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. HC1417/2007, 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 Elsbeth Bridie Beckford, born on 7 August 1996, and Theodore Hugh
Beckford, born on 9 February 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.
HH124-2006):
“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
Heritage 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 Heritage 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, DSTV
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 paragraph 14 of the order granted by the
learned Judge, paragraphs 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 paragraphs 9, 10 and 12
applied during that period only.
It
is pertinent to note that the provisions in paragraphs 9, 10 and 12
are the same as those in paragraphs 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
paragraph 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 paragraphs 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 paragraphs 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 paragraphs
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 paragraphs 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 paragraph 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
paragraph 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 paragraph 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 paragraph 15 of the order was set out by
his counsel, Mr de Bourbon, in paragraphs 38 and 39 of his Heads of
Argument as follows:
“38.
Although paragraph 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 paragraph 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 paragraph 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 paragraphs 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 paragraphs 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
