KAMOCHA J: On 8 January 2004 the
present plaintiff issued summons seeking an order compelling the 1st
to the 5th defendants, who are beneficiaries of the estate of the
late Smart Milton Mxotshwa Sibanda, to transfer their rights, title and
interest in house number 70996 Lobengula West, Bulawayo into his name. All the five defendants are children of the
late Smart Milton Mxotshwa Sibanda who died on 13 February 2000. The children jointly inherited the house
which is at the centre of this dispute – being house number 70996 Lobengula
West, Bulawayo.
Plaintiff alleged that the said
house was not eligible for distribution to the defendants as he claimed to have
purchased it following a verbal agreement he had entered into with the deceased
some time in 1981. He alleged that the
house was sold for $500,00 which amount he allegedly paid in full in 1982. He took occupation of the house in 1981. However, the said Smart Milton Mxotshwa
Sibanda continuously deferred the cession of his rights, title and interest in
the property until he, unfortunately, died.
After the deceased's death the 1st
defendant was appointed executor of the estate.
When asked to transfer the rights, title and interest in the property to
the plaintiff, he refused to do so until the estate was wound up. Hence this protracted litigation.
All in all the parties have sought
redress in the courts no less than five times in this court, once in the
Magistrates' Court and once more in the Small Claims Court.
On 8 January 2004 the plaintiff
Benjamin Sibindi hereinafter referred to as Sibindi issued summons out of this
court seeking to compel the respondents hereinafter referred to as the Mxotshwas
to transfer their rights, title and interest in house number 70996 – the
property.
The Mxotshwas excepted to the
plaintiff's summons and filed a plea in bar.
The exception was three pronged.
Firstly, the respondents alleged
that the agreement between Sibindi and their late father was invalid and
unenforceable because it was not sanctioned in writing by City of Bulawayo as
required by clause 12 of the Agreement their late father and City of Bulawayo
signed.
Clause 12 of the agreement signed by
their father on 21 April 1981 stipulated thus:-
“The purchaser shall not at any
time before the said piece of land has been transferred into his name, sell the
said piece of land or cede, assign, transfer or make over any of his rights
under this agreement without the written consent of the municipality.”
It is now common ground that City of
Bulawayo did not give its consent, in writing to defendants' father to sell the
property to Sibindi.
It is also common cause that their
father died before he took transfer of the property. The property still belonged to the City of
Bulawayo. The agreement would only have
been enforceable if the father of the defendants had taken transfer. But no transfer had been effected. The matter ends there.
Secondly, the Mxotshwas pleaded in
bar that the 4th and 5th respondents who were minors
could not be sued unless assisted by a guardian. It is not disputed that the two minors were
sued in their individual capacities unassisted by a guardian. Consequently the claim against them is void
and a nullity.
Thirdly, the Mxotshwas asserted that
their father's estate was wound up on 10 January 2003 after publication was
properly done in terms of the law.
Sibindi failed to lay a claim against this estate before it was wound
up. He was accordingly barred in terms
of section 45(3) of the Administration of Estates Act, [Chapter 6:01]. Sibindi does not dispute that he failed to
lodge his claim with the executor within the specified period or thereafter.
Instead, Sibindi, on 25 April 2006,
filed a chamber application wherein he was granted the following order:-
1.
the 1st to 5th
respondent's exception and plea in bar filed on the 2nd March 2004
under case number HC 65/04 be and is hereby struck off for want of prosecution;
2.
that 1st to 5th
respondents be and are hereby ordered to file their plea on the merits to the
main case within 10 days of service of this order upon them; and
3.
the 1st to 5th
respondents shall jointly and severally pay costs of this application on an
attorney-client scale.”
The
above application was made on the strength that the Mxotshwas had not
prosecuted their exception and plea in bar for a period in excess of two
years. Sibindi felt that such an
inordinate delay tended to prejudice him.
It delayed the fair trial of the action.
Sibindi
was correct except that he was remiss in finalising the matter by way of a
chamber application whereby the exception and plea in bar were struck out for
want of prosecution.
His explanation that he was not
aware of the process of the liquidation of the estate of the defendants' father
estate is clearly unacceptable as proper publication was done.
In the result I would hold that the
explanation and special plea in bar were well found and issue the following
order.
It is ordered that:-
- the 1st, 2nd, 3rd, 4th
and 5th defendants' exception and plea in bar against the
plaintiff's claim be and are hereby upheld;
- the plaintiff's claim under case number HC 65/04 be and is
hereby dismissed with costs on the ordinary scale.
Messrs Marondedze, Mkuku, Ndove and
Partners, 1st to 5th
respondents' legal practitioners
Messrs Calderwood, Bryce Hendrie and Partners, respondents' legal practitioners
