The
plaintiff issued summons out of this court on 17 August 2011 seeking
an order compelling the first defendant to effect change of ownership
of Stand No.9781 Kuwadzana Phase 3, Harare from his name to the
plaintiff's name and that of Dickson Kudzanga within seven days of
the date of judgment; that should the first defendant fail or refuse
to effect change of ownership as requested, the Sheriff of Zimbabwe
be authorised to sign any papers or documents as provided for the
second defendant to effect change of ownership of the said Stand from
the defendant's name to that of the plaintiff and Dickson
Kudzanga's name….,.
The
background facts of this matter are as follows;
On
18 December 1999, the plaintiff was joined in holy matrimony with the
first defendant's son, Dickson Kudzanga. The plaintiff is therefore
a daughter-in-law to the first defendant. Currently, the plaintiff
resides at No.9781 Kuwadzana Phase 3, Harare and the first defendant
at No. 22 Mukarati Road, Mufakose, Harare….,.
It
is the plaintiff's claim that after solemnisation of her marriage
to Dickson Kudzanga, in terms of the Marriage Act [Chapter 5:11], on
18 December 1999, and during the wedding ceremony of the plaintiff
and her husband, the first defendant donated, or gave, a residential
Stand No. 9781 Kuwadzana Phase 3, Harare as a present to the
plaintiff and her husband.
It
is common cause that at the material time Stand No.9781 Kuwadzana
Phase 3, Harare was not fully developed and comprised of a single
room and toilet. The plaintiff and her husband took occupation of the
said property in that state in 2000. The plaintiff, in her
declaration, stated that she, jointly with her husband. developed the
said Stand and built a ten (10) roomed house which the plaintiff
occupies to date.
It
is the plaintiff's case that the marital relationship between the
plaintiff and her husband developed problems and the plaintiff's
husband deserted the matrimonial home, No.9781 Kuwadzana Phase 3,
Harare and is now cohabiting with another woman.
According
to the plaintiff, the first defendant, despite the donation of the
said Stand to the plaintiff and her husband, on 18 December 1999, has
not yet effected transfer of the Stand into the names of the
plaintiff and her husband who became joint owners of this Stand upon
the pronouncements by the first defendant at the wedding ceremony
that he gave this said Stand
as their sole and exclusive property. It is the plaintiff's
contention that the first defendant has an obligation to effect
change of ownership of the said Stand into the plaintiff and her
husband's names and that the first defendant should be compelled to
do so….,.
The
first defendant, in his plea, denied that he offered a donation, as a
wedding gift, a certain piece of land known as Stand No.9781
Kuwadzana Phase 3, Harare, to the plaintiff and her husband….,.
The
first defendant contends that he has no legal obligation to transfer
the said piece of land into the names of the plaintiff and her
husband….,.
The
first defendant stated that the plaintiff has no cause of action
against the first defendant as the first defendant never donated the
said Stand to the plaintiff or her husband. The first defendant said
the fact of the matter is that the plaintiff and her husband have
been staying at the said property at the benevolence of the first
defendant…,.
The
first defendant also prays for the dismissal of the plaintiff's
main and alternative claim with costs.
In
terms of the joint pre-trial conference minute, the following issues
were referred for determination;
(i)
Whether or not there was a donation of the immovable property, Stand
No.9781 Kuwadzana Phase 3, Harare to the plaintiff and her husband by
the first defendant. If yes, whether the donation is binding at law.
(ii)
Whether or not the plaintiff and her husband constructed a ten-roomed
house on the said premises.
(iii)
Whether or not the first defendant has got the locus standi to evict
the plaintiff from the owner's property.
The
plaintiff, Loveness Kudzanga, gave evidence and called her aunt,
Erica Maphosa, and a friend, Getrude Mukuto, as witnesses.
The
first defendant, Godfrey Kudzanga, testified and called as witnesses;
his wife, Agnes Kudzanga, his friend, Misheck Paradzayi Mutambirwa,
and his son, who is also the plaintiff's husband, Dickson
Kudzanga….,.
The
Evidence
The
plaintiff, Loveness Kudzanga, gave evidence; firstly, on the alleged
donation, and, secondly, on the improvements she did on the property
or house.
The
plaintiff told this court that after lobola had been paid for her by
her husband, Dickson Kudzanga, the marriage was solemnised on 18
December 1999 at the Anglican Church and the wedding ceremony later
that day at Rutendo Hall in Harare. She said during the time for
guests to give the donations the first defendant stood up, hand in
hand with his wife, and pronounced to the present guests they were
donating to the plaintiff and her husband, the newly-weds, the
property or house in Kuwadzana Phase 3 which was just a core house
composing one (1) room and toilet/bathroom. The plaintiff said it is
the first defendant who made the pronouncement and that his wife, by
conduct, endorsed the gesture as she congratulated the plaintiff and
her husband referring to the donation….,.
