Loveness Kudzanga v Godfrey Kudzanga and Others

The plaintiff married the first defendant's son, Dickson Kudzanga, on 18 December 1999. She claimed that during the wedding ceremony, the first defendant donated Stand No. 9781 Kuwadzana Phase 3, Harare (a core house with one room and toilet) to her and her husband as a wedding gift. The plaintiff and her husband took occupation in 2000, then went to the United Kingdom in 2002, returning in 2007. The plaintiff alleged they developed the property into a 10-roomed house using funds sent from the UK. The property was registered in the joint names of the first defendant and his wife, having been purchased with mortgage finance in 1998/1999. The first defendant denied making any donation, stating he only gave ZW$10,000 cash as a wedding gift and allowed the couple to stay at the property. The plaintiff's marriage to Dickson broke down, and in 2011 the first defendant gave notice to vacate. The plaintiff sued for transfer of the property, or alternatively for compensation for her contributions to improvements.

• Whether there was a valid donation of immovable property from the first defendant to the plaintiff and her husband
• Whether an alleged oral donation of immovable property is enforceable at law
• Whether the first defendant could competently donate property he jointly owned with his wife without her consent
• Whether the plaintiff proved her financial contributions to the development of the property
• Whether the first defendant had locus standi to evict the plaintiff from the property
• Whether holding over damages were proved

1. The plaintiff's main claim dismissed. 2. The plaintiff's alternative claim dismissed. 3. The first defendant's counter claim for holding over damages dismissed. 4. The plaintiff and all those claiming occupation through her directed to vacate Stand No. 9781 Kuwadzana Phase 3, Harare within 30 days, failing which the Sheriff should eject them. 5. Each party to bear its own costs.

A donation of immovable property, even if made orally (as permitted by s 10 of the General Law Amendment Act [Cap 8:07]), must be proven on a balance of probabilities by the party alleging it, and a donation cannot be presumed. A co-owner of property cannot competently donate the entire property without the consent of the other co-owner(s), as each co-owner has a real right in the property. A joint owner of immovable property has vindicatory rights against third parties and can competently seek eviction of persons occupying the property without legal right. Claims for compensation based on contributions to improvements of property owned by another require credible documentary evidence establishing both the fact and quantum of contributions.

The court declined to make a definitive finding on prescription under the Prescription Act [Cap 8:11], noting that while the plaintiff's delay of 11 years in seeking enforcement was suspicious, her evidence suggested she had made periodic requests for transfer which could have interrupted the running of prescription. The court granted a 30-day period for the plaintiff to vacate despite her wrongful occupation, recognizing the need for her and her children to find alternative accommodation. The court commented that the photographic evidence and limited receipts produced by both parties were of little probative value and suggested ulterior motives in the preparation of some documents.

This case establishes important principles regarding donations of immovable property in Zimbabwe. It confirms that: (1) a donation cannot be presumed and the onus rests on the party alleging it; (2) while the General Law Amendment Act [Cap 8:07] s 10 permits oral donations without notarial execution or registration, strong evidence is still required; (3) a person cannot donate property they do not solely own without the co-owner's consent; (4) a joint owner of property has vindicatory rights to evict third parties; (5) claims for unjust enrichment based on improvements to property require credible documentary proof of contributions. The case demonstrates the evidentiary difficulties in proving oral donations and highlights the importance of proper documentation in property transactions and family arrangements.