Courts will uphold agreements unless they are void for vagueness or offend public policy. A party cannot later recast a clear and operational contract as provisional to avoid performance

Waboga David
May 10
2 min read

Introduction

In a decision as lyrical as its subject, Moshoana J delivered judgment in a contract dispute involving Nomcebo Zikode, the voice behind the global hit “Jerusalema.” The Court reaffirmed long-standing principles of contractual autonomy and certainty, rejecting an attempt to resile from an agreement where no duress, ambiguity, or legal deficiency was shown.

The Court emphasised that when parties of equal bargaining power voluntarily agree, particularly where terms are clear and performance has already commenced, they cannot later escape obligations by framing them as vague or conditional. The vehicle of a joint venture was found to be a mode of execution, not a condition precedent to enforceability.

Background

Zikode sought to be released from a settlement agreement requiring her to deliver two albums via a joint venture (JV) with Open Mic Productions. She argued that the clause governing the JV was vague or conditional, amounting to an unenforceable “agreement to agree.”

The Court disagreed. Referencing Canadian case law in Mitsui & Co. v Jones Power Co Ltd, it held that agreements are not invalid merely because they require further implementation steps. What matters is whether the underlying commitment exists, which it clearly did in this case. The JV was merely the operational vehicle to fulfil the agreed obligation.

Moreover, the clause titled “Future Recordings” explicitly stated that the next two albums were to be recorded by Zikode and released through this JV partnership. There was no ambiguity or discretion to opt out.

Declaratory Relief and Breach

Zikode also sought declaratory relief and alleged breach of the settlement agreement by Open Mic. However, the Court held that:

A declaratory order was unnecessary where the legal position is “beyond perspicuous.”
Even if Open Mic had failed to fulfil accounting obligations, Zikode had pursued the wrong remedy.
Since the settlement had been made an order of the Court, the appropriate remedy was contempt proceedings, requiring proof of wilful non-compliance.
Zikode had neither initiated contempt proceedings nor shown the requisite intent by Open Mic to justify coercive relief.

Accordingly, all prayers for relief failed.

Key Takeaways

🔒 Parties are bound by the terms they freely agree to, especially where performance has begun.
🧾 A clause calling for further documentation does not invalidate a contract unless that documentation is a condition of the agreement, not mere implementation.
🎤 The JV between Zikode’s Emazulwini Productions and Open Mic Productions was a mechanism to deliver albums, not a precursor to a binding deal.
⚖️ The Court will not issue declaratory relief where the legal position is clear and uncontested.
📚 The correct remedy for alleged breach of a court-sanctioned settlement agreement is contempt, not contractual enforcement.

Conclusion

This judgment affirms the primacy of contractual autonomy in South African law. Courts will uphold agreements unless they are void for vagueness, lack consensus, or offend public policy.

A party cannot later recast a clear and operational contract as provisional to avoid performance, especially after having benefited from its terms.

Moshoana J’s articulation of principle, contextual contract interpretation, and procedural precision further elevate the judgment as a teaching piece on both substance and form. Like the song at the heart of the dispute, the message is simple but enduring: once you agree, you must dance to the rhythm of your own contract.