Onias Gotore v Pride Gotore and Municipality of Chegutu and The Sheriff of Zimbabwe

### Preamble
1
HCC 39/25
HCCC 14/25
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ONIAS GOTORE

Versus

PRIDE GOTORE

And

MUNICIPALITY OF CHEGUTU

And

THE SHERIFF OF ZIMBABWE

HIGH COURT OF ZIMBABWE

MUZOFA J

CHINHOYI,25 June 2025

Opposed Court application

T. Matiyashe, for the applicant

F. Murisi, for the 1st respondent

No appearance for the 2nd & 3rd respondents

MUZOFA J: [1] I dismissed this application in an ex-tempore judgment. These are the written reasons for the order.

[2] The applicant is the 1st respondent’s father. It is never easy for a father to drag his son to courts; this is just evidence of a broken family. Something must have gone seriously wrong. The 2nd and 3rd respondents are cited as nominal respondents by virtue of their offices for purposes of enforcement of the court order. The applicant seeks an order to revoke a donation he made to the 1st respondent, his son and costs of suit on a higher scale against the 1st respondent only.

[3] The applicant purchased stand number 30463 Rifle Range Chegutu (the property) from one Melania Mandeya (hereinafter referred to as Melania). After purchase the property was registered in the name of the 1st respondent on the applicant’s instructions. According to the applicant tables have turned, the 1st respondent is now disrespectful and violent towards him. He is churlish and has even assaulted him. The applicant therefore seeks a court order to revoke the donation.

[4] The 1st respondent opposes the application. In his affidavit, he avers that the property was purchased for him by the applicant. This was a token of appreciation for his hard work at the farm. The applicant’s decision to revoke the alleged donation (which he denies to be a donation) is not so much out of his alleged ingratitude. It is linked to some family disharmony, particularly between the applicant and his mother (the applicant’s wife).

The Applicant’s Case

[5] The applicant’s written submissions and oral submissions come to the following; in 2014 the applicant purchased the property from Melania. It was an instalment purchase. His final instalment was in 2019. It was a material term of their agreement that upon payment of the full purchase price the property would be registered in the 1st respondent’s name.

[6] Melania duly penned a letter to the 2nd respondent advising that the applicant had fully paid for the property and it should be registered in the name provided by the applicant. She filed an affidavit confirming that the applicant donated the property.

[7] Further to that, that the requirements of a donation set out in Goto v Tsuro & Ors SC 40/24 were satisfied. The applicant purchased the property and later decided to donate, by his conduct the 1st respondent tacitly accepted the donation and the property was delivered   by cession into the 1st respondent’s name.

[8] In terms of the law, so the submissions continued the donor can revoke a donation based on ingratitude the court was referred to the case of Zinyengere v Mhuka HH484/23 as authority for that proposition. Certain conduct by the1st respondent has shown that he is ungrateful, he has been violent towards the applicant to the point that in 2022 the applicant applied for a protection order. No sane father can just go to court for a protection order against his own son. As if that was not enough the 1st respondent has also advertised the property for sale contrary to an express condition that the property was family property to benefit all his siblings. On that basis, the applicant submitted the revocation is warranted.

[9] Mr Matiyashe conceded that at no time was the property owned by the applicant. Despite that observation, he insisted that there was a donation since it is the applicant who purchased the property, he therefore acquired some rights and interest in the property. The Court inquired from the learned counsel whether to purchase something for someone is synonymous with a donation. He indeed confirmed that the two scenarios are not synonymous.

1st Respondent’s Case

[10] In his written submissions a point in limine was taken that there are material disputes of facts. On the date of hearing, the point in limine was abandoned. That was a proper course there are no disputes of facts presenting in this case.

[11] On the authority of Chimbgandah v Chitaunike NO & Anor HH 305/20 it was submitted that was no valid donation since the deed of donation was not reduced into writing. The point taken need not detain the Court. The common law position has been varied by statute. In terms of section10 of the General Law Amendment Act (Chapter 8:07) the law provides,

“No contract of donation shall be invalid solely by reason of the fact it is not registered or notarially executed.

[12] See also Goto case (supra), Kasule v Kasule & Ors HH 239/19.

[13] On the merits 1st respondent avers that the applicant simply purchased the property for him. There was no donation perfecta. If there was a donation he did not know about it, he did not accept the donation. The fact is that the property was purchased for him.

[14] From his perspective, the applicant has tried all the legal avenues to wrestle the property from him but has been unsuccessful. This is the 5th attempt to wrestle the property from him. First it was an interdict, then an application to compel cession into applicant’s name and then an attempt to register the property into a trust. All failed, more specifically in all those applications there was no reference to a donation. This donation thing is spurious and an afterthought.

Issues for determination

[15] Two issues commend themselves for determination in this case as follows,

Whether there was a donation.

Whether the revocation is merited.

Factual and legal analysis

Donation

[16] The law on donations is well settled in our jurisdiction. In the Kasule case (supra) the Court cited useful dictum from a South Africa case of Mogudi vs. Fezi, (2007) ZAWCHC, 45, in which the Court addressed the issue on donations at length and said,

“A donation may be defined as an agreement in terms of which one party (the donor) undertakes, gratuitously and without obligation, by virtue of liberality, generosity or benevolence, to give something to another (the donee) with the intention of enriching or otherwise benefiting the donee. See Digesta 39.5.1, where the Roman jurist Julian observes that a gift made with the intention that it should forthwith become the property of the recipient and will not be returned under any circumstances, is properly called a donation, provided it is made out of liberality (liberalitas) and generosity (munificentia).”

[17] The learned judge further went on to state as follows: - “He [Von Savigny] says … that a donation is a transaction inter vivos between donor and donee whereby the donee is enriched and the donor correspondingly impoverished, such transaction being accompanied by an intention on the part of the donor at his expense to enrich the donee. He points out that an essential element is a disinterested voluntas on the part of the donor who must have in mind only the utilitas or commodum of the donee and not his own advantage”. Further still he stated as follows: - “Inasmuch as donation constitutes an agreement between the donor and donee, it must, of course, comply with all legal requirements for a valid contract. Apart from the essential of consensus regarding the nature and ambit of the donation and the contractual capacity of the parties, the donation must be accepted, expressly or tacitly, by the donee.

[18] Furthermore, in line with the authorities cited above, the donor must, without the expectation of any counter-performance or benefit accruing to him in return, intend to enrich the donee by making him a gift out of his assets. Such assets will then be diminished in the amount, or to the value, of the gift, leaving the donor correspondingly impoverished. See in general the useful discussion in LAWSA volume 8 part 1 (2nd edition 2005) par 305-309 (p372-379).’

[19] See also South African Revenue Service v Marx No 2006 (4) SA 195.

[20] The authorities show that for a valid donation to exist there must be,

An immediate intention to make a gift.

Acceptance of the gift.

Actual delivery of the gift divesting the owner of control and dominion.

[21] The donation must comply with all requirements of a valid contract. It is trite that offer and acceptance are central to a valid contract. From the dictum in the Mogudi case (supra) the relationship must be such that the asset must be part of the donor’s estate and on donating the asset he/she must be impoverished while the donee is enriched in the same measure of impoverishment.

[22] If a donation involves ‘a disinterested voluntas on the part of the donor who must have in mind only the utilitas or commodum of the donee and not his own advantage” then the applicant failed to satisfy this element.

[23] The applicant did not intend to benefit the 1st respondent without an advantage accruing to him. The critical factor is the intent behind the transfer of ownership (in this case the cession). If the intent is to transfer ownership without expecting anything in return, then it is a donation.

[24] The applicant filed an affidavit with the 2nd respondent barring the 1st respondent from selling the property without his consent ‘as a father who bought it in his name’. There was expectation for something in return even if it was an intangible benefit like this communal family benefit. There lies the difference between the applicant’s conduct and a donation perfecta. Such conduct to my mind reveals the applicant’s intention. He intended to remain with some residual power over the property. There remained a salient advantage to him, to keep the property within the family. There were strings attached. So, there was never an intention to gratuitously and without obligation give the 1st respondent the property to enrich him by the same token impoverishing the applicant. The applicant intended to continue to derive a benefit from the property. In any event in his own words in the said affidavit he purchased the property in the name of the 1st respondent.

[25] In a donation there is no corresponding obligation from the donee because of the donation. In this case according to the applicant and through the affidavit he deposited with the 2nd respondent, the 1st respondent was expected not to sell the property. That is not within the contemplation of a donation.

[26] It is not in dispute that the applicant’s money was used to purchase the property in question. However, at no time was the property ceded to the applicant. At all times when the applicant made payments it was registered in Melania’s name. After full payment the cession was registered in the 1st respondent’s name.

[27] Applying the reasoning in the Mogudi case can it be said the applicant was impoverished by the donation. The answer is in the negative. The property was never part of his estate. He had the money but that money was not the property. The applicant purchased the property for the 1st respondent.

[28] When the property was eventually registered in the 1st respondent name, he was indeed enriched but not from the applicants’ estate. The property was purchased in 1st respondent’s name. There was no meeting of minds (consensus ad idem) between applicant and 1st respondent about the donation. The onus was on the applicant to prove on a balance of probabilities, he failed. There was no valid donation.

[29] I must point out in passing that, in his opposing affidavit the 1st respondent averred that the property was purchased for him as a token of appreciation for work done at the Farm. In his replication, the applicant did not specifically dispute the reason for the purchase but simply said the 1st respondent was advised to keep the property for his siblings.

[30] The finding that there was no valid donation disposes of the need to determine whether revocation is merited in this case. Revocation can only be made where there is a valid donation.

Disposition

[31] The applicant failed to show that that he donated the property to the 1st respondent. The evidence before the Court strongly show that the applicant purchased the property for the 1st respondent and he had strings attached to the property.

[32] On costs there was no valid reason given to depart form the time-honoured principle that costs follow the cause.

Accordingly, the following order is made.

The application is dismissed with costs on an ordinary scale.

Matiyashe Law Chambers, applicant’s legal practitioners

Murisi & Associates, 1st respondent’s legal practitioners