Business and corporate law

3/4/2020
Botswana Accountancy College
Chiedza antonatte Marime

Number of words: 3135

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Table of Contents
Table of cases ..................................................................................................................................................
Question 1 ................................................................................................................................................... 1
Questions 1b ............................................................................................................................................... 3
Question 2 ................................................................................................................................................... 5
Question 3 ................................................................................................................................................... 7
References .................................................................................................................................................. 10

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Table of cases
Cases

Balam v Friern Hospital management Committee ................................................................................ 5

Caxton Ltd v Reeva ................................................................................................................................... 6
Gibbons v Proctor....................................................................................................................................... 4
Haynes v King Williamstown Municipality .............................................................................................. 3
Kruger v Coetzee. ...................................................................................................................................... 5
Kuwait Airways Corporation v Iraqi Airways Company and Others ................................................... 5
Lee v Minister for Correctional Service ................................................................................................... 5
Maje v Botswana Insurance Ltd (2001), ................................................................................................. 6
Pascoe v Botswana Ash Pty Ltd (2008) ................................................................................................. 5
Pindani v Manyepedza .............................................................................................................................. 5
R v Clarke. ................................................................................................................................................... 4
Seoke v Serole 1996 ................................................................................................................................. 6
Shakinovsky v Lawson .............................................................................................................................. 3
White v Ntuliki & others (2015). ............................................................................................................... 2
Williams v Carwardine (1833 .................................................................................................................... 4

Dahlia v Four Millbank Nominees [1978]................................................................................................ 1

Du Plessis v Labuschagne and Others (2017) ...................................................................................... 2
Gibbs v Leeds United ................................................................................................................................ 8
Motsumi v First National Bank of Botswana Ltd [1995 ......................................................................... 9
Motsumi v First National Bank of Botswana Ltd [1995]. ...................................................................... 8
Partridge v Crittenden 1968...................................................................................................................... 1
Pepper v Webb (1968) .............................................................................................................................. 7
Phirinyane v Spie Batignolles [1995 ........................................................................................................ 8
Sisya v Frontline Investments Pty Ltd (2008), ....................................................................................... 9
White and Carter v MC Gregor’s ............................................................................................................. 2

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Question 1

The purpose of this current study is to find weather Mpho and Modern Pharmaceuticals
Ltd has legal binding. The scenario is about contract law under private Law. A contract
is an agreement made by two or more individuals that are enforceable by court
(BONNER, 2019). For a contract to be enforceable by law there must be intention to
create the legal obligation as well as the elements of offer and acceptance. Offer and
acceptance are the most essential requirements that must be present in the formation of
the contract as asserted by (Kaplan Financial Knowledge, 2018). An offer is a promise
in which offeror intends to be bound on specific terms and is in the form which is
capable of acceptance as shown in the case of Dahlia v Four Millbank Nominees
[1978]. According to Carlill v Carbolic Smoke Ball Co (1833), the offer must be made
with a statement of intention. In the scenario for Modern Pharmaceuticals Ltd and Mpho
it was made with statement of intention as it states P50 000 is deposited in the bank to
show the sincerity in this matter. More so, an offer must be different with an invitation to
treat unlike the case of Partridge v Crittenden 1968. Invitation to treat is a way of
showing that a person is willing to receive an offer, for example exhibit of goods on a
shop aperture thus fisher v Bell (1961)’s case.

Finally yet importantly, communication of the offer is required before it is accepted.

Although, the extensive order is that acceptance of an offer must be liaised, there are
times where the communication of acceptance is wave. In this scenario, the agreement
made between Modern Pharmaceuticals Ltd and Mpho is unilateral, so the
communication is waved. Unilateral contract is a contract created by an offer that only
be accepted by performance unlike bilateral contract where by the contract is
communicated and also idem that is meeting of minds. Moving on to acceptance,
Tulsian (2016) define acceptance as when a person to whom the proposal has been
made signifies his assenet thereto. In this scenario, the way the offeree accepted the
offer shows that she had knowledge concerning the offer. Therefore, this means that
Modern Pharmaceuticals Ltd and Mpho have entered into a commercial agreement;
whereby it is presumed that the parties have intention to create legal relations and there

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is no evidence that would make the presumption to be rebutted. However, in general,
advertising is not an offer except in the cases of reward, where advertising is specific as
to what terms must be fulfilled in order to claim the reward.

