Court name
Supreme Court of Zimbabwe
Case number
SC 25 of 2009
Civil Appeal 6 of 2007

Beckford v Beckford (Civ. App 6/07) (SC 25 of 2009, Civil Appeal 6 of 2007) [2009] ZWSC 25 (26 April 2009);

Law report citations
Media neutral citation
[2009] ZWSC 25

DISTRIBUTABLE (7)


Judgment
No. SC 25/09


Civil
Appeal No. 6/07








AIDAN
PAUL BECKFORD v ELIZABETH ANNE BECKFORD








SUPREME COURT OF
ZIMBABWE


SANDURA JA, ZIYAMBI JA
& GWAUNZA JA


HARARE, NOVEMBER 26,
2007 & APRIL 27, 2009








A P de Bourbon SC,
with him E T Matinenga, for the appellant





J C Andersen SC,
with him J B Colegrave, for the respondent






SANDURA JA: On 20 December 2006 the High Court granted a decree
of divorce and other ancillary relief in a divorce action in
which Mr
Beckford was the plaintiff and Mrs Beckford the defendant.
Aggrieved by part of the order, Mr Beckford appealed to this
Court.







The Notice of Appeal, in relevant part, reads as follows:






“The appellant appeals against paragraphs 2, 3, 9, 10, 12 (only
insofar as it relates to the respondent), 14, 15 (insofar as
the time
for payment by the appellant is required), 16, 17, 18, 19 (only
insofar as it imposed upon the appellant the obligation
to deliver
such property to the respondent at his cost), 22 and 23 of the Order
given by the High Court of Zimbabwe.”







Before the appeal was heard Mrs Beckford filed a court application
in this Court for leave to adduce further evidence on appeal.
The
evidence consisted of the following - (a) the evidence presented by
her as to the re-mortgaging and the sale-in-execution
of the property
at 45 Leinster Avenue, London; (b) the record in the urgent Chamber
application filed by her in the High Court
in case no. HC 1417/2007,
an application for an order preventing the sale-in-execution of the
property at 45 Leinster Avenue, London,
and which was dismissed on 24
March 2007; and (c) the correspondence that passed between the legal
practitioners for Mr and Mrs
Beckford after 24 March 2007.







The application for leave to adduce further evidence on appeal was
opposed by Mr Beckford. However, as this appeal can be determined

without the need for the additional evidence sought to be introduced,
it will not be necessary for this Court to deal with the
application.







The parties were married to each other in Blackpool, Lancashire,
England, on 26 November 1994. Two children were born of the
marriage.
These are EB, born in 1996, and TH, born in 1999. Both children
were born in the United Kingdom.







At the pre-trial conference the issues were identified as follows –






“1. Whether it is in the best interests of the minor children that
custody be awarded to (the) plaintiff or (the) defendant,
or that an
award of joint custody be made.







2. Dependent upon the award of custody the quantum of maintenance
payable in respect of the children.







3. What order should be made in respect of the children’s
schooling?







4. The quantum of maintenance payable by (the) plaintiff to (the)
defendant and the period thereof;







5. What assets constitute the matrimonial estate?







6. The apportionment thereof;







7. Costs.”







After a trial which lasted eight days the learned trial Judge
prepared a long judgment in which he carefully considered the issues

before him.







I now wish to consider those paragraphs of the order of the court a
quo
which are challenged on appeal, and determine whether the
learned trial Judge erred in any way.







PARAGRAPH 2






In terms of this paragraph, the learned trial Judge granted the
custody of the two minor children of the marriage to Mrs Beckford.

In this regard the learned Judge relied mainly on the evidence of Mrs
Beckford and that of Mr Jean-Francois Desvaux de Marigny
(“Mr de
Marigny”), a clinical psychologist with much experience in the
psychological aspects of custody of and access to minor
children
after divorce.







Although Mr Beckford originally sought sole custody of the two
minor children, he finally sought joint custody of them. However,

Mrs Beckford, who sought sole custody of the children, maintained
that joint custody was a practical impossibility in this case
because
it would not work. The learned Judge found that Mrs Beckford gave
her evidence well and was an honest and fair witness.