The
plaintiff did not fare very well as a witness under cross-examination
in respect to the donation and her conduct thereafter. She was unable
to explain why she had instituted these proceedings against the first
defendant only excluding the first defendant's wife when the two
made this donation jointly and also jointly own the property. Her
reasoning was that the first defendant's wife was willing to pass
transfer but the first defendant is the one who refused.
The
plaintiff was at pains to explain why it took her 11 years to
institute proceedings to compel or force transfer of the house.
She
said, initially, she would ask her husband to advise his parents but
nothing happened. The plaintiff said she trusted that her in-laws,
that is, the first defendant and his wife would act in good faith as
the first defendant's wife assured her between 2003 and 2004. The
plaintiff said what jolted her into action, in 2011, was when some
people came to view this house saying it was for sale. This prompted
her to approach the first defendant who confirmed selling the house
saying it was his property and flatly refused to effect transfer.
The
plaintiff then responded by issuing summons out by this court.
The
plaintiff, in her evidence, insisted that the donation was verbal and
never reduced to writing. She said the book in which all the
donations and gifts made were recorded cannot be found. She also said
that the video recorded during the proceedings at the wedding
ceremony, which could confirm the donation, cannot be found. She said
that other than donating the property, the first defendant and his
wife also gave a gift of Zimbabwe $1,000=.
The
evidence of Erica Maposa, the plaintiff's aunt, and Getrude Mukuto,
the plaintiff's friend, was to the effect that during the award of
gifts at this wedding ceremony, at which both were present, the first
defendant and his wife donated the property.
Erica
Maphosa said that it is the first defendant who made the donation
with his wife standing by his side. She said the first defendant and
his wife had also paid, as a gift, Zimbabwean $10,000= not $1,000=.
Erica Maposa said she only learnt, later, that the first defendant
was now unwilling to transfer the house to the plaintiff and her
husband's names. She said she confronted the first defendant who
told her, in no uncertain terms, that this property was his.
Getrude
Mukuto told the court that the donation by the first defendant was
verbal. She had no further evidence to give in this regard.
The
first defendant, Godfrey Kudzanga, told the court that he never
donated the house, jointly-owned by him and his wife, to the
plaintiff and her husband.
He
resides at No. 22 Mukarati Road in Mufakose in Harare in a house he
inherited from his late mother. The first defendant told the court
that he had been on the housing list for a long time and is employed.
He said he was then offered the house in issue by Zimbabwe Building
Society, as per exhibit 5, and that he jointly owned Stand No.9781
Kuwadzana Phase 3, Harare with his wife. He produced exhibit 6, an
agreement which includes his wife as a joint owner of the property.
The first defendant said he secured mortgage finance which he repaid
in monthly instalments deductions from his salary. He was employed by
Dairiboard Zimbabwe as a mechanic. Exhibit 7 is proof of such
payments.
He
disputes that the plaintiff paid for the property's initial
purchase price or any such price.
In
relation to the wedding ceremony, the first defendant said both the
plaintiff and his son, Dickson, were not employed hence he sponsored,
fully, the costs of the wedding including buying some food, meat and
paying lobola for Dickson. At the ceremony, he said he and his wife
donated, as a wedding gift, Zimbabwean $10,000= cash, which, by then,
was a significant amount of money.
He
categorically denied donating this property or house.
He
said he acquired the property, being a core house, in 1998, and his
two sons, Dickson and Dennis, were staying there as water and
electricity had been connected. The first defendant said it was only
a week after the wedding ceremony that he offered his son, Dickson,
and his new wife, the plaintiff, the house to stay not that the
property was now their own.
It
is surprising that the first defendant was not cross-examined on the
issue of the donation by counsel for the plaintiff. His evidence in
that regard remained largely unchallenged.
He
was not cross examined on the alleged refusal to pass transfer to the
plaintiff and her husband….,.
Misheck
Paradzai Mufambirwe, a 72 year old friend of the first defendant
since the early 1970s, a neighbour in Mufakose, and a fellow Anglican
CPCA church member, corroborated the first defendant that no donation
of the property was made during the wedding ceremony.
He
said he attended the wedding and was responsible for playing music.
No useful questions were put to him.
Agnes
Kudzanga is the first defendant's wife and they have five (5)
children who are; Dickson, Mary, Amos, Macylen and Memory in that
order. All are now married. Mary is in the United Kingdom. Memory and
Macylen in Darwendale. Dickson, the plaintiff's husband, and Dennis
are in Harare.
Her
evidence was that at the wedding ceremony she and her husband donated
Zimbabwean $10,000= and not the house. She told the court that she
jointly owns the property with her husband, the first defendant. She
denied ever agreeing to transfer the property into the names of the
plaintiff and her husband. She said she had no reason to do so as no
such donation was made and the plaintiff and her husband, while in
the United Kingdom, had bought their own Stand in Harare.
