus, which between them include any happening, whether due to natural causes or human agency, that is unforeseeable with reasonable foresight and unavoidable with reasonable care.” (The emphasis is mine.) And on p 528 “self created impossibility, that is, impossibility resulting from the act of one of the parties, does not discharge the contract but leaves the party whose act created the impossibility liable for the consequences. This will be so whether the impossibility is complete or partial, and whether or not the act that causes the impossibility is wrongful.”
SC-49-13%20STANDARD%20CHARTERED%20BANK%20ZIMBABWE%20LTD%20VS%20CHINA%20SHOUGANG%20INTERNATIONAL%20.docx