In his evidence Mr de Marigny said that although joint custody was
the “first prize” if it was a practical possibility, he
did not
believe that the necessary ingredients for joint custody, such as
trust and the ability to communicate with each other
in a mature
manner, existed in this case. It was his view that Mrs Beckford was
the more appropriate custodian of the two parties.







The learned Judge accepted Mr de Marigny’s evidence and commented
as follows at pp 38-39 of the cyclostyled judgment (judgment
no. HH
124-2006):






“I have dealt at length on Mr Marigny’s testimony because, in my
view, it was delivered in a professional and impartial manner.
His
opinion was based on a credible methodology. He conducted in depth
interviews with a wide array of collaterals, the plaintiff,
the
defendant, the children and Dr Bester … . He carried out a first
class appraisal of the issues and the facts. He was
alive to the
thirteen criteria for custody considerations set out in McCall v
McCall
1994 (3) SA 20 (C) (sic) at 204-205 and the views
expressed by DE VOS J, in Krugel v Krugel 2003 (6) SA 220 (W),
on joint custody.







He was commissioned by the plaintiff. He conducted himself well and
with dignity in the witness-box. …







I am satisfied that he told the truth. I believe his evidence in
its totality.”







It is pertinent to note that in the Heads of Argument prepared on
behalf of Mr Beckford, no challenge is made to Mr de Marigny’s

evidence and his reports. That, in my view, supports the learned
Judge’s view of the manner in which Mr de Marigny gave his
evidence
and the substance of that evidence.







The learned Judge made adverse findings on the credibility of Mr
Beckford and his two witnesses, Mr Austin and Mrs Middleton,
on the
issue of the custody of the minor children.







Commenting on Mr Beckford’s evidence, the learned Judge said the
following at p 43 of the cyclostyled judgment:






“The plaintiff’s conduct after he filed for divorce both before
and after the consent order painted him as a manipulator.
He
manipulated his character, his wife’s character, his money and the
prevailing circumstances to his advantage. His evidence
failed to
convince me that the defendant was unsuitable to wear the mantle of a
custodian parent.”







Mr Austin was the managing director of the company which operated
the Primary School, the school at which the two minor children
were
pupils. When Mr Austin was cross-examined it emerged that Mr
Beckford had provided a pavilion for the benefit of the school.
It
was also significant that when Mr Beckford was seeking sole custody
of the children he was supported by Mr Austin, and that
when he
shifted his ground and sought joint custody of the children, Mr
Austin similarly shifted his ground and supported him.
In the
circumstances, the learned Judge concluded that Mr Austin could not
escape from the criticism that he was biased in favour
of Mr
Beckford.







Mrs Middleton, the headmistress of the Primary School, was
similarly found by the learned Judge to have given evidence which
was
biased in favour of Mr Beckford. The learned Judge was of the view
that Mrs Middleton had allowed herself to be “manipulated”
by Mr
Beckford.







It is quite clear that the learned Judge made specific findings of
fact with regard to the credibility of the parties and their

witnesses. As has been stated in a number of cases, an appellate
court would not readily interfere with such findings. That is
so
because the advantage enjoyed by a trial court of observing the
manner and demeanour of witnesses is very great. See Arter v
Burt
1922 AD 303 at 306; National Employers Mutual General
Insurance Association v Gany
1931 AD 187 at 199; and Germani v
Herf and Anor
1975 (4) SA 887 (AD) at 903 A-D.







It seems to me that in the present case there is no basis for
interfering with the learned Judge’s findings of fact on the

credibility of the parties and their witnesses in respect of the
custody of the minor children. There is, therefore, no basis for

interfering with the order granting the custody of the two minor
children to Mrs Beckford.






PARAGRAPH 3






In terms of this paragraph the learned Judge granted to Mrs
Beckford leave to remove the minor children from Zimbabwe to the

United Kingdom permanently on or after 31 July 2007.







