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SC31-12 - ROBERT DOMBODZVUKU vs CMED (PVT) LTD

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Procedural Law-viz condonation re time-barred proceedings.
Procedural Law-viz condonation re extension of time within which to file proceedings.
Procedural Law-viz chamber application re condonation.
Procedural Law-viz appeal re notice of appeal iro Rule 4 of the Supreme Court (Miscellaneous Appeals and References) Rules.
Procedural Law-viz appeal re notice of appeal iro labour proceedings.
Procedural Law-viz notice of appeal re labour proceedings iro Rule 4 of the Supreme Court (Miscellaneous Appeals and References) Rules.
Procedural Law-viz final orders re procedural irregularities iro labour proceedings.
Procedural Law-viz final orders re procedural irregularities iro discretion of the court to strike a matter from the roll.
Procedural Law-viz cause of action re failure to file opposing papers iro unopposed proceedings.
Procedural Law-viz default judgment re unopposed proceedings iro failure to file opposing papers.
Procedural Law-viz default judgement re unopposed proceedings iro labour proceedings.
Procedural Law-viz final orders re reserved judgment.
Procedural Law-viz jurisdiction re judicial deference iro assessment of prospects on appeal.
Procedural Law-viz final orders re relief conflicting with an extant court order.
Procedural Law-viz final orders re the final and conclusive rule iro default judgment.
Procedural Law-viz pleadings re heads of argument iro failure to file heads of argument.
Procedural Law-viz final orders re composition of the Bench.
Procedural Law-viz rules of evidence re findings of fact iro concessions between counsel.
Procedural Law-viz rules of evidence re findings of fact iro agreements between counsel.
Procedural Law-viz pleadings re non-pleaded issues iro matter raised mero motu by the court.
Procedural Law-viz pleadings re matters not specifically pleaded iro issues introduced mero motu by the court.
Procedural Law-viz res judicata re findings of fact made in previous litigation iro the doctrine of stare decisis.
Procedural Law-viz res judicata re default judgment proceedings.
Procedural Law-viz cause of action re legal basis for invoking the jurisdiction of the court.
Procedural Law-viz final orders re the final and conclusive rule iro effect of conflicting judgements.
Procedural Law-viz rules of evidence re findings of fact iro evidence derived from previous litigation.
Procedural Law-viz findings of fact re evidence derived from previous proceedings iro the doctrine of stare decisis.
Procedural Law-viz review re proceedings of court of parallel jurisdiction.
Procedural Law-viz final orders re the final and conclusive rule iro section 26 of the Supreme Court Act.
Procedural Law-viz final orders re ex tempore orders iro entitlement of litigants to written reasons for judgment.
Procedural Law-viz pleadings re nullity of proceedings.
Procedural Law-viz final orders re the principle of finality in litigation.
Procedural Law-viz final orders re the principle of finality to litigation.
Procedural Law-viz pleadings admissions iro concession and avoidance.
Procedural Law-viz pleadings admissions iro confession and avoidance.
Procedural Law-viz res judicata re the principle of finality to litigation.
Procedural Law-viz res judicata re the principle of finality in litigation.
Procedural Law-viz jurisdiction re jurisdictional powers.
Procedural Law-viz costs re punitive order of costs.
Procedural Law-viz costs re punitive costs.
Procedural Law-viz service of process re labour proceedings iro Rule 4 of the Supreme Court (Miscellaneous Appeals and References) Rules.
Procedural Law-viz service of court process re labour proceedings iro Rule 4 of the Supreme Court (Miscellaneous Appeals and References) Rules.
Procedural Law-viz final orders re principle of finality to litigation iro super-annuated orders.
Procedural Law-viz final orders re principle of finality in litigation iro superannuated orders.
Procedural Law-viz evidence derived from previous litigation re the doctrine of stare decisis iro superannuated orders.
Procedural Law-viz findings of fact made in previous litigation re the doctrine of stare decisis iro superannuated judgment.

Final Orders re: Procedural Irregularities iro Approach ito Discretion to Condone, Interfere, Dismiss, Remit or Strike


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

Final Orders re: Procedural Irregularities iro Labour Proceedings


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

Proof of Service, Return of Service, Address and Manner of Service re: Labour Proceedings


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

Proof of Service, Return of Service, Address and Manner of Service re: Approach


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

Appeal, Leave to Appeal re: Approach, Notice of Appeal and the Right of Appeal iro Labour Proceedings


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

Cause of Action and Draft Orders re: Appearance to Defend iro Effect of Non-Appearance


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

At that stage, there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application, but, filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

Default Judgment re: Default Judgment and Snatching at a Judgment iro Approach, Unopposed Suits & Pleadings on Record


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

At that stage, there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application, but, filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

Default Judgment re: Default Judgment and Rescission of Judgment iro Labour Proceedings


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

At that stage, there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application, but, filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

Pleadings re: Heads of Argument, Written Arguments and Oral Submissions


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

At that stage, there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application, but, filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

The matter proceeded on this day and judgment was reserved. It was then delivered on 30 August 2011.

It was on this day that the applicant's application for condonation for late noting of appeal and extension of time within which to note an appeal was dismissed.

CHEDA AJA went further and held that there were no prospects of success on appeal.

In dismissing the application, the learned judge placed reliance on the principles outlined in the case of De Kuszaba-Dabrowskiet Uxor v Steel NO 1966 RLR 60 (A).

Aggrieved by the decision of CHEDA AJA, the applicant, on 1 June 2012, made another application for condonation for late noting of appeal and extension of time within which to note an appeal for the third time.

The application was placed before me.

The application was opposed.

The applicant filed his heads of argument on 22 June 2012. The respondent did not file any heads of argument.

Counsel for the respondent submitted, that, he had briefed an advocate who was supposed to draft heads of argument and file them, but, the advocate had failed to do so.

Counsel for the respondent apologized and stated that he would present oral submissions.

Final Orders re: Composition of Bench iro Verdict, Incapacitation, Disagreements & Nature or Complexity of Proceedings


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

At that stage, there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application, but, filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

The matter proceeded on this day and judgment was reserved. It was then delivered on 30 August 2011.

It was on this day that the applicant's application for condonation for late noting of appeal and extension of time within which to note an appeal was dismissed.

CHEDA AJA went further and held that there were no prospects of success on appeal.

In dismissing the application, the learned judge placed reliance on the principles outlined in the case of De Kuszaba-Dabrowskiet Uxor v Steel NO 1966 RLR 60 (A).

Aggrieved by the decision of CHEDA AJA, the applicant, on 1 June 2012, made another application for condonation for late noting of appeal and extension of time within which to note an appeal for the third time.

The application was placed before me.

The application was opposed.

The applicant filed his heads of argument on 22 June 2012. The respondent did not file any heads of argument.

Counsel for the respondent submitted, that, he had briefed an advocate who was supposed to draft heads of argument and file them, but, the advocate had failed to do so.

Counsel for the respondent apologized and stated that he would present oral submissions.

At the commencement of the hearing, counsel for the applicant was asked as to whether or not the application filed ought to be heard by a single judge, sitting in chambers or by three judges in open court.

Following consultations with counsel for the respondent, counsel for the applicant indicated that the matter should be heard in chambers before a single judge. Counsel for the respondent agreed with this approach.

The question now before me is whether there is any law that provides for such an application to be made.

If there does exist such legal authority, then, the next issue is whether or not CHEDA AJA had dealt with the merits of the application.

Findings of Fact re: Concessions or Agreements Between Counsel and the Abandonment of Concessions or Agreements


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

At that stage, there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application, but, filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

The matter proceeded on this day and judgment was reserved. It was then delivered on 30 August 2011.

It was on this day that the applicant's application for condonation for late noting of appeal and extension of time within which to note an appeal was dismissed.

CHEDA AJA went further and held that there were no prospects of success on appeal.

In dismissing the application, the learned judge placed reliance on the principles outlined in the case of De Kuszaba-Dabrowskiet Uxor v Steel NO 1966 RLR 60 (A).

Aggrieved by the decision of CHEDA AJA, the applicant, on 1 June 2012, made another application for condonation for late noting of appeal and extension of time within which to note an appeal for the third time.

The application was placed before me.

The application was opposed.

The applicant filed his heads of argument on 22 June 2012. The respondent did not file any heads of argument.

Counsel for the respondent submitted, that, he had briefed an advocate who was supposed to draft heads of argument and file them, but, the advocate had failed to do so.

Counsel for the respondent apologized and stated that he would present oral submissions.

At the commencement of the hearing, counsel for the applicant was asked as to whether or not the application filed ought to be heard by a single judge, sitting in chambers or by three judges in open court.

Following consultations with counsel for the respondent, counsel for the applicant indicated that the matter should be heard in chambers before a single judge. Counsel for the respondent agreed with this approach.

The question now before me is whether there is any law that provides for such an application to be made.

If there does exist such legal authority, then, the next issue is whether or not CHEDA AJA had dealt with the merits of the application.

Pleadings re: Belated Pleadings, Matters Raised Mero Motu by Court and Doctrine of Notice iro Approach


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

At that stage, there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application, but, filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

The matter proceeded on this day and judgment was reserved. It was then delivered on 30 August 2011.

It was on this day that the applicant's application for condonation for late noting of appeal and extension of time within which to note an appeal was dismissed.

CHEDA AJA went further and held that there were no prospects of success on appeal.

In dismissing the application, the learned judge placed reliance on the principles outlined in the case of De Kuszaba-Dabrowskiet Uxor v Steel NO 1966 RLR 60 (A).

Aggrieved by the decision of CHEDA AJA, the applicant, on 1 June 2012, made another application for condonation for late noting of appeal and extension of time within which to note an appeal for the third time.

The application was placed before me.

The application was opposed.

The applicant filed his heads of argument on 22 June 2012. The respondent did not file any heads of argument.

Counsel for the respondent submitted, that, he had briefed an advocate who was supposed to draft heads of argument and file them, but, the advocate had failed to do so.

Counsel for the respondent apologized and stated that he would present oral submissions.

At the commencement of the hearing, counsel for the applicant was asked as to whether or not the application filed ought to be heard by a single judge, sitting in chambers or by three judges in open court.

Following consultations with counsel for the respondent, counsel for the applicant indicated that the matter should be heard in chambers before a single judge. Counsel for the respondent agreed with this approach.

The question now before me is whether there is any law that provides for such an application to be made.

If there does exist such legal authority, then, the next issue is whether or not CHEDA AJA had dealt with the merits of the application.

Interim Interdict or Final Order re: Relief Conflicting with Statutes, Extant Court Orders & Prima Facie Lawful Conduct


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

At that stage, there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application, but, filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

The matter proceeded on this day and judgment was reserved. It was then delivered on 30 August 2011.

It was on this day that the applicant's application for condonation for late noting of appeal and extension of time within which to note an appeal was dismissed.

CHEDA AJA went further and held that there were no prospects of success on appeal.

In dismissing the application, the learned judge placed reliance on the principles outlined in the case of De Kuszaba-Dabrowskiet Uxor v Steel NO 1966 RLR 60 (A).

Aggrieved by the decision of CHEDA AJA, the applicant, on 1 June 2012, made another application for condonation for late noting of appeal and extension of time within which to note an appeal for the third time.

The application was placed before me.

The application was opposed.

The applicant filed his heads of argument on 22 June 2012. The respondent did not file any heads of argument.

Counsel for the respondent submitted, that, he had briefed an advocate who was supposed to draft heads of argument and file them, but, the advocate had failed to do so.

Counsel for the respondent apologized and stated that he would present oral submissions.

