Michael Taylor v Heather Margaret Taylor

The parties met in Bulawayo in 1982 and began cohabiting that year. They married in December 1983, and the marriage subsisted. After living together for over ten years, the respondent (wife) donated a piece of vacant land (Lot 2 of Subdivision 1 of Stand 185 of Matsheumhlope Bulawayo) to the appellant (husband). The appellant accepted the donation and the property was formally transferred to him in 1998. The High Court found that the appellant had engaged in an adulterous relationship with one Miriam Nkomo during the subsistence of the marriage. The High Court also found that the donation was a simple donation and not a remuneratory one, and consequently granted an order in favour of the respondent revoking the donation and ordering that the land be transferred back to the respondent. The appellant appealed, arguing the donation was remuneratory based on his financial contributions and services rendered to the respondent's late mother.

• Whether the High Court erred in disposing of the matter on the papers where there were material disputes of fact, rather than referring the matter to trial
• Whether the donation was a simple donation or a remuneratory donation
• Whether the High Court should have mero motu considered the question of compensation for the dwelling built by the appellant on the donated land and the issue of unjust enrichment

The appeal was dismissed with costs. The High Court order revoking the donation and ordering transfer of the land back to the respondent was confirmed.

1. Not every dispute of fact in motion proceedings must be referred to trial; courts should take a robust and common sense approach provided there is no real possibility of injustice. 2. Under Zimbabwean common law (as modified by s 11 of the General Law Amendment Act), donations between spouses are permissible and a donor spouse may revoke a simple donation inter vivos at any time without proving ingratitude. 3. Reciprocal and remuneratory donations between spouses are not revocable. 4. A court is not required to mero motu raise and decide issues (such as unjust enrichment) that were not pleaded or argued before it by the parties.

The Court observed that the donation was likely made because at the time the respondent was happy with the appellant and their relationship was good. The Court also noted that the appellant would be entitled to take any action he considers appropriate to recover monies expended in effecting improvements to the donated land, suggesting that a claim for unjust enrichment could be pursued separately. The Court commented that assistance given by the appellant to his ailing mother-in-law was not out of the ordinary and was the kind of assistance any son-in-law would be expected to provide.

This case clarifies important principles in Zimbabwean law regarding donations between spouses. It confirms that following the General Law Amendment Act, donations between spouses are now permissible (reversing the previous common law prohibition), but such donations remain revocable by the donor at any time, except in cases of reciprocal and remuneratory gifts. The case also demonstrates the application of the robust approach to resolving disputes of fact in motion proceedings without necessarily referring matters to trial, and clarifies that proof of ingratitude is not required for revocation of simple donations between spouses made during the subsistence of marriage (stante matrimonio).