BENJAMIN SIBINDI

Versus

NKOSILATHI MXOTSHWA

And

SAZINI MXOTSHWA

And

MNCEDISI MXOTSHWA

And

PHATHISANI MXOTSHWA

And

THABO MXOTSHWA

And

CITY OF BULAWAYO

IN THE HIGH COURT OF ZIMBABWE

KAMOCHA J

BULAWAYO 30 NOVEMBER AND 1 DECEMBER 2011

B Ndove for plaintiff

N Mazibuko, for defendants

1^ST, 2^ND, 3^RD, 4^TH AND 5^TH defendants’ Exception and Plea in Bar

KAMOCHA J: On 8 January 2004 the present plaintiff issued summons seeking an order compelling the 1^st to the 5^th 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 1^st 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 4^th and 5^th 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 1^st to 5^th respondent’s exception and plea in bar filed on the 2^nd March 2004 under case number HC 65/04 be and is hereby struck off for want of prosecution;

2. that 1^st to 5^th 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 1^st to 5^th 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:-

1. the 1^st, 2^nd, 3^rd, 4^th and 5^th defendants’ exception and plea in bar against the plaintiff’s claim be and are hereby upheld;

2. 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, 1^st to 5^th respondents’ legal practitioners

Messrs Calderwood, Bryce Hendrie and Partners, respondents’ legal practitioners