At the commencement of the hearing, counsel for the applicant was asked as to whether or not the application filed ought to be heard by a single judge, sitting in chambers or by three judges in open court.

Following consultations with counsel for the respondent, counsel for the applicant indicated that the matter should be heard in chambers before a single judge. Counsel for the respondent agreed with this approach.

The question now before me is whether there is any law that provides for such an application to be made.

If there does exist such legal authority, then, the next issue is whether or not CHEDA AJA had dealt with the merits of the application.

Review re: Proceedings of Courts of Parallel or Superior Jurisdiction and Mero Motu Review of a Court's Own Judgment


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

At that stage, there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application, but, filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

The matter proceeded on this day and judgment was reserved. It was then delivered on 30 August 2011.

It was on this day that the applicant's application for condonation for late noting of appeal and extension of time within which to note an appeal was dismissed.

CHEDA AJA went further and held that there were no prospects of success on appeal.

In dismissing the application, the learned judge placed reliance on the principles outlined in the case of De Kuszaba-Dabrowskiet Uxor v Steel NO 1966 RLR 60 (A).

Aggrieved by the decision of CHEDA AJA, the applicant, on 1 June 2012, made another application for condonation for late noting of appeal and extension of time within which to note an appeal for the third time.

The application was placed before me.

The application was opposed.

The applicant filed his heads of argument on 22 June 2012. The respondent did not file any heads of argument.

Counsel for the respondent submitted, that, he had briefed an advocate who was supposed to draft heads of argument and file them, but, the advocate had failed to do so.

Counsel for the respondent apologized and stated that he would present oral submissions.

At the commencement of the hearing, counsel for the applicant was asked as to whether or not the application filed ought to be heard by a single judge, sitting in chambers or by three judges in open court.

Following consultations with counsel for the respondent, counsel for the applicant indicated that the matter should be heard in chambers before a single judge. Counsel for the respondent agreed with this approach.

The question now before me is whether there is any law that provides for such an application to be made.

If there does exist such legal authority, then, the next issue is whether or not CHEDA AJA had dealt with the merits of the application.

Cause of Action and Draft Orders re: Approach, Timing, Framing, Forum and Legal Basis for Invoking Jurisdiction of Court


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

At that stage, there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application, but, filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

The matter proceeded on this day and judgment was reserved. It was then delivered on 30 August 2011.

It was on this day that the applicant's application for condonation for late noting of appeal and extension of time within which to note an appeal was dismissed.

CHEDA AJA went further and held that there were no prospects of success on appeal.

In dismissing the application, the learned judge placed reliance on the principles outlined in the case of De Kuszaba-Dabrowskiet Uxor v Steel NO 1966 RLR 60 (A).

Aggrieved by the decision of CHEDA AJA, the applicant, on 1 June 2012, made another application for condonation for late noting of appeal and extension of time within which to note an appeal for the third time.

The application was placed before me.

The application was opposed.

The applicant filed his heads of argument on 22 June 2012. The respondent did not file any heads of argument.

Counsel for the respondent submitted, that, he had briefed an advocate who was supposed to draft heads of argument and file them, but, the advocate had failed to do so.

Counsel for the respondent apologized and stated that he would present oral submissions.

At the commencement of the hearing, counsel for the applicant was asked as to whether or not the application filed ought to be heard by a single judge, sitting in chambers or by three judges in open court.

Following consultations with counsel for the respondent, counsel for the applicant indicated that the matter should be heard in chambers before a single judge. Counsel for the respondent agreed with this approach.

The question now before me is whether there is any law that provides for such an application to be made.

If there does exist such legal authority, then, the next issue is whether or not CHEDA AJA had dealt with the merits of the application.

Counsel for the applicant submitted, that, there was no law upon which this application was based.

Counsel for the applicant stated, that, he required clarity as to whether or not the applicant had prospects of success on appeal since there were two “conflicting” decisions of this court on this aspect. He made reference to the decision by ZIYAMBI JA on 21 December 2009 and the other by CHEDA AJA on 30 August 2011.

Counsel for the applicant submitted, that, CHEDA AJA erred and misdirected himself by dismissing the second application for condonation and extension of time within which to appeal when ZIYAMBI JA had earlier acceded to a similar application.

The applicant in this application is asking me to overturn the findings of CHEDA AJA, that the appeal has no prospects of success.

The applicant is not clear whether the application before me is for review or is an appeal....,.

The applicant conceded, that, there is no law that provides for such an application. The relief sought is not provided for by law.

Accordingly, this application must therefore fail.

Final Orders re: Composition of Bench iro Precedents, Stare Decisis, Disparate Facts & Effect of Ex Post Facto Legislation


Section 26 of the Supreme Court Act provides as follows:

“26 Finality of decisions of Supreme Court

1. There shall be no appeal from any judgment or order of the Supreme Court.

2. The Supreme Court shall not be bound by any of its own judgments, rulings, or opinions or those of any of its predecessor.”

Evidence of Oath, Evidence Derived from Previous, Concurrent or Criminal Litigation iro Doctrine of Stare Decisis


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

At that stage, there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application, but, filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

The matter proceeded on this day and judgment was reserved. It was then delivered on 30 August 2011.

It was on this day that the applicant's application for condonation for late noting of appeal and extension of time within which to note an appeal was dismissed.

CHEDA AJA went further and held that there were no prospects of success on appeal.

In dismissing the application, the learned judge placed reliance on the principles outlined in the case of De Kuszaba-Dabrowskiet Uxor v Steel NO 1966 RLR 60 (A).

Aggrieved by the decision of CHEDA AJA, the applicant, on 1 June 2012, made another application for condonation for late noting of appeal and extension of time within which to note an appeal for the third time.

The application was placed before me.

The application was opposed.

The applicant filed his heads of argument on 22 June 2012. The respondent did not file any heads of argument.

Counsel for the respondent submitted, that, he had briefed an advocate who was supposed to draft heads of argument and file them, but, the advocate had failed to do so.

Counsel for the respondent apologized and stated that he would present oral submissions.

At the commencement of the hearing, counsel for the applicant was asked as to whether or not the application filed ought to be heard by a single judge, sitting in chambers or by three judges in open court.

Following consultations with counsel for the respondent, counsel for the applicant indicated that the matter should be heard in chambers before a single judge. Counsel for the respondent agreed with this approach.

The question now before me is whether there is any law that provides for such an application to be made.

If there does exist such legal authority, then, the next issue is whether or not CHEDA AJA had dealt with the merits of the application.

Counsel for the applicant submitted, that, there was no law upon which this application was based.

Counsel for the applicant stated, that, he required clarity as to whether or not the applicant had prospects of success on appeal since there were two “conflicting” decisions of this court on this aspect. He made reference to the decision by ZIYAMBI JA on 21 December 2009 and the other by CHEDA AJA on 30 August 2011.

Counsel for the applicant submitted, that, CHEDA AJA erred and misdirected himself by dismissing the second application for condonation and extension of time within which to appeal when ZIYAMBI JA had earlier acceded to a similar application.

The applicant in this application is asking me to overturn the findings of CHEDA AJA, that the appeal has no prospects of success.

The applicant is not clear whether the application before me is for review or is an appeal.

Section 26 of the Supreme Court Act provides as follows:

“26 Finality of decisions of Supreme Court

1. There shall be no appeal from any judgment or order of the Supreme Court.

2. The Supreme Court shall not be bound by any of its own judgments, rulings, or opinions or those of any of its predecessor.”

CHEDA AJA had determined that there were no prospects of success on appeal, even if the application was granted.

The applicant, in his affidavit, avers that the latest judgment delivered by CHEDA AJA contradicts an earlier judgment of ZIYAMBI JA on the same issue, that is, whether or not there were any prospects of success on appeal.

Both parties have agreed, that, in dismissing the application, CHEDA AJA was not bound by the decision of ZIYAMBI JA.

There is no written judgment that was handed down by ZIYAMBI JA. An order was granted by ZIYAMBI JA. There are no written reasons for the order.

It is however clear from the judgment delivered by CHEDA AJA, that, the learned judge consciously considered whether the applicant had any prospects of success on appeal. The learned judge dealt with this issue at length and came to the conclusion that the applicant had no prospects of success, even if the application for condonation was granted.

In my view, the judgment delivered by CHEDA AJA does not contradict the order granted by ZIYAMBI JA.

The effect of the judgment of CHEDA AJA was not to nullify an earlier order granted by ZIYAMBI JA because that earlier order was no longer operational.

ZIYAMBI JA had ordered the applicant to file a notice and grounds of appeal within five days of the date of the order. The applicant failed to comply with such an order. As a result of such failure to comply by the applicant, there was no appeal before this Court.

It is trite in our law, that, fatally defective compliance with the Rules regarding the filing of appeals cannot be condoned or amended.

KLOPPER JP in Hattingh v Pienaar 1977 (2) SA 182 (O)…, held that:

“…, a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule.”

This position was also confirmed and applied by this Court in Jensen v Acavalos 1993 (1) ZLR 216 (S)…, where KORSA JA stated that:

“…, a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad…, the appeal must be struck off the roll with costs.”

The notice of appeal that was filed by the applicant was not only invalid but was a nullity. That is the reason why the appeal was struck off the roll on 16 March 2010.

Effectively, the order issued by ZIYAMBI JA was no longer operational.

Final Orders re: Approach iro Functions, Powers, Obligations, Judicial Misdirections and Effect of Court Orders


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

At that stage, there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application, but, filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

The matter proceeded on this day and judgment was reserved. It was then delivered on 30 August 2011.

It was on this day that the applicant's application for condonation for late noting of appeal and extension of time within which to note an appeal was dismissed.

CHEDA AJA went further and held that there were no prospects of success on appeal.

In dismissing the application, the learned judge placed reliance on the principles outlined in the case of De Kuszaba-Dabrowskiet Uxor v Steel NO 1966 RLR 60 (A).

Aggrieved by the decision of CHEDA AJA, the applicant, on 1 June 2012, made another application for condonation for late noting of appeal and extension of time within which to note an appeal for the third time.

The application was placed before me.

The application was opposed.

The applicant filed his heads of argument on 22 June 2012. The respondent did not file any heads of argument.

Counsel for the respondent submitted, that, he had briefed an advocate who was supposed to draft heads of argument and file them, but, the advocate had failed to do so.

Counsel for the respondent apologized and stated that he would present oral submissions.

At the commencement of the hearing, counsel for the applicant was asked as to whether or not the application filed ought to be heard by a single judge, sitting in chambers or by three judges in open court.

Following consultations with counsel for the respondent, counsel for the applicant indicated that the matter should be heard in chambers before a single judge. Counsel for the respondent agreed with this approach.

The question now before me is whether there is any law that provides for such an application to be made.

If there does exist such legal authority, then, the next issue is whether or not CHEDA AJA had dealt with the merits of the application.

Counsel for the applicant submitted, that, there was no law upon which this application was based.

Counsel for the applicant stated, that, he required clarity as to whether or not the applicant had prospects of success on appeal since there were two “conflicting” decisions of this court on this aspect. He made reference to the decision by ZIYAMBI JA on 21 December 2009 and the other by CHEDA AJA on 30 August 2011.

Counsel for the applicant submitted, that, CHEDA AJA erred and misdirected himself by dismissing the second application for condonation and extension of time within which to appeal when ZIYAMBI JA had earlier acceded to a similar application.

The applicant in this application is asking me to overturn the findings of CHEDA AJA, that the appeal has no prospects of success.

The applicant is not clear whether the application before me is for review or is an appeal.

