KAMOCHA J: On 8 January 2004 the
present applicant issued summons seeking an order compelling the 1st
to the 5th respondents, 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 respondents 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.
Applicant alleged that the said
house was not eligible for distribution to the respondents 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
respondent was appointed executor of the estate. When asked to transfer the rights, title and
interest in the property to the applicant, 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 applicant
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 respondents' father to sell
the property to Sibindi.
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. 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.
After
the filing of the exception the parties should have adopted the procedure laid
down in order 21 Rule 138 of the rules of this court. Since the exception and plea on bar were not
being prosecuted as required by law the parties should have proceeded to have
the main case brought to trial.
The Mxotshwas have blamed their erstwhile
legal practitioner for failing to prosecute their case timeously. There can be no doubt that they also are to
blame for the inordinate delay. But, in my view, that did not entitle Sibindi
to obtain a final order in a very contentious matter by way of a chamber
application. The respondents did not
have notice of the chamber application and were not party to it. Clearly such an order cannot be allowed to
stand.
It seems to me that although the
exception and plea in bar had been previously handled in a very perfunctory
manner they could resolve the ownership wrangle one way or the other without
the need of a trial if handled with care and deligence by their current legal
practitioners.
In the result I would issue the
following order:
It is ordered that:-
(a)
the order of this court granted
in case number HC 905/06 on 29 May 2006, be and is hereby rescinded;
(b)
the Mxotshwas be and are hereby
given leave to seek a date of set down in respect of the exception and plea in
bar within 21 days of the date of this order failing which they are to plead
over to the merits; and
(c)
Sibindi shall pay the wasted
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