This
is an application for rescission of a judgment granted in default in
a matter concerning revocation of a donation made by a parent to
child.
The
applicant denies being in default on account of the fact that the
summons were never served upon him at his last known address in
accordance with the Rules. Whilst summons were served, they were, in
fact, served at the family residence. He says that his mother, the
first respondent, was fully aware that he was no longer residing at
4129 Twiza Way at the time that the summons was issued and that he
was in fact now residing at 2 Camel Ave Cnr 8th
Ave and Herbert Chitepo. His mother, together with the rest of the
siblings, reside at 4129 Twiza Way which is where they have resided,
inclusive of the applicant, although the applicant says that he had
moved.
The
applicant says he only got to know of the default judgment after he
issued his own summons in the Magistrate's Court against his
mother, the respondent, for her eviction from the premises on the
grounds that he is the owner of the property that she has been living
in at his pleasure and he now wished to terminate the arrangement. It
was in reply to those summons that he learnt that a default judgment
had been issued against him. He argues that there are strong
prospects of success if the default judgment is rescinded on account
that there is no Deed of Donation and that the
property was transferred to him directly by his father as supported
by the title deed which was in his name.
The
respondent's narrative is that she indeed issued the summons in
question under HC708/15 and used the family home address as that is
the address she knew for the applicant. Whilst the respondent had
moved out of his own accord he continued to come home as and when he
wanted. She denies that default judgment took him by surprise as he
deliberately ignored court processes from his brothers to come and
collect the relevant documents. She draws on the fact that she had,
in fact, previously issued some summons in 2013 under HC6791/13 which
had later been withdrawn seeking to cancel the applicant's title
and to put the property into all the children's name and that the
process in that matter had indeed also been served at the family
residence. He had, in that case, been advised of the court process
and had indeed come to collect. Her other son had in fact sworn an
affidavit of his efforts to get the applicant to come and collect the
relevant court papers in question.
As
regards the property in question, she argues that there are no
prospects of success as a donor is entitled to rescind a donation on
the basis of ingratitude. Her narrative, as regards the property
known as 4129 Tynwald Township Lot 5 Tynwald, is that it was bought
by herself using her own personal funds when the applicant was seven
years old after selling her own property in Chtungwiza, Unit N, Seke.
It was transferred directly into the applicant's name from her
direct instructions and to avoid further expenses with the
expectation in mind that should anything ever happen to the parents
in the future, the donee would at least be able to look after the
rest of the siblings. Her late husband had, in fact, bought Stand
4130 Twiza Way, Tynwald of Lot of Tynwald which had been transferred
into one of the other children's name. It was however later sold.
She averred that following her husband's death the applicant, as
donee, had shown extreme disrespect threatening to sell the house and
to evict everyone else on account of the house being his and that he
could do what he pleased. She argues that the applicant's own
summons in which he indeed seeks to evict her and render her homeless
speak for themselves as regards the ingratitude she has complained
of….,.
This
is also a case where the donee has, in fact, shown ingratitude by
seeking to throw the entire family out and to sell the subject matter
of the donation even during the parent's lifetime.
Whilst
generally a donation is irrevocable, there are exceptions to this
general rule, particularly where a donee has shown ingratitude. Under
Roman Law, the Institutes
of Justinian
refers
to ingratitude as a ground for revocation in Inst
272:
“It
is to be observed, however, that even where gifts have been
completely executed we have, by
our
constitution, under certain circumstances, enabled donors to revoke
them, but only on proof of ingratitude on the part of the recipient
of the bounty; the aim of this reservation being to protect persons
who have given their property to others from suffering at the hands
of these latter injury or loss in any of the modes detailed in our
constitution -
trans1
Moyle The
Institutes of Justinian
(1906).”
Examples
of ingratitude include personal violence against the donor;
treacherous deeds causing the donor great pecuniary losses which
extensively diminished his estate; exposure to danger threatening the
donor's life; and a breach of written or oral undertakings of the
donee.