Section 26 of the Supreme Court Act provides as follows:

“26 Finality of decisions of Supreme Court

1. There shall be no appeal from any judgment or order of the Supreme Court.

2. The Supreme Court shall not be bound by any of its own judgments, rulings, or opinions or those of any of its predecessor.”

CHEDA AJA had determined that there were no prospects of success on appeal, even if the application was granted.

The applicant, in his affidavit, avers that the latest judgment delivered by CHEDA AJA contradicts an earlier judgment of ZIYAMBI JA on the same issue, that is, whether or not there were any prospects of success on appeal.

Both parties have agreed, that, in dismissing the application, CHEDA AJA was not bound by the decision of ZIYAMBI JA.

There is no written judgment that was handed down by ZIYAMBI JA. An order was granted by ZIYAMBI JA. There are no written reasons for the order.

It is however clear from the judgment delivered by CHEDA AJA, that, the learned judge consciously considered whether the applicant had any prospects of success on appeal. The learned judge dealt with this issue at length and came to the conclusion that the applicant had no prospects of success, even if the application for condonation was granted.

In my view, the judgment delivered by CHEDA AJA does not contradict the order granted by ZIYAMBI JA.

The effect of the judgment of CHEDA AJA was not to nullify an earlier order granted by ZIYAMBI JA because that earlier order was no longer operational.

ZIYAMBI JA had ordered the applicant to file a notice and grounds of appeal within five days of the date of the order. The applicant failed to comply with such an order. As a result of such failure to comply by the applicant, there was no appeal before this Court.

It is trite in our law, that, fatally defective compliance with the Rules regarding the filing of appeals cannot be condoned or amended.

KLOPPER JP in Hattingh v Pienaar 1977 (2) SA 182 (O)…, held that:

“…, a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule.”

This position was also confirmed and applied by this Court in Jensen v Acavalos 1993 (1) ZLR 216 (S)…, where KORSA JA stated that:

“…, a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad…, the appeal must be struck off the roll with costs.”

The notice of appeal that was filed by the applicant was not only invalid but was a nullity. That is the reason why the appeal was struck off the roll on 16 March 2010.

Effectively, the order issued by ZIYAMBI JA was no longer operational.

Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Approach, Notice of Appeal and the Right of Appeal


It is trite in our law, that, fatally defective compliance with the Rules regarding the filing of appeals cannot be condoned or amended.

KLOPPER JP in Hattingh v Pienaar 1977 (2) SA 182 (O)…, held that:

“…, a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule.”

This position was also confirmed and applied by this Court in Jensen v Acavalos 1993 (1) ZLR 216 (S)…, where KORSA JA stated that:

“…, a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad…, the appeal must be struck off the roll with costs.”

Pleadings re: Nullity of Proceedings, Void or Voidable Acts, Peremptory Provisions and the Flowing of Rights Therefrom


It is trite in our law, that, fatally defective compliance with the Rules regarding the filing of appeals cannot be condoned or amended.

KLOPPER JP in Hattingh v Pienaar 1977 (2) SA 182 (O)…, held that:

“…, a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule.”

This position was also confirmed and applied by this Court in Jensen v Acavalos 1993 (1) ZLR 216 (S)…, where KORSA JA stated that:

“…, a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad…, the appeal must be struck off the roll with costs.”

Pleadings re: Amendment to Pleadings, Summons, Declaration and Draft Orders iro Approach


It is trite in our law, that, fatally defective compliance with the Rules regarding the filing of appeals cannot be condoned or amended.

KLOPPER JP in Hattingh v Pienaar 1977 (2) SA 182 (O)…, held that:

“…, a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule.”

This position was also confirmed and applied by this Court in Jensen v Acavalos 1993 (1) ZLR 216 (S)…, where KORSA JA stated that:

“…, a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad…, the appeal must be struck off the roll with costs.”

Discipline re: Disciplinary Hearings iro Misconduct Proceedings Held in Absentia or Default of Appearance


In his findings on p7 of the judgment, CHEDA AJA said this:

“The appellants and their legal practitioners took a calculated risk that the matter would proceed without them.

Worse still, they left without responding to, or refuting the charges against them. They declined the opportunity to put forward their defences to the allegations. I find no fault in the Labour Court holding, that, the appellants waived their rights to be heard by walking out of the disciplinary proceedings.

In view of the above, I am satisfied that there are no prospects of success if leave to appeal is granted.”…,.

Audi Alteram Partem Rule re: Approach, Orders Granted Without a Hearing and the Doctrine of Notice


In his findings on p7 of the judgment, CHEDA AJA said this:

“The appellants and their legal practitioners took a calculated risk that the matter would proceed without them.

Worse still, they left without responding to, or refuting the charges against them. They declined the opportunity to put forward their defences to the allegations. I find no fault in the Labour Court holding, that, the appellants waived their rights to be heard by walking out of the disciplinary proceedings.

In view of the above, I am satisfied that there are no prospects of success if leave to appeal is granted.”…,.

Pleadings re: Admissions or Undisputed Facts iro Confessionaries, Confession and Avoidance & Concession and Avoidance


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

At that stage, there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application, but, filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

The matter proceeded on this day and judgment was reserved. It was then delivered on 30 August 2011.

It was on this day that the applicant's application for condonation for late noting of appeal and extension of time within which to note an appeal was dismissed.

CHEDA AJA went further and held that there were no prospects of success on appeal.

In dismissing the application, the learned judge placed reliance on the principles outlined in the case of De Kuszaba-Dabrowskiet Uxor v Steel NO 1966 RLR 60 (A).

Aggrieved by the decision of CHEDA AJA, the applicant, on 1 June 2012, made another application for condonation for late noting of appeal and extension of time within which to note an appeal for the third time.

The application was placed before me.

The application was opposed.

The applicant filed his heads of argument on 22 June 2012. The respondent did not file any heads of argument.

Counsel for the respondent submitted, that, he had briefed an advocate who was supposed to draft heads of argument and file them, but, the advocate had failed to do so.

Counsel for the respondent apologized and stated that he would present oral submissions.

At the commencement of the hearing, counsel for the applicant was asked as to whether or not the application filed ought to be heard by a single judge, sitting in chambers or by three judges in open court.

Following consultations with counsel for the respondent, counsel for the applicant indicated that the matter should be heard in chambers before a single judge. Counsel for the respondent agreed with this approach.

The question now before me is whether there is any law that provides for such an application to be made.

If there does exist such legal authority, then, the next issue is whether or not CHEDA AJA had dealt with the merits of the application.

Counsel for the applicant submitted, that, there was no law upon which this application was based....,.

The applicant conceded, that, there is no law that provides for such an application. The relief sought is not provided for by law.

Accordingly, this application must therefore fail.

Condonation or Judicial Indulgence re: Approach iro Procedural Considerations


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

At that stage, there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application, but, filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

The matter proceeded on this day and judgment was reserved. It was then delivered on 30 August 2011.

It was on this day that the applicant's application for condonation for late noting of appeal and extension of time within which to note an appeal was dismissed.

CHEDA AJA went further and held that there were no prospects of success on appeal.

In dismissing the application, the learned judge placed reliance on the principles outlined in the case of De Kuszaba-Dabrowskiet Uxor v Steel NO 1966 RLR 60 (A).

Aggrieved by the decision of CHEDA AJA, the applicant, on 1 June 2012, made another application for condonation for late noting of appeal and extension of time within which to note an appeal for the third time.

The application was placed before me.

The application was opposed.

The applicant filed his heads of argument on 22 June 2012. The respondent did not file any heads of argument.

Counsel for the respondent submitted, that, he had briefed an advocate who was supposed to draft heads of argument and file them, but, the advocate had failed to do so.

Counsel for the respondent apologized and stated that he would present oral submissions.

At the commencement of the hearing, counsel for the applicant was asked as to whether or not the application filed ought to be heard by a single judge, sitting in chambers or by three judges in open court.

Following consultations with counsel for the respondent, counsel for the applicant indicated that the matter should be heard in chambers before a single judge. Counsel for the respondent agreed with this approach.

The question now before me is whether there is any law that provides for such an application to be made.

If there does exist such legal authority, then, the next issue is whether or not CHEDA AJA had dealt with the merits of the application.

Counsel for the applicant submitted, that, there was no law upon which this application was based.

Counsel for the applicant stated, that, he required clarity as to whether or not the applicant had prospects of success on appeal since there were two “conflicting” decisions of this court on this aspect. He made reference to the decision by ZIYAMBI JA on 21 December 2009 and the other by CHEDA AJA on 30 August 2011.

Counsel for the applicant submitted, that, CHEDA AJA erred and misdirected himself by dismissing the second application for condonation and extension of time within which to appeal when ZIYAMBI JA had earlier acceded to a similar application.

The applicant in this application is asking me to overturn the findings of CHEDA AJA, that the appeal has no prospects of success.

The applicant is not clear whether the application before me is for review or is an appeal.

Section 26 of the Supreme Court Act provides as follows:

“26 Finality of decisions of Supreme Court

1. There shall be no appeal from any judgment or order of the Supreme Court.

2. The Supreme Court shall not be bound by any of its own judgments, rulings, or opinions or those of any of its predecessor.”

CHEDA AJA had determined that there were no prospects of success on appeal, even if the application was granted.

The applicant, in his affidavit, avers that the latest judgment delivered by CHEDA AJA contradicts an earlier judgment of ZIYAMBI JA on the same issue, that is, whether or not there were any prospects of success on appeal.

Both parties have agreed, that, in dismissing the application, CHEDA AJA was not bound by the decision of ZIYAMBI JA.

There is no written judgment that was handed down by ZIYAMBI JA. An order was granted by ZIYAMBI JA. There are no written reasons for the order.

It is however clear from the judgment delivered by CHEDA AJA, that, the learned judge consciously considered whether the applicant had any prospects of success on appeal. The learned judge dealt with this issue at length and came to the conclusion that the applicant had no prospects of success, even if the application for condonation was granted.

In my view, the judgment delivered by CHEDA AJA does not contradict the order granted by ZIYAMBI JA.

The effect of the judgment of CHEDA AJA was not to nullify an earlier order granted by ZIYAMBI JA because that earlier order was no longer operational.

ZIYAMBI JA had ordered the applicant to file a notice and grounds of appeal within five days of the date of the order. The applicant failed to comply with such an order. As a result of such failure to comply by the applicant, there was no appeal before this Court.

It is trite in our law, that, fatally defective compliance with the Rules regarding the filing of appeals cannot be condoned or amended.

KLOPPER JP in Hattingh v Pienaar 1977 (2) SA 182 (O)…, held that:

“…, a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule.”

This position was also confirmed and applied by this Court in Jensen v Acavalos 1993 (1) ZLR 216 (S)…, where KORSA JA stated that:

“…, a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad…, the appeal must be struck off the roll with costs.”

The notice of appeal that was filed by the applicant was not only invalid but was a nullity. That is the reason why the appeal was struck off the roll on 16 March 2010.

Effectively, the order issued by ZIYAMBI JA was no longer operational.

The only way this matter could be brought back to this Court was through a fresh application for condonation for the late noting of appeal and extension of time within which to note an appeal.

This is what the appellant did.

That application was placed before CHEDA AJA and it was dismissed.

It is apparent from an analysis of the facts before me, that, the order by ZIYAMBI JA gave the applicant a chance to have his appeal heard but the applicant wasted it by not complying with the terms of the order. The applicant himself is to blame for what transpired on 16 March 2010 when his appeal was struck off the roll.

There is no merit in this application at all. There is no basis at law upon which I can entertain such an application.