The question might rise is it possible to terminate the offer especially unilateral
contract? Termination can be in many ways like revocation, rejection and lapse.
According to the case of Shuey v United States an offer is revoked in the same manner
as it was offered. From the present judicial precedent in the case of Dahlia v Four
Millbank Nominees [1978], once the offeree has started the performance the offer
cannot be revoked. Therefore Modern Pharmaceuticals Ltd cannot terminate the
contract since the Plaintiff has already performed. Since the defendant is refusing to pay
Mpho her reward as stated in the advertising, by doing so, the company has conducted
amount to breach of contract specifically for anticipatory. Anticipatory repudiate is failure
to abide by your words before actual time for performance has arrived. In line with
common law, Mpho can choose either to reject the repudiation as White and Carter v
MC Gregor’s case. The problem with rejection is that, if contract is frustrated after
rejecting the repudiation, no damages are paid to Mpho. Or she can choose to accept
the repudiation thus, treating the contract as it is and sue for damage before the time
agreed upon arrive Horchester v De Latour.

Since Mpho is interested in receiving 2000pular as agreed by the contract she can
accept the repudiation. Under the law, there is a remedy in every breach of contract;
therefore, Mpho is entitled to a remedy caused by Modern Pharmaceuticals for breach
of contract. Since the reward was already deposited, Mpho should approach the high
court for the interdict. Interdict is a court order maintaining or re-establishing the status
quo waiting for the final resolutions of the rights of the parties. It excludes the last
resolution to the particular rights and it affects not their last determination. There are two
types of interdict thus, prohibitory and mandament van spolie. In Du Plessis v
Labuschagne and Others (2017), the court compels the part to act contrary to the
contract. Mandament van spolie thus mandatory, it compels the part to undo the breach
thus restoration of possession as in the case of White v Ntuliki & others (2015). In the
scenario, the appropriate interdict is prohibitory interdict. This way, the status quo will

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remain in that Modern Pharmaceuticals, this means that, it will be stopped from denying
that there was contract between the company and Mpho.

In other words, Mpho is seeking for the specific performance of Modern

Pharmaceuticals Ltd obligation under the contract, which is for them to pay the reward
as agreed in the contract. Specific performance is almost the precise technique of
attaining the guerdon objectives of contract remedies, since it allows the promisee to
have specific performance that one acquires. For specific performance to be carried out,
there are some requirements mentioned in the case of Shakinovsky v Lawson and
Smulowitz that is performance must be possible; the court must be in a position to
enforce the order. In the case for Basson v Hanna (2016), they went further mention the
requirement of specific performance that it must not be hardship to the public and also
that damages are not an adequate remedy. In Haynes v King Williamstown Municipality,
the court held that the defendant could not be compelled to supply water to the plaintiff
as agreed because the other residents of the municipality would have suffered greatly
for lack of adequate water supply.

In conclusion, in the case between Mpho and Modern Pharmaceuticals, there is nothing
to show that the public will be inconvenienced if Modern Pharmaceuticals Ltd is
compelled to pay Mpho her money. Therefore, this is the correct case for specific
performance, and the court must exercise its discretion in favor of Mpho.

Questions 1b

Reward is considered to be a type of contracts, specifically a unilateral contract as

asserted by Davids (2012). Bouvier (1856) went further by saying reward is the amount
of money or other compensation offered to the public in general for the performance of
specific task. With the assumption that Mpho became aware of the reward after

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accepting an offer, she is entittled to reward not as supported by the case of R v Clarke.
On this case the court held that R was not entittled for the reward since he was unaware
of the reward. Under this view, since a unilateral contract cannot be done until the
offeree accept the offer through perfomance, therefore, that perfomance should be done
by the person who has knowledge concerning the offer.

However, to a lesser extend Mpho can be entittled to the reward as assertaned by the
case of Gibbons v Proctor. The court detain that Gibbons was entitled to the reward.
This shows that offer can be accepted, even though one does not have knowledge
concerning it, even if one is unaware of the offer. The extensive order is that knowledge
concerning the offer is required before you accept it, except this case because it was an
unilateral contract .

In conclusion, Mpho is not entittled to the reward since she did not have the knowledge
concerning the reward and she did not compile with requirement of the offer. More so,
contract law requires that Mpho must must have the knowledge concerning the offer
before accepting it, in other words you can not accept the offer without inquiry into
motive or knowledge. Therefore, Mpho does not have the right to demand the reward as
supported by the case of Williams v Carwardine (1833). The court held that, since the
plaintiff had knowledge concerning the offer, therefore, she was entitled to the reward.
The reasons why she was entitled for the reward was because of her knowledge
concerning the offer even though her motives in providing the information was
unnecessary.