Examining
the traditional sources of revocation of a donation under Roman and
Roman Dutch Law, SUSAN SCOTT, for example, summarises the modern
position as follows;
“In
modern terms, the position can be stated as follows:
Ingratitude
is a ground for revocation of donations. The examples given in the
Code and expanded on by
the
Roman-Dutch authors indicate that the grounds of ingratitude are
serious infringements of a person's personal rights, personality
rights and property rights. It is also clear that in all these
situations the donee must have acted with intent.” See
SUSAN SCOTT, Revocation
of gifts on the ground of ingratitude – from Justinian
to Lawsa
2011
J. S. Afr. L. 361 2011.
See
also the cases of Malaba
v Malaba
HB14-05
and Taylor
v Taylor SC70-07
in
which a donation was declared revocable on the ground of ingratitude.
The
deed of ingratitude in this case is said to be the fact that the
donee has sought to throw out the entire family and is said to have
attempted to sell the family home. It is clearly supported by the
applicant's own summons seeking to evict the respondent from the
premises; so, the fact that there is this intention to evict is not
in dispute. The applicant's own papers, and his particulars of
claim, speak for themselves in this regard. The act of ingratitude is
therefore of a sufficiently serious nature as it would render the
respondent homeless.
A
donee has a moral duty to refrain from acting maliciously towards the
donor. Selling the residence at this point when the parent is alive
and still living in the house with other children would obviously
constitute an act of cruelty and cause hardship to the personal life
of the donor and the family as a whole. It would amount to personal
infringement of personality rights on the part of the donee.
Revocation in such circumstances is permissible to avoid the
undesired effects on the interests of the donor and other close
persons such as family members residing with the donor in this
instance. Eviction of a parent by a child to whom property was
donated is unlikely to be countenanced by any court simply because a
child has a strong sense of entitlement.
The
fact that the donor has opposed this application for rescission, in
my view, also points to the fact that the donor is not willing to
forgive the act of ingratitude. This is clearly an indication that
she has exercised her mind on the issue and that in the face of not
wishing to forgive the donee for the act of ingratitude.
It
would be a fruitless exercise granting rescission in this matter.
The
argument that there is no Deed showing that there was a donation
takes the matter no further since the requisites of a donation do not
centre on a Deed of Donation but on the intention to donate and the
transference of the property. See Kudzanga
v Kudzanga & Ors
HH485-13.
In
any event, section
10 of the
General Law Amendment Act [Chapter
8:07]
is very clear that a donation is not invalid just because it was not
registered or notarially executed. It provides as follows;
“10
Amendment of law in respect of formalities relating to donations
No
contract of donation shall be invalid solely by reason of the fact
that it is not registered or notarially executed.”
It
has, in fact, become fairly common for parents to buy property which
they transfer directly to their children. There is nothing unusual in
the manner in which it was done that takes away from the fact that it
was a donation. The respondent has clearly explained, in her papers,
how the donation was made. At seven years old, when the donation was
made, the donee cannot possibly challenge the circumstances of the
donation which he says was from his father and not his mother. I see
no prospects of success by the donee in arguing against the donation.
Furthermore,
the kind of ingratitude exhibited herein is common among young people
who have had to toil for nothing and have a strong sense of rights
and so little of their responsibilities. From all across Africa come
proverbs that caution on ingratitude;
According
to the Swahili proverb: “the gratitude of a donkey is a kick.”
To
the Egyptians: “ingratitude is the worst of sins.”
Whilst
to the Ivoirians: “ingratitude is sooner or later fatal to its
author.”
Having
failed to be mindful and grateful for all that he had been given and
the responsibility thrust upon him, at 28 the applicant is young
enough to work for his own property whilst going through life lessons
on gratitude. Here, too, he can draw from the Chinese proverb that
“once you raise your own children you will know the hardship of
your parents.”
Significantly,
in terms of the common law, the reason advanced by the respondent for
revoking the donation fits the categories upon which a donation can
be revoked in that the personal rights of the donor would clearly be
affected from the sale of the said house which is presently a family
home. The respondent has a very strong case which supports the
default judgment which is unlikely to be reversed. There is no need,
in my view, to put this family through further turmoil.
The
application for rescission of judgment is dismissed with costs.
