Makunike v Dhlamini & Anor (Ref 2804 of 2012) [2015] ZWHHC 548 (16 June 2015)

1 HH 548-15 CIV “A” 23/13 REF CASE 2804/12 EVELYN MAKUNIKE versus RICHARD DHLAMINI and MR MAHARA HIGH COURT OF ZIMBABWE CHIWESHE JP & MAKONI J HARARE, 12 September 2013 and 17 June 2015 Civil Appeal T Makunika, for the appellant T Nyamakura, for the first respondent MAKONI J: This is an appeal against a judgment of the magistrates court dismissing an application for a peace order and spoliatory relief against the appellant. This is one of those cases where the grounds of appeal are inelegantly drafted and one would have to extract, from voluminous grounds of appeal, what the issues for determination are. The appellant’s grounds of appeal can be reduced to the following: The learned magistrate erred 1) In dismissing an application for a peace order when it was clear that the appellant was under threat from the first respondent. 2) In dismissing the application against the second respondent when he was in default. 3) In dismissing an application for spoliation when all the requirements for such relief had been proved. 4) In not addressing the issue of the dirty hands doctrine despite the fact that it had been raised and argued. The background to the matter is that the appellant and the first respondent are husband and wife. The second respondent is employed by the appellant and the first respondent at their plot being Plot 2 FA Kellys Park, Old Mutare (the property). The appellant approached the magistrates court ex parte, seeking an order directing the first respondent to keep the HH 548-15 CIV “A” 23/13 REF CASE 2804/12 peace towards her. She also sought an order directing the first and second respondent to restore to her possession certain items of property including the keys to the property. An interim order was granted in terms whereof the first respondent was ordered to surrender the keys to the property and release a Mini Pajero vehicle to the appellant in the event of his failing to comply, the messenger of court was empowered to attach the aforementioned property. The order further provided that the Zimbabwe Republic Police arrest the respondents and anyone refusing to heed the order. The first respondent anticipated the rule nisi whereby he anticipated the set down of the confirmation of the interim order. On 3 January 2013, the magistrate handed down her judgment where she dismissed the application. The appellant was aggrieved by the decision and she filed the present proceedings. Protection Order It was the appellant’s case, in the court a quo, that she had been assaulted by the first respondent and locked out of the property for seven days. She further averred that the first respondent had caused her arrest by the police and filed a missing person report in order to harass her. Form a perusal of the record, it is clear that appellant’s allegations of assault remain largely dependent on bald allegations which are not substantiated. There was no police or medical report produced to substantiate her allegations. She failed to prove that she had been barred from entering the property. Instead the first respondent managed to establish that the appellant left the property on her own volition on the pretext that she was going to attend a funeral. It was when first respondent attended the same funeral that he was told that the appellant had not set foot at the funeral. That is when he proceeded to file a missing person report. The first respondent managed to establish that he did not file a malicious report of fraud against the appellant. He made a report against one Matamisa, who had been given six registration books of motor vehicles by the appellant. Matamisa had used those registration books as collateral to get loans. The first respondent only became aware of this when unknown persons approached him seeking to take possession of the vehicles on account of the agreements they had entered into with Matamisa. The subsequent investigations by the HH 548-15 CIV “A” 23/13 REF CASE 2804/12 Police implicated the appellant who was then arrested. The first respondent only withdrew the complaint after the appellant’s relatives had pleaded with him. Having considered the above, I am unable to find fault in the exercise of the court a quo’s discretion. Once the appellant made allegations in her affidavit, which allegations were denied by the first respondent, she bore the onus to prove the veracity of her allegations. This position regarding the onus of proof was made in Nyandoro v Hokonya and Others 1997 (2) ZLR 457 (SC) at 459 D; “The general principle is that he who makes an affirmative assertion, whether plaintiff or respondent, bears the onus of proving the facts so asserted. However, where a negative assertion can be said to be an essential element of a party’s claim or defence, that party bears the burden of proving it: Kreigler v Minitzer & Anor 1949 (4) SA 821 (A) at 828; Mandebvu & Anor v Pearce t/a F & B Builders S 127-97 (not yet reported).*” (Our emphasis) This appellant failed to do that. Further, in her Heads of argument, there is nothing said as to how the court a quo failed to exercise the discretion on whether to grant or refuse the application for a protection order. The circumstances under which the exercise of discretion by a lower court may be interfered with are limited and in Charuma Blasting and Earthmoving Services (Pvt) Ltd v Njanjai and Others 2001 (1) ZLR 85 SC at 859, the court set out the circumstances as follows: “An appeal court will generally not interfere with the exercise of a judicial discretion by the lower court. however, the appeal court is entitled to substitute its discretion for that of the lower court where the lower court’s exercise of its discretion was based on an error, such as where it has acted on a wrong principle, or took into account extraneous or irrelevant matters or did not take into account relevant considerations or it was mistaken about facts.” It cannot be said that the lower court’s exercise of discretion were based on an error. Spoliation Order By the time the matter was heard the only items that the first respondent had not surrendered to the appellant were her cell phone. The reasoning of the court a quo was that the first respondent was entitled to retain the cell phone as it contained evidence of adultery committed by the appellant which he intended to use in the pending divorce action. the appellant in her answering affidavit did not deny the fact that the cell phone contained evidence of adultery. That which is not disputed is taken to be admitted. See Chihwayi Enterprises (Pvt) Ltd v Atish Investments (Pvt) Ltd 2007 (2) ZLR 89 (S). In my view, the decision of the court a quo cannot be faulted. HH 548-15 CIV “A” 23/13 REF CASE 2804/12 Default of the Second Respondent Whilst I agree that the court a quo should have addressed its mind to the fact that the second respondent was in default, my view is that it would not have taken the appellant’s case further. The court could still decline to grant an order even if the respondent is in default. Dirty Hands I agree with Mr Makunike that the magistrate erred by failing to advert her mind to an issue placed before the court relating to the doctrine of dirty hands. Be that as it may, it does not assist the appellant in her case. I agree with Mr Nyamakura that the doctrine of dirty hands does not apply in the present circumstances. It is restricted to the party who approaches the court seeking substantive relief in the main matter and not to a respondent. It does not apply to interlocutory matters. It also does not apply where the relief sought is executable by other means. In casu the order provided that in the event that the first respondent does not obey the order, the appellant had the option to instruct the Messenger of Court, who would in turn give effect to that order. The doctrine is not applicable. In the result the appeal is dismissed with costs. CHIWESHE JP agrees: ____________________ Messrs Chibaya & Partners, appellant’s legal practitioners Messrs Mtetwa & Nyambirai, 1st respondent’s legal practitioners