Kaisa Nguwo and Ivy Nguwo v Maria Peno and The City of Bulawayo

The plaintiffs entered into an agreement of sale 25 years ago with the first defendant's husband for the purchase of stand 70301/2 New Lobengula in Bulawayo. The purchase price was allegedly paid partly to the first defendant's husband and the balance to the first defendant herself. The plaintiffs remained in occupation of the property for 25 years. The first defendant's husband subsequently died and his estate was wound up in terms of the Administration of Estates Act. The property was transferred to the first defendant as heir to her late husband. The first plaintiff was the brother of the deceased and was a witness to the certificate of authority issued to the first defendant. The plaintiffs did not lodge a claim against the estate during its administration, claiming they had an understanding with the first defendant (to whom they were related) that they would first assist her in transferring the property into her name, after which she would transfer it to them.

• Whether the plaintiffs should be barred from suing for specific performance after failing to lodge a claim during the administration of the deceased estate
• Whether the finalization of the estate in accordance with the Administration of Estates Act precluded subsequent claims regarding property distributed through that estate
• Whether technical procedural objections should prevent the court from hearing a matter on its merits where no prejudice is shown
• Whether the special plea in bar should be upheld in circumstances where parties claim to have had a family understanding regarding property transfer

The special plea in bar was dismissed and the matter was referred to trial on the merits.

Technical objections to procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious and inexpensive decision of cases on their real merits. Where parties provide a credible explanation for failure to comply with procedural requirements (such as a family understanding between related parties), and where they have been in long-term occupation of disputed property, a special plea in bar based solely on non-compliance with estate administration procedures should not preclude a full hearing on the merits. The interests of justice require that disputes over valuable immovable property be fully ventilated rather than dismissed on technical grounds, particularly where lay persons may have acted in ignorance of legal requirements but not contrary to law or public policy.

The court observed that there has been a gradual move away from the overly formal approach in procedural matters, which is a development to be welcomed if proper ventilation of issues and achievement of justice is the goal. The court noted that lay people often enter into various forms of agreement with no knowledge or regard for legal provisions, and as long as such agreements are not contrary to law or public policy, they should not be merely dismissed at face value without in-depth interrogation of what actually transpired between the parties. The court emphasized that shutting the door on litigants based on technicalities could prevent parties who may have very good cases on the merits from being heard.

This case is significant in Zimbabwean jurisprudence (applicable to South African law due to similar legal principles and the citation of South African authority) for affirming the modern approach to civil procedure that favors substantive justice over technical procedural objections. It demonstrates the courts' willingness to allow matters to proceed to trial on their merits where no prejudice is shown, particularly in disputes involving immovable property and long-term possession. The case illustrates the principle that failure to follow strict procedural requirements (such as lodging claims during estate administration) may not necessarily bar subsequent litigation where there are credible explanations based on family understandings and lay persons' ignorance of legal technicalities. It reinforces the move away from overly formal approaches to civil procedure.