Passing of Ownership and Proof of Title re: Donation Transfer & the Revocation of Donatio Inter Vivos & Stante Matrimonio

HH228-17 : WILLIAM MUKUDU vs ESTERE STELLA MUKUDU and THE MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS
Ruled By: TSANGA J

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 ...

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 8^th 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 He argues that there are strong prospects of success if the default judgment is rescinded on account that there is no Deed of Donation and that the property was transferred to him directly by his father as supported by the title deed which was in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.

HB14-05 : SMART MALABA vs NOMATHEMBA FENNY MALABA
Ruled By: NDOU J

In 1997, when he was critically ill, the plaintiff registered this property in the name of the defendant....,.The parties 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 MalabaOn his illness, the plaintiff ...

In 1997, when he was critically ill, the plaintiff registered this property in the name of the defendant....,.

The parties 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

On his illness, the plaintiff said that he started having health problems in 1988.

He suffered from osteomyelitis of 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 a bedroom around April 1997 i.e. a few months prior to the 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 home so that he could use it 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, healthwise, 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 to 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 a 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 it 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 a “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 the General Law Amendment Act [Chapter 8:07]. Section 11 of the General Law Amendment Act [Chapter 8:07] 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 counsel 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. See section 10 of the General Law Amendment Act [Chapter 8:07] and WILLE's Principles of South African Law (8^th Ed) by D HITCHISON, B VAN HEERDEN, D P VISSER and C G VAN DER MERWE…,.

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. See 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 donor – 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 WILLE's Principles of South African Law (8^th Ed) by D HITCHISON, B VAN HEERDEN, D P VISSER and C G VAN DER MERWE.

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 a 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. See Avis v Verseput 1943 AD; Estate Jager v Whittaker 1944 AD 246…,.; The Master v Thompson's Estate 1961 (2) SA 20 (FC); and Dube NO v Mtambu and Ors HH117-02.

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. See 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….,.

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…,.

4….,.

5. The defendant's claim in reconvention be and is hereby dismissed.

SC70-07 : MICHAEL TAYLOR vs HEATHER MARGARET TAYLOR
Ruled By: CHEDA JA, ZIYAMBI JA and GARWE JA

At the conclusion of the hearing of this matter, the High Court granted an order in favour of the respondent confirming the revocation of a donation consisting of a piece of land known as Lot 2 of Subdivision 1 of Stand 185 of Matsheumhlope, Bulawayo. The High Court also ordered that the piece of land ...

This appeal is against that judgment.

The facts of this case are to some extent common cause. The parties met in Bulawayo in 1982 and during the same year started co-habiting. They eventually got married in December 1983. The marriage subsists to this day. After living together for a period of over ten years, the respondent decided to donate the vacant piece of land to the appellant. The appellant accepted the donation and the property was formally transferred to him in 1998.

The court a quo made a finding that the appellant had engaged in an adulterous relationship with one Miriam Nkomo during the subsistence of the marriage. The court also found that the donation to the appellant had been a simple donation and not a remuneratory one. As a result, the court found in favour of the respondent and made an order revoking the donation.

The grounds upon which the appellant has appealed to this Court are as follows:

1. The learned Judge erred in disposing of the matter on the papers as there were material disputes of facts. The matter should therefore have been referred to trial.

2. The learned Judge erred in finding that the donation was a simple donation when in fact it was a remuneratory donation.

3. The learned Judge erred in ordering a revocation of the donation without mero motu considering the question of compensation for the dwelling built by the appellant.

4. The judgment of the court a quo has the effect of unjustly enriching the respondent.

It is clear, from the above grounds of appeal, that there are three issues that require determination. These are;

(i) Firstly, whether the court a quo erred in disposing of the matter on the papers instead of referring the matter to trial;

(ii) Secondly, whether the court a quo erred in coming to the conclusion that the donation in this case was a simple donation rather than a remuneratory one; and

(iii) Thirdly, whether the court a quo should have mero motu dealt with the question of unjust enrichment, and, consequently ordered the respondent to pay compensation for the dwelling constructed on the donated piece of land….,.

Both parties have made submissions on whether or not the respondent was entitled to revoke the donation on account of ingratitude and whether such ingratitude was proved on the papers.

