Fidelia Ncube v Nkanyiso Sibindi (Executor Dative) and Another

The applicant claimed she was customarily married to the late Thembinkosi Sibindi without knowledge that he was already married. She alleged that together they acquired stand No. 5 York Road Hillside in Bulawayo and that she personally contributed USD $15,000 for the purchase and USD $8,000 towards renovations and improvements including a perimeter wall. She also claimed to have contributed USD $5,000 for funeral expenses. The estate was registered in 2017 (DRB 346/17). At a meeting with the Master on 8 August 2019, the applicant stated she contributed USD $10,000 and was mandated to bring proof by 31 August 2019, but she never presented any proof. The Master declared her not to be a surviving spouse and confirmed the final liquidation and distribution account on 3 March 2020, excluding her claim. The applicant sought condonation for the late filing of a review application to set aside the Master's decision, claiming she was unaware that the respondents had finalized the estate behind her back. She claimed the Master's decision was made on 14 November 2019 (later shown to be incorrect - the actual date was 3 March 2020). Her letter of demand dated 8 September 2017 did not mention personal contributions to property acquisition. The Agreement of Sale showed the house was bought in 2011, not 2007 as she stated at the Master's meeting. The funeral tax invoice showed USD $2,500, not USD $5,000 as claimed, and listed Mthokozisi Sibindi, not the applicant, as customer.

• Whether the applicant had prospects of success in the intended application for review, as a requirement for granting condonation for late filing
• Whether the applicant established a valid claim for unjust enrichment against the estate
• Whether the applicant provided sufficient proof and particularity of her alleged contributions to the estate
• Whether the applicant provided a reasonable explanation for the delay in filing the review application

The application for condonation of the late noting of an application for review was dismissed with costs.

For condonation of late filing of a review application to be granted, the applicant must demonstrate reasonable prospects of success in the intended review application. Where a claim for unjust enrichment against an estate involves immovable property, it is insufficient for the claimant to merely state bare amounts contributed without providing detailed particulars of the transaction, including how, when, and from whom the property was acquired, and specific details of alleged improvements. Inconsistent claims regarding amounts, dates, and contributions, coupled with failure to provide proof when directed to do so by the Master, and contradictions between the claim and documentary evidence, will result in a finding that there are no reasonable prospects of success in the intended review, warranting dismissal of the application for condonation.

The court noted that the applicant made no effort to apply for an indulgence to amend the draft order when it became apparent that the date of the Master's decision cited was incorrect. The court also observed that the applicant was rightly declared not to be a surviving spouse by the Master, given that she was in a customary marriage with the deceased who was already married. The judgment implicitly criticized the lack of diligence by the applicant in pursuing her claim, noting that she failed to present proof to the Master by the deadline given (31 August 2019) and had not presented proof even by the time of the court hearing.

This case illustrates the strict approach courts take in Zimbabwe (and similarly in South African law given the shared legal heritage) to applications for condonation where review proceedings are sought against decisions of the Master of the High Court in estate matters. It emphasizes that prospects of success in the intended application is a critical requirement for granting condonation. The case also demonstrates the evidentiary burden and level of particularity required when claiming unjust enrichment against an estate, particularly where immovable property is involved. The judgment reinforces that claimants must provide consistent, detailed, and verifiable information about their contributions, and that vague, inconsistent, and unsubstantiated claims will not satisfy the court. It also highlights the importance of timeously lodging claims against estates and complying with directives from the Master's office.