NDOU
J: This
matter has a chequered background. I propose to give a summary of
the material facts and events for the purposes of determining the
issues before me. The parties became married to each other in terms
of the Marriages Act of 1964 (as it was then) on 9 June 1978. There
were two children of the marriage who have since attained the legal
age of majority as at the date of issue of summons. Prior to
solemnising the said marriage in 1978, the plaintiff had in 1964
purchased in his own name and right, immovable property known as
stand number 49753, Bulawayo Township.
In
1997, when he was critically ill, the plaintiff registered this
property in the name of defendant. On 17 May 2001 the plaintiff
issued summons with this court claiming for a decree of divorce with
ancillary relief. After the pre-trial conference the matter was
referred for trial. For one reason or the other the matter could not
take off on the original trial date. The matter was eventually
allocated 23 October 2003 as date of trial. On that date the
plaintiff and his legal practitioner did not turn up. The defendant
turned up with her legal practitioner. The defendant successfully
applied for the dismissal of the plaintiff's claim and the granting
of her counter claim. The defendant testified in this regard. On 4
November 2003, the plaintiff became aware of the judgment granted in
his absence. He launched an application for rescission of the
judgment in HC 2581/03. He, however, did not challenge the
dissolution of the marriage but focussed his application for
rescission on the ancillary relief. The defendant consented to the
granting of the rescission. In other words the decree of divorce
stands and this application is only in respect of the distribution of
the matrimonial assets and the question of costs. The parties
adduced evidence on the acquisition and division of the assets. They
led evidence on the circumstances surrounding the registration of the
matrimonial home in the sole name of the defendant in 1997.
I
will assess the testimony of each witness in turn.
Smart
Malaba
He
claims the following items for himself:
(a)
the matrimonial home
(b)
1 x 4 plate stove
(c)
GEC double door fridge
(d)
1 x double bed and mattress
(e)
1 x chest of drawers
(f)
1 x double door wardrobe
(g)
6 pots
(h)
1 teapot
(i)
12 plates
(j)
4 knives
(k)
12 teaspoons
(l)
all bed linen that he is currently using.
He
then offered the following to the defendant:-
(a)
1 x video cassette recorder
(b)
1 x National colour television set
(c)
Table with six chairs
(d)
Dinning room side cupboard
(e)
Room divider
(f)
4 piece brown lounge suite
(g)
Aiwa radio
(h)
Television stand
(i)
1 x lounge suite fitted carpet (green)
(j)
1 x bedroom carpet (beige) (loose)
(k)
1 x spare bedroom carpet (green) loose
(l)
1 x children's bedroom (carpet) (loose)
(m)
Four picture frames
(n)
Wall watch
(o)
Fan
(p)
Lamp stand
(q)
2 flower stands
(r)
1 x iron
(s)
3 x floor vases
(t)
2 kitchen tables
(u)
4 kitchen chairs
(v)
the rest of the cutlery
(w)
Garden tools
(x)
Bookshelf
(y)
Shoe stand
(z)
2 x ¾ beds with mattresses
(aa)
1 x double door wardrobe
(bb)
Dressing table
(cc)
Bed linen
(dd)
Six suitcases
(ee)
Satelite receiver
(ff)
Uno motor vehicle registration number 613-368D
(gg)
3 sewing machines
(hh)
4 desks
(ii)
1 x overlocking machine
(jj)
1 x iron and stand
He
testified that the above division reflects generosity on his part.
He gave details of the improvements he carried out on the matrimonial
house. From his testimony the greater of such improvements were
carried out prior his marriage to the defendant. He also gave
evidence of the improvements by the defendant. Suffice to say that
these were said to be negligible compared to his own. He also gave
details on the acquisition of the other assets. He then justified
the above distribution of the assets. He said a lot. He is
generally a man of many words. He also testified that the parties
jointly owned the dressmaking business. He outlined his contribution
towards the setting up and subsequent life of the business. On his
illness he said that he started having health problems in 1988. He
suffered from osteomyelitis for the right tibia in 1991. He had high
blood pressure and was diabetic. According to medical evidence of
the orthopaedic surgeon Mr B A V Ncube, in 1991 the plaintiff
developed osteomyelitis of the right tibia which could not be
controlled because of his diabetes. He had multiple operations
culminating in a more extensive operation in 1995 in which a lot of
necrotic bone was removed. At the time of the treatment in 1995, the
plaintiff's leg was so bad that his decision was initially to
amputate the leg. However, after a last attempt extensive operation
his leg was salvaged. At this time his blood sugar was
uncontrollable. He was grossly affected mentally and he kept lapsing
to a confusion state and a semi-comatose state. His whole life was
actually in danger. After the 1995 operation he then started
recovering slowly and he has not had problems with his leg since
then. His sugar has also remained relatively well controlled and so
has been his blood pressure. He is now very stable and mentally
strong. This was opined by Mr Ncube in March 2000.