In granting this order, the learned Judge said the following at pp
50-51 of the cyclostyled judgment:






“The defendant sought to remove the minor children permanently
from Zimbabwe after 31 July 2007. The plaintiff who submitted
that
it was premature to seek such relief did not seriously oppose it.







In her testimony the defendant justified the need to prepare the
girl for middle school in England. She demonstrated that she
did not
have any support system in this country. She also cited the
deteriorating economic environment in this country.







In paragraph 15 of his draft order, the plaintiff postulates the
possibility of either party relocating to the UK with the minor

children, with the consent of this court. It is clear to me that at
one point the plaintiff contemplated such a move. The defendant

would like to do so. She has taken into account the recommendation of
the educationists and Mr de Marigny. The plaintiff has already

prepared the children for relocation by showing them a house they may
live in (in) the UK. That the children have lived in Zimbabwe
for the
greater part of their existence is not in doubt. They were both born
in the UK. Indeed, after the defendant conceived the
boy, the parties
temporarily moved to the UK for her to be closer to both their
families. Clearly the parties have close links
to the UK and have
always contemplated the possibility of going back home.”







In my view, the learned Judge’s reasoning is unassailable. It was
common cause that Mrs Beckford, a qualified graphic designer,
did not
have a work permit in respect of Zimbabwe, and could not support
herself or the children in this country. The need to relocate
to the
United Kingdom was, therefore, obvious. Having been awarded the
custody of the minor children, it followed that the children
had to
go with her.






PARAGRAPHS 9, 10 AND 12






These paragraphs read as follows:






“9. The plaintiff shall pay the following household and other
expenses incurred in the running of 62A Steppes Road, Chisipite,

Harare, direct to the suppliers thereof strictly by due date:
electricity, water, rates, Tel-One telephone account, vet bills,
DS
TV subscriptions, insurance of house and contents, third party
insurance, licensing and reasonable maintenance and repairs costs

together with the procurement and payment of 200 litres of diesel per
month of the motor vehicle in the defendant’s possession,
security
guard costs, wages of two domestic workers at the prescribed rate.







10. The plaintiff shall pay maintenance for the defendant and the
children in the sum of ZW$30 000 per month (as revalued at 1
August
2006) with effect from 1 September 2005, such maintenance to be
subject to review every three months by reference to the
increase in
the Consumer Price Index for the preceding three months produced by
the Central Statistical Office.







11. …







12. The plaintiff shall at his cost retain the children and the
defendant on a local medical aid scheme and pay all medical and

dental shortfalls incurred under such scheme and furthermore the
plaintiff shall be solely responsible for any emergency medical

treatment the defendant and the children may require outside the
country.”







Paragraph 12 was challenged by Mr Beckford only insofar as it related
to Mrs Beckford.







In terms of the provisions of para 14 of the order granted by the
learned Judge, paras 4 to 13 only applied during the period
that Mrs
Beckford and the children were in Zimbabwe pending their permanent
relocation to the United Kingdom. Therefore, Mr Beckford’s

obligation to meet the expenses set out in paras 9, 10 and 12 applied
during that period only.







It is pertinent to note that the provisions in paras 9, 10 and 12
are the same as those in paras 7, 8 and 10 of the order granted
by
the High Court on 26 July 2005 with the consent of Mr and Mrs
Beckford (“the consent order”), apart from the fact that in
para
9 of the order of the court a quo there is the additional
requirement that Mr Beckford was to purchase 200 litres of diesel per
month for use by Mrs Beckford.







The consent order regulated, inter alia, custody of, access
to and maintenance for the minor children, as well as Mrs Beckford’s
maintenance, until the conclusion of
the divorce proceedings. In
addition, the consent order provided that Mr Beckford was to vacate
the matrimonial home at 62A Steppes
Road, Chisipite, Harare, and that
he was to continue paying all the household and other expenses
incurred in the running of the
matrimonial home.







