What is a Deed of Donation in Zimbabwe?

A Deed of Donation in Zimbabwe is used in transferring ownership of property or assets from one party (‘the donor’) to another party (‘the done) for free and without any charge. see MJ Lowe et al, Elliot - The South African Notary (6 ed, Juta & Co, 1986) at 106.

A Deed of Donation formalizes the intent and terms with which such gifts are given, ensuring clarity and legality. In terms of section 10 of the General Law Amendment Act [Chapter 8:07], no contract shall be invalid solely by reason of the fact that it is not registered or notarially executed. This means that a Deed of Donation in Zimbabwe need not be reduced to writing in order for it to be valid. The rationale is that a donation is simply an agreement in terms of which a donor undertakes, gratuitously and without obligation, to give something to another i.e., the donee with the intention of benefitting the donee. see Kasule v Kasule 2019 (1) ZLR 688 (H).

In Commissioner for the South African Revenue Service v Marx N.O. 2006 (4) SA 195 (C) para 23 – 24 it was held that:

“It must be borne in mind that a donation made during the lifetime of the donor (donatio inter vivos) becomes contractually and legally binding from the moment the donees accept the donation. It creates rights and obligations just like any other consensual contract, as appears from the following definition and elucidation in LAWSA:

A donation is an agreement which has been induced by pure (or disinterested) benevolence or sheer liberality, whereby a person under no legal obligation undertakes to give something … to another person, called the "donee', with the intention of enriching the donee, in return for which the donor receives no consideration nor expects any future advantage.

The donor's intention to make a donation (animus donandi) must arise from generosity (liberalitas) or liberality (munificentia) and be expressed as a promise (offer) to donate, which promise (offer) must be accepted by the donee before a binding contract of donation comes into existence. Once this happens the donation is perfected and it may be revoked only under certain circumstances. The resultant contract is not sufficient, however, for purposes of transferring the donated asset into the ownership (dominium) of the donee. Performance of the obligation arising from the donation, in the form of delivery (traditio) of the asset donated, first has to take place, as appears from the following dictum of Jansen JA in Mankowitz v Loewenthal:

At the outset it must be remembered that a contract of donation and the performance thereof, viz the delivery of the article donated, are two separate juristic acts: the one directed at creating an obligation and the other at transferring possession (and dominium).”