He
testified that it was on account of the above illness that he
registered the immovable property in the name of the defendant solely
out of reasonable apprehension of impending death, and in order to
secure her future in the event of his death. At the time he loved
and trusted her. He said he did so because he feared that in the
event of his death his relatives may give the defendant problems. He
testified that at the time of the donation their marriage was
enstranged. She, the defendant had through her erstwhile legal
practitioners managed to stop the parties from sharing bedroom around
April 1997 i.e. a few months prior to donation. At the time of the
donation their relationship had not normalised. In fact it never did
again. He said he made the donation for the sake of the children of
the marriage and not as a token of love to the defendant. He said
this was a way of securing the future of his children with the
defendant. In June 2001 the defendant moved out of the matrimonial
house. By arrangement of the parties she went back in the company of
the Police Officers and removed some movable assets. He stated that
he wished the donation of the matrimonial so that he could use is
himself as he is no longer in a position to acquire a house on
account of his state of health and age i.e. 63 years. He has no
other house in his name. He is surviving on medication. The witness
was subjected to some detailed and tactful cross-examination. I find
his testimony satisfactory in material respects.
Nomathemba
Fenny Malaba
She
says the plaintiff got sick in 1995. He was hospitalised and when he
was discharged their problems started. The plaintiff started
accusing her of infidelity. She says out of love she spent sleepless
nights attending to him. She said that the plaintiff was fine health
wise when he donated the matrimonial home to her. She said that he
is now trying to revoke the donation for selfish reasons. Under
cross-examination she stated that the cause of divorce was that the
plaintiff was using African herbs (commonly known as “muti”) and
he was also impotent and accused her of infidelity. She conceded
that she is the one who took initial steps to bring the parties to a
separation after approaching her erstwhile legal practitioners. She
also gave a detailed account of the acquisition of the matrimonial
assets. She also conceded that the matrimonial home was acquired by
the plaintiff many years prior the parties' marriage (… I was a
baby then” to use her statement). She agreed with the findings of
Dr B A V Ncube on the state of the plaintiff as a result of his
illness. She agreed that the plaintiff was grossly affected mentally
and kept lapsing into comma and his life was in danger prior the
surgery. She agreed that during his illness the plaintiff totally
depended upon her and she wielded a lot of influence on him. At that
stage the plaintiff had virtually no source of income. She conceded
that it came as a surprise when he decided to donate the matrimonial
home to her. She said she found is strange that he was making such a
donation out of nowhere. The plaintiff had no other house at the
time. She however, disputed that the plaintiff was in “fragile”
state and had just survived death. She opined that he had recovered
from his illness. She states that she wants to keep the donation
house for sentimental reasons. She denied that she took advantage of
the plaintiff's illness and dependence on her to undue influence
him to make the donation. She opposes any attempts by the plaintiff
to revoke the donation. She, however, could not explain the
plaintiff's apparent strange and irrational behaviour of donating
the house at the time when they were fighting and involving legal
practitioners in their fight as evinced by the letter from the
erstwhile legal practitioners. More or less the same time that he
had health problems and matrimonial problems with the defendant is
the same that he makes this unusual but extremely generous donation.
I hold the view that the defendant has not given a credible
explanation on the circumstances surrounding the donation. She took
advantage of an ailing and wholly dependant partner. It is trite
that the common rule relating to the prohibition of donations between
the spouses stante
matrimonio
has been repealed by section 11 of General Law Amendment Act [Chapter
8:07]. Section 11 provides:
“The
rule of the common law relating to the prohibition of contracts of
donation between spouses is declared to be no longer of any force.”
I
have cited the current statutory provisions because Mr Sibanda, for
the plaintiff relied heavily on The South African Law of Property,
Family Relations and Succession by R W Lee, A M Honore and T W Price
(1954) and cases cited therein. One has to bear in mind that the law
on this issue has undergone tremendous transformation since 1954.
From
the facts of this matter, the plaintiff made a donation inter
vivos
to the defendant. In law there is nothing wrong with such a donaton
per se. Such a donation inter vivos may be made by a simple document
signed by the donor – section 10 of the General Law Amendment Act
(supra0 – and Wille's Principles of South African Law (8th
Ed) by D Hitchison, B Van Heerden, D P Visser and C G Van Der Merwe
at page 626. Such a donation inter vivos is not revocable by the
donor save in exceptional circumstances. The donation, therefore,
can be revoked for reasons justifiable in the circumstances –
Ahrend v Winter 1950 (2) SA 682 (T). A glance at the common and case
law show that the following have been held to be exceptional
circumstances justifiable reasons-
(a)
gross ingratitude on the part of the donee or ill-treatment by
him/her of the donar – Grotius 3.2.17 and Voet 39.5.22.
(b)
malicious desertion of her husband by a woman – Mulligan v Mulligan
(11) 1925 WLD 178.
(c)
on account of a breach of a condition (modus) attached to it, but not
on the ground that the donor has subsequently been reduced to dire
financial straits – Mathews v Mathews 1936 TPD 124; Benoni Town
Council v Minister of Agricultural Credit and Land Tenure 1978 (1) SA
978 (T) and Ex parte Boyd et Uxor 1938 CPD 197. (See also Principles
of South African Law supra). Only (a) and (b) are relevant to the
facts of this case.