In granting the orders set out in paras 9, 10 and 12 the learned
Judge had this to say at pp 51-53 of the cyclostyled judgment:






“The defendant sought maintenance for her and the children and
prayed that it be regulated in terms of paras 7, 8, 9, 10 and
11 of
the consent order until her departure to the UK. …







She seeks that for as long as she remains in Zimbabwe her personal
maintenance should be regulated in terms similar to those found
in
the consent order. I see no reason to discard her reasoning as it
is based on a workable, tried and tested formula which has
been in
operation since 26 July 2005. That formula takes into account the
loss in the value of our currency. …







The defendant is not able to work in this country. Throughout the
greater part of her marriage she has been supported by the plaintiff.

She has established the need for personal maintenance. I will thus
make an order for her personal maintenance in the terms that
she
seeks.







The plaintiff has accepted that he be bound by (the) consent order
on the maintenance of the minor children. That concession is
noted
and an award along those lines will be made.







The other issues that relate to the educational, medical and holiday
needs of the children were agreed to by the parties in their

respective counsels’ submissions. These will be regulated, as
agreed between the parties, in terms of the consent order of 26
July
2005.







The defendant co-joined her claim for maintenance with a prayer that
the plaintiff be ordered to supply her with 200 litres of
diesel
every month until she relocates to the UK. The plaintiff did not
seriously contest her claim in this regard. His only
concern was
that the cost of the diesel be incorporated into one lump sum monthly
figure. … She highlighted the agony she faces
in searching for
fuel and compared it with the ease with which the plaintiff manages
to acquire it. She further stated that the
price of fuel is always
changing, hence the formulation of her claim in the manner that she
did.







It seems to me that since the order of maintenance that I will make
will be in terms similar to those that are found in the consent
order
and, since the maintenance order and her request for fuel are for the
limited duration of her stay in this country, I will
accede to her
prayer for the delivery of 200 litres of diesel to her every month.”







In my view, the learned Judge’s reasoning is unassailable.
Consequently, I cannot see any basis for interfering with paras
9, 10
and 12 of the order of the court a quo.






PARAGRAPH 14






This paragraph reads as follows:






“Clauses 4 to 13 of this order shall only apply during the period
that the defendant and the children remain in Zimbabwe pending
their
permanent relocation to the United Kingdom, and thereafter the
plaintiff’s rights of access to the minor children and the
rights
of the minor children and the defendant to maintenance shall be by
agreement between the parties or failing which by order
of a court of
competent jurisdiction.”







In my view, it seems clear from the wording of paras 4 to 13 of the
order that these paragraphs were meant to be operative only
during
the period that Mrs Beckford and the minor children were in Zimbabwe
before their permanent relocation to the United Kingdom.
Paragraph
14 merely reinforces that.







For example, in terms of para 4 of the order, in respect of which
there was no appeal, Mr Beckford was to vacate the matrimonial
home,
and Mrs Beckford and the children were to have the unfettered right
to continue living in the matrimonial home. It goes
without saying
that the unfettered right to live in the matrimonial home could only
be exercised by Mrs Beckford and the minor
children before their
permanent relocation to the United Kingdom.







By providing, in para 14, of the order, that after Mrs Beckford and
the minor children have permanently relocated to the United
Kingdom,
Mr Beckford’s rights of access to the minor children, and the
rights of the minor children and Mrs Beckford to maintenance
would be
by agreement, failing which by order of a court of competent
jurisdiction, the learned Judge in the court a quo took into
account the fact that after Mrs Beckford and the minor children have
permanently relocated to the United Kingdom different
considerations
would apply to the issues of Mr Beckford’s right of access to the
children, and the rights of Mrs Beckford and
the minor children to
maintenance.







Once again, I find the learned Judge’s reasoning unassailable.
There is, therefore, no basis for interfering with para 14 of
the
order.






PARAGRAPH 15






This paragraph reads as follows:






“Upon the permanent departure of the children and the defendant in
terms of clause 3 of this order –







15.1 The house situated at 62A Steppes Road, Chisipite, Harare, or
the shares in the company holding such property, shall be valued

within thirty days of this order by an independent valuer to
determine the likely market value of the shares or the property, and

the plaintiff shall elect within fourteen days of such a
determination whether to sell the shares or the property or to do
neither.