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Question 2

The scenario is about the law of delict specifically of negligence. Delict is the civic
erroneous to discrete for which demages can be claimed for compensation and for
which recompense is not typically dependend on a erstwhile contractual responsibility in
order to desist from producing harm as stated in the case of Pascoe v Botswana Ash
Pty Ltd (2008). Therefore, the law of delict signifies a outlet of private law subsiding
under the law of obligation. It act as controller of societal conduct in the sence that it
inaugurates how individuals should act relative to one another by setting down when
one person is delictual liable to another (Zimbabwe Legal Information Institute, 2018).
The case of Kuwait Airways Corporation v Iraqi Airways Company and Others, provide
the drive of this law as to compensate a casualty for damage incurred through the
wrongful conduct of the wrongdoer.

In the case of Pindani v Manyepedza, there are key elements that must be present for
one to prove if delictual liable was present thus, conduct, fault, harm, wrongfulness, as
well as causation. Conduct is unlawful act by an individual which intrude on another
individual’s permissible right. Moving on to wrongfulness, a plaintiff has to prove that the
conduct was illegal and triggered damage. With respect to fault, it is whereby one has
to establish whether the wrongdoer acted negligently as the case of Kruger v Coetzee.
Lastly causation, is where by a connection has to be recognized between the conduct of
the wrongdoer and the damage to the victim as explained in the case Lee v Minister for
Correctional Service 2013. In this case, the plaintiff failed to provide the other alternative
that the defendant was supposed to take inorder to prevent the plaintiff from
tuberculosis and the defendant was held delectual liable not.

All the key elements are present in the scenario as supported by the statement, ‘South
East District council terminate the contract through the negligence of its senior
management officials’. In the case Balam v Friern Hospital management Committee
negligence means remisses to do several actions a deligens paterfamilias in the
conditions would do, or to do severals actions that a deligens paterfamilias in the
conditions would not do. Although the negligence was done by the senior management

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official of South East District council, but the council is held liable because of the
doctrine of vicarious liable. Vicarious liability is a permitted notion that allocates legal
responsibility to individual’s who did not essentially origin the harm, but who has a exact
more legal connection to the individual who did cause the harm as asserted in the case
Seoke v Serole 1996. Vicarious liability regularly originates into performance when an
employee has operated in a negligent manner for which the employer will be detained
answerable as in the case of Sisya v Frontline Investments Pty Ltd (2008), whereby the
employer was held vicarious liable for the delict unswerving by his employee. Therefore
in the scenario, South East District council is delictual liable for the termination of
contract.

From contractual point of view, k (Pty) and district council share no relationship because
of the doctrine of privity of contract, this means that K cannot sue district council for
breach of contract. However, just because they do not share any relationship, does not
mean that k can not claim compensation for demages. Since, district council is held
delictual liability, therefore, K (Pty) can claim compensation for demages from South-
East district council. There are two types of demages under delict, actio iniurium and
actio aquiliae. In the case of Maje v Botswana Insurance Ltd (2001), actio iniurium was
explained as an action for delict which does not seek only to protect individuals dignity
and reputation but also physical integrity. Moving on to actio acquiliae, it is the general
delictual action used to claim for patrimonial or financial loss as it is supported by the
case Caxton Ltd v Reeva Forman. Therefore, the appropriate claim for compensation is
actio acquiliae since K (Pty) is seeking compensation for the loss of finacials with the
assumption that K (Pty) lost many contract the day they receive the offer of
subcontracting.

With the above discussion, it is concluded that k (Pty) can sue South-Easth and claim
compensation under the law of delict even though they share no contractual
relationship.

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Question 3

The scenario is about contract of employment. It is the authorized agreement made

amid an employer and the employee. It contains of three elements that are express
terms, terms implied by the court and as well, as terms implied by the statute (Feldman,
2017). Express terms are those that are agreed and arranged between themselves.
Under the employment rights Act (1996), the employer is supposed to provide a written
statement to the employee, stating how the job is going to be conducted as well as
working hours. In addition to that, it states that any changes of the business must be
announced within one month by written statement. Looking at the scenario of WW Ltd
and Moahi, it shows that the employer fulfilled most requirements mentioned under act.
When Moahi informed about the changes within one month, it shows that the employer
was in line with the employment act.

Moving on to terms implied by the courts, the courts have insinuated different
responsibilities between employee and employer. With respect to the duties of
employees, they are supposed to obey the law and reasonable orders. In the incident of
Pepper v Webb (1968) the court detained that the gardener was in breach of duty of
acquiescence as he refused to plant the plants where commanded by the employer.
Applying the scenario of WW Ltd and Moahi, the employer is held in breach of duty of
obedience, this is incorporated with the fact that he was rude and he uses very foul
language against his employer.