It
seems to me that the first determination that I have to make is
whether there was lawful contract of donation in light of the dubious
circumstances at the time of the donation as alluded to above. It is
trite that a donation, schenking, is a contract whereby one person,
who is not under obligation to do so, but out of sheer liberality,
promises to give another person something without receiving anything
in return – Avis v Verseput 1943 AD; Estate Jager v Whittake 1944
AD 246 at 250; The Master v Thompson's Estate 1961 (2) SA 20 (FC)
and Dube NO v Mtambu and Ors HH-117-02. The motive should be a
disinterested benevolence and for moral purposes. This motive of
liberality, the animus donandi is the distinguishing feature of a
donation. Is the donation by the plaintiff to the defendant a
genuine one in the strict sense? i.e. a donatio propria or mera.
From the evidence alluded to above, this donation lacked the animus
donandi. The donation took place against the background of serious
illness of the donor who was wholly dependent on the donee. The
parties were in the middle of gross matrimonial discord. This is not
a donatio propria – Kay v Kay 1961 (4) SA 257 and Mvududu v Mvududu
1981 ZLR 397.
If
I erred in this finding, there is the issue of revocation. I have
already highlighted the legal principles applicable to revocation in
such matter. It is apparent from the evidence that there was gross
ingratitude on the part of the donee. She ill-treated the donor
after the donation. She sought to remove him from the house in
question when he was ailing and to some extent destitute. She
herself had another home and the donor was desperate and had no other
home. She did not require the house for occupation but for
sentimental reasons. The house was purchased by the plaintiff long
before their marriage, and, as such, would not normally be part of
the matrimonial circumstances justifying revocation of the donation.
In a nutshell, whichever way one looks at the above, the donation
cannot stand. Once the donation is revoked the defendant's claim
thereto falls away on account of the house having been purchased well
before the parties contracted the marriage. It is not in dispute
that she did contribute to the improvements effected on the property.
These improvements were on the peripheral and not on the main house.
The
rest of the matrimonial assets have to be shared in terms of a
formula set out in section 7 of the Matrimonial Causes Act [Chapter
5:13]. In matters of this type it is seldom possible for the court
to ascertain with total accuracy the incomes and contribution of the
parties to the joint estate. Our case law provides guidelines –
Dlamini v Dlamini HB-27-00; Takafuma v Takafuma 1994 (2) ZLR 103 (S);
Ncube v Ncube 1993 (1) ZLR 39 (S); Chikomba v Nkomo SC 62-91 and
Masveto v Masveto HB-51-04. The defendant, in her claim in
recovention accepts the division suggested by the plaintiff in his
declaration. Notwithstanding the subsequent disputes during the
trial on some of these issues, after carefully examining the
evidence, I find that such division meets the statutory objective of
section 7 (supra).
Accordingly
it is ordered as follows:
1.
That the donation of stand number 49753 Bulawayo Township by the
plaintiff to the defendant be and is hereby set aside.
2.
It is ordered that stand number 49753 Bulawayo Township be and is
hereby declared to be the sole absolute property of the plaintiff.
3.
It is ordered that the following property is awarded to the plaintiff
as his sole and absolute:
(a)
1 x 4 plate stove
(b)
GEC double door fridge.
(c)
1 x double bed and mattress.
(d)
a x chest of drawers
(e)
1 x double door wardrobe
(f)
6 pots
(g)
1 teapot
(h)
12 plates
(i)
4 knives
(j)
12 teaspoons
(k)
all bed linen that he is currently using
4.
It is ordered that the following property be awarded to the defendant
as hr sole and absolute property:-
(a)
1 x video cassette recorder
(b)
1 x National colour television set
(c)
Table with six chairs
(d)
Dinning room side cupboard
(e)
Room divider
(f)
4 piece brown lounge suite
(g)
Aiwa radio
(h)
Television stand
(i)
1 x lounge suite fitted carpet (green)
(j)
1 x bedroom carpet (beige) (loose)
(k)
1 x spare bedroom carpet (green) loose
(l)
1 x children's bedroom (carpet) (loose)
(m)
Four picture frames
(n)
Wall watch
(o)
Fan
(p)
Lamp stand
(q)
2 flower stands
(r)
1 x iron
(s)
3 x floor vases
(t)
2 kitchen tables
(u)
4 kitchen chairs
(v)
the rest of the cutlery
(w)
Garden tools
(x)
Bookshelf
(y)
Shoe stand
(z)
2 x ¾ beds with mattresses
(aa)
1 x double door wardrobe
(bb)
Dressing table
(cc)
Bed linen
(dd)
Six suitcases
(ee)
Satelite receiver
(ff)
Uno motor vehicle registration number 613-368D
(gg)
3 sewing machines
(hh)
4 desks
(ii)
1 x overlocking machine
(jj)
1 x iron and stand
5.
The defendant's claim in recovention be and is hereby dismissed.
6.
Each party to bear its own costs.
Joel
Pincus, Konson & Wolhuter, applicant's
legal practitioners
James,
Moyo-Majwabu & Nyoni
defendant's legal practitioners