I find that the order granted by ZIYAMBI JA, and the judgment by CHEDA JA, do not contradict each other. This matter has been dealt with on the merits and disposed of by CHEDA AJA who made a ruling on the merits of the matter.

In his findings on p7 of the judgment, CHEDA AJA said this:

“The appellants and their legal practitioners took a calculated risk that the matter would proceed without them.

Worse still, they left without responding to, or refuting the charges against them. They declined the opportunity to put forward their defences to the allegations. I find no fault in the Labour Court holding, that, the appellants waived their rights to be heard by walking out of the disciplinary proceedings.

In view of the above, I am satisfied that there are no prospects of success if leave to appeal is granted.”…,.

This is a clear indication that the learned judge had dealt with the merits of this application.

The effect of the judgment of CHEDA AJA was to bring finality to this matter. I cannot entertain the same application again and make findings on the merits because a ruling has been already made by CHEDA AJA. The parties are enjoined to honour the judgment and abide by its terms.

There is need to bring finality to litigation.

This is a case where the principle of res judicata applies.

The principle of res judicata has been pronounced by this Court in various cases, including the case of O'shea v Chiunda 1999 (1) ZLR 333 (S)…, where SANDURA JA held that:

“res judicata applies where the two actions are between the same parties, or their successors in title, concerning the same subject matter and founded on the same cause of action.”

Counsel for the applicant conceded that this application is the same as the one that was dismissed by CHEDA AJA on 30 August 2011.

In Wolfeden v Jackson 1985 (2) ZLR 313…, GUBBAY JA…, stated as follows;

“The exception rei judicatae is based principally upon the public interest, that, there must be an end to litigation and that the authority rested in judicial decisions be given effect to, even if erroneous: see Le Roux en'n Anderv Le Roux 1967 (1) SA 446 (A) at 461H. It is a form of estoppel and means that where a final and definitive judgment is delivered by a competent court, the parties to that judgment or their privies…, are not permitted its correctness.”

This court is a creature of statute and it operates within the confines of the enabling Act.

The applicant conceded, that, there is no law that provides for such an application. The relief sought is not provided for by law. Accordingly, this application must therefore fail....,.

The application is hereby dismissed with costs.

Final Orders re: Final and Conclusive Rule iro Default Judgment


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

At that stage, there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application, but, filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

The matter proceeded on this day and judgment was reserved. It was then delivered on 30 August 2011.

It was on this day that the applicant's application for condonation for late noting of appeal and extension of time within which to note an appeal was dismissed.

CHEDA AJA went further and held that there were no prospects of success on appeal.

In dismissing the application, the learned judge placed reliance on the principles outlined in the case of De Kuszaba-Dabrowskiet Uxor v Steel NO 1966 RLR 60 (A).

Aggrieved by the decision of CHEDA AJA, the applicant, on 1 June 2012, made another application for condonation for late noting of appeal and extension of time within which to note an appeal for the third time.

The application was placed before me.

The application was opposed.

The applicant filed his heads of argument on 22 June 2012. The respondent did not file any heads of argument.

Counsel for the respondent submitted, that, he had briefed an advocate who was supposed to draft heads of argument and file them, but, the advocate had failed to do so.

Counsel for the respondent apologized and stated that he would present oral submissions.

At the commencement of the hearing, counsel for the applicant was asked as to whether or not the application filed ought to be heard by a single judge, sitting in chambers or by three judges in open court.

Following consultations with counsel for the respondent, counsel for the applicant indicated that the matter should be heard in chambers before a single judge. Counsel for the respondent agreed with this approach.

The question now before me is whether there is any law that provides for such an application to be made.

If there does exist such legal authority, then, the next issue is whether or not CHEDA AJA had dealt with the merits of the application.

Counsel for the applicant submitted, that, there was no law upon which this application was based.

Counsel for the applicant stated, that, he required clarity as to whether or not the applicant had prospects of success on appeal since there were two “conflicting” decisions of this court on this aspect. He made reference to the decision by ZIYAMBI JA on 21 December 2009 and the other by CHEDA AJA on 30 August 2011.

Counsel for the applicant submitted, that, CHEDA AJA erred and misdirected himself by dismissing the second application for condonation and extension of time within which to appeal when ZIYAMBI JA had earlier acceded to a similar application.

The applicant in this application is asking me to overturn the findings of CHEDA AJA, that the appeal has no prospects of success.

The applicant is not clear whether the application before me is for review or is an appeal.

Section 26 of the Supreme Court Act provides as follows:

“26 Finality of decisions of Supreme Court

1. There shall be no appeal from any judgment or order of the Supreme Court.

2. The Supreme Court shall not be bound by any of its own judgments, rulings, or opinions or those of any of its predecessor.”

CHEDA AJA had determined that there were no prospects of success on appeal, even if the application was granted.

The applicant, in his affidavit, avers that the latest judgment delivered by CHEDA AJA contradicts an earlier judgment of ZIYAMBI JA on the same issue, that is, whether or not there were any prospects of success on appeal.

Both parties have agreed, that, in dismissing the application, CHEDA AJA was not bound by the decision of ZIYAMBI JA.

There is no written judgment that was handed down by ZIYAMBI JA. An order was granted by ZIYAMBI JA. There are no written reasons for the order.

It is however clear from the judgment delivered by CHEDA AJA, that, the learned judge consciously considered whether the applicant had any prospects of success on appeal. The learned judge dealt with this issue at length and came to the conclusion that the applicant had no prospects of success, even if the application for condonation was granted.

In my view, the judgment delivered by CHEDA AJA does not contradict the order granted by ZIYAMBI JA.

The effect of the judgment of CHEDA AJA was not to nullify an earlier order granted by ZIYAMBI JA because that earlier order was no longer operational.

ZIYAMBI JA had ordered the applicant to file a notice and grounds of appeal within five days of the date of the order. The applicant failed to comply with such an order. As a result of such failure to comply by the applicant, there was no appeal before this Court.

It is trite in our law, that, fatally defective compliance with the Rules regarding the filing of appeals cannot be condoned or amended.

KLOPPER JP in Hattingh v Pienaar 1977 (2) SA 182 (O)…, held that:

“…, a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule.”

This position was also confirmed and applied by this Court in Jensen v Acavalos 1993 (1) ZLR 216 (S)…, where KORSA JA stated that:

“…, a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad…, the appeal must be struck off the roll with costs.”

The notice of appeal that was filed by the applicant was not only invalid but was a nullity. That is the reason why the appeal was struck off the roll on 16 March 2010.

Effectively, the order issued by ZIYAMBI JA was no longer operational.

The only way this matter could be brought back to this Court was through a fresh application for condonation for the late noting of appeal and extension of time within which to note an appeal.

This is what the appellant did.

That application was placed before CHEDA AJA and it was dismissed.

It is apparent from an analysis of the facts before me, that, the order by ZIYAMBI JA gave the applicant a chance to have his appeal heard but the applicant wasted it by not complying with the terms of the order. The applicant himself is to blame for what transpired on 16 March 2010 when his appeal was struck off the roll.

There is no merit in this application at all. There is no basis at law upon which I can entertain such an application.

I find that the order granted by ZIYAMBI JA, and the judgment by CHEDA JA, do not contradict each other. This matter has been dealt with on the merits and disposed of by CHEDA AJA who made a ruling on the merits of the matter.

In his findings on p7 of the judgment, CHEDA AJA said this:

“The appellants and their legal practitioners took a calculated risk that the matter would proceed without them.

Worse still, they left without responding to, or refuting the charges against them. They declined the opportunity to put forward their defences to the allegations. I find no fault in the Labour Court holding, that, the appellants waived their rights to be heard by walking out of the disciplinary proceedings.

In view of the above, I am satisfied that there are no prospects of success if leave to appeal is granted.”…,.

This is a clear indication that the learned judge had dealt with the merits of this application.

The effect of the judgment of CHEDA AJA was to bring finality to this matter. I cannot entertain the same application again and make findings on the merits because a ruling has been already made by CHEDA AJA. The parties are enjoined to honour the judgment and abide by its terms.

There is need to bring finality to litigation.

This is a case where the principle of res judicata applies.

The principle of res judicata has been pronounced by this Court in various cases, including the case of O'shea v Chiunda 1999 (1) ZLR 333 (S)…, where SANDURA JA held that:

“res judicata applies where the two actions are between the same parties, or their successors in title, concerning the same subject matter and founded on the same cause of action.”

Counsel for the applicant conceded that this application is the same as the one that was dismissed by CHEDA AJA on 30 August 2011.

In Wolfeden v Jackson 1985 (2) ZLR 313…, GUBBAY JA…, stated as follows;

“The exception rei judicatae is based principally upon the public interest, that, there must be an end to litigation and that the authority rested in judicial decisions be given effect to, even if erroneous: see Le Roux en'n Anderv Le Roux 1967 (1) SA 446 (A) at 461H. It is a form of estoppel and means that where a final and definitive judgment is delivered by a competent court, the parties to that judgment or their privies…, are not permitted its correctness.”

This court is a creature of statute and it operates within the confines of the enabling Act.

The applicant conceded, that, there is no law that provides for such an application. The relief sought is not provided for by law. Accordingly, this application must therefore fail....,.

The application is hereby dismissed with costs.

Res Judicata re: Default Judgment or Unopposed Proceedings


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

At that stage, there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application, but, filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

The matter proceeded on this day and judgment was reserved. It was then delivered on 30 August 2011.

It was on this day that the applicant's application for condonation for late noting of appeal and extension of time within which to note an appeal was dismissed.

CHEDA AJA went further and held that there were no prospects of success on appeal.

In dismissing the application, the learned judge placed reliance on the principles outlined in the case of De Kuszaba-Dabrowskiet Uxor v Steel NO 1966 RLR 60 (A).

Aggrieved by the decision of CHEDA AJA, the applicant, on 1 June 2012, made another application for condonation for late noting of appeal and extension of time within which to note an appeal for the third time.

The application was placed before me.

The application was opposed.

The applicant filed his heads of argument on 22 June 2012. The respondent did not file any heads of argument.

Counsel for the respondent submitted, that, he had briefed an advocate who was supposed to draft heads of argument and file them, but, the advocate had failed to do so.

Counsel for the respondent apologized and stated that he would present oral submissions.

At the commencement of the hearing, counsel for the applicant was asked as to whether or not the application filed ought to be heard by a single judge, sitting in chambers or by three judges in open court.

Following consultations with counsel for the respondent, counsel for the applicant indicated that the matter should be heard in chambers before a single judge. Counsel for the respondent agreed with this approach.

The question now before me is whether there is any law that provides for such an application to be made.

If there does exist such legal authority, then, the next issue is whether or not CHEDA AJA had dealt with the merits of the application.

Counsel for the applicant submitted, that, there was no law upon which this application was based.

Counsel for the applicant stated, that, he required clarity as to whether or not the applicant had prospects of success on appeal since there were two “conflicting” decisions of this court on this aspect. He made reference to the decision by ZIYAMBI JA on 21 December 2009 and the other by CHEDA AJA on 30 August 2011.

Counsel for the applicant submitted, that, CHEDA AJA erred and misdirected himself by dismissing the second application for condonation and extension of time within which to appeal when ZIYAMBI JA had earlier acceded to a similar application.

The applicant in this application is asking me to overturn the findings of CHEDA AJA, that the appeal has no prospects of success.

The applicant is not clear whether the application before me is for review or is an appeal.

Section 26 of the Supreme Court Act provides as follows:

“26 Finality of decisions of Supreme Court

1. There shall be no appeal from any judgment or order of the Supreme Court.

2. The Supreme Court shall not be bound by any of its own judgments, rulings, or opinions or those of any of its predecessor.”