Again,
no useful question in this regard was put to her.
Dickson
Kudzanga is the plaintiff's estranged husband who said he left the
matrimonial home in 2011 after the plaintiff obtained a protection
order against him barring him from visiting the matrimonial home
which is the property in issue. He told this court that at the
wedding ceremony his father, the first defendant, and his mother,
donated Zimbabwean $10,000= only and not the house.
He
denied ever asking his parents to transfer the property into his name
or that of the plaintiff. He also denied authorising the plaintiff to
institute the proceedings on his behalf saying summons were issued
out when he was, in fact, in South Africa.
Dickson
Kudzanga said the plaintiff was untruthful about the donation of the
property and challenged her to produce the DVD recorded at the
wedding which he said is in the plaintiff's possession. He said all
what his parents did after the wedding were to offer him and his
wife, the plaintiff, a place to stay in January 2000 at this house
hoping that with time they would find their own accommodation. That
is why he said while in United Kingdom he and the plaintiff purchased
a Stand in Harare which is in their joint names although they failed
to develop it.
The
question this court has to answer is whether, on the evidence
outlined, it has been proved, on a balance of probabilities, that a
donation of the said property was made by the first defendant to the
plaintiff and her husband.
Let
me turn to the law as regards donations.
The
renowned author R.H. CHRISTIE 1983 Ed…, in his book Law of Contract
in South Africa describes a donation, at law, as a contract where the
essential elements of a contract of offer and acceptance are to be
present if there is to be a valid contract.
ALMER's
Precedents of Pleadings by L.T.C HARMS with the assistance of J.H.
HUGO 3rd
Ed…, defines a donation as follows;
“A
true donation is an agreement whereby the donor, motivated by pure
liberality, undertakes to give a donee a gift without receiving, or
having received, or expecting to receive any advantage in return for
it.”
See
also Kay v Kay 1964 4 SA 257 A.
In
the case of Malaba v Malaba HB14-05, NDOU J defines “a donation or
schenking” as a contract whereby;
“One
person; who is not under obligation to do so, but out of sheer
liberality or generosity, promises to give another person something
without receiving anything in return. The motive should be
dis-interested benevolence and for moral purposes.”
It
is trite that a donation cannot be presumed. See Jolly v Shannon &
Anor 1998 (1) ZLR 78…,.
The
onus is on the party alleging a donation to prove that a donation was
made. See also Dube NO & Anor v Logan & Ors HH117-02.
The
common law position as regards donations, has, to some extent been
altered by the General Law Amendment Act [Chapter 8:07]. See Taylor v
Taylor SC70-07.
In
general, a donation inter vivos can be made verbally. Section 10 of
this General Law Amendment Act [Chapter 8:07] 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 was not registered or notarially executed.”
I
am not satisfied, on the evidence led, that the plaintiff has
discharged the onus bestowed upon her.
It
is only her word against not only that of the first defendant but
also against one of the presumed beneficiaries of the donation - her
husband. It, therefore becomes difficult to appreciate the nature of
such a donation….,.
The
objective facts of this matter militates against a finding in the
plaintiff's favour. Let me address these facts.
The
evidence in this case is that the rights and interests in this
property are not only vested in the first defendant - but also his
wife. The property is jointly owned. The plaintiff has instituted
proceedings against the first defendant only. It cannot be an issue
that it is not competent for the first defendant to have donated a
property he jointly owns with his wife without the wife's consent.
The
fact that the plaintiff and her witnesses belatedly, in their
evidence, sought to allege that the first defendant's wife
consented to this donation, on account by her presence at the time
the first defendant made the donation, is unattainable.
The
first defendant's wife, Agnes Kudzanga's interest in the said
property or house is a real right. If indeed she did not make a
donation there is no basis to interfere with her right in this
property. If she had made such a donation the plaintiff would have
joined her in these proceedings. The relief the plaintiff seeks is
therefore incompetent as the first defendant could not have
competently donated what is not his neither can he be obliged to
transfer his wife's interest and rights in this property without
the wife's consent….,.
What
is unconvincing about the plaintiff's evidence is that she did not
take action for such a long period of time until she had been
threatened with eviction and learnt that the house was for sale….,.
It
is therefore my finding that the plaintiff has not discharged the
onus upon her to show that a donation was made as alleged. I am
inclined to accept the version by the first defendant, his wife,
Dickson Kudzanga and Misheck Paradzayi Mutambirwa that no such
donation was made. The plaintiff's evidence and that of her two
witnesses was un-inspiring in this regard….,.
In
the result I make the following order;
1.
The plaintiff's main claim be and is hereby dismissed.
