Heather Chimhoga v Godfrey Kandeya

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/156/25
HARARE, 24 MARCH, 2024 AND
15 APRIL 2025
CASE NO LC/H/85/25
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/156/25

HARARE, 24 MARCH, 2024 AND

15 APRIL 2025	CASE NO LC/H/85/25

HEATHER CHIMHOGA	APPLICANT

ORPHANAGE CARE

GODFREY KANDEYA	RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicant	- L. Masimba, Manager

For Respondent	- M. V. Kasvaurere, Attorney

MUSARIRI, J:

At the onset of oral argument in this court, applicant raised 3 (three) points in limine which respondent opposed. The points will be addressed ad seriatim.

That the application for condonation is accompanied by defective draft appeal:

The point is set out in respondent’s opposing affidavit thus,

JUDGMENT NO LC/H/156/25 CASE NO LC/H/85/25

“3.   The notice of appeal attached to the Applicant’s Founding Affidavit is fatally defective as it does not comply with the Rules in that it is neither signed nor dated. Consequently, the application fails to meet the requirements of the rules of this Honourable Court and ought to be struck off the roll with costs,”

In its heads of argument applicant countered as follows,

“6.  It is submitted that the application is properly before the court. The draft notice of appeal filed of record is not an appeal, where there is a provision that they should be sign (sic) and dated. The rule regarding draft notice of appeal is Rule 22 sub rule (1) as read together with sub rule (2) of S.I. 150 of 2017 which provides thus

A party wishes to apply for condonation of late noting of an appeal or review shall do so in form LC1:

The application in terms of this rule shall be accompanied by a draft of the intended notice of appeal or review.

7.  In any circumstances, the rule has no provisions which provides that draft notice of appeal shall be signed and dated like the notice of appeal. In any event Respondent is aware of the different (sic) between notice of appeal and the draft notice of appeal, therefore the point in limine raised in his notice of appeal is out of place.”

The court is persuaded by applicant’s argument. The document impugned by respondent is a draft notice of appeal. It is not the actual notice of appeal. The draft does not have to be signed and dated like an actual notice of appeal. This is buttressed by the fact that nothing in the Court’s Rules states that the draft must be signed and dated. The case of Bonde v Natfoods SC 11/21 relied on by respondent is distinguishable. It dealt with Supreme Court Rules which turn the draft into the actual notice of appeal upon grant of condonation. That is not the case with Labour Court rules, 2017. Accordingly the 1st point in limine stands to be dismissed.

That applicant’s founding affidavit is supported by a defective resolution:

The respondent’s opposing affidavit stated that,

“4.  The resolution attached to the Applicant’s papers upon which the deponent’s authority is supposed to act is grossly irregular by reason that it grants the deponent blanket authority and does not relate to the present proceedings specifically and the extent of the Deponent’s authority. Accordingly, it is invalid for want of specificity and sufficient particularity and negatives the deponent’s authority to act hereto.  Moreover, the Founding Affidavit

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predates the purported resolution. That in itself is grossly irregular. Consequently, the Application ought to be struck off the roll with costs.”

Applicant’s heads of argument responded thus,

“8.  In terms of Labour Court Rules, Rule 25 (1) (b) of S.I 150 2017 where a party is represented by a company official. They shall produce a company resolution or a letter of appointment authorizing them to represent the party.

9.	The rule is clear and unambiguous it provides no provision for specificity as raised by the Respondent in his notice of opposition.”

The Court is persuaded by applicant’s argument, Rule 25 (1) of this Court’s Rules provides that

“(1)	Where a party-

(b)		is represented by a company official, they shall produce a company resolution or letter of appointment authorising them to represent the party,”

In other words a company official can prove his authority by producing a company resolution or written authorisation. In casu deponent to the applicant’s founding affidavit produced a written authorisation signed by applicant’s Director. Such can be given in retrospect. The authorisation by the Director is sufficient for the purposes of Rule 25 as quoted above. The 2nd point in limine stands to be dismissed.

That applicant has perempted its right to appeal: The opposing affidavit elaborated as follows,

“5.  The Applicant have pre-empted (sic) the present application and subsequent appeal by offering to enter into a compromise agreement on the award in favour of the Respondent. They thus cannot take contrary position with regards their liability to the Respondent. The application according ought to be struck off the roll with costs.”

Applicant’s heads of argument countered that,

JUDGMENT NO LC/H/156/25 CASE NO LC/H/85/25

“12.  An application cannot be strike of roll over it form as the Respondent’s prayer before this Honourable Court (sic). The fundamental rule of practice bearing on applications is that an application stands to be determined on the basis upon which it has been made…”

The applicable law was restated in the case of

United v Kewada SC 51/23

Per Mavangira JA In paragraph 19

“…… In terms of peremption, a party who acquiesces in a judgment cannot subsequently seek to challenge the judgment to which he has so acquiesced.”

In Paragraph 21

“In President of the Republic of South Africa v Public Protector 2018 (2) SA 100 at 14 G-H the Court held that the President’s acceptance of and acquiescence to the remedial action amounted to a peremption of his right to review the remedial action. It held that

‘The legal principle pertaining to peremption are well established. In Dabner v SA Railways and Harbours 1920 AD 583 at 594 Innes J stated that:

The rule with regards peremption is well settled and has been enunciated on several occasions by this Court. If the conduct of an unsuccessful litigant is such to point indubitably and necessarily to the conclusion that he does not intend to attack the judgment, then he is held to have acquiesced in it. But the conduct relied upon must be unequivocal and must be inconsistent with any intention to appeal. And the onus of establishing that position is upon the party alleging it. In doubtful cases acquiescence, like waiver, must be held non-proven.”

This Court takes the view that peremption applies to a judgment by a court of law. In casu we have an arbitral award which cannot be equated to a judgment by a court of law. Assuming ad arguendo that the award equates to a judgment, the offer to settle by applicant cannot be an unequivocal renunciation of its right of appeal. An offer per se does not amount to admission of liability. It may be no more than a move to terminate litigation by way of a settlement without any admissions. Accordingly the 3rd point in limine stands to be dismissed.

Conclusion

In light of the foregoing analyses, the Court concludes that all 3 (three) points in limine lack substance. Perforce they ought to be dismissed as devoid of merit.

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Wherefore it is ordered that

The respondents’ points in limine be and are hereby dismissed; and

Costs shall be costs in the cause.

G. MUSARIRI J-U-D-G-E