CHEDA AJA had determined that there were no prospects of success on appeal, even if the application was granted.

The applicant, in his affidavit, avers that the latest judgment delivered by CHEDA AJA contradicts an earlier judgment of ZIYAMBI JA on the same issue, that is, whether or not there were any prospects of success on appeal.

Both parties have agreed, that, in dismissing the application, CHEDA AJA was not bound by the decision of ZIYAMBI JA.

There is no written judgment that was handed down by ZIYAMBI JA. An order was granted by ZIYAMBI JA. There are no written reasons for the order.

It is however clear from the judgment delivered by CHEDA AJA, that, the learned judge consciously considered whether the applicant had any prospects of success on appeal. The learned judge dealt with this issue at length and came to the conclusion that the applicant had no prospects of success, even if the application for condonation was granted.

In my view, the judgment delivered by CHEDA AJA does not contradict the order granted by ZIYAMBI JA.

The effect of the judgment of CHEDA AJA was not to nullify an earlier order granted by ZIYAMBI JA because that earlier order was no longer operational.

ZIYAMBI JA had ordered the applicant to file a notice and grounds of appeal within five days of the date of the order. The applicant failed to comply with such an order. As a result of such failure to comply by the applicant, there was no appeal before this Court.

It is trite in our law, that, fatally defective compliance with the Rules regarding the filing of appeals cannot be condoned or amended.

KLOPPER JP in Hattingh v Pienaar 1977 (2) SA 182 (O)…, held that:

“…, a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule.”

This position was also confirmed and applied by this Court in Jensen v Acavalos 1993 (1) ZLR 216 (S)…, where KORSA JA stated that:

“…, a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad…, the appeal must be struck off the roll with costs.”

The notice of appeal that was filed by the applicant was not only invalid but was a nullity. That is the reason why the appeal was struck off the roll on 16 March 2010.

Effectively, the order issued by ZIYAMBI JA was no longer operational.

The only way this matter could be brought back to this Court was through a fresh application for condonation for the late noting of appeal and extension of time within which to note an appeal.

This is what the appellant did.

That application was placed before CHEDA AJA and it was dismissed.

It is apparent from an analysis of the facts before me, that, the order by ZIYAMBI JA gave the applicant a chance to have his appeal heard but the applicant wasted it by not complying with the terms of the order. The applicant himself is to blame for what transpired on 16 March 2010 when his appeal was struck off the roll.

There is no merit in this application at all. There is no basis at law upon which I can entertain such an application.

I find that the order granted by ZIYAMBI JA, and the judgment by CHEDA JA, do not contradict each other. This matter has been dealt with on the merits and disposed of by CHEDA AJA who made a ruling on the merits of the matter.

In his findings on p7 of the judgment, CHEDA AJA said this:

“The appellants and their legal practitioners took a calculated risk that the matter would proceed without them.

Worse still, they left without responding to, or refuting the charges against them. They declined the opportunity to put forward their defences to the allegations. I find no fault in the Labour Court holding, that, the appellants waived their rights to be heard by walking out of the disciplinary proceedings.

In view of the above, I am satisfied that there are no prospects of success if leave to appeal is granted.”…,.

This is a clear indication that the learned judge had dealt with the merits of this application.

The effect of the judgment of CHEDA AJA was to bring finality to this matter. I cannot entertain the same application again and make findings on the merits because a ruling has been already made by CHEDA AJA. The parties are enjoined to honour the judgment and abide by its terms.

There is need to bring finality to litigation.

This is a case where the principle of res judicata applies.

The principle of res judicata has been pronounced by this Court in various cases, including the case of O'shea v Chiunda 1999 (1) ZLR 333 (S)…, where SANDURA JA held that:

“res judicata applies where the two actions are between the same parties, or their successors in title, concerning the same subject matter and founded on the same cause of action.”

Counsel for the applicant conceded that this application is the same as the one that was dismissed by CHEDA AJA on 30 August 2011.

In Wolfeden v Jackson 1985 (2) ZLR 313…, GUBBAY JA…, stated as follows;

“The exception rei judicatae is based principally upon the public interest, that, there must be an end to litigation and that the authority rested in judicial decisions be given effect to, even if erroneous: see Le Roux en'n Anderv Le Roux 1967 (1) SA 446 (A) at 461H. It is a form of estoppel and means that where a final and definitive judgment is delivered by a competent court, the parties to that judgment or their privies…, are not permitted its correctness.”

This court is a creature of statute and it operates within the confines of the enabling Act.

The applicant conceded, that, there is no law that provides for such an application. The relief sought is not provided for by law. Accordingly, this application must therefore fail....,.

The application is hereby dismissed with costs.

Final Orders re: Final and Conclusive Rule iro Approach and the Effect of Conflicting Judgments


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

At that stage, there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application, but, filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

The matter proceeded on this day and judgment was reserved. It was then delivered on 30 August 2011.

It was on this day that the applicant's application for condonation for late noting of appeal and extension of time within which to note an appeal was dismissed.

CHEDA AJA went further and held that there were no prospects of success on appeal.

In dismissing the application, the learned judge placed reliance on the principles outlined in the case of De Kuszaba-Dabrowskiet Uxor v Steel NO 1966 RLR 60 (A).

Aggrieved by the decision of CHEDA AJA, the applicant, on 1 June 2012, made another application for condonation for late noting of appeal and extension of time within which to note an appeal for the third time.

The application was placed before me.

The application was opposed.

The applicant filed his heads of argument on 22 June 2012. The respondent did not file any heads of argument.

Counsel for the respondent submitted, that, he had briefed an advocate who was supposed to draft heads of argument and file them, but, the advocate had failed to do so.

Counsel for the respondent apologized and stated that he would present oral submissions.

At the commencement of the hearing, counsel for the applicant was asked as to whether or not the application filed ought to be heard by a single judge, sitting in chambers or by three judges in open court.

Following consultations with counsel for the respondent, counsel for the applicant indicated that the matter should be heard in chambers before a single judge. Counsel for the respondent agreed with this approach.

The question now before me is whether there is any law that provides for such an application to be made.

If there does exist such legal authority, then, the next issue is whether or not CHEDA AJA had dealt with the merits of the application.

Counsel for the applicant submitted, that, there was no law upon which this application was based.

Counsel for the applicant stated, that, he required clarity as to whether or not the applicant had prospects of success on appeal since there were two “conflicting” decisions of this court on this aspect. He made reference to the decision by ZIYAMBI JA on 21 December 2009 and the other by CHEDA AJA on 30 August 2011.

Counsel for the applicant submitted, that, CHEDA AJA erred and misdirected himself by dismissing the second application for condonation and extension of time within which to appeal when ZIYAMBI JA had earlier acceded to a similar application.

The applicant in this application is asking me to overturn the findings of CHEDA AJA, that the appeal has no prospects of success.

The applicant is not clear whether the application before me is for review or is an appeal.

Section 26 of the Supreme Court Act provides as follows:

“26 Finality of decisions of Supreme Court

1. There shall be no appeal from any judgment or order of the Supreme Court.

2. The Supreme Court shall not be bound by any of its own judgments, rulings, or opinions or those of any of its predecessor.”

CHEDA AJA had determined that there were no prospects of success on appeal, even if the application was granted.

The applicant, in his affidavit, avers that the latest judgment delivered by CHEDA AJA contradicts an earlier judgment of ZIYAMBI JA on the same issue, that is, whether or not there were any prospects of success on appeal.

Both parties have agreed, that, in dismissing the application, CHEDA AJA was not bound by the decision of ZIYAMBI JA.

There is no written judgment that was handed down by ZIYAMBI JA. An order was granted by ZIYAMBI JA. There are no written reasons for the order.

It is however clear from the judgment delivered by CHEDA AJA, that, the learned judge consciously considered whether the applicant had any prospects of success on appeal. The learned judge dealt with this issue at length and came to the conclusion that the applicant had no prospects of success, even if the application for condonation was granted.

In my view, the judgment delivered by CHEDA AJA does not contradict the order granted by ZIYAMBI JA.

The effect of the judgment of CHEDA AJA was not to nullify an earlier order granted by ZIYAMBI JA because that earlier order was no longer operational.

ZIYAMBI JA had ordered the applicant to file a notice and grounds of appeal within five days of the date of the order. The applicant failed to comply with such an order. As a result of such failure to comply by the applicant, there was no appeal before this Court.

It is trite in our law, that, fatally defective compliance with the Rules regarding the filing of appeals cannot be condoned or amended.

KLOPPER JP in Hattingh v Pienaar 1977 (2) SA 182 (O)…, held that:

“…, a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule.”

This position was also confirmed and applied by this Court in Jensen v Acavalos 1993 (1) ZLR 216 (S)…, where KORSA JA stated that:

“…, a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad…, the appeal must be struck off the roll with costs.”

The notice of appeal that was filed by the applicant was not only invalid but was a nullity. That is the reason why the appeal was struck off the roll on 16 March 2010.

Effectively, the order issued by ZIYAMBI JA was no longer operational.

The only way this matter could be brought back to this Court was through a fresh application for condonation for the late noting of appeal and extension of time within which to note an appeal.

This is what the appellant did.

That application was placed before CHEDA AJA and it was dismissed.

It is apparent from an analysis of the facts before me, that, the order by ZIYAMBI JA gave the applicant a chance to have his appeal heard but the applicant wasted it by not complying with the terms of the order. The applicant himself is to blame for what transpired on 16 March 2010 when his appeal was struck off the roll.

There is no merit in this application at all. There is no basis at law upon which I can entertain such an application.

I find that the order granted by ZIYAMBI JA, and the judgment by CHEDA JA, do not contradict each other. This matter has been dealt with on the merits and disposed of by CHEDA AJA who made a ruling on the merits of the matter.

In his findings on p7 of the judgment, CHEDA AJA said this:

“The appellants and their legal practitioners took a calculated risk that the matter would proceed without them.

Worse still, they left without responding to, or refuting the charges against them. They declined the opportunity to put forward their defences to the allegations. I find no fault in the Labour Court holding, that, the appellants waived their rights to be heard by walking out of the disciplinary proceedings.

In view of the above, I am satisfied that there are no prospects of success if leave to appeal is granted.”…,.

This is a clear indication that the learned judge had dealt with the merits of this application.

The effect of the judgment of CHEDA AJA was to bring finality to this matter. I cannot entertain the same application again and make findings on the merits because a ruling has been already made by CHEDA AJA. The parties are enjoined to honour the judgment and abide by its terms.

There is need to bring finality to litigation.

This is a case where the principle of res judicata applies.

The principle of res judicata has been pronounced by this Court in various cases, including the case of O'shea v Chiunda 1999 (1) ZLR 333 (S)…, where SANDURA JA held that:

“res judicata applies where the two actions are between the same parties, or their successors in title, concerning the same subject matter and founded on the same cause of action.”

Counsel for the applicant conceded that this application is the same as the one that was dismissed by CHEDA AJA on 30 August 2011.

In Wolfeden v Jackson 1985 (2) ZLR 313…, GUBBAY JA…, stated as follows;

“The exception rei judicatae is based principally upon the public interest, that, there must be an end to litigation and that the authority rested in judicial decisions be given effect to, even if erroneous: see Le Roux en'n Anderv Le Roux 1967 (1) SA 446 (A) at 461H. It is a form of estoppel and means that where a final and definitive judgment is delivered by a competent court, the parties to that judgment or their privies…, are not permitted its correctness.”

This court is a creature of statute and it operates within the confines of the enabling Act.