15.1.1 If the shares (are) or the property is sold, the defendant
shall receive 50% of the gross proceeds of the sale (less any

assessed payment in respect of capital gains tax and the cost of the
independent valuer).







15.1.2 If the plaintiff elects not to sell (the) shares or the
property, he shall pay to the defendant 50% of the market value
of
the shares or the property within thirty days of such a determination
by the valuator, whichever is the greater, as assessed
by the
independent valuer (less the costs of the independent valuer).







15.2 The defendant shall sell the contents of this property for their
market value and the proceeds of the sale shall be divided
equally
between the parties.”







Mr Beckford’s objection to para 15 of the order was set out by
his counsel, Mr de Bourbon, in paras 38 and 39 of his Heads of
Argument as follows:






“38. Although para 15 of the order … seems to deal with the
disposal of the matrimonial property at 62A Steppes Road, Chisipite,

Harare, as at the date of the permanent departure of Mrs Beckford and
the children to the United Kingdom, the learned Judge directed
the
valuation to take place within thirty days of the order, and required
Mr Beckford to make an election within fourteen days
of the
determination of the value as to whether to sell the shares or the
property or do neither. He gave no reason for this
direction, nor
why (that) could not take place closer to the time of the departure
of Mrs Beckford.







39. But, more importantly, the learned Judge directed in para 15.1.2
… that having made the election (in effect within forty-four
days
of the judgment) he then had to pay half the value of the shares or
the property to Mrs Beckford within a further sixteen
days if he
elected then not to sell the shares or the property.







It is respectfully pointed out that this leads to the absurd position
that within forty-four days of the judgment Mr Beckford must
decide
whether upon the eventual departure of Mrs Beckford and the children
to the United Kingdom he is going to sell the shares
or the property,
and if he made the decision at that point in time not to sell, then
within a further sixteen days he must pay
half the value to her, even
though she continues to live in Zimbabwe and might never leave.”







In the circumstances, Mr de Bourbon, quite correctly in my
view, submitted that in para 15.1 the learned Judge should have
directed that the valuation of the immovable
property at 62A Steppes
Road, Chisipite, Harare, or the shares in the company holding such
property, was to be carried out, not
within thirty days of the order,
but within thirty days of the permanent departure of Mrs Beckford and
the minor children for the
United Kingdom. Mr Andersen, who
appeared for Mrs Beckford, did not disagree with that submission.







Paragraph 15.1 will, therefore, be amended accordingly.






PARAGRAPHS 16, 17, 18 AND 19






These paragraphs read as follows:






“16. The plaintiff shall transfer against payment by him of the
transfer costs his rights, title and interest in the property

situated at 45 Leinster Avenue, London SW14 7JW, Title Number SGL
67648, to the defendant free of any encumbrances, mortgages or
other
obligations duly existing or duly registered by law over the
property.







17. The plaintiff shall transfer against payment by him of the
transfer costs his rights, title and interest in the property
situated
at 390 Sutton Road, Sutton, SM3 9PH, Title Number SGL
637408, held under the name of Glencora Resources Limited to the
defendant
free of any encumbrances, mortgages or other obligations
duly existing or duly registered by law over the property.







18. The defendant shall receive all the funds presently held in a
bank account in the joint names of RBM Davies and Partners, and

Fladgate Fielder Solicitors, such funds being the net proceeds of the
sale of the property at 265 Lonsdale Road, Barnes, London
SW139QL.







19. The defendant be and is hereby awarded all the movable items that
were formerly at the Lonsdale Road, Barnes, London, property
and it
is further directed that they shall be delivered by the plaintiff at
his cost to such address as may be designated by her
in London.”







Paragraph 19 was challenged by Mr Beckford only insofar as it imposed
upon him the obligation to deliver the property to Mrs Beckford
at
his cost.







