No. SC 70/07
Appeal No 134/07
TAYLOR v HEATHER MARGARET TAYLOR
SUPREME COURT OF
CHEDA JA, ZIYAMBI JA &
HARARE, NOVEMBER 20,
2007 & SEPTEMBER 15, 2008
R M Fitches, for
J C Andersen SC,
for the respondent
GARWE JA: At the conclusion of the hearing of this matter the High
Court granted an order in favour of the respondent confirming
revocation of a donation consisting of a piece of land known as Lot 2
of Subdivision 1 of Stand 185 of Matsheumhlope Bulawayo.
Court also ordered that the piece of land be transferred back to the
respondent. 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
over ten years, the respondent decided to donate the vacant piece of
land to the appellant. The appellant accepted the donation
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
The learned Judge erred in disposing of the matter on the papers as
there were material disputes of facts. The matter should
have been referred to trial.
The learned Judge erred in finding that the donation was a simple
donation when in fact it was a remuneratory donation.
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.
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 firstly whether
court a quo erred in disposing of the matter on the papers
instead of referring the matter to trial; 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
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
the donated piece of land.
The first and second issues are related and raise one fundamental
issue. That issue is whether the court a quo should have
referred the dispute on whether or not the donation was remuneratory
to trial. The position is now well established
that not every
dispute of fact in motion proceedings has to be sent for trial. The
correct approach in this regard was enunciated
by this Court in
Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech
1987 (2) ZLR 338 where GUBBAY JA (as he then was) stated at p 339
It is, I think, well established that in motion proceedings a
court should endeavour to settle the dispute raised in affidavits
without hearing of evidence. It must take a robust and common sense
approach and not an over-fastidious one; always provided that
convinced that there is no real possibility of any resolution doing
an injustice to the other party concerned
It is common cause that there was a dispute on the papers as to the
extent to which the appellant contributed towards the household
expenses of the couple and whether the donation made to him was in
exchange for some services that he had rendered to the respondents
late mother. The court a quo reached the conclusion that the
donation was a simple one. I am not persuaded that the court erred
in reaching this conclusion.
The court a quo did accept that
the appellant had been generous with cash gifts for birthdays and
anniversaries. The court also concluded that
the sum of 10 000
pounds sterling given to the respondent was not a gift at all as it
had subsequently been taken and paid
over to the appellants
daughter who was in need of financial assistance. This was in the
year 2002. On the papers the sum
of 10 000 pounds given to the
respondent could not have induced the respondent to donate the piece
of land to the appellant.
In other words it could not have been a
reciprocal donation. I say this because the agreement to transfer
the land in question
was signed at Bulawayo in 1995. This was long
before the appellant gave the respondent the sum of 10 000 pounds.
In her answering
affidavit the respondent says that the sum was only
given to the respondent in the year 2000 but was subsequently taken
the year 2002. The court a quo also dismissed the
appellants claim that the donation had been made because of
services he had rendered to the respondents
late mother during the
last few months of her life. That claim is highly improbable and in
my view the court a quo cannot be said to have misdirected
itself in rejecting it. The assistance the appellant says he gave
was not out of the ordinary.
It was the kind of assistance that any
son-in-law would have been expected to give to an ailing
mother-in-law. In the particular
circumstances of this case it seems
improbable that the donation would have been made because of the
assistance he gave.
The claim by the appellant that he expended certain sums of money
to improve security at the residence of the respondents
in improving a piece of land donated to the respondents son
remained a bald one. The law is clear that bald and
allegations are not sufficient. See Akhtar v Min of Public
Commission SC 173/97.
In all probability the donation was made because at that time the
respondent was happy with the appellant and the relationship
the two was a good one. All the facts considered I am satisfied that
the disputes of facts were capable of resolution
on the papers and
that the court a quo did not err when it came to the
conclusion that the circumstances pointed towards a simple rather
than remuneratory gift.
Both parties have made submissions on whether or not the respondent
was entitled to revoke the donation on account of ingratitude
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 JOUBERT, The
Law of South Africa vol. 8 Delict to Elections para 120;
127; Manfred Nathan, Common Law of South Africa, vol. 11 - 2nd
ed para 1090.
In the case of a remuneratory donation, there can be no revocation,
even for ingratitude Common Law of South Africa op.cit
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 LEE & HONORE, Family
Things and Succession 2nd ed by Erasmus
p 45. That common law rule no longer applies in this country see
s 11 of the General Law Amendment Act, [Cap 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 LEE & HONORE op cit p 45, para 61.
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, - JOURBERT, The
Law of South Africa op cit p 163, para 138; Phoenix N.O. v
Dyer Smith N.O. & Anor supra at p 148H.
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. Unjust enrichment now
forms a cause of action in terms of
our common law See Industrial Equity v Walker 1996 (1) ZLR
269 (H). 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
asked to direct its mind to the question of compensation for
improvements effected on the land. In these circumstances I
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
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
The appeal is accordingly dismissed with costs.
CHEDA JA: I agree
ZIYAMBI JA: I agree
Ben Baron & Partners, appellants legal practitioners
Lazarus & Sarif, respondents legal practitioners