Nyaresa Mackenzie and Others v Simbarashe Chimwaza

The appellants and respondent were neighbouring mining rights owners with a history of counter allegations including encroachment on each other's mining areas. There were allegations of arson and other misconduct against the respondent, his property, employees and family members, supported by photographic evidence. However, no evidence conclusively linked any of the appellants to these incidents. Both parties had filed reports with the police and sued each other in different forums, but no outcome conclusively established blame. The respondent applied for a peace order against the appellants in the Magistrates Court Chinhoyi, which was granted on 25 March 2025. The appellants appealed this decision.

• Whether the trial court erred in granting a binding over order (peace order) against the appellants in the absence of evidence proving breach of peace or likelihood of breach of peace
• Whether the respondent discharged the burden of proof on a balance of probabilities to establish grounds for a peace order
• Whether the evidentiary standard under section 388 of the Criminal Procedure and Evidence Act was met

1. The appeal is allowed. 2. The decision of the trial court is set aside and substituted with an order that the application for a peace order is dismissed with costs. 3. Costs follow suit.

A peace order under section 388 of the Criminal Procedure and Evidence Act [Chapter 9:07] can only be granted where there is evidence establishing on a balance of probabilities either an actual breach of peace or a likelihood/threat of breach of peace. The burden of proof lies on the applicant to prove these facts. Mere animosity between parties, unproven allegations, or inconclusive police investigations and pending matters, without more, are insufficient to warrant the granting of a peace order. A court cannot grant such an order based on empathy, charity, or general perceptions of conflict, but must base its decision on proved evidence.

The court commented on the potential abuse of the right to seek written reasons for judgment by unsuccessful parties to spite the court, noting that while the right exists, the appellant's legal representative who already had the privilege of a transcribed record and full oral reasons chose to request written reasons through the Registrar. The court also cautioned that allowing peace orders without proper evidentiary foundation would set a wrong precedent and encourage a floodgate of protection or peace order suits based on the mere fact that people may dislike each other.

This case reinforces the evidentiary standards required for granting peace orders under section 388 of the Criminal Procedure and Evidence Act. It establishes that peace orders cannot be granted merely on the basis of perceived animosity or unproven allegations between parties, but must be supported by evidence proving actual breach of peace or a genuine threat thereof on a balance of probabilities. The judgment prevents a potentially dangerous precedent where peace orders could be obtained without proper evidentiary foundation, which could lead to a floodgate of unmeritorious applications based solely on interpersonal dislike.