Thus, in terms of paras 16 to 19 of the order Mrs Beckford was
awarded – (1) the immovable property at 45 Leinster Avenue,
London
(“the Leinster property”) free from encumbrances and mortgages;
(2) the immovable property at 390 Sutton Road, Sutton
(“the Sutton
property”) free from encumbrances and mortgages; and (3) the net
proceeds from the sale of the immovable property
at 265 Lonsdale
Road, Barnes, London, and all the movable items that were formerly at
that property.







In arriving at these awards the learned trial Judge was guided to a
great extent by his findings of fact in respect of the credibility
of
Mr Beckford on the one hand, and the credibility of Mrs Beckford on
the other hand.







Commenting on the credibility of Mr Beckford on the issue of his
assets, the learned trial Judge said the following at p 68 of
the
cyclostyled judgment:






“It seemed to me that the plaintiff was an evasive and dishonest
witness. He simply was not prepared to disclose his assets
fully.
I agree with (the) observations of Mr Andersen that the
plaintiff was an utter liar who manipulated the situation and avoided
producing documents such as the completion statements.
He appeared
bent on denying the defendant her entitlement.”







On the other hand, the learned trial Judge commented as follows on
the credibility of Mrs Beckford at p 76 of the cyclostyled
judgment:






“In my estimation, she was an honest and credible witness …”.







It is significant that these findings were not challenged on
appeal. In any event, an appellate court would not readily
interfere
with findings of fact made by a trial Judge. See, for
example, Arter v Burt supra at 306; National
Employers Mutual General Insurance Association v Gany supra
at
199; and Germani v Herf and Anor supra at 903 A-D.







In my view, there is no basis in the present case for interfering
with the findings of fact made by the learned trial Judge on
the
credibility of the parties. No such basis was established by Mr
Beckford.







Having rejected Mr Beckford’s evidence in respect of the
proprietary rights of the parties, the learned trial Judge said the

following at pp 81-82 of the cyclostyled judgment:






“I, however, find that the plaintiff did not disclose all his
assets and income, especially after he instituted these proceedings.

The consequences of his attitude are summed up in the English Court
of Appeal by BUTLER-SLOSS LJ in Baker v Baker ([1995] 2 FLR
829 (CA)) at page 835, in these words:







‘Mr Posnansky pointed to an utterly false case and asked us to
consider why the husband was lying and what did he have to hide.
If
the cupboard was bare, it was in his interests to open it and display
its meager contents. But on the contrary, the husband,
despite his
protestations to the contrary, continued to live the life of an
affluent man. I agree with the submissions from Mr
Posnansky that
if a court finds that the husband has lied about his means, and
failed to give full and frank disclosure, it is
open to the court to
find that beneath the false presentation, and the reasons for it, are
undisclosed assets.’







I will use this fact against him in distributing the assets that he
disclosed. It is fair, just and equitable that I award to
the
defendant all the money that is held in the joint account of their
respective English solicitors. I have agonized over the
appropriate
order to make concerning the distribution of the immovable properties
that the plaintiff disclosed which are registered
in England.







In making the order that I have come to, I have been influenced in
great measure by the plaintiff’s failure to make full and
frank
disclosure, the size of the business transactions that were carried
out by Coralsands and the concomitant income that must
have accrued
to him, the benefit that accrued to him from the disposal of 7A
Granville Road to Nicky Morris on 10 November 2005,
the concerted
programme that he undertook in asset stripping the matrimonial estate
to his benefit and to the impoverishment of
the defendant of which
the registration of a charge in favour of his parents for £67 000
against 390 Sutton Common Road was part
of, his financial acumen and
resourcefulness and his apparent disdain for the integrity of the
legal process. I will order that
the two disclosed properties be
transferred into the defendant’s name while the plaintiff shall
remain responsible for the discharge
of all the encumbrances, such as
the mortgages and restrictions registered against them.”







The issue which now arises is whether there is any basis for
interfering with the proprietary awards made by the learned trial

Judge in favour of Mrs Beckford in terms of paras 16 to 19 of the
order. I do not think there is.