The applicant conceded, that, there is no law that provides for such an application. The relief sought is not provided for by law. Accordingly, this application must therefore fail....,.

The application is hereby dismissed with costs.

Res Judicata re: Findings of Fact Made in Previous Litigation or Criminal Proceedings and Doctrine of Stare Decisis


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

At that stage, there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application, but, filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

The matter proceeded on this day and judgment was reserved. It was then delivered on 30 August 2011.

It was on this day that the applicant's application for condonation for late noting of appeal and extension of time within which to note an appeal was dismissed.

CHEDA AJA went further and held that there were no prospects of success on appeal.

In dismissing the application, the learned judge placed reliance on the principles outlined in the case of De Kuszaba-Dabrowskiet Uxor v Steel NO 1966 RLR 60 (A).

Aggrieved by the decision of CHEDA AJA, the applicant, on 1 June 2012, made another application for condonation for late noting of appeal and extension of time within which to note an appeal for the third time.

The application was placed before me.

The application was opposed.

The applicant filed his heads of argument on 22 June 2012. The respondent did not file any heads of argument.

Counsel for the respondent submitted, that, he had briefed an advocate who was supposed to draft heads of argument and file them, but, the advocate had failed to do so.

Counsel for the respondent apologized and stated that he would present oral submissions.

At the commencement of the hearing, counsel for the applicant was asked as to whether or not the application filed ought to be heard by a single judge, sitting in chambers or by three judges in open court.

Following consultations with counsel for the respondent, counsel for the applicant indicated that the matter should be heard in chambers before a single judge. Counsel for the respondent agreed with this approach.

The question now before me is whether there is any law that provides for such an application to be made.

If there does exist such legal authority, then, the next issue is whether or not CHEDA AJA had dealt with the merits of the application.

Counsel for the applicant submitted, that, there was no law upon which this application was based.

Counsel for the applicant stated, that, he required clarity as to whether or not the applicant had prospects of success on appeal since there were two “conflicting” decisions of this court on this aspect. He made reference to the decision by ZIYAMBI JA on 21 December 2009 and the other by CHEDA AJA on 30 August 2011.

Counsel for the applicant submitted, that, CHEDA AJA erred and misdirected himself by dismissing the second application for condonation and extension of time within which to appeal when ZIYAMBI JA had earlier acceded to a similar application.

The applicant in this application is asking me to overturn the findings of CHEDA AJA, that the appeal has no prospects of success.

The applicant is not clear whether the application before me is for review or is an appeal.

Section 26 of the Supreme Court Act provides as follows:

“26 Finality of decisions of Supreme Court

1. There shall be no appeal from any judgment or order of the Supreme Court.

2. The Supreme Court shall not be bound by any of its own judgments, rulings, or opinions or those of any of its predecessor.”

CHEDA AJA had determined that there were no prospects of success on appeal, even if the application was granted.

The applicant, in his affidavit, avers that the latest judgment delivered by CHEDA AJA contradicts an earlier judgment of ZIYAMBI JA on the same issue, that is, whether or not there were any prospects of success on appeal.

Both parties have agreed, that, in dismissing the application, CHEDA AJA was not bound by the decision of ZIYAMBI JA.

There is no written judgment that was handed down by ZIYAMBI JA. An order was granted by ZIYAMBI JA. There are no written reasons for the order.

It is however clear from the judgment delivered by CHEDA AJA, that, the learned judge consciously considered whether the applicant had any prospects of success on appeal. The learned judge dealt with this issue at length and came to the conclusion that the applicant had no prospects of success, even if the application for condonation was granted.

In my view, the judgment delivered by CHEDA AJA does not contradict the order granted by ZIYAMBI JA.

The effect of the judgment of CHEDA AJA was not to nullify an earlier order granted by ZIYAMBI JA because that earlier order was no longer operational.

ZIYAMBI JA had ordered the applicant to file a notice and grounds of appeal within five days of the date of the order. The applicant failed to comply with such an order. As a result of such failure to comply by the applicant, there was no appeal before this Court.

It is trite in our law, that, fatally defective compliance with the Rules regarding the filing of appeals cannot be condoned or amended.

KLOPPER JP in Hattingh v Pienaar 1977 (2) SA 182 (O)…, held that:

“…, a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule.”

This position was also confirmed and applied by this Court in Jensen v Acavalos 1993 (1) ZLR 216 (S)…, where KORSA JA stated that:

“…, a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad…, the appeal must be struck off the roll with costs.”

The notice of appeal that was filed by the applicant was not only invalid but was a nullity. That is the reason why the appeal was struck off the roll on 16 March 2010.

Effectively, the order issued by ZIYAMBI JA was no longer operational.

The only way this matter could be brought back to this Court was through a fresh application for condonation for the late noting of appeal and extension of time within which to note an appeal.

This is what the appellant did.

That application was placed before CHEDA AJA and it was dismissed.

It is apparent from an analysis of the facts before me, that, the order by ZIYAMBI JA gave the applicant a chance to have his appeal heard but the applicant wasted it by not complying with the terms of the order. The applicant himself is to blame for what transpired on 16 March 2010 when his appeal was struck off the roll.

There is no merit in this application at all. There is no basis at law upon which I can entertain such an application.

I find that the order granted by ZIYAMBI JA, and the judgment by CHEDA JA, do not contradict each other. This matter has been dealt with on the merits and disposed of by CHEDA AJA who made a ruling on the merits of the matter.

In his findings on p7 of the judgment, CHEDA AJA said this:

“The appellants and their legal practitioners took a calculated risk that the matter would proceed without them.

Worse still, they left without responding to, or refuting the charges against them. They declined the opportunity to put forward their defences to the allegations. I find no fault in the Labour Court holding, that, the appellants waived their rights to be heard by walking out of the disciplinary proceedings.

In view of the above, I am satisfied that there are no prospects of success if leave to appeal is granted.”…,.

This is a clear indication that the learned judge had dealt with the merits of this application.

The effect of the judgment of CHEDA AJA was to bring finality to this matter. I cannot entertain the same application again and make findings on the merits because a ruling has been already made by CHEDA AJA. The parties are enjoined to honour the judgment and abide by its terms.

There is need to bring finality to litigation.

This is a case where the principle of res judicata applies.

The principle of res judicata has been pronounced by this Court in various cases, including the case of O'shea v Chiunda 1999 (1) ZLR 333 (S)…, where SANDURA JA held that:

“res judicata applies where the two actions are between the same parties, or their successors in title, concerning the same subject matter and founded on the same cause of action.”

Counsel for the applicant conceded that this application is the same as the one that was dismissed by CHEDA AJA on 30 August 2011.

In Wolfeden v Jackson 1985 (2) ZLR 313…, GUBBAY JA…, stated as follows;

“The exception rei judicatae is based principally upon the public interest, that, there must be an end to litigation and that the authority rested in judicial decisions be given effect to, even if erroneous: see Le Roux en'n Anderv Le Roux 1967 (1) SA 446 (A) at 461H. It is a form of estoppel and means that where a final and definitive judgment is delivered by a competent court, the parties to that judgment or their privies…, are not permitted its correctness.”

This court is a creature of statute and it operates within the confines of the enabling Act.

The applicant conceded, that, there is no law that provides for such an application. The relief sought is not provided for by law. Accordingly, this application must therefore fail....,.

The application is hereby dismissed with costs.

Final Orders re: Finality in Litigation iro Approach, Decree of Perpetual Silence, Sitting on Judgment & Superannuation


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

At that stage, there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application, but, filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

The matter proceeded on this day and judgment was reserved. It was then delivered on 30 August 2011.

It was on this day that the applicant's application for condonation for late noting of appeal and extension of time within which to note an appeal was dismissed.

CHEDA AJA went further and held that there were no prospects of success on appeal.

In dismissing the application, the learned judge placed reliance on the principles outlined in the case of De Kuszaba-Dabrowskiet Uxor v Steel NO 1966 RLR 60 (A).

Aggrieved by the decision of CHEDA AJA, the applicant, on 1 June 2012, made another application for condonation for late noting of appeal and extension of time within which to note an appeal for the third time.

The application was placed before me.

The application was opposed.

The applicant filed his heads of argument on 22 June 2012. The respondent did not file any heads of argument.

Counsel for the respondent submitted, that, he had briefed an advocate who was supposed to draft heads of argument and file them, but, the advocate had failed to do so.

Counsel for the respondent apologized and stated that he would present oral submissions.

At the commencement of the hearing, counsel for the applicant was asked as to whether or not the application filed ought to be heard by a single judge, sitting in chambers or by three judges in open court.

Following consultations with counsel for the respondent, counsel for the applicant indicated that the matter should be heard in chambers before a single judge. Counsel for the respondent agreed with this approach.

The question now before me is whether there is any law that provides for such an application to be made.

If there does exist such legal authority, then, the next issue is whether or not CHEDA AJA had dealt with the merits of the application.

Counsel for the applicant submitted, that, there was no law upon which this application was based.

Counsel for the applicant stated, that, he required clarity as to whether or not the applicant had prospects of success on appeal since there were two “conflicting” decisions of this court on this aspect. He made reference to the decision by ZIYAMBI JA on 21 December 2009 and the other by CHEDA AJA on 30 August 2011.

Counsel for the applicant submitted, that, CHEDA AJA erred and misdirected himself by dismissing the second application for condonation and extension of time within which to appeal when ZIYAMBI JA had earlier acceded to a similar application.

The applicant in this application is asking me to overturn the findings of CHEDA AJA, that the appeal has no prospects of success.

The applicant is not clear whether the application before me is for review or is an appeal.

Section 26 of the Supreme Court Act provides as follows:

“26 Finality of decisions of Supreme Court

1. There shall be no appeal from any judgment or order of the Supreme Court.

2. The Supreme Court shall not be bound by any of its own judgments, rulings, or opinions or those of any of its predecessor.”

CHEDA AJA had determined that there were no prospects of success on appeal, even if the application was granted.

The applicant, in his affidavit, avers that the latest judgment delivered by CHEDA AJA contradicts an earlier judgment of ZIYAMBI JA on the same issue, that is, whether or not there were any prospects of success on appeal.

Both parties have agreed, that, in dismissing the application, CHEDA AJA was not bound by the decision of ZIYAMBI JA.

There is no written judgment that was handed down by ZIYAMBI JA. An order was granted by ZIYAMBI JA. There are no written reasons for the order.

It is however clear from the judgment delivered by CHEDA AJA, that, the learned judge consciously considered whether the applicant had any prospects of success on appeal. The learned judge dealt with this issue at length and came to the conclusion that the applicant had no prospects of success, even if the application for condonation was granted.

In my view, the judgment delivered by CHEDA AJA does not contradict the order granted by ZIYAMBI JA.

The effect of the judgment of CHEDA AJA was not to nullify an earlier order granted by ZIYAMBI JA because that earlier order was no longer operational.

ZIYAMBI JA had ordered the applicant to file a notice and grounds of appeal within five days of the date of the order. The applicant failed to comply with such an order. As a result of such failure to comply by the applicant, there was no appeal before this Court.

It is trite in our law, that, fatally defective compliance with the Rules regarding the filing of appeals cannot be condoned or amended.

KLOPPER JP in Hattingh v Pienaar 1977 (2) SA 182 (O)…, held that:

“…, a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule.”

This position was also confirmed and applied by this Court in Jensen v Acavalos 1993 (1) ZLR 216 (S)…, where KORSA JA stated that:

“…, a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad…, the appeal must be struck off the roll with costs.”

The notice of appeal that was filed by the applicant was not only invalid but was a nullity. That is the reason why the appeal was struck off the roll on 16 March 2010.

