Benjamin Sibindi v Nkosilathi Mxotshwa and Others

In 1981, the plaintiff (Sibindi) entered into a verbal agreement with the late Smart Milton Mxotshwa Sibanda to purchase house number 70996 Lobengula West, Bulawayo for $500.00, which he allegedly paid in full in 1982. Sibindi took occupation in 1981, but transfer was continuously deferred. The deceased had entered into an agreement with the City of Bulawayo on 21 April 1981 which included Clause 12 prohibiting the sale or cession of rights without the City's written consent before transfer was effected. The deceased died on 13 February 2000 before transfer could be completed. The five defendants, all children of the deceased, jointly inherited the property. The 1st defendant was appointed executor of the estate, which was wound up on 10 January 2003 after proper publication. On 8 January 2004, Sibindi issued summons seeking to compel the defendants to transfer their rights, title and interest in the property to him. The defendants filed an exception and plea in bar, which Sibindi later had struck out for want of prosecution on 25 April 2006. The matter involved multiple court proceedings across different courts.

• Whether the verbal agreement between Sibindi and the deceased was valid and enforceable without written consent from the City of Bulawayo as required by Clause 12 of the original agreement
• Whether minors (4th and 5th defendants) could be sued in their individual capacities without being assisted by a guardian
• Whether Sibindi was barred from claiming against the estate in terms of section 45(3) of the Administration of Estates Act having failed to lodge his claim within the specified period before the estate was wound up

The court ordered that: (1) the 1st, 2nd, 3rd, 4th and 5th defendants' exception and plea in bar against the plaintiff's claim be upheld; and (2) the plaintiff's claim under case number HC 65/04 be dismissed with costs on the ordinary scale.

A verbal agreement to sell property is invalid and unenforceable where it violates a contractual prohibition against alienation without written third-party consent, particularly where the seller had not yet obtained transfer of the property at the time of death. Minors cannot be sued in their individual capacities without being assisted by a guardian, and any such claim is void and a nullity. A creditor who fails to lodge a claim against an estate within the prescribed period before the estate is wound up is barred from pursuing that claim under section 45(3) of the Administration of Estates Act, Chapter 6:01.

The court noted that the parties had sought redress in courts no less than five times in the High Court, once in the Magistrates' Court and once in the Small Claims Court, suggesting protracted and excessive litigation. The court also observed that while Sibindi was correct in seeking to strike out the exception and plea in bar for want of prosecution due to inordinate delay exceeding two years, he was nonetheless remiss in attempting to finalize the matter through a chamber application to strike out the pleadings rather than addressing the substantive legal defects in his claim.

This case is significant in Zimbabwean property and estate law as it reinforces the strict requirements for compliance with contractual clauses restricting alienation of property rights before transfer. It demonstrates the importance of obtaining required third-party consents (in this case, from the municipality) before attempting to sell or cede rights in property subject to purchase agreements. The case also emphasizes the procedural requirements for claiming against estates under the Administration of Estates Act, particularly the time limits for lodging claims and the consequences of failing to do so. Additionally, it affirms the principle that minors cannot be sued without proper legal representation by a guardian. The case serves as a warning to potential purchasers to ensure all contractual and legal requirements are met before relying on verbal agreements for property transactions.