SOS Children Village v Collins Mutengwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/202/14
HELD AT HARARE 25TH MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/202/14

HELD AT HARARE 25TH MARCH 2014			CASE NO LC/CON/H/26/14

& 11TH  APRIL 2014

In the matter between:-

SOS CHILDREN  VILLAGE					Applicant

And

COLLINS MUTENGWA					Respondent

Before The Honourable L.M. Murasi, Judge

For Applicant		Mr J Mudimu (Legal Practitioner)

For Respondent		Mr V.F. Chinhema (Legal Practitioner)

MURASI, J:

At the close of submissions, I dismissed the application stating that the reasons would follow.  The following are the reasons.

Applicant employed respondent who alleged that he had been underpaid and brought the matter before an arbitrator.   The arbitrator found in favour of respondent and applicant appealed against the decision.  However, the matter was to suffer many false starts as the then legal practitioners withdrew the appeal.  Respondent approached the arbitrator for quantification which was granted.  Applicant was dissatisfied with the judgment of the arbitrator and approached this Court for relief.  Maxwell J heard the matter and judgment was handed down on 31 January 2014.

Applicant has approached this Court with an application for condonation for late noting of appeal against the arbitral award.  Applicant avers that there are prospects of success as the arbitrator erred in law in arriving at the decision that he did.  Applicant further states that the reasons for the late noting of appeal were the result of lack of professional diligence on the part of the previous lawyers in that “Applicant’s mistakes have not been picked by its erstwhile legal practitioners.”

Respondent, on the other hand, submitted that there was no merit in the application as the matter was res judicata.  Respondent further submitted that the arbitral award was executed on 14 March 2014 and the application is a sheer waste of the Court’s time.

The Court brought to Applicant’s Counsel’s attention that the grounds of appeal they sought to rely upon were the same that had been considered and determined by Maxwell J in the judgment referred to above.  It is clear that Maxwell J dealt with the matter on the merits.  The learned Judge considered the grounds of appeal and arrived at the conclusion that they lacked merit and proceeded to dismiss the appeal.  This means that the matter has been dealt with and finalised.  It is a matter between the same parties concerning the same cause of action.  It is res judicata and this Court cannot entertain it in the circumstances.

This Court must express its displeasure in the manner this matter was handled.  Had the legal practitioner carefully read the judgment by Maxwell J, such application would not have been filed with this Court.  It is trite that a legal practitioner owes his or her client a duty to exercise reasonable professional competence and diligence in the pursuit of his client’s instructions.

In the result, the Court finds the application for condonation for late noting of appeal to be meritless.

Accordingly, the application is dismissed with costs.

Zuze Law Chambers, Applicant’s legal practitioners

Muzondo & Chinhema, Respondent’s legal practitioners