In Baker v Baker supra OTTON LJ, who concurred with
BUTLER-SLOSS LJ who prepared the main judgment, said the following at
837:



“Accordingly, the husband cannot complain if the Judge following
authority explored what was before him and drew inferences which
may
turn out to be less fortunate than they might have been had he been
more frank and disclosed his affairs more fully. Such
inferences
must be properly drawn and reasonable. On appeal it may be possible
for either party to show that the inferences or
the award were
unreasonable in the sense that no Judge faced with the information
before him could have drawn the inferences or awarded the figures

that he did. I am satisfied that the appellant has not
succeeded in demonstrating that the figures WARD J awarded were in
any regard unreasonable
or unjustified.” (emphasis added)







In the present case, I am not prepared to say that no Judge could
have drawn the inferences or made the awards made by the learned

trial Judge. There is, therefore, no basis for interfering with the
awards made.







It was submitted by Mr de Bourbon on behalf of Mr Beckford
that the law governing the distribution of the matrimonial assets was
the law of Zimbabwe, and not the
law of England, and that the learned
trial Judge was mistaken as to what the English law on the
distribution of matrimonial assets
was. However, this submission is
at variance with the submissions made by the same counsel in the
court a quo.







It was common cause in the court a quo that English law
should be applied. In fact, in his Heads of Argument in the court a
quo
, counsel set out what the English law on the issue was, and
made the following submission, which appears at p 512 of Vol II of
the record:






“It is respectfully submitted that if this Honourable Court decides
to apply the law of England, then a 50:50 split of the value
of
assets shown in Exhibit 6 can be made only if this Honourable Court
finds that the defendant could not have done more to create
or
contribute to the matrimonial estate.”







Stating the English law on the distribution of matrimonial assets,
the learned trial Judge said the following at p 79 of the
cyclostyled
judgment:






“… a spouse needs only to show that he or she could not have done
more than he or she did to create or contribute to the matrimonial

estate, before he or she can be awarded at least a one-half share in
the estate.







In the circumstances, I am satisfied that the learned trial Judge
properly applied the English law governing the division of

matrimonial assets.






PARAGRAPHS 22 AND 23






These paragraphs read as follows:






“22. The plaintiff’s claim be and is hereby dismissed.







23. The plaintiff shall pay the defendant’s costs of suit including
any costs reserved for determination in this matter, and
the
qualifying fees and expenses of Mr de Marigny.”







The reasons for granting these two orders were set out by the
learned trial Judge at pp 82 and 83 of the cyclostyled judgment
as
follows:






“It seems to me that the two most contentious issues between the
parties revolved around custody and the disclosure of matrimonial

assets. The defendant’s case on both these issues has largely been
vindicated. She has not been in employment for the past nine
years
and has been dependant on the plaintiff for her livelihood except for
the period from April 2003 to July 2005 when she survived
on the
largesse of her parents and grandmother. It was also essential that
she call the expert opinion of Mr de Marigny, which
was invaluable to
this court in the determination of the custody issue.







In my view, she is entitled to her costs of suit for both the main
and counter-claims, including the qualifying expenses of Mr
de
Marigny.







It is for these reasons that I would dismiss the plaintiff’s
claim.”







In my view, the learned trial Judge’s reasoning cannot be
faulted. In any event, as far as the issue of the costs of suit
is
concerned, this is a matter within the discretion of the learned
trial Judge.







In the circumstances, the following order is made –






1. Subject to paragraph 2 below the appeal is dismissed with costs.







2. Paragraph 15.1 of the order of the court a quo is amended
so that it reads as follows –







“The house situated at 62A Steppes Road, Chisipite, Harare, or the
shares in the company holding such property, shall be valued
within
thirty days of such departure by an independent valuer to determine
the likely market value of the shares or the property,
and the
plaintiff shall elect within fourteen days of such a determination
whether to sell the shares or the property or to do
neither.”















ZIYAMBI JA: I agree



















GWAUNZA JA: I agree



















Honey & Blanckenberg, appellant's legal practitioners



Atherstone & Cook, respondent's legal practitioners