Effectively, the order issued by ZIYAMBI JA was no longer operational.

The only way this matter could be brought back to this Court was through a fresh application for condonation for the late noting of appeal and extension of time within which to note an appeal.

This is what the appellant did.

That application was placed before CHEDA AJA and it was dismissed.

It is apparent from an analysis of the facts before me, that, the order by ZIYAMBI JA gave the applicant a chance to have his appeal heard but the applicant wasted it by not complying with the terms of the order. The applicant himself is to blame for what transpired on 16 March 2010 when his appeal was struck off the roll.

There is no merit in this application at all. There is no basis at law upon which I can entertain such an application.

I find that the order granted by ZIYAMBI JA, and the judgment by CHEDA JA, do not contradict each other. This matter has been dealt with on the merits and disposed of by CHEDA AJA who made a ruling on the merits of the matter.

In his findings on p7 of the judgment, CHEDA AJA said this:

“The appellants and their legal practitioners took a calculated risk that the matter would proceed without them.

Worse still, they left without responding to, or refuting the charges against them. They declined the opportunity to put forward their defences to the allegations. I find no fault in the Labour Court holding, that, the appellants waived their rights to be heard by walking out of the disciplinary proceedings.

In view of the above, I am satisfied that there are no prospects of success if leave to appeal is granted.”…,.

This is a clear indication that the learned judge had dealt with the merits of this application.

The effect of the judgment of CHEDA AJA was to bring finality to this matter. I cannot entertain the same application again and make findings on the merits because a ruling has been already made by CHEDA AJA. The parties are enjoined to honour the judgment and abide by its terms.

There is need to bring finality to litigation.

This is a case where the principle of res judicata applies.

The principle of res judicata has been pronounced by this Court in various cases, including the case of O'shea v Chiunda 1999 (1) ZLR 333 (S)…, where SANDURA JA held that:

“res judicata applies where the two actions are between the same parties, or their successors in title, concerning the same subject matter and founded on the same cause of action.”

Counsel for the applicant conceded that this application is the same as the one that was dismissed by CHEDA AJA on 30 August 2011.

In Wolfeden v Jackson 1985 (2) ZLR 313…, GUBBAY JA…, stated as follows;

“The exception rei judicatae is based principally upon the public interest, that, there must be an end to litigation and that the authority rested in judicial decisions be given effect to, even if erroneous: see Le Roux en'n Anderv Le Roux 1967 (1) SA 446 (A) at 461H. It is a form of estoppel and means that where a final and definitive judgment is delivered by a competent court, the parties to that judgment or their privies…, are not permitted its correctness.”

This court is a creature of statute and it operates within the confines of the enabling Act.

The applicant conceded, that, there is no law that provides for such an application. The relief sought is not provided for by law. Accordingly, this application must therefore fail....,.

The application is hereby dismissed with costs.

Res Judicata, Cause of Action Estoppel, Issue Estoppel or Subject Matter Estoppel re: Approach


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

At that stage, there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application, but, filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

The matter proceeded on this day and judgment was reserved. It was then delivered on 30 August 2011.

It was on this day that the applicant's application for condonation for late noting of appeal and extension of time within which to note an appeal was dismissed.

CHEDA AJA went further and held that there were no prospects of success on appeal.

In dismissing the application, the learned judge placed reliance on the principles outlined in the case of De Kuszaba-Dabrowskiet Uxor v Steel NO 1966 RLR 60 (A).

Aggrieved by the decision of CHEDA AJA, the applicant, on 1 June 2012, made another application for condonation for late noting of appeal and extension of time within which to note an appeal for the third time.

The application was placed before me.

The application was opposed.

The applicant filed his heads of argument on 22 June 2012. The respondent did not file any heads of argument.

Counsel for the respondent submitted, that, he had briefed an advocate who was supposed to draft heads of argument and file them, but, the advocate had failed to do so.

Counsel for the respondent apologized and stated that he would present oral submissions.

At the commencement of the hearing, counsel for the applicant was asked as to whether or not the application filed ought to be heard by a single judge, sitting in chambers or by three judges in open court.

Following consultations with counsel for the respondent, counsel for the applicant indicated that the matter should be heard in chambers before a single judge. Counsel for the respondent agreed with this approach.

The question now before me is whether there is any law that provides for such an application to be made.

If there does exist such legal authority, then, the next issue is whether or not CHEDA AJA had dealt with the merits of the application.

Counsel for the applicant submitted, that, there was no law upon which this application was based.

Counsel for the applicant stated, that, he required clarity as to whether or not the applicant had prospects of success on appeal since there were two “conflicting” decisions of this court on this aspect. He made reference to the decision by ZIYAMBI JA on 21 December 2009 and the other by CHEDA AJA on 30 August 2011.

Counsel for the applicant submitted, that, CHEDA AJA erred and misdirected himself by dismissing the second application for condonation and extension of time within which to appeal when ZIYAMBI JA had earlier acceded to a similar application.

The applicant in this application is asking me to overturn the findings of CHEDA AJA, that the appeal has no prospects of success.

The applicant is not clear whether the application before me is for review or is an appeal.

Section 26 of the Supreme Court Act provides as follows:

“26 Finality of decisions of Supreme Court

1. There shall be no appeal from any judgment or order of the Supreme Court.

2. The Supreme Court shall not be bound by any of its own judgments, rulings, or opinions or those of any of its predecessor.”

CHEDA AJA had determined that there were no prospects of success on appeal, even if the application was granted.

The applicant, in his affidavit, avers that the latest judgment delivered by CHEDA AJA contradicts an earlier judgment of ZIYAMBI JA on the same issue, that is, whether or not there were any prospects of success on appeal.

Both parties have agreed, that, in dismissing the application, CHEDA AJA was not bound by the decision of ZIYAMBI JA.

There is no written judgment that was handed down by ZIYAMBI JA. An order was granted by ZIYAMBI JA. There are no written reasons for the order.

It is however clear from the judgment delivered by CHEDA AJA, that, the learned judge consciously considered whether the applicant had any prospects of success on appeal. The learned judge dealt with this issue at length and came to the conclusion that the applicant had no prospects of success, even if the application for condonation was granted.

In my view, the judgment delivered by CHEDA AJA does not contradict the order granted by ZIYAMBI JA.

The effect of the judgment of CHEDA AJA was not to nullify an earlier order granted by ZIYAMBI JA because that earlier order was no longer operational.

ZIYAMBI JA had ordered the applicant to file a notice and grounds of appeal within five days of the date of the order. The applicant failed to comply with such an order. As a result of such failure to comply by the applicant, there was no appeal before this Court.

It is trite in our law, that, fatally defective compliance with the Rules regarding the filing of appeals cannot be condoned or amended.

KLOPPER JP in Hattingh v Pienaar 1977 (2) SA 182 (O)…, held that:

“…, a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule.”

This position was also confirmed and applied by this Court in Jensen v Acavalos 1993 (1) ZLR 216 (S)…, where KORSA JA stated that:

“…, a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad…, the appeal must be struck off the roll with costs.”

The notice of appeal that was filed by the applicant was not only invalid but was a nullity. That is the reason why the appeal was struck off the roll on 16 March 2010.

Effectively, the order issued by ZIYAMBI JA was no longer operational.

The only way this matter could be brought back to this Court was through a fresh application for condonation for the late noting of appeal and extension of time within which to note an appeal.

This is what the appellant did.

That application was placed before CHEDA AJA and it was dismissed.

It is apparent from an analysis of the facts before me, that, the order by ZIYAMBI JA gave the applicant a chance to have his appeal heard but the applicant wasted it by not complying with the terms of the order. The applicant himself is to blame for what transpired on 16 March 2010 when his appeal was struck off the roll.

There is no merit in this application at all. There is no basis at law upon which I can entertain such an application.

I find that the order granted by ZIYAMBI JA, and the judgment by CHEDA JA, do not contradict each other. This matter has been dealt with on the merits and disposed of by CHEDA AJA who made a ruling on the merits of the matter.

In his findings on p7 of the judgment, CHEDA AJA said this:

“The appellants and their legal practitioners took a calculated risk that the matter would proceed without them.

Worse still, they left without responding to, or refuting the charges against them. They declined the opportunity to put forward their defences to the allegations. I find no fault in the Labour Court holding, that, the appellants waived their rights to be heard by walking out of the disciplinary proceedings.

In view of the above, I am satisfied that there are no prospects of success if leave to appeal is granted.”…,.

This is a clear indication that the learned judge had dealt with the merits of this application.

The effect of the judgment of CHEDA AJA was to bring finality to this matter. I cannot entertain the same application again and make findings on the merits because a ruling has been already made by CHEDA AJA. The parties are enjoined to honour the judgment and abide by its terms.

There is need to bring finality to litigation.

This is a case where the principle of res judicata applies.

The principle of res judicata has been pronounced by this Court in various cases, including the case of O'shea v Chiunda 1999 (1) ZLR 333 (S)…, where SANDURA JA held that:

“res judicata applies where the two actions are between the same parties, or their successors in title, concerning the same subject matter and founded on the same cause of action.”

Counsel for the applicant conceded that this application is the same as the one that was dismissed by CHEDA AJA on 30 August 2011.

In Wolfeden v Jackson 1985 (2) ZLR 313…, GUBBAY JA…, stated as follows;

“The exception rei judicatae is based principally upon the public interest, that, there must be an end to litigation and that the authority rested in judicial decisions be given effect to, even if erroneous: see Le Roux en'n Anderv Le Roux 1967 (1) SA 446 (A) at 461H. It is a form of estoppel and means that where a final and definitive judgment is delivered by a competent court, the parties to that judgment or their privies…, are not permitted its correctness.”

This court is a creature of statute and it operates within the confines of the enabling Act.

The applicant conceded, that, there is no law that provides for such an application. The relief sought is not provided for by law. Accordingly, this application must therefore fail....,.

The application is hereby dismissed with costs.

Costs re: Punitive Order of Costs or Punitive Costs


Costs

Counsel for the respondent tried to persuade me to order costs on a higher scale. He submitted that the application was tantamount to an abuse of court process because the applicant knew very well, that, there was no basis at law to bring such an application.

I am however not persuaded to grant costs on a higher scale in this matter and accordingly it is ordered as follows:

The application is hereby dismissed with costs.

Final Orders re: Approach iro Handing Down and Form of Judgments, Formation of Ratio Decidendi and Obiter Issues


This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

At that stage, there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application, but, filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

The matter proceeded on this day and judgment was reserved. It was then delivered on 30 August 2011.

It was on this day that the applicant's application for condonation for late noting of appeal and extension of time within which to note an appeal was dismissed.

CHEDA AJA went further and held that there were no prospects of success on appeal.

In dismissing the application, the learned judge placed reliance on the principles outlined in the case of De Kuszaba-Dabrowskiet Uxor v Steel NO 1966 RLR 60 (A).

Aggrieved by the decision of CHEDA AJA, the applicant, on 1 June 2012, made another application for condonation for late noting of appeal and extension of time within which to note an appeal for the third time.

The application was placed before me.

The application was opposed.

The applicant filed his heads of argument on 22 June 2012. The respondent did not file any heads of argument.

Counsel for the respondent submitted, that, he had briefed an advocate who was supposed to draft heads of argument and file them, but, the advocate had failed to do so.

Counsel for the respondent apologized and stated that he would present oral submissions.

At the commencement of the hearing, counsel for the applicant was asked as to whether or not the application filed ought to be heard by a single judge, sitting in chambers or by three judges in open court.