Moving on to the duties of the employer, thus, onus to deliver a harmless method of
work, under common law employers are recommended to take special reasonable care
in order to provide harmless method of work. This means that, the employer has to act
reasonable all the times. Furthermore, the employer must compensate employees in
accordance with the terms of the contract. Details concerning compensation or bonuses
are supposed to be covered and contained within the contract list. In other words, if
compensation of employee must be included in the contract so as the issue of demotion
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as supported by the case of Gibbs v Leeds United. In this case, the court held the
defendant responsible for breach of contract because of undermining the role of
employee. Therefore, in the scenario, the employer held for breach of contract in the
sense that he wanted to demote the employee.

Lastly, on the duties of employers, the employer must provide reasonable notice of
termination as supported by the case of Phirinyane v Spie Batignolles [1995. The court
held that, termination of an employee's contract had to be both applicably and
practically fair. In view of that, there had to be a binding and unbiased motive for
termination and the employer had to shadow a fair procedure before dismissing the
employee. However, in the scenario, the employer just terminates the contract without
following the dismissal as what happened in the case of Motsumi v First National Bank
of Botswana Ltd [1995]. According to the section 5(1)(a) of the Trade Dispute Act, the
employee is fairly dismissed as he has behave badly with the employer. Moreover,
section 26(1) of the employment Act (Cap.47;01) state that the employer may terminate
any contract of employment deprived of generous notice of his intention to do so or
creation any payment such as mentioned in section 19(a) or (b) where the employee is
mortified of thoughtful delinquency in the path of his employment.

Though the endeavor does not advocate any process to be taken by the employer afore
an employee is dismissed aimed at misconduct thus, disciplinary dismissal. The
guidelines of expected justice however, diktat that in labor or industrial relations, when
commerce with a misconduct dismissal case, there must be a lawful and reasonable
motive for such dismissal in order to inaugurate that the employer must shadow a fair
practice prior to dismissing such employee. In order to conform thru the previously
mentioned necessities an employer must tail a fair procedure, which means that fair
disciplinary investigation (sometimes named a disciplinary inquiry) must be held. A
hearing normally indicates certain official procedure followed in trying to hear the
employee’s side. According to the scenario, there was no disciplinary enquiry that was
held. Although the employee was wrong, negligence and the employer can be justifiable
but there was no fair dismissal. In the case of Motsumi v First National Bank of
Botswana Ltd [1995], because the employee’s dismissal was procedurally unfair, the

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court held that he was entitled to compensations, but as his dismissal was not deprived
of decent reason; his compensations wages was only for two months.

Using the case Sisya v Frontline Investments Pty Ltd (2008), the employer was held
vicarious liable for the delict unswerving by his employee. Therefore, this means that in
the scenario of Moahi and WW Ltd, the employer is vicarious liable for the misconduct
committed by the employee while acting within scope of employment. However, when
the employee disobeying and uses foul languages to the employer, the employer is not
responsible for it. Vicarious liability is a condition in which single party is held partially
accountable for the illegal actions of a third party as asserted by (Barron, 2018).

In conclusion, from the above analysis, Moahi is advised to sue the company for breach
of contract when it acted out of the scope of employment by demoting Moahi. Using the
case of Motsumi v First National Bank of Botswana Ltd [1995], Moahi should also claim
compensation for constructive dismissal when Khumo changed the position of Moahi. In
the case where Moahi uses foul language and assaults Khumo, he had right to dismiss
the employee but after a legal procedures (summary dismissal). Thus, elect an internal
or external detective who is capable and has understanding in examining misconduct
cases. Dialog all parties involved in the problem to gather diverse sentiments and
viewpoints. Directly talk to the accused employee, explain the cognitive behind the
enquiry and offer them a chance to explain their side of the story. Uphold annals of all
connections and stages taken all the way through the investigation.

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References
Barron, A. (2018, July 23). The Impact of PostLister Vicarious Liability on the Licensed Trade in the United
Kingdom. ResearchGate, 23-26.

BONNER, M. (2019, Feb 27). What Is a Legal Contract? Business Insurance.

Feldman, S. W. (2017, November 30). STATUTES AND RULES OF LAW AS IMPLIED CONTRACT TERMS:
THE DIVERGENT APPROACHES AND A. FELDMAN_FINAL_EIC ADJ.

Kaplan Financial Knowledge. (2018). Contract law. Kaplan Publishing.

Zimbabwe Legal Information Institute. (2018, July 2). Definition of a delict. Zimbabwe Legal Information
Institute Website, 5, pp. 50-65.

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