For reasons that will follow shortly, there is no requirement in our law that a spouse should prove ingratitude before revoking a donation made during the subsistence of a marriage i.e. stante matrimonio.

In general a donation inter vivos, once made, is irrevocable, except in a few instances, notably ingratitude. See JOUBERT, The Law of South Africa, Vol 8, Delict to Elections…,; MANFRED NATHAN, Common Law of South Africa, Vol.11, 2^nd ed…,.

In the case of a remuneratory donation, there can be no revocation - even for ingratitude. MANFRED NATHAN, Common Law of South Africa, Vol.11, 2^nd ed…,.

In the case of donations between spouses, the common law position has been that a donation inter vivos between spouses is prohibited subject to certain exceptions. See LEE & HONORE, Family Things and Succession, 2^nd ed by ERASMUS…,. That common law rule no longer applies in this country. See section 11 of the General Law Amendment Act [Chapter 8:07]. Consequently, donations between spouses are now permissible.

The common law position, however, remains that the donor may, at any time, revoke such a donation. See LEE & HONORE, Family Things and Succession, 2^nd ed by ERASMUS…,.

That position has previously been accepted in this country. See for example Hay v Hay 1956 (3) SA 527; Phoenix N.O. v Dyer Smith N.O. & Anor 1968 (3) S.A. 145.

Reciprocal and remuneratory gifts between spouses, however, are not revocable. See JOUBERT, The Law of South Africa, Vol 8, Delict to Elections …,.; Phoenix N.O. v Dyer Smith N.O. & Anor 1968 (3) S.A. 145…,.

The issue that now remains to be determined is whether the court a quo should have, mero motu, raised the question of unjust enrichment and ordered the respondent to pay compensation to the appellant.

The issue of unjust enrichment was not before the court a quo, and, indeed, no submissions in that regard were made by either party. The issue before the court was whether the respondent could revoke the donation, and, if so, whether it was necessary to prove ingratitude on the part of the respondent.

At no stage was the court asked to direct its mind to the question of compensation for improvements effected on the land.

In these circumstances, I see no basis upon which the court a quo can be said to have misdirected itself in not mero motu dealing with an issue that was never before it. The suggestion that the judgment of the court a quo has the effect of unjustly enriching the respondent is not entirely correct as the issue does not arise at this stage. It is clear that the appellant is entitled to take any action he considers appropriate in order to recover any monies he may have expended in effecting improvements to the donated land.

In all the circumstances, therefore, I find that there is no merit to this appeal. The appeal is accordingly dismissed with costs.

Back Main menu

Law Portal
Zimbabwe

Passing of Ownership and Proof of Title re: Donation Transfer & the Revocation of Donatio Inter Vivos & Stante Matrimonio

HH228-17 : WILLIAM MUKUDU vs ESTERE STELLA MUKUDU and THE MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS
Ruled By: TSANGA J

HB14-05 : SMART MALABA vs NOMATHEMBA FENNY MALABA
Ruled By: NDOU J

SC70-07 : MICHAEL TAYLOR vs HEATHER MARGARET TAYLOR
Ruled By: CHEDA JA, ZIYAMBI JA and GARWE JA

Categories

Law Portal Zimbabwe

Passing of Ownership and Proof of Title re: Donation Transfer & the Revocation of Donatio Inter Vivos & Stante Matrimonio

HH228-17 : WILLIAM MUKUDU vs ESTERE STELLA MUKUDU and THE MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS Ruled By: TSANGA J

HB14-05 : SMART MALABA vs NOMATHEMBA FENNY MALABA Ruled By: NDOU J

SC70-07 : MICHAEL TAYLOR vs HEATHER MARGARET TAYLOR Ruled By: CHEDA JA, ZIYAMBI JA and GARWE JA

Categories

Your Donation.

Law Portal
Zimbabwe

HH228-17 : WILLIAM MUKUDU vs ESTERE STELLA MUKUDU and THE MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS
Ruled By: TSANGA J

HB14-05 : SMART MALABA vs NOMATHEMBA FENNY MALABA
Ruled By: NDOU J

SC70-07 : MICHAEL TAYLOR vs HEATHER MARGARET TAYLOR
Ruled By: CHEDA JA, ZIYAMBI JA and GARWE JA