TAYLOR v TAYLOR 2008 (2) ZLR 165 (S)

Flynote

Contract “ donation “ inter vivos “ donation between spouses “ may be revoked at any time

Practice and procedure “ action “ ancillary issue not specifically before court “ whether court entitled to deal with such issue mero motu

Headnote

The parties met in 1982 and during the same year started co-habiting. They eventually got married the next year. The marriage subsists to this day. After living together for a period of over ten years, the respondent, who was the wife, decided to donate a vacant piece of land to the appellant. The appellant accepted the donation and the property was formally transferred to him in 1998. After the respondent discovered that the appellant had engaged in an adulterous relationship during the subsistence of the marriage, she brought an action for an order revoking the donation. The High Court granted the order. The appellant appealed, arguing inter alia that the court a quo erred in ordering a revocation of the donation without mero motu considering the question of compensation for the dwelling built on the land by the appellant. The judgment of the court a quo thus, he argued, had the effect of unjustly enriching the respondent.

Held, that in general, a donation inter vivos, once made, is irrevocable, except in a few instances, notably ingratitude. In the case of a remuneratory donation, there can be no revocation, even for ingratitude. In the case of donations between spouses, the common law position was that a donation inter vivos between spouses was prohibited, subject to certain exceptions, but that rule no longer applies in this country: see s 11 of the General Law Amendment Act [Chapter 8:07]. Consequently, donations between spouses are now permissible, though the common law position remainsthat the donor may at any time revoke such a donation. Reciprocal and remuneratory gifts between spouses, however, are not revocable.

Held, further, that unjust enrichment now forms a cause of action in terms of our common law, but 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 proveingratitude on the part of the respondent. The court not having been asked to direct its mind to the question of compensation for improvements effected on the land, there was no basis upon which the court could be said to have misdirected itself in not, mero motu, dealing with an issue that was never before it. The appellant was still entitled to take any action he considered appropriate in order to recover any monies he may have expended in effecting improvements to the donated land.