Following consultations with counsel for the respondent, counsel for the applicant indicated that the matter should be heard in chambers before a single judge. Counsel for the respondent agreed with this approach.

The question now before me is whether there is any law that provides for such an application to be made.

If there does exist such legal authority, then, the next issue is whether or not CHEDA AJA had dealt with the merits of the application.

Counsel for the applicant submitted, that, there was no law upon which this application was based.

Counsel for the applicant stated, that, he required clarity as to whether or not the applicant had prospects of success on appeal since there were two “conflicting” decisions of this court on this aspect. He made reference to the decision by ZIYAMBI JA on 21 December 2009 and the other by CHEDA AJA on 30 August 2011.

Counsel for the applicant submitted, that, CHEDA AJA erred and misdirected himself by dismissing the second application for condonation and extension of time within which to appeal when ZIYAMBI JA had earlier acceded to a similar application.

The applicant in this application is asking me to overturn the findings of CHEDA AJA, that the appeal has no prospects of success.

The applicant is not clear whether the application before me is for review or is an appeal.

Section 26 of the Supreme Court Act provides as follows:

“26 Finality of decisions of Supreme Court

1. There shall be no appeal from any judgment or order of the Supreme Court.

2. The Supreme Court shall not be bound by any of its own judgments, rulings, or opinions or those of any of its predecessor.”

CHEDA AJA had determined that there were no prospects of success on appeal, even if the application was granted.

The applicant, in his affidavit, avers that the latest judgment delivered by CHEDA AJA contradicts an earlier judgment of ZIYAMBI JA on the same issue, that is, whether or not there were any prospects of success on appeal.

Both parties have agreed, that, in dismissing the application, CHEDA AJA was not bound by the decision of ZIYAMBI JA.

There is no written judgment that was handed down by ZIYAMBI JA. An order was granted by ZIYAMBI JA. There are no written reasons for the order.

It is however clear from the judgment delivered by CHEDA AJA, that, the learned judge consciously considered whether the applicant had any prospects of success on appeal. The learned judge dealt with this issue at length and came to the conclusion that the applicant had no prospects of success, even if the application for condonation was granted.

In my view, the judgment delivered by CHEDA AJA does not contradict the order granted by ZIYAMBI JA.

The effect of the judgment of CHEDA AJA was not to nullify an earlier order granted by ZIYAMBI JA because that earlier order was no longer operational.

ZIYAMBI JA had ordered the applicant to file a notice and grounds of appeal within five days of the date of the order. The applicant failed to comply with such an order. As a result of such failure to comply by the applicant, there was no appeal before this Court.

It is trite in our law, that, fatally defective compliance with the Rules regarding the filing of appeals cannot be condoned or amended.

KLOPPER JP in Hattingh v Pienaar 1977 (2) SA 182 (O)…, held that:

“…, a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule.”

This position was also confirmed and applied by this Court in Jensen v Acavalos 1993 (1) ZLR 216 (S)…, where KORSA JA stated that:

“…, a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad…, the appeal must be struck off the roll with costs.”

The notice of appeal that was filed by the applicant was not only invalid but was a nullity. That is the reason why the appeal was struck off the roll on 16 March 2010.

Effectively, the order issued by ZIYAMBI JA was no longer operational.

The only way this matter could be brought back to this Court was through a fresh application for condonation for the late noting of appeal and extension of time within which to note an appeal.

This is what the appellant did.

That application was placed before CHEDA AJA and it was dismissed.

It is apparent from an analysis of the facts before me, that, the order by ZIYAMBI JA gave the applicant a chance to have his appeal heard but the applicant wasted it by not complying with the terms of the order. The applicant himself is to blame for what transpired on 16 March 2010 when his appeal was struck off the roll.

There is no merit in this application at all. There is no basis at law upon which I can entertain such an application.

I find that the order granted by ZIYAMBI JA, and the judgment by CHEDA JA, do not contradict each other. This matter has been dealt with on the merits and disposed of by CHEDA AJA who made a ruling on the merits of the matter.

Before OMERJEE AJA, in chambers

This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009 the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court under Case No; LC/H218/2008 dated 24 February 2009 and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order”.

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975.

This rule provides that the notice of appeal shall be served upon the Labour Court Registrar. Such service as required was not done and as a result the matter was struck off the roll for non-compliance with this particular rule.

At that stage there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application but filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

The matter proceeded on this day and judgment was reserved.

It was then delivered on 30 August 2011. It was on this day that the applicant's application for condonation for late noting of appeal and extension of time within which to note an appeal was dismissed.

CHEDA AJA went further and held that there were no prospects of success on appeal.

In dismissing the application, the learned judge placed reliance on the principles outlined in the case of de Kuszaba-Dabrowskiet Uxor v Steel No 1966 RLR 60 (A).

Aggrieved by the decision of CHEDA AJA the applicant on 1 June 2012 made another application for condonation for late noting of appeal and extension of time within which to note an appeal for the third time.

The application was placed before me.

The application was opposed.

The applicant filed his Heads of argument on 22 June 2012. The respondent did not file any Heads of argument.

Mr Kamdefwere for the respondent submitted that he had briefed an advocate who was supposed to draft Heads of argument and file them but the advocate had failed to do so. Mr Kamdefwere apologized and stated that he would present oral submissions.

At the commencement of the hearing, Mr Mandizha for the applicant was asked as to whether or not the application filed ought to be heard by a single judge, sitting in chambers or by three judges in open court.

Following consultations with counsel for respondent, Mr Mandizha indicated that the matter should be heard in chambers before a single judge. Mr Kamdewefere for the respondent agreed with this approach.

The question now before me is whether there is any law that provides for such an application to be made.

If there does exist such legal authority, then the next issue is whether or not CHEDA AJA had dealt with the merits of the application.

Mr Mandizha submitted that there was no law upon which this application was based. Mr Mandizha stated that he required clarity as to whether or not, the applicant had prospects of success on appeal since there were two “conflicting” decisions of this court on this aspect. He made reference to the decision by ZIYAMBI JA on 21 December 2009 and the other by CHEDA AJA on 30 August 2011.

Mr Mandizha submitted that CHEDA AJA erred and misdirected himself by dismissing the second application for condonation and extension of time within which to appeal, when ZIYAMBI JA had earlier acceded to a similar application.

The applicant in this application is asking me to overturn the findings of CHEDA AJA, that the appeal has no prospects of success.

The applicant is not clear whether the application before me is for review or is an appeal.

Section 26 of the Supreme Court Act provides as follows:

“26. Finality of decisions of Supreme Court

1. There shall be no appeal from any judgment or order of the Supreme Court.

2. The Supreme Court shall not be bound by any of its own judgments, rulings or opinions or those of any of its predecessor”.

CHEDA AJA had determined that there were no prospects of success on appeal even if the application was granted.

The applicant in his affidavit avers that the latest judgment delivered by CHEDA AJA contradicts an earlier judgment of ZIYAMBI JA on the same issue that is whether or not there were any prospects of success on appeal.

Both parties have agreed that in dismissing the application CHEDA AJA was not bound by the decision of ZIYAMBI JA.

There is no written judgment that was handed down by ZIYAMBI JA. An order was granted by ZIYAMBI JA. There are no written reasons for the order.

It is however clear from the judgment delivered by CHEDA AJA that the learned judge consciously considered whether the applicant had any prospects of success on appeal. The learned judge dealt with this issue at length and came to the conclusion that the applicant had no prospects of success even if the application for condonation was granted.

In my view the judgment delivered by CHEDA AJA does not contradict the order granted by ZIYAMBI JA.

The effect of the judgment of CHEDA AJA was not to nullify an earlier order granted by ZIYAMBI JA because that earlier order was no longer operational.

ZIYAMBI JA had ordered the applicant to file a notice and grounds of appeal within five days of the date of the order. The applicant failed to comply with such an order. As a result of such failure to comply by the applicant, there was no appeal before this Court.

It is trite in our law that fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended.

KLOPPER JP in Hattingh v Pienaar 1977 (2) SA 182 (O) at 183 held that:

“……a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule”.

This position was also confirmed and applied by this Court in Jensen v Acavalos 1993 (1) ZLR 216 (S) at 220 where KORSA JA stated that:

“…… a notice of appeal which does not comply with the rules is fatally defective and valid. That is to say, it is a nullity. It is not only bad but incurably bad, - - -, the appeal must be struck off the roll with costs”.

The notice of appeal that was filed by the applicant was not only invalid but was a nullity. That is the reason why the appeal was struck off the roll on 16 March 2010.

Effectively the order issued by ZIYAMBI JA was no longer operational.

The only way this matter could be brought back to this Court was through a fresh application for condonation for the late noting of appeal and extension of time within which to note an appeal. This is what the appellant did.

That application was placed before CHEDA AJA and it was dismissed.

It is apparent from an analysis of the facts before me, that the order by ZIYAMBI JA, gave the applicant a chance to have his appeal heard but the applicant wasted it by not complying with the terms of the order. The applicant himself is to blame for what transpired on 16 March 2010 when his appeal was struck off the roll.

There is no merit in this application at all. There is no basis at law upon which I can entertain such an application.

I find that the order granted by ZIYAMBI JA and the judgment by CHEDA JA do not contradict each other. This matter has been dealt with on the merits and disposed of by CHEDA AJA who made a ruling on the merits of the matter.

In his findings on p7 of the judgment, CHEDA AJA said this:

“The appellants and their legal practitioners took a calculated risk that the matter would proceed without them.

Worse still they left without responding to, or refuting the charges against them. They declined the opportunity to put forward their defences to the allegations. I find no fault in the Labour Court holding that the appellants waived their rights to be heard by walking out of the disciplinary proceedings.

In view of the above, I am satisfied that there are no prospects of success if leave to appeal is granted”. (My own emphasis)

This is a clear indication that the learned judge had dealt with the merits of this application.

The effect of the judgment of CHEDA AJA was to bring finality to this matter. I cannot entertain the same application again and make findings on the merits because a ruling has been already made by CHEDA AJA. The parties are enjoined to honour the judgment and abide by its terms. There is need to bring finality to litigation.

This is a case where the principle of res judicata applies.

The principle of res judicata has been pronounced by this Court in various cases, including the case of O'shea v Chiunda 1999 (1) ZLR 333 (S) at 334 where SANDURA JA held that:

“res judicata applies where the two actions are between the same parties, or their successors in title, concerning the same subject matter and founded on the same cause of action”.

Mr Mandizha conceded that this application is the same as the one that was dismissed by CHEDA AJA on 30 August 2011.

In Wolfeden v Jackson 1985 (2) ZLR 313 at 316, GUBBAY JA (as he then was) stated as follows;

“The exception rei judicatae is based principally upon the public interest that there must be an end to litigation and that the authority rested in judicial decisions be given effect to, even if erroneous. See Le Roux en'n Anderv Le Roux 1967 (1) SA 446 (A) at 461H. It is a form of estoppel and means that where a final and definitive judgment is delivered by a competent court, the parties to that judgment or their privies - - -, are not permitted its correctness”.

This court is a creature of statute and it operates within the confines of the enabling Act.

The applicant conceded that there is no law that provides for such an application. The relief sought is not provided for by law. Accordingly this application must therefore fail.

Costs

Mr Kamdefwere tried to persuade me to order costs on a higher scale. He submitted that the application was tantamount to an abuse of court process because the applicant knew very well that there was no basis at law to bring such an application. I am however not persuaded to grant costs on a higher scale in this matter and accordingly it is ordered as follows:

The application is hereby dismissed with costs.









Mandizha & Company, appellant's legal practitioners

Muringi Kamdwefere, respondent